By Otto Spijkers
This is Part II of a diptych. The previous post, entitled Special Committee on Principles of International Law concerning Friendly Relations (Part I), discussed the first three reports of the Special Committee. I will now discuss the remaining three reports.
But before I begin, I would like to mention a few of the ‘jurists’ that represented their State in the Committee, just to show how many ‘big names’ were member: Michel Virally, Gaetano Arangio-Ruiz, Hisashi Owada, Willem Riphagen, Hans Blix, and Mohammed el-Baradei all participated in the work of the Committee.
Fourth Report
In response to the Committee’s third report, the Assembly requested the Special Committee to focus on the prohibition to use force, the principle of equal rights and self-determination of peoples, and the non-intervention principle. These three principles were discussed in Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 4, A/7326.
The most important discussion was still about the meaning of the word ‘force’ in Article 2(4) UN Charter. There was now a general agreement that the prohibition to use force also prohibited ‘indirect aggression,’ i.e. armed assistance to irregular forces causing civil strife in another State, and such assistance to terrorist groups operating on another State’s territory. It was suggested, once again, to regard other forms of coercion, such as certain political and economic pressure, also as ‘force.’ However, other representatives preferred to treat such pressure as a potential violation of the non-intervention principle.
It was also suggested to completely prohibit war propaganda, except for liberation wars of the colonies. However, others suggested prohibiting only incitement to war, since a complete ban might pose unwarranted restrictions on the right to free speech. The USA believed that only State propaganda for war ought to be prohibited.
There was general agreement that the right to self-defence was accurately defined in Article 51 UN Charter, as a right to respond to an ‘armed attack.’ One representative suggested that Article 51 should be interpreted more broadly than its wording seemed to indicate, and allow a limited right of anticipatory self-defence in cases of imminent danger. On the right of colonial peoples to use armed force in order to defend themselves against colonial domination, which was referred to as a ‘sacred right,’ it was suggested that if such an exception were accepted, any rebel group could call itself ‘liberation group’ and refer to the opponent as ‘neocolonialist,’ thereby legalizing its use of force. No generally agreed final text of the principle was adopted.
The principle of self-determination was also discussed extensively. One of the first issues was whether one ought to speak of a right of all peoples to self-determination, or of a principle of self-determination which entailed certain duties for States. One representative preferred the latter option, since it was still difficult to determine exactly who the rights-holders were, if self-determination was to be proclaimed as a right. Also, it should not be formulated in such a way as to motivate all kinds of secessionist movements.
Increasingly, it was understood that the right to self-determination had a lot to do with the right of all individuals – including minorities – to have an opportunity for meaningful political influence, and thus it seemed that the right to self-determination actually called for a democratic form of government. No final text was adopted, mainly due to a lack of time.
Fifth Report
In 1968, the General Assembly requested the Committee to look at all seven principles and finish its work. However, the Committee only looked at two of the seven principles: the prohibition to use force and the principle of equal rights and self-determination of peoples. It presented its work in Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 5, A/7619.
There was little debate on the prohibition to use force, because that principle was already discussed extensively in earlier years. Since the correct interpretation of the word ‘force’ was still not settled, it was suggested to find a compromise position between those arguing for an extensive interpretation, and those arguing for a limited interpretation. According to this compromise, a statement on the prohibition of undesirable forms of political or economic pressure should be included in the principle on non-intervention.
At the end of the discussions, the only serious disagreement remaining, and the only reason why no final text could be adopted, was the suggested right of colonial peoples to use armed force in order to defend themselves against colonial domination. According to many representatives, such a right was inconsistent with the UN Charter which gave only States a right to self-defence, and in any case no system of law could possibly establish a legal right of revolution, whatever the cause of such revolution might be. The same was said of minorities within a State. It was suggested that, if there were genuine discrimination against any ethnic minority in an independent State, that minority would have the right to rebel, but that would be a purely domestic matter.
It was suggested that the Committee was asked to research the principle of ‘equal rights and self-determination of peoples,’ as worded in the UN Charter, but that the Committee had thus far focused only on the latter part, and thus not on the element of equality of peoples. This first element meant, or so it was suggested, that all peoples had equal and inalienable rights to complete freedom, the exercise of full sovereignty, and the integrity of their national territory. However, another representative suggested that granting each tribal, racial, ethnic and religious group a right to self-determination would carry the principle to an absurd extreme. No general agreement was reached on the text of the principle of self-determination.
Sixth Report
The General Assembly requested the Committee to finish its work and provide the Assembly with a complete draft Declaration on principles of international law concerning friendly relations and co-operation among States.
Before we look at the final report of the Committee, it might be useful to start with a brief summary. The Committee had thus far made a first draft of the principle of sovereign equality, good faith (I have not discussed this principle because I don’t find it particularly interesting), and the duty to cooperate. Moreover, there was general agreement to use the Declaration on the Inadmissibility of Intervention as basis for any draft of the principle of non-intervention. However, despite increasing agreement, no first draft was ever agreed upon of the principle on the prohibition to use force, the principle of the peaceful settlement of disputes, and the principle of self-determination.
It is thus somewhat surprising that the Committee actually achieved the very ambitious goal of drafting an entire declaration of principles, although it must be admitted that it took a special informal session, organized prior to the formal session, to do so. The debates are once again summarized in a report: Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 6, A/8018. In what follows, I will only comment on the more interesting debates.
First of all, the settlement of the debate on the interpretation of the word ‘force’ is interesting. No definition of the word ‘force’ was to be found in the final declaration. However, in the Preamble, we read that it is the duty of States to refrain from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State. So that is where the extensive definition of ‘force’ ended up.
The most difficult issues that were still unresolved all had something to do with colonialism. No exception for colonial liberation struggles was inserted in the prohibition to use force as finally adopted by the Committee. What was included, was a duty of every State to refrain from any forcible action which deprived peoples of their right to self-determination. This was reiterated in the section on self-determination. In their actions to resist such forcible action, which were considered legitimate, such peoples were entitled to receive foreign support. This does sound somewhat like an internationally recognized right to self-defence of colonial peoples.
Some last-minute discussions on the problem with secessionist movements took place. This was perhaps the most difficult unresolved debate. There, it was suggested that the right to secession of minorities residing within the borders of an independent State was not a right under international law, but rather an issue to be regulated by domestic constitutional law. The international principle of non-intervention would thus settle this dispute, and ensure that a State could deal with the issue independently of other States. However, in response it was suggested that all peoples – and not just colonial peoples – were granted a right to self-determination under international law. This meant that minorities were a separate entity in international law, and then the exercise of the right to self-determination by such a minority, residing with the borders of an existing State, would by definition be an international issue, and not an issue of essentially domestic concern. In the end, it was suggested that there was no right to impair the territorial integrity or political unity of a sovereign State if that State possessed a government representing the whole people belonging to the territory without distinction as to race, creed, or colour. This suggests that the principle of non-intervention does not shield States from outside intervention if they are ruled by governments that do not represent all citizens of that State.
Conclusions
In their final comments, many States stressed the legal importance of the Declaration. For example, Argentina believed that it ought to be regarded as ‘the most up-to-date expression of the scope and interpretation of the Charter of the United Nations, the basis of international law as it was understood and practiced by the civilized nations of the world today.’ Argentina even referred to the principles as jus cogens, but this was later denied, and rightly so I believe, by the USA.
Something that was also stressed by many delegates, was the fact that, for the first time, many developing nations also had a chance to express themselves on the most fundamental principles of international law. They were denied this opportunity in San Francisco, when the Charter was made. Cameroon, for example, remarked that ‘the Committee’s work had given the emergent nations an opportunity to play a part in the progressive development of international law, and the problems and aspirations of those countries were amply reflected in the text.’
None of the views brought forward in the Special Committee have lost any of their significance today. The Declaration accurately reflects the dominant views on the values of peace and security, self-determination of peoples, and sovereignty. This does not mean, however, that the Declaration settled the most fundamental debates on these values and their translation into international law. But we have not made much progress since the 1970’s. Indeed, many issues, such as the exact scope of the prohibition to use force and the accompanying right to self-defence, or the exact meaning of the right to self-determination, are still unresolved.
Of course, what is clearly missing in the Declaration are substantive principles relating to the remaining global values. Peace and security, self-determination of peoples, and sovereignty are adequately dealt with. However, the Committee paid little to no attention to the values of human dignity and sustainable development. In that sense, the Committee clearly missed a great opportunity to define these more ‘modern’ principles. This was also noted by the delegations of the Netherlands, which stated the following:
in reading the draft declaration as a whole, it became immediately apparent that it expressed only one aspect of international law. The quasi-totality of its terms were concerned with the acquisition and preservation of sovereign independence. While it could not be denied that the sovereign independence of States was an essential element of international law, it should not and could not remain the final truth. At the present date, there was every reason to doubt the adequacy of the prevailing world order. The over-increasing interdependence of all peoples was as yet insufficiently reflected in its rules, institutions and practices. That interdependence required that, where necessary, national interests should be subordinated to common interests. A viable world order would be impossible if individual States continued to reject such subordination. It would be indispensable for the world to evolve into a system of strengthened global responsibilities in order to cope with global tasks. The quest for peace and security and for economic, social and cultural advancement would make it necessary for the States of the world to accept limitations of their national sovereignty on behalf of international tasks and authorities. It would be essential for the nations to be aware of the increasing need for efforts in that direction. On that vital aspect, however, the draft declaration kept a regrettable silence.