Foundations of International Law (85-146)

85
PART II
FOUNDATIONS OF INTERNATIONAL LAW
CHAPTER III
FOUNDATIONS OF INTERNATIONAL LAW :

THE ROLE AND IMPORTANCE OF ITS BASIC PRINCIPLES
I. Introduction
One cannot study International Law making abstraction of its

foundations, otherwise it would be reduced to an instrument of the
establishment of international order. International Law goes much
further than that, in the quest of humankind for the realization of jus-
tice at both national and international levels. Nor can one study the
foundations of International Law making abstraction of its basic
principles, which form the substratum of the legal order itself. It is
indeed the principles of International Law which, permeating the
corpus juris of the discipline, render it a truly normative system.
Without those principles, the norms and rules of International Law
would not have evolved, by their implementation, into a legal sys-
tem 194. Those principles inspire the evolving jus gentium, in which
basic considerations of humanity have an important role to play 195.
Those principles are a manifestation of the international juridical
conscience, they reflect the status conscientiae of the subjects of
International Law 196. Although such principles (as those listed in
Article 2 of the UN Charter) may be open, given their generality, to
distinct interpretations 197, they retain their importance for the proper
194. P. G. Vallindas, “General Principles of Law and the Hierarchy of the
Sources of International Law”, in Grundprobleme für internationalen Rechts —
Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch & Co., 1957, pp. 426
and 430-431.
195. Cf. Chaps. XVI to XXIII, RCADI, Vol. 317 (2005).
196. A. Verdross, “Les principes généraux de droit dans le système des
sources du droit international public”, in Recueil d’études de droit international
en hommage à Paul Guggenheim, Geneva, IUHEI, 1968, p. 525.
197. Cf., e.g., G. Tunkin, “ ‘General Principles of Law’ in International Law”,
in Internationale Festschrift für A. Verdross (eds. R. Marcic et al.), Munich,
Salzburg, W. Fink Verlag, 1971, pp. 525-532.
86 A. A. Cançado Trindade
application of the norms and rules, and for guiding the evolution of
the entire legal system 198, so that this latter may readjust to the
changing circumstances of international life, respond to the changing
needs of the international community, and contribute to fulfil the
aspirations of humankind.
II. The Position and Role of the General Principles of Law
Every legal system has fundamental principles, which inspire,

inform and conform their norms. It is the principles (derived ethmo-
logically from the Latin principium) that, evoking the first causes,
sources or origins of the norms and rules, confer cohesion, coher-
ence and legitimacy upon the legal norms and the legal system as a
whole. It is the general principles of law (prima principia) which
confer on the legal order (both national and international) its
ineluctable axiological dimension ; it is they that reveal the values
which inspire the whole legal order and which, ultimately, provide
its foundations themselves 199. This is how I conceive the presence
and the position of the principles in any legal order, and their role in
the conceptual universe of Law.
The general principles of law entered into the legal culture, with
historical roots which go back, for example, to Roman law, and
came to be linked to the very conception of the democratic State
under the rule of law, mainly as from the influence of the enlighten-
ment thinking (pensée illuministe). Despite the apparent indifference
with which they were treated by legal positivism (always seeking
to demonstrate a “recognition” of such principles in positive legal
order), and despite the lesser attention dispensed to them by the
reductionist legal doctrine of our days, yet one will never be able to
prescind from them. From the prima principia the norms and rules
emanate, which in them find their meaning. The principles are thus
present in the origins of Law itself, and disclose the legitimate ends
to seek : the common good (of all human beings, and not of an
abstract collectivity), the realization of justice (at both national and
198. M. Virally, “Le rôle des ‘principes’ dans le développement du droit

international”, in Recueil d’études de droit international en hommage à
P. Guggenheim, Geneva, IUHEI, 1968, pp. 543, 546-547 and 553-554.
199. Cf., to this effect, Inter-American Court of Human Rights (IACtHR),
Advisory Opinion No. 18, on The Juridical Condition and the Rights of
the Undocumented Migrants, of 17.9.2003, Concurring Opinion of Judge
A. A. Cançado Trindade, paras. 44-58.
General Course on Public International Law 87
international levels), the necessary primacy of law over force,

the preservation of peace. Contrary to those who attempt — in my
view in vain — to minimize them, I understand that, if there are no
principles, nor is there truly a legal system.
The identification of the basic principles has accompanied pari
passu the emergence and consolidation of all the domains of Law,
and all its branches (constitutional, civil, civil procedural, criminal,
criminal procedural, administrative, and so forth). This is so with
Public International Law (cf. infra), with the International Law of
Human Rights 200, with International Humanitarian Law 201, with
International Refugee Law 202, with International Criminal Law 203.
However circumscribed or specialized a legal regime may be, its
basic principles can there be found, as, for example, in International
Environmental Law 204, in the Law of the Sea 205, in the Law of Outer
Space 206, among others 207. The International Labour Organization
(ILO) itself, for example, has sought to identify the fundamental
principles and rights in work, by means of a Declaration adopted in
June 1998.
Some of the basic principles are proper to certain areas of Law,
others permeate all areas. The corpus of legal norms (national or
international) operates moved by the principles, some of them ruling
the relations themselves between human beings and the public
power 208. The principles enlighten the path of legality as well as
200. Principles of the dignity of the human person, of the universality and
indivisibility of human rights, of the inalienability of human rights.
201. Principles of humanity, of proportionality, of distinction (between com-
batants and the civil population), principle whereby the election of methods or
means of combat is not unlimited.
202. Principles of non-refoulement, and of humanity.
203. Principles of legality (nullum crimen sine lege, nulla poena sine lege),
of individual penal responsibility, of presumption of innocence, of non-retro-
activity, of a fair trial.
204. E.g., principles of precaution or due dilligence, of prevention, of common
but differentiated responsibility, of intergenerational equity, polluter-pay principle.
205. E.g., principles of common heritage of mankind (ocean floors), of peace-
ful uses of the sea, of equality of rights (in the high seas), of peaceful settlement
of disputes, of freedom of navigation and of inocent passage, of equidistance
and of special circumstances (delimitation of maritime spaces).
206. E.g., principles of non-appropriation, of peaceful uses and ends, of
sharing of benefits in space exploration.
207. E.g., in the legal regime applicable to foreigners, principles of the unity
of the family, and of prohibition of extradition whenever this latter presents risks
of violations of human rights.
208. As the principles of natural justice, of the rule of law, of the rights of the
defence, of the right to the natural judge, of the independence of justice, of the
equality of all before the law, of the separation of powers, among others.
legitimacy. Hence the constant reaffirmation or restoration, pur-

suant to the evolving natural law thinking, of a standard of justice,
heralded by the general principles of law, whereby positive law
has come to be evaluated. In sustaining that opinio juris is above
the “will” of the State, F. Castberg has correctly pondered that
“the experiences of our own age, with its repellent cruelties and
injustice under cover of positive law, have in fact confirmed the
conviction that something — even though it is only certain
fundamental norms — must be objectively valid. This may
consist of principles which appear to be valid for every human
community at any time . . . The law can and should itself
move forward in the direction of . . . a higher level of human-
ity.” 209
This perennial resurgence of the natural law outlook 210 has been
much contributing to the affirmation and consolidation of the pri-
macy, in the order of values, of the obligations pertaining to human
rights, vis-à-vis the international community as a whole 211. General
principles of law have contributed to the formation of normative sys-
tems of protection of the human person. A true legal system ought to
operate on the basis of its fundamental principles 212. Recourse to
such principles, endowed with continuing validity, has taken place,
at the substantive level, as a response to the new necessities of pro-
tection of the human being. In the case, for example, of the armed
conflicts in Central America, which broke out in the late seventies
and aggravated in the region in the early eighties, generating
hundreds of thousands of refugees and displaced persons, one of
the major concerns of the UN High Commissioner for Refugees
(UNHCR) was to establish its grounds of action for providing pro-
tection and assistance to those in need of it, on the basis of the prin-
ciples and criteria which should guide its action. On two occasions
209. F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits de
l’homme/Human Rights Journal (1968), p. 37, and cf. pp. 21-22.
210. Cf., e.g., L. Le Fur, “La théorie du droit naturel depuis le XVIIe siècle et
la doctrine moderne”, 18 RCADI (1927), pp. 297-399 ; A. Truyol y Serra,
“Théorie du droit international public. Cours général”, 183 RCADI (1981),
pp. 142-143 ; A. Truyol y Serra, Fundamentos de Derecho Internacional
Público, 4th rev. ed., Madrid, Tecnos, 1977, pp. 69 and 105.
211. J. A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”,
22 Isegoría — Revista de Filosofía Moral y Política, Madrid (2000), p. 75.
212. G. Abi-Saab, “Cours général de droit international public”, 207 RCADI
(1987), p. 378.
the UNHCR dwelt upon the examination of such principles and cri-
teria to guide the application of the norms and rules of International
Refugee Law in the aforementioned case of the armed conflicts in
Central America.
In a document adopted in 1989 resulting from consultations of a
group of experts 213, reference was made to the principles contained
in the 1984 Cartagena Declaration on Refugees 214, complemented by
the practice of the affected States and of international organizations.
Half a decade later, in a new document, adopted in 1994, also result-
ing from consultations of another group of experts 215, an assess-
ment was undertaken of the application of those principles. In both
documents the UNHCR stressed the fundamental importance of
the principle of non-refoulement, cornerstone of refugee protection,
applicable irrespectively of the any formal determination of the
condition of refugee by a State or an international organization,
and largely regarded as belonging to the domain of jus cogens 216.
The perennial search for the guiding principles and the care and atten-
tion to the need of compliance with them, and with the norms and
rules ensuing therefom, are revealing of the belief in their continuing
validity.
In International Humanitarian Law, for example, the 1949 Geneva
Conventions and their Protocols of 1977, essentially victim-oriented,
are inspired above all by the overriding principle of humanity, which
calls for respect to the human person in any circumstances and at
all times. As well pointed out by J. Pictet, the general principles in
this domain permeate the whole corpus juris of International
Humanitarian Law, which discloses a “caractère impératif (jus
cogens) et non dispositif” 217 ; those principles are, ultimately, identi-
fied with the very foundations of International Humanitarian Law. In
213. Formed by H. Gros Espiell, S. Picado and L. Valladares Lanza.

214. Restated in the 1994 San José Declaration on Refugees and Displaced
Persons ; cf. Diez Años de la Declaración de Cartagena sobre Refugiados
(Memoria del Coloquio Internacional, San José, Costa Rica, 1994), San José,
Costa Rica, UNHCR, IIHR, 1995, pp. 11-470.
215. Formed by A. A. Cançado Trindade, R. Galindo-Pohl and C. Sepúlveda.
216. UNHCR, I. Principios y Criterios para la Protección y Asistencia a los
Refugiados, Repatriados y Desplazados Centroamericanos en América Latina/II.
Evaluación de la Puesta en Práctica de las Disposiciones de Dicho Documento,
San José, Costa Rica, UNHCR, 1994, pp. 2 and 7-9 (1st doc.), and pp. 5-8 (2nd
doc.).
217. J. Pictet, Développement et principes du droit international humanitaire,
Geneva, Paris, Inst. H.-Dunant, Pedone, 1983, pp. 104-105, and cf. pp. 8, 53,
68-69 and 73-74.
this connection, it has been persuasively argued 218 that, rather than
attempting to identify provisions of the 1949 Geneva Conventions,
or of the 1977 Additional Protocols, that might be regarded as
expressing general principles, one ought to consider the whole of
those Conventions and other humanitarian law treaties as being the
expression — and the development — of those general principles,
applicable in any circumstances, so as to secure a more effective
protection of the victimized 219.
III. The Fundamental Principles as Substratum

of the Legal Order Itself
The general principles of law have thus inspired not only the
interpretation and the application of the legal norms, but also the
law-making process itself of their elaboration. They reflect the
opinio juris, which, in its turn, lies on the basis of the formation of
Law 220. Such principles mark presence at both national and interna-
tional levels.
There are fundamental principles of law which identify themselves
with the very foundations of the legal system, revealing the values
and ultimate ends of the international legal order, guiding it, pro-
tecting it against the incongruencies of the practice of States, and
fulfilling the necessities of the international community 221. Such
principles, as expression of an objective “idea of justice”, have a
universal scope, requiring the observance of all States, and securing
— as lucidly pointed out by A. Favre in 1968 — the unity of Law,
as from the idea of justice, to the benefit of the whole humankind 222.
218. On the basis of obiter dicta of the International Court of Justice (ICJ) in
the Nicaragua v. United States case (1986).
219. R. Abi-Saab, “Les ‘principes généraux’ du droit humanitaire selon la
Cour internationale de Justice”, 766 Revue internationale de la Croix-Rouge
(1987), pp. 386 and 389.
220. On the wide scope of the opinio juris in the formation of contemporary
International Law, cf. Chaps. V-VI, infra.
221. G. Cohen-Jonathan, “Le rôle des principes généraux dans l’interpréta-
tion et l’application de la Convention européenne des droits de l’homme”, in
Mélanges en hommage à L. E. Pettiti, Brussels, Bruylant, 1998, pp. 192-193 ;
M. Koskenniemi, “General Principles : Reflexions on Constructivist Thinking in
International Law”, in Sources of International Law (ed. M. Koskenniemi),
Aldershot, Ashgate, Dartmouth, 2000, pp. 360-365, 377, 381, 387, 390 and 395-
398.
222. A. Favre, “Les principes généraux du droit, fonds commun du droit des
gens”, in Recueil d’études de droit international en hommage à P. Guggenheim,
Geneva, IUHEI, 1968, pp. 374-376, and cf. pp. 369 and 379.
It is evident that these principles of law do not depend on the “will”,

nor on the “agreement”, nor on the consent, of the subjects of law ;
the fundamental rights of the human person are the “necessary foun-
dation of every legal order” 223.
As vehemently proclaimed by the 1948 Universal Declaration of
Human Rights, in a rare moment of enlightenment,
“All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”
The safeguard and prevalence of the principle of respect of the dig-
nity of the human person are identified with the end itself of Law, of
the legal order, both national and international. By virtue of this fun-
damental principle, every person ought to be respected by the simple
fact of belonging to the human kind, independently of her condition,
of her statute of citizenship or her migratory status 224, or any other
circumstance 225.
The principle of the inalienability of the rights inherent to the human
being, in turn, is identified with a basic premise of the construction
of the whole corpus juris of the International Law of Human
Rights.
223. Op. cit. supra footnote 222, pp. 376-380, 383, 386 and 389-390.
224. And it could not be otherwise, as human rights are universal and inher-
ent to all human beings, while the rights of citizenship vary from country
to country and encompass only those which the positive law of the State con-
siders citizens. In its memorable Advisory Opinion No. 18 on The Juridical
Condition and the Rights of the Undocumented Migrants (of 17.9.2003), the
Inter-American Court of Human Rights (IACtHR) has expressly referred to
the principles of the dignity of the human person and of the inalienability of
the rights inherent to her (para. 157). Moreover, in its jurisprudence con-
stante, the IACtHR, in interpreting and applying the American Convention, has
also always resorted to the general principles of law ; cf., e.g., IACtHR, case
of the Five Pensioners v. Peru (Judgment of 28.2.2003), para. 156 ; and cf.
also IACtHR, Advisory Opinion No. 17, on the Juridical Condition and Human
Rights of the Child (of 28.8.2002), paras. 66 and 87 ; IACtHR, Advisory Opinion
No. 16, on The Right to Information on Consular Assistance in the Frame-
work of the Guarantees of the Due Process of Law (of 1.10.1999), paras. 58,
113 and 128. Among these principles, those which are endowed with a truly fun-
damental character, referred to herein, form in reality the substratum of
the legal order itself, revealing the right to the Law of which are titulaires all
human beings ; A. A. Cançado Trindade, Tratado de Direito Internacional dos
Direitos Humanos, Vol. III, Porto Alegre, Brazil, S.A. Fabris Ed., 2003, pp. 524-
525.
225. B. Maurer, Le principe de respect de la dignité humaine et la Convention
européenne des droits de l’homme, Paris, CERIC, Univ. d’Aix-Marseille, 1999,
p. 18.
If, by chance, any doubts are raised as to the extent of application

of the fundamental principles which permeate the whole interna-
tional legal order, it is the function of the jurist to clarify such doubts
and not to perpetuate them, so that Law may accomplish its funda-
mental function of providing justice 226. It is certain that the norms
are the ones juridically binding, but when they move away from the
principles, their application leads to breaches of individual rights
and to serious injustices (for example, discrimination de jure), and
one incurs into distortions, and grave violations of the legal order at
issue itself.
In reality, when one recognizes the fundamental principles which
conform the substratum of the legal order itself, we enter into the
domain of jus cogens, of peremptory law 227 ; such principles are
indispensable (the jus necessarium), are prior and superior to the
will ; they express the idea of an “objective justice” (proper of natu-
ral law), and are consubstantial to the international legal order
itself 228. Already in 1935, in his lectures delivered at the Hague
Academy of International Law, A. Verdross invoked the “general
principle of jus cogens” 229. In dismissing the voluntarist conception
of International Law, he sustained that
“il faut reconnaître que l’idée du droit ne peut entrer dans la vie
humaine que par l’intermédiaire d’une conscience humaine qui
la formule . . . Le droit des gens ne peut avoir d’autre base que
tout droit, à savoir, l’idée du droit et les principes qui en
découlent.” 230
Those principles are “recognized by the juridical conscience”, and it
is in the light of those principles that “tout le droit des gens doit être
interprété et appliqué” 231.
226. M. Chemillier-Gendreau, “Principe d’égalité et libertés fondamentales

en droit international”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpo
and T. Boumedra), The Hague, Kluwer, 1999, pp. 659-669.
227. Cf. Chap. XII, infra.
228. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98,
104-105 and 110-112.
229. And referred, in this connection, to the Separate Opinion of Judge
Schücking in the Oscar Chinn case (1934) before the Permanent Court of
International Justice (PCIJ) ; cf. A. Verdross, “Les principes généraux du droit
dans la jurisprudence internationale”, 52 RCADI (1935), pp. 206 and 243.
230. A. Verdross, “Les principes généraux du droit . . .”, op. cit. supra foot-
note 229, pp. 202-203, and cf. p. 222.
231. Ibid., pp. 224 and 227 ; he added that one is to be led by such “idée fon-
damentale du droit” (ibid., p. 235).
IV. The Acknowledgment of General Principles of Law by the

Statute of the Hague Court (PCIJ and ICJ)
1. General principles of law and the quest for justice
In the course of the drafting of the Statute of the Permanent Court

of International Justice (PCIJ), in June-July 1920, the Advisory
Committee of Jurists entrusted with that task, throughout the mem-
orable debates pertaining to the “sources” of International Law
(Article 38 of the Statute), dwelt upon the role of principles in any
legal system (whether at domestic or at international level). From the
start, E. Root argued that the Committee should limit itself to “rules
contained in conventions and positive international law”, otherwise
the States, in his view, would not accept its draft 232. In opposition to
this view, M. Loder remarked that there were recognized rules which
were “not yet of the nature of positive law”, but were respected all
over the world, and it was the duty of the Court (PCIJ) to develop
the law, to “ripen . . . principles universally recognised”, so as to
“crystallise them into positive rules” 233. The Committee’s President,
Baron Descamps, pondered that the law of nations was formed not
only by recognized rules, “but also by the demands of public con-
science” ; and as to E. Root’s statement that “the principles of justice
varied from country to country”, Baron Descamps replied signifi-
cantly that
“that might be partly true as to certain rules of secondary
importance. But it is no longer true when it concerns the fun-
damental law of justice and injustice deeply engraved on the
heart of every human being and which is given its highest and
most authoritative expression in the legal conscience of civi-
lized nations.” 234
That, in Descamps’s view, was the law which could not be dis-
regarded by judges, and “it would be incumbent on them to consider
232. PCIJ, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings

of the Committee (16 June/24 July 1920) with Annexes, The Hague, Van Langen-
huysen Brothers, 1920, p. 294.
233. Ibid., p. 294. E. Root retorted that the world was not yet prepared to
accept the compulsory jurisdiction of a Court which would apply “universally
recognized rules” and “principles, differently understood in different countries” ;
ibid., pp. 308-309.
234. Ibid., pp. 310-311.
whether the dictates of their conscience” were in agreement with the

prevailing conception of justice. To him, judges should render their
decisions in conformity with the dictates of “the legal conscience of
civilised nations” 235. To Lord Phillimore, in turn, the general prin-
ciples of law (referred to in the proposed draft) were those
“which were accepted by all nations in foro domestico” 236. Seeking
a conciliation of the views expressed, on the one hand, by
Baron Descamps, and, on the other hand, by E. Root, Raul Fernandes
argued that if the judges were confined to apply only treaties and
positive international law (as suggested by E. Root), in many cases
the “possibility of administering justice” in legal relations between
States would be “taken away from them” ; more often than not
judges would find it necessary to resort to guiding general prin-
ciples, because the principles are always based on justice, while
strict law often departs from it” 237.
In international affairs — added R. Fernandes — where “legisla-
tion is lacking” and customary law is of a rather slow formation,
“the practical necessity of recognizing the application of such prin-
ciples is much greater” ; in any case — he concluded — the Court
(PCIJ) could not become a “registry” for the “acts of the strong
against the weak” 238. At the end of the Committee’s work, the
general principles of law were acknowledged as integrating the
formal “sources” of International Law listed in Article 38 of
the Statute of the Hague Court (the PCIJ, and, later, the ICJ).
In this understanding, they were taken to mean, basically, those
principles of law found in foro domestico, in the national legal sys-
tems 239. Parallel to them, the international legal system itself has
evolved in the light of certain fundamental principles, distinct from
the general meaning attributed to general principles of law (supra),
although some of these latter have been transposed to international
procedural law as well. While admitting channels of communication
between the two sets of principles, principles of International Law
can be appropriately approached in a distinct way, not only strictly
as one of the formal “sources” of International Law, but, beyond
235. Op. cit. supra footnote 232, pp. 311 and 318-319.
236. Ibid., p. 335.
237. Ibid., pp. 345-346.
238. Ibid., p. 346.
239. E.g., bona fides, res judicata, equality before the law, presumption of
innocence, prohibition of abuse of rights, among others.
that, as further pertaining to the substratum of all international legal

norms, and, accordingly, to the very foundations of the international
legal system.
2. Principles of International Law as pillars of the international

legal system
Notwithstanding, considerably more attention was devoted to the

principles of International Law half a century ago than in our days.
Yet, those principles retain their utmost importance, as they inform
and conform the legal norms of any legal system. Successive doctri-
nal works were dedicated particularly to the study of the principles
of International Law, already in the first half of the twentieth
century 240, in the framework of the foundations of the discipline and
the consideration of the validity of its norms. In the fifties 241 and
the sixties 242 some courses delivered at the Hague Academy of
International Law addressed the theme of the principles of Inter-
240. An exposé de motifs of a declaration of principles of International Law,

published on the eve of the outbreak of the World War II, called for a recon-
struction of International Law bearing in mind not only positive law, but also the
principles, which oriented legal norms and rules, and which, in the view of
Alejandro Álvarez, prevailed in the whole of International Law, and appeared as
“manifestations of the juridical conscience of the peoples” ; A. Álvarez, Exposé
de motifs et Déclaration des grands principes du droit international moderne,
2nd ed., Paris, Eds. internationales, 1938, pp. 8-9 and 16-23, and cf. pp. 27 and
51. And cf., generally, e.g., L. Rodrigues Pereyra, Princípios de Direito
Internacional, Vols. I and II, Rio de Janeiro, J. Ribeiro dos Santos Ed., 1902 and
1903 ; C. Bevilaqua, Direito Público Internacional (A Synthese dos Princípios e
a Contribuição do Brasil), Rio de Janeiro, Livr. Fr. Alves, 1911 ; T. J. Lawrence,
Les principes de droit international, 5th ed. (trans. J. Dumas and A. de La
Pradelle), Oxford, University Press, 1920, pp. 99-120 ; P. Derevitzky, Les
principes du droit international, Paris, Pedone, 1932 ; Ch. Rousseau, Principes
généraux du droit international public, Vol. I, Paris, Pedone, 1944 ; Bin Cheng,
General Principles of Law as Applied by International Courts and Tribunals,
London, Stevens, 1953 ; G. Scelle, Précis de droit des gens — principes et systé-
matique, Paris, Rec. Sirey, 1934.
241. Cf. H. Rolin, “Les principes de droit international public”, 77 RCADI
(1950), pp. 309-479 ; G. Schwarzenberger, “The Fundamental Principles of
International Law”, 87 RCADI (1955), pp. 195-385 ; P. Guggenheim, “Les
principes de droit international public”, 80 RCADI (1952), pp. 5-189 ;
Ch. Rousseau, “Principes de droit international public”, 93 RCADI (1958),
pp. 369-549 ; G. Fitzmaurice, “The General Principles of International Law,
Considered from the Standpoint of the Rule of Law”, 92 RCADI (1957), pp. 1-
223.
242. Cf. M. Sørensen, “Principes de droit international public”, 101 RCADI
(1960), pp. 1-251 ; P. Reuter, “Principes de droit international public”, 103
RCADI (1961), pp. 429-656 ; R. Y. Jennings, “General Course on Principles of
International Law”, 121 RCADI (1967), pp. 327-600.
national Law, which was retaken in monographs in the sixties 243 and
the seventies 244. Subsequently, except for a few works 245, there
appeared to occur, rather surprisingly, a decline in the interest in the
study of the matter, parallel to the dissemination of a seemingly —
and regrettable — pragmatic approach to the study of International Law.
Although concern with the need to consider the principles of
International Law appears to have declined in the last quarter of a
century, those principles have, nevertheless, always marked their
presence in the doctrine of International Law, including the contem-
porary one 246. Principles of International Law permeate the entire
international legal system, playing an important role in international
law-making as well as in the application of International Law 247. In
some cases, such as, for example, in the Law of Outer Space, they
have paved the way for the construction of a new corpus juris, in a
new domain of International Law which required regulation, and the
principles originally proclaimed have fully retained their value to date 248.
Principles of International Law are guiding principles of general
content, and in that they differ from the norms or rules of positive
International Law, and transcend them. As basic pillars of the inter-
national legal system (as of any legal system), those principles give
243. Cf. M. Miele, Principi di Diritto Internazionale, 2nd ed., Padua, Cedam,
1960 ; L. Delbez, Les principes généraux du contentieux international, Paris,
LGDJ, 1962 ; L. Delbez, Les principes généraux du droit international public,
3rd ed., Paris, LGDJ, 1964 ; H. Kelsen, Principles of International Law, 2nd ed.,
New York, Holt Rinehart & Winston, 1966 ; W. Friedmann, “The Uses of
‘General Principles’ in the Development of International Law”, 57 American
Journal of International Law (1963), pp. 279-299 ; M. Virally, “Le rôle des
‘principes’ dans le développement du droit international”, Recueil d’études de
droit international en hommage à Paul Guggenheim, Geneva, IUHEI, 1968,
pp. 531-554 ; M. Bartos, “Transformations des principes généraux en règles
positives du droit international”, Mélanges offerts à Juraj Andrassy, La Haye,
Nijhoff, 1968, pp. 1-12.
244. Cf., e.g., B. Vitanyi, “La signification de la ‘généralité’ des principes de
droit”, 80 Revue générale de droit international public (1976), pp. 536-545.
245. Cf., e.g., I. Brownlie, Principles of Public International Law, 6th ed.,
Oxford, Clarendon Press, 2003 ; A. A. Cançado Trindade, Princípios do Direito
Internacional Contemporâneo, Brasilia, Edit. University of Brasilia, 1981.
246. Cf., e.g., inter alia, H. Thierry, “L’évolution du droit international.
Cours général de droit international public”, 222 RCADI (1990), pp. 123-185 ;
G. Abi-Saab, “Cours général de droit international public”, op. cit. supra foot-
note 212, pp. 328-416.
247. G. Herczegh, General Principles of Law and the International Legal
Order, Budapest, Akadémiai Kiadó, 1969, pp. 90, 122 and 126.
248. Cf. M. Lachs, “Le vingt-cinquième anniversaire du traité régissant les
principes du droit de l’espace extra-atmosphérique, 1967-1992”, 184 Revue
française de droit aérien et spatial (1992), No. 4, pp. 365-373, esp. pp. 370 and
372.
expression to the idée de droit, and furthermore to the idée de jus-

tice, reflecting the conscience of humankind 249. Irrespective of the
distinct approaches to them, those principles stand ineluctably at a
superior level to the norms or rules of positive international law.
Such rules and norms are binding, but it is the principles which
guide them 250. Without these latter, rules or techniques could serve
whatever purposes. This would be wholly untenable.
V. The 1970 UN Declaration on Principles of International Law

concerning Friendly Relations and Co-operation
among States Revisited
1. General considerations in historical perspective
A quarter of a century after the adoption of the United Nations

Charter, the principles set forth therein were restated in the
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the
United Nations Charter, adopted by the UN General Assembly on
24 October 1970. State representatives undertook the task of restat-
ing those principles, pursuant to consultations and proposals made
by the UN General Assembly (1960-1962). The travaux prépara-
toires were entrusted to the Special Committee on Principles of
International Law concerning Friendly Relations and Co-operation
among States, established in 1963 251. The Special Committee held
six sessions in the period between 1964 and 1970, which led to the
adoption of the Declaration, that purported to reflect the prevailing
opinio juris communis on the principles of International Law
embodied therein 252.
249. G. M. Danilenko, Law-Making in the International Community,

Dordrecht, Nijhoff, 1993, pp. 7, 17 175 and 186-187, and cf. p. 215.
250. Bin Cheng, General Principles of Law . . ., op. cit. supra footnote 240,
p. 393.
251. The Committee was set up on 16.12.1963 as a subsidiary organ of the VI
Committee of the General Assembly, and composed of representatives of States ;
initially, in 1964, 27 Delegations, and in the following year having arisen to 31,
with geographical distribution, namely : Western Europe and North America, 8 ;
Africa, 7 ; Asia, 6 ; Latin America, 5 ; and Eastern Europe, 5.
252. Cf. M. Šahović, “Codification des principes du droit international des
relations amicales et de la coopération entre les Etats”, 137 RCADI (1972),
pp. 262-263, 272 and 274 ; R. Rosenstock, “The Declaration of Principles of
International Law concerning Friendly Relations : A Survey”, 65 American
Journal of International Law (AJIL) (1971), p. 735.
The Declaration was formulated and adopted in an international

scenario marked by the historical phenomenon of decolonization, the
articulation of the non-aligned movement, the nuclear stalemate, and
the endeavours to secure the peaceful co-existence of all States 253.
Its preparatory work, which started in Mexico City in 1964, and
ended in 1970, benefited from other historically important
Declarations adopted by the UN General Assembly 254. The debates
on the matter disclosed the prevailing view whereby the 1970
Declaration was to constitute an “authentic interpretation” of the UN
Charter and a restatement of its principles 255, which were to have a
bearing on subsequent custom as well as treaty-making 256, being
thus regarded also as an exercise of “progressive development” of
International Law 257.
The seven paragraphs of Article 2 of the UN Charter listed respec-
tively seven basic principles, namely : equality of all the member
States of the United Nations ; compliance in good faith with the
obligations undertaken in accordance with the Charter ; peaceful
settlement of international disputes ; prohibition of the use or threat
of force against the territorial integrity or political independence of
any State ; assistance to the United Nations in an operation which
it may resort to ; guarantee that non-member States act in accord-
ance with such principles ; non-intervention by the United Nations
in matters which fall under the domestic jurisdiction of any State
(except for enforcement measures under Chapter VII of the Charter).
In its turn, the 1970 Declaration set forth the following seven funda-
mental principles : prohibition of, or renunciation of, the use or threat
of force in international relations ; peaceful settlement of interna-
253. M. Šahović, “Codification des principes . . .”, op. cit. supra foot-
note 252, pp. 255-261 ; and cf. J. Castañeda, “The Underdeveloped Nations
and the Development of International Law”, 15 International Organization
(1961), pp. 38 and 44-48.
254. E.g., 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples, 1962 Declaration on Permanent Sovereignty of States
over Their Natural Resources, and 1965 Declaration on the Inadmissibility of
Intervention in the Internal Affairs of States and the Protection of Their
Independence and Sovereignty ; cf. G. Arangio-Ruiz, “The Normative Role of
the General Assembly of the United Nations and the Declaration of Principles of
Friendly Relations”, 137 RCADI (1972), pp. 431-432.
255. Although its formulation of the principles (1970 Declaration) was not
identical to that of the principles set forth in Article 2 of the UN Charter.
256. H. Blix, “The Helsinki Declaration on Principles Guiding Relations
between States in Europe”, 31 Revue égyptienne de droit international (1975),
p. 4, and cf. pp. pp. 1-15.
257. UN doc. A/6547, paras. 24-25.
tional disputes ; non-intervention ; duty of international co-operation ;

equality of rights and self-determination of peoples ; sovereign equal-
ity of States ; good-faith in the compliance with international obli-
gations.
Already in its first session (Mexico City, 1964), the Special
Committee was clearly aware of the hard task before it 258, amidst the
threat of destruction of humankind by the arms race, the need for
peaceful co-existence among States with different socio-economic
systems, the decolonization process, and initiatives of the epoch to
foster development 259 — added to other changes that had occurred at
international level in the previous two decades. In the session of
New York of 1966, it was recommended to bear constantly in mind
the interrelationship between the principles to be formulated 260. In
the Special Committee’s third session (Geneva, 1967), the Draft
Declaration was related to the chapter of the “sources” of “universal
International Law” 261. The fact that the Special Committee and the
VI Committee of the General Assembly succeeded in concluding
their work, under the pressure of events, in such a turmoiled environ-
ment, should not pass unnoticed : looking back in time, in histori-
cal perspective, it appears much to their credit to have restated in
1970, on the basis of consensus 262, the needed principles concerning
friendly relations and co-operation among States in accordance with
the UN Charter.
Today, 35 years having lapsed since the adoption of that memor-
able Declaration on Principles, the question may be raised whether,
and to what extent, the principles set forth therein are still recog-
258. Cf. L. T. Lee, “The Mexico City Conference of the UN Special

Committee on Principles of International Law concerning Friendly Relations
and Cooperation among States”, 14 International and Comparative Law
Quarterly (1965), pp. 1296 et seq.
259. It need only be recalled that the decade had been particularly disturbed,
by episodes such as the war of Vietnam, the Arab-Israeli conflict, the Cuban
missile crisis, added to those of the Dominican Republic and of Czechoslovakia,
among others.
260. UN doc. A/6547, para. 34 ; and cf. UN doc. A/6955, para. 32.
261. UN doc. A/6955, paras. 31 and 123. In fact, in the Special Committee’s
debates of 1967 one of the delegates saw it fit to warn, in 1967, as if in antici-
pation of what was actually to occur three years later, that only if the Draft
Declaration of Principles was ultimately adopted by the General Assembly with
unanimous or quasi-unanimous approval could it be said that it expressed a
“universal juridical conviction” to be thus related to the “sources” of
International Law set forth in Article 38 (1) (c) of the ICJ Statute. UN doc.
A/6955, para. 109.
262. Cf. UN doc. A/6955, para. 30.
nized as such. In order to address this question, and for a better

appreciation of the principles enshrined into the 1970 Declaration, it
would be adequate to recall, albeit succintly 263, the main points of
the long preparatory work of the UN Special Committee on the
Principles of International Law concerning Friendly Relations and
Co-operation among States, with special attention to the process of
formulation of those principles.
2. The formulation of the principles of International Law
Throughout the whole work of the Special Committee, one of the

most widely debated of the seven principles enunciated was that of
the prohibition of the use or threat of force in international rela-
tions 264. The principle at issue, set forth in Article 2 (4) of the UN
Charter, was regarded as “the foundation of the international juridi-
cal order” 265, integrating “the very essence of International Law, in
a world of interdependent States . . . in which the arms race con-
tinued” 266. The Special Committee debates kept in mind, besides
Article 2 (4) of the UN Charter, further express references to the
principle of non-use or threat of force found in some inter-American
instruments 267, in the 1964 Cairo Declaration of the Non-Aligned
Countries, and in the 1949 Draft Declaration on the Rights and
Duties of States prepared by the UN International Law Commission
(ILC) 268. Other references were further made, for example, to the
condemnation, by both the UN General Assembly and the Security
263. For a fuller account, cf., e.g., A. A. Cançado Trindade, Princípios do

Direito Internacional Contemporâneo, Brasilia, Edit. University of Brasilia,
1981, pp. 51-94.
264. Within the Committee, there were those who considered that principle,
together with that of equality of rights and self-determination of peoples, and
that of non-intervention in the domestic affairs of States, as “the three most
important principles for the maintenance of international peace and security” ;
UN doc. A/6955, para. 23.
265. Ibid., para. 37.
266. UN doc. A/7809, para. 14.
267. Including the provision of Article 17 of the OAS Charter, which cate-
gorically affirmed the principle of the territorial inviolability of the State and
condemned measures of force. Cf., on the matter, e.g. : OAS doc. OEA/
Ser.I/VI.2 — CIJ-58, Inter-American Juridical Committee, “Opinion on the
Legal Aspects of the Draft Declaration on Non-Intervention Presented by the
Mexican Delegation”, of 22.9.1960, pp. 1-12 ; Comité Jurídico Interamericano,
“Diferencias entre Intervención y Acción Colectiva”, in Recomendaciones e
Informes, Documentos Oficiales, Vol. IX, Opinion of 23.9.1965, pp. 111-127.
268. UN doc. A/6955, para. 44.
Council, of the use or threat of force by certain States on some occa-

sions 269.
Despite all these elements, the debates of the Special Committee
did not pass without difficulty, particularly when tackling the use of
force in “colonial situations”, raised by the (then) recently emanci-
pated States 270. To some representatives (particularly from Afro-
Asian States)
“self-defence against colonial domination should be regarded
as an exception to the general rule, since . . . colonialism was
an act of force and constituted indeed an aggression” 271.
On this specific point, at the end of four years of debates, the view
prevailed among the participating Delegations that, in the world of
that time, the expression “international relations” could no longer be
limited to purely inter-State relations, since, for example, relations
between a non-self-governing territory and an authority entrusted
with its administration had an “international character”, in the light
of the “international responsibilities” set forth in Chapter XI of the
UN Charter 272.
The condemnation of the “war of aggression” was peremptory, and
a proposal by (then) Czechoslovakia to this effect 273 found no diffi-
culty to be approved, given the precedents in international prac-
tice 274. One participant, in dwelling upon the historical evolution of
the principle proclaimed in Article 2 (4) of the UN Charter, affirmed
that “in contemporary International Law the prohibition of the use of
269. Resolution 2160 (XXI) of 1966 of the UN General Assembly was

recalled, more than once ; cf. ibid., paras. 37, 41, 44 and 48.
270. Cf. UN docs. A/7809, para. 15 ; A/6547, paras. 41 and 43 ; A/6165,
para. 31 ; A/6955, para. 49.
271. UN doc. A/6955, para. 49. In this respect, cf. comments, on resolutions
1514 (XV) and 2621 (XXV) of the UN General Assembly, of A. Rigo Sureda,
The Evolution of the Right of Self-Determination, Leiden, Sijthoff, 1973,
pp. 261-264 ; and cf. also S. Calogeropoulos-Stratis, Le droit des peuples à dis-
poser d’eux-mêmes, Brussels, Bruylant, 1973, pp. 120-133 ; U. O. Umozurike,
Self-Determination in International Law, Hamden, Conn., Archon Books, 1972,
pp. 3-299.
272. R. Rosenstock, op. cit. supra footnote 252, p. 720.
273. Cf. UN doc. A/AC.125/L.16, para. 2. On the Czech initiative, cf. also
P.-H. Houben, “Principles of International Law concerning Friendly Relations
and Co-operation among States”, 61 AJIL (1967), pp. 705-706.
274. International instruments going back to the 1928 Briand-Kellogg Pact.
Several representatives stressed the need to invoke, in the formulation of the
principle, the “responsibility of States which waged wars of aggression or com-
mitted other crimes against peace” ; UN doc. A/6955, para. 42.
force had become a norm of jus cogens” 275. Other points were con-
sidered 276 : as to the meaning and scope to be attributed to the term
“force”, for example, in the long debates that took place 277 most rep-
resentatives of Afro-Asian States, and of Eastern European States,
and of some Latin American States, favoured such a wide interpre-
tation of the prohibition of “force”, while a more restrictive interpre-
tation was supported by the delegates of Western States, some other
Latin American States and other individual States. The 1970 Decla-
ration did not manage to provide a clear answer to the problem — in
the view of some deliberately — in opting for a rather more abstract
drafting of the principle at issue so as to overcome the difficulty 278.
In the debates on the formulation of the second principle, that
of peaceful settlement of international disputes, the old maxim was
reiterated that the acceptance by States of a given procedure of
peaceful settlement of existing or future disputes, which they were
parties to, should not be regarded as incompatible with the
“sovereign equality of States” 279. Some Delegations argued that
“negotiation, mediation and conciliation were methods which
could be used to alter an existing juridical situation, while the
methods of arbitration and judicial settlement applied the law
as it existed” 280.
Different views were expressed on the effectiveness of negotia-
tions 281, and references were made to the functions of political
organs of international organizations — both the United Nations
275. Op. cit. supra footnote 274, para. 38.
276. E.g., it was pointed out that the prohibition of threat or use of force
should refer “not only to (national) frontiers but also to other international lines
of demarcation” ; UN docs. A/6547, para. 41, and A/6165, para. 22 ; as exempli-
fied by what was occurring, in those days, e.g., in Vietnam, Korea, Germany,
and the Middle East.
277. Cf. UN doc. A/6547, para. 37 (“armed force”) ; cf. further, UN docs.
A/6165, para. 25 ; A/7809, para. 20 ; A/6547, para. 38 (“political or economic
pressure”). And cf. UN docs. A/6955, para. 41 ; A/6547, para. 38.
278. The same uncertainties were to be found also in expert writing, disclos-
ing either a wider interpretation of the prohibition of force (G. Arangio-Ruiz,
“The Normative Role . . .”, op. cit. supra footnote 254, pp. 529-530), or a rather
stricter one (R. Rosenstock, “The Declaration of Principles . . .”, op. cit. supra
footnote 252, pp. 724-725).
279. For the insistence on this last point, cf., e.g., UN docs. A/6547, para. 47 ;
and A/6165, para. 34. And cf., generally, e.g., UN docs. A/6230, paras. 157-272 ;
and A/5746, paras. 128-201.
280. UN doc. A/6165, para. 33.
281. UN doc. A/6547, para. 49 ; on the element of good faith in the peaceful
settlement of disputes, cf. ibid., para. 50.
(Security Council and General Assembly) and regional organizations

— in the settlement of disputes 282.
The third principle considered by the Special Committee, that of
the duty of non-intervention, was strongly supported, for example,
by the representatives mainly of Latin American and also of Eastern
European States 283. In the debates of the Special Committee, it was
contended that the principle of non-intervention amounted in fact to
a principle of International Law of Latin American origin 284. It was
further pondered that, given the difficulties of defining intervention
in all its forms, it should be incumbent upon the “international com-
petent organs” to determine in each concrete case whether inter-
vention had occurred or not 285. It was further agreed that the UN
General Assembly resolution 2131 (XX) of 1965, containing the
Declaration on the Inadmissibility of Intervention in the Internal
Affairs of States and the Protection of Their Independence and
Sovereignty 286, should serve as basis for the work of the Committee,
282. UN docs. A/6165, paras. 36-37 ; and A/6547, para. 51. And cf.
Chap. XXIV, RCADI, Vol. 317 (2005).
283. Cf. UN doc. A/6955, para. 89.
284. In this respect, it was recalled that the principle at issue, already con-
tained in the Drago doctrine, was considered in the Inter-American Conference
of Havana of 1928, and for the first time formally affirmed in the 1933
Montevideo Convention on the Rights and Duties of States, and subsequently set
forth by the Inter-American Conference of Buenos Aires of 1936 in the
Additional Protocol on Non-Intervention. That principle, reiterated in the
Conferences of Lima of 1938 and of Chapultepec of 1945, received its wider
and more rigorous formulation in the Pact of Bogotá of 1948 and in the provi-
sions of Articles 15 and 16 of the OAS Charter ; UN doc. A/AC.119/SR.30,
pp. 4-5, and cf. also p. 7. Thus — in the view of the Mexican delegate (J.
Castañeda) — “the inter-American concept of non-intervention was universally
applicable” ; UN doc. A/AC.119/SR.30, p. 11. On the principle of non-interven-
tion in the inter-American system, cf., e.g., C. Sepúlveda, Las Fuentes del
Derecho Internacional Americano, Mexico, Ed. Porrúa, 1975, pp. 77-84 and 95-
103 ; C. Sepúlveda, “The Reform of the Charter of the Organization of American
States”, 137 RCADI (1972), pp. 96-98 and 102-108 ; and cf. also I. Fabela,
Intervention, Paris, Pedone, 1961, pp. 67-212. Subsequently, in an Opinion pub-
lished in January 1962 on the “Contribution of the American Continent to the
Principles of International Law concerning the Responsibility of the State”, the
OAS Inter-American Juridical Committee inter alia considered the principle of
non-intervention as the most fundamental one of the inter-American system, for
being at the time “contractually binding for 21 American Republics” ; OAS, doc.
OEA/Ser.I/VI.2 — CIJ-61, Chap. IV, pp. 9-12.
285. UN doc. A/AC.119/SR.30, p. 21. And cf. also UN docs. A/AC.119/
SR.26, pp. 5-6 ; and doc. A/AC.119/SR.28, pp. 7-9. As to prior endeavours of the
States to codify the principle of non-intervention, cf. UN doc. A/5671, p. 23.
286. Cf. UN docs. A/6955, paras. 80-82, and A/6547, para. 54. And, on that
resolution, cf., generally, e.g., N. Ouchakov, “La compétence interne des Etats et
la non-intervention dans le droit international contemporain”, 141 RCADI
(1974), pp. 65-80.
for expressing a “universal juridical conviction” in the principle of

non-intervention and for having been adopted without any votes
against it 287.
The outcome of the work of the Special Committee on the duty
of non-intervention was significant. The principle, as formulated by
the Committee, was unequivocal is providing that
“armed intervention and all other forms of interference or
attempted threats against the personality of the State or against
its political, economic and cultural elements, are in violation of
International Law” ;
it further stipulated that
“no State may use or encourage the use of economic, political
or any other type of measures to coerce another State in
order to obtain from it the subordination of the exercise of
its sovereign rights and to extract from it advantages of any
kind”.
The text added that “every State has an inalienable right to choose
its political, economic, social and cultural systems, without inter-
ference in any form by another State” 288. The formulation by the
Special Committee of the duty of non-intervention was categorical
in condemning intervention in all its forms.
At the very start of the debates of the Special Committee on the
fourth principle, that of the duty of international co-operation, it was
pondered that such co-operation should always take place “on the
basis of the absolute equality of States” 289. References were then
made to regional endeavours of co-operation in the area of develop-
ment and technical assistance 290. In the Geneva session of 1967 of
the Special Committee, there was support for the inclusion, in the
formulation of the principle, of a clause providing for the duty of co-
operation of the States in the promotion of respect for, and obser-
vance of, human rights and the elimination of all forms of racial dis-
287. Cf. UN doc. A/6955, paras. 83 and 53 ; and cf. UN docs. A/6230, p. 134 ;
A/6547, para. 52 ; A/8018, Suppl. 18, p. 14, and cf. pp. 36-37.
288. Text in UN General Assembly, Resolutions Adopted on the Report of the
Sixth Committee — 25th Session, 1970, p. 213 (AG resolution 2625 (XXV) of
1970) : cf. also UN doc. A/8028, Suppl. 28, p. 123, and cf. pp. 121-124.
289. UN doc. A/6165, para. 52 ; and cf. also UN doc. A/6955, para. 56.
290. Cf., UN docs. A/6230, paras. 414-445 ; and A/6799, paras. 114-170.
crimination and religious intolerance 291. If, on the one hand, there
were areas which continued, more than ever, to require urgently the
co-operation of States, such as, inter alia, those of disarmarment,
exploration of outer space, protection of the environment, explo-
ration of ocean resources, erradication of hunger, peaceful uses of
Antarctica, on the other hand one should acknowledge the intense
activity of international co-operation developed in recent years
within the United Nations and regional organizations, which
appeared as an expression of the opinio juris sive necessitatis of
States 292.
The consideration of principles of International Law by the Special
Committee did not limit itself to a simple reassessment of the basic
principles already found in Article 2 of the UN Charter, but extended
itself also to principles the contents of which were, at that time, still
in evolution, such as that of the equality of rights and self-determi-
nation of peoples 293. References were made to relevant resolutions
of the UN General Assembly on decolonization 294. In the prolonged
debates on the principle at issue 295 there was support for the view
that States had to abstain themselves from any action contrary to the
exercise of self-determination, and that colonial peoples struggling
for emancipation were entitled to search for and receive all kinds of
291. UN doc. A/6955, para. 58, and cf. paras. 51, 53 and 55. In recalling
Article 23 of the Covenant of the League of Nations and Articles 13, 55 and 56
of the UN Charter, one representative remarked that the principle of co-opera-
tion among States encompassed also their duty to co-operate in the juridical
field as well, and “particularly in the progressive development of International
Law and its codification” ; E. Ustor, “The Principle of Co-operation among
States and the Development of International Law”, in Questions of International
Law (Hungarian Branch of the International Law Association), Budapest,
Progresprint, 1971, pp. 245-246 ; and cf. also, on the principle at issue, E.
McWhinney, “Friendly Relations and Co-operation among States : Debate at the
Twentieth General Assembly, United Nations”, 60 AJIL (1966), p. 360.
292. E. Ustor, op. cit. supra footnote 291, pp. 244-245.
293. UN docs. A/6955, paras. 62-63 and 71 ; A/7831, paras. 22-24 and 27 ;
A/6547, para. 69.
294. Such as, e.g., resolutions 1514 (XV) of 1960 (the contents of which
were particularly significant for the conceptualization of self-determination in
the context of decolonization), 2105 (XX) of 1965 (of support to movements of
national liberation), as well as resolutions 2160 (XXI) of 1966, 1541 (XV) of
1960, and 2131 (XX) of 1965 ; UN docs. A/7831, para. 22, A/6547, para. 71,
A/6955, paras. 62 and 65. It is to be noted, however, that the definitive formu-
lation of the principle in the Declaration of 1970 did not quote expressly any
of those resolutions of the UN General Assembly. GA resolution 2621 (XXV)
of 1970 contained the Plan of Action for the Full Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples.
295. Cf., e.g., UN docs. A/6799, paras. 171-235 ; and A/6230, paras. 456-521.
assistance in accordance with the principles and purposes of the UN

Charter 296. This was one of the rare and exceptional situations in
which the use of force, thus understood, was contemplated, on
behalf of colonial peoples and in the light of the UN Charter 297.
An attempt was made to draw a distinction between the typical
cases of self-determination (in the immediately colonial context) and
those of secession (in an already independent country) 298. In any
case, the formulation of the principle of self-determination ranked
among the significant achievements of the Special Committee, par-
ticularly for the contribution to the progressive development of
International Law (cf. infra), bearing in mind that until then some
States had not yet accepted self-determination as a right of peoples.
The consideration by the Special Committee of the principle of
sovereign equality of States may at first sight have appeared as con-
ducive to a simple reassertion of Article 2 (1) of the UN Charter. Yet,
its continuing importance was stressed, and a new element emerged
in relation to Article 2 (1), namely, the recognition in the debates by
the Committee members of the right of the State to free choice and
development of its political, social, economic and cultural sys-
tems 299. Throughout the work on the formulation of that principle,
there was a constant concern with de facto inequalities among
States, which — it was believed — should not be “legalized” 300.
One of the points most often debated was surely the right of States
to dispose freely of their wealth and their natural resources, which
was considered an essential aspect of the principle at issue in the
economic domain ; in this respect, references were made to succes-
sive UN General Assembly resolutions on the matter 301.
296. UN docs. A/6165, para. 61 ; and A/7831, para. 28.

297. UN doc. A/7831, paras. 29-30 ; and cf., on the matter, J. Zourek,
L’interdiction de l’emploi de la force en droit international, Leiden, Geneva,
Sijthoff, Institut H.-Dunant, 1974, Chap. XI, pp. 93-112 ; D. Touret, “La
Déclaration universelle des droits des peuples”, 55 Revue de droit international
de sciences diplomatiques et politiques (1977), pp. 296-297 ; and cf., generally,
I. Brownlie, International Law and the Use of Force by States, Oxford,
Clarendon Press, 1963, pp. 1-436.
298. Cf. UN docs. A/7831, para. 26 ; and A/6955, para. 68.
299. Cf., e.g., UN docs. A/5746, paras. 293-352 ; A/6799, paras. 409-437 ;
and A/6230, paras. 356-413.
300. Cf., UN docs. A/6547, para. 59 ; and A/6955, para. 99.
301. E.g., General Assembly resolutions 1803 (XVII) of 1962, 2158 (XXI) of
1966, and 2200 A (XXI) of 1966, on the matter at issue ; cf. UN docs. A/6955,
para. 100 ; and A/6547, para. 61 ; and cf. also A/6165, para. 45. The Declaration,
however, did not expressly quote any of those resolutions of the UN General
Assembly in the formulation of the principle at issue.
As to the debates on the seventh principle, that of good faith in

compliance with international obligations 302, it was argued by sev-
eral representatives that the only obligations encompassed by that
principle were those “compatible with the [UN] Charter and general
International Law” 303. Other aspects were also considered of the
principle at issue, namely, some representatives regretted that the
Drafting Committee of the Special Committee had not expressly
recognized, in the formulation of that principle, the primacy of inter-
national legal obligations over those derived from domestic law 304.
But the formulation of the last principle set forth in the 1970
Declaration was, however, careful enough to provide, inter alia, that,
when obligations derived from international agreements entered into
conflict with the obligations of the member States of the United
Nations in accordance with its Charter, these latter would prevail 305.
3. The 1970 Declaration on Principles as a contribution to the iden-

tification of the opinio juris communis
The 1970 Declaration on Principles of International Law concern-

ing Friendly Relations and Co-operation among States, as at last
adopted 306, pointed out that the principles enshrined therein were
interrelated and constituted “basic principles of International Law”.
Despite the difficulties it met, it contributed to the identification of
the opinio juris communis 307 on the fundamental issue of the prin-
ciples of International Law. Taken as a whole, the 1970 Declaration
appeared more comprehensive than earlier attempts of systematiza-
tion of the matter, and more adequate to the exigencies and needs of
the epoch, and represented a sensible advance when compared with
302. Cf. UN docs. A/6799, paras. 236-300 ; and A/6230, paras. 522-566.
303. UN doc. A/6165, para. 64 ; and cf. also UN docs. A/6547, para. 74 ;
A/6955, para. 77.
304. Cf. ibid., para. 79.
305. Text in UN General Assembly, Resolutions Adopted on the Report of the
Sixth Committee, 25th session, 1970, p. 124 (GA res. 2625 (XXV) of 1970).
306. By unanimity by the XXV General Assembly shortly after the last ses-
sion of the Special Committee (Geneva, 1970), and composed of a preamble,
seven principles and a general part.
307. For the view that the 1970 Declaration on Principles, as an interpretation
and elaboration of the UN Charter principles, is binding on States Parties, and,
as its principles are also general international law, it is likewise binding on
States non-members of the United Nations as well, cf. B. Sloan, “General
Assembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book of
International Law (1987), pp. 88 and 57.
the Draft Declaration on the Rights and Duties of States prepared by

the ILC in 1949 308.
As already seen, at a stage of the preparatory work the hope was
expressed that the Declaration was to amount to an expression of a
“universal juridical conviction” on the matter (cf. supra). The impact
of the Declaration was to be promptly felt throughout the seventies.
It was referred to by the ICJ in its Advisory Opinion on the Western
Sahara (1975), and invoked in the course of its advisory proceed-
ings 309. Shortly afterwards, personalities and representatives of
movements of national liberation signed in Argel the 1976 Universal
Declaration on the Rights of Peoples 310, the drafting of which was
recognizedly influenced by the contents of the 1970 Declaration on
Principles 311.
In the debates of the Diplomatic Conference on the Reaffirmation
and Development of International Humanitarian Law (Geneva, four
sessions, 1974-1977), conducive to the adoption of Additional
Protocols I and II of 1977 to the Geneva Conventions of 1949 on
International Humanitarian Law 312, references were made to the
1970 Declaration on Principles, in particular in relation to the right
of self-determination of peoples 313. The 1970 Declaration had then
already come to be widely invoked, also at doctrinal level, in the
context of the right of States to dispose freely of their natural
resources 314. In particular, the principle of sovereign equality of
308. E. Ustor, “The Principle of Co-operation among States . . .”, op. cit.
supra footnote 291, pp. 238-239.
309. The Declaration was referred to in the assertion of one of its principles,
that of self-determination of peoples, reiterating the basic need of taking into
account the aspirations of the people at issue ; ICJ, Advisory Opinion on the
Western Sahara, ICJ Reports 1975, p. 33, para. 58.
310. Proclaiming inter alia self-determination already as a right and no
longer as but a principle.
311. Cf. D. Touret, “La Déclaration universelle des droits des peuples”,
op. cit. supra footnote 297, pp. 288-298, esp. pp. 293 and 296-297.
312. Cf. “Conférence diplomatique sur la réaffirmation et le développement
du droit international humanitaire applicable dans les conflits armés — Résumé
des travaux de la quatrième session”, 703 Revue internationale de la Croix-
Rouge (July 1977), pp. 381-418.
313. In connection with the debates of the epoch on the status of movements
of national liberation in International Law ; cf. G. Abi-Saab, “Wars of National
Liberation and the Development of Humanitarian Law”, in Declarations on
Principles, a Quest for Universal Peace — Liber Amicorum Discipulorumque B.
V. A. Röling, Leyden, Sijthoff, 1977, pp. 145-148, 150, 153-158, 164 and 167.
314. Cf., e.g., A. J. Lleonart y Amselem, Derecho de los Estados a Disponer
Libremente de Sus Recursos Naturales, Madrid, Consejo Superior de
Investigaciones Científicas, Instituto Francisco de Vitoria, 1976, pp. 225, 328-
346 and 412-413 ; and cf. also, e.g., K. N. Gess, “Permanent Sovereignty over
States, set forth in the 1970 Declaration, became the object of a

systematic reassessment in the light of developments of International
Law at that time 315. In subsequent years, the issue of equality among
nations came to be approached by reference to the formulation
enshrined into the 1970 Declaration on Principles 316.
The 1974 UN Definition of Aggression was influenced by the
1970 Declaration on Principles 317 ; the former contained two express
references to this latter 318. Both Declarations were based on the
law of the United Nations, comprising not only the UN Charter but
also the practice thereunder 319. The adoption itself of the 1970
Declaration on Principles was a very positive development, not only
for the conclusion of the work in a difficult time (marked, inter alia,
by the Vietnam war and the conflicts in the Middle East) — a factor
which prompted its draftsmen to conduct their work bearing in mind
the relationship between the formulation of basic principles of Inter-
national Law and the imperative of securing peaceful co-existence
of States belonging to different ideological blocs at that time 320.
Natural Resources”, 13 International and Comparative Law Quarterly (1964),

pp. 398-449 ; E. Atimomo, “Natural Resources and the United Nations”, 10
Journal of World Trade Law (1976), pp. 280-289.
315. Cf., earlier on, B. Boutros-Ghali, “Le principe d’égalité des Etats et les
organisations internationales”, 100 RCADI (1960), pp. 11 and 14-15 ; J.
Castañeda, “The Underdeveloped Nations and the Development of International
Law”, 15 International Organization (1961), pp. 38-48 ; K. Wolfke, “The
Privileged Position of the Great Powers in the International Court of Justice”, 56
Die Friedens-Warte (1961-1966), pp. 156-167 ; C. A. Colliard, “Egalité ou spé-
cificité des Etats dans le droit international public actuel”, in Mélanges offerts à
M. le doyen L. Trotabas, Paris, LGDJ, 1970, pp. 529-558.
316. Cf., e.g., F. A.-M. Riad, “Equality among Nations”, 31 Revue égyptienne
de droit international (1975), pp. 157-178 ; E. David, “Quelques réflexions sur
l’égalité économique des Etats”, 10 Revue belge de droit international (1974),
pp. 399-424, esp. pp. 404-418 and 423.
317. B. Broms, “The Definition of Aggression”, 154 RCADI (1977) pp. 330,
339-340, 357-361, 367, 386-387 and 392.
318. Preamble, eighth considerandum ; and Article 7, reaffirming the right of
self-determination of peoples. Cf. text in UN doc. A/9890, of 6.12.1974, pp. 4
and 7, respectively.
319. Cf. J. Zourek, “Enfin une définition de l’aggression”, 20 Annuaire
français de droit international (1974), pp. 9-30 ; V. Blanco Gaspar, La Agresión
Internacional : Intentos de Definición, Madrid, Consejo Superior de Investi-
gaciones Científicas, Instituto Francisco de Vitoria, 1973, pp. 25-31. However,
the issue of the definition of aggression did not appear to have been entirely
resolved in a definitive and wholly satisfactory way (as subsequent develop-
ments were to demonstrate).
320. Cf., on the theme, e.g., G. I. Tunkin, “Co-existence and International
Law”, 95 RCADI (1958), pp. 5-78 ; L. Focsanéanu, “Les ‘cinq principes’ de la
coexistence et le droit international”, 2 Annuaire français de droit international
(1956), pp. 150-180.
Likewise significant was the fact that the Declaration succeeded in

intermingling the principles set forth therein.
VI. Concluding Observations
In the light of the considerations developed in the present chapter,

it may be concluded that the principles of International Law shed
light on the interpretation and application of International Law as a
whole, pertain to the very substratum of this latter, and are identified
with the very foundations of the international legal system. They
permeate every legal system. Their continuing validity is beyond
question. Principles of International Law are essential to humankind’s
quest for justice, and of key importance to the endeavours of con-
struction of a truly universal International Law.
1. The sustained validity of the principles of International Law

As proclaimed in the UN Charter in 1945, and restated in the
1970 UN Friendly Relations Declaration, the principles of
International Law retain their full validity in our days. A violation of
a norm or rule of International Law does not mean that such norm or
rule ceased to exist ; it means that International Law has been vio-
lated, engaging the international responsibility of the wrongdoers.
This is bound to occur in any domain of law. A violation of a norm
or rule of International Law does not affect the validity of its corpus
juris and its guiding principles. There is a constant recourse to such
principles, bearing witness of their continuing validity.
Given the overriding importance of those principles, not surpris-
ingly they found expression in the UN Charter, adopted in 1945. A
quarter of a century afterwards, the 1970 Declaration on Principles
was meant to be a law-declaring resolution as to those basic prin-
ciples, so as to serve as a guide for all States in their behaviour. The
UN Declaration on Principles, though not exhaustive in its content,
proved to be, in the following years, a source for other exercises of
the kind, such as the declaration of principles enshrined into the
Helsinki Final Act (1975) which formed the basis for the subsequent
creation of the (then) CSCE (Conference on Security and Co-opera-
tion in Europe) process 321. One of the final clauses of the 1970
321. I. Sinclair, “The Significance of the Friendly Relations Declaration”, in

The United Nations and the Principles of International Law — Essays in
Declaration further asserted that each of the principles contained

therein was to be interpreted and applied in the context of the other
principles, interrelated as they all were.
Thus, while the traditional general principles of law (found in foro
domestico) disclosed a rather procedural character, the general prin-
ciples of International Law — such as the ones proclaimed in the
1970 Declaration — revealed instead a substantive content (so as
to guide State conduct) 322, proper of the very foundations of
International Law. Such general principles of International Law (as
set forth in the 1970 Declaration on Principles) are thus vested with
universal importance for the international community itself 323.
The interrelationship between the principles at issue is evident,
for example, with regard to the principle of the prohibition of the use
or threat of force, and the principle of peaceful settlement of inter-
national disputes. The same can be said of the principle of the duty
of international co-operation, with regard to the principle of good
faith in the compliance with international obligations. This latter is
generally regarded as providing the foundation of the international
legal order, in the sense that it asserts the basic need of compliance
with binding international obligations (pacta sunt servanda), arising
from conventional as well as customary international law 324. The
principle of pacta sunt servanda, enshrined into the Vienna
Convention on the Law of Treaties of 1969 (Article 26 and pre-
amble), gives concrete expression to norms also of customary inter-
national law. The principle pacta sunt servanda — asserted by that
of good faith (bona fides) 325 — effectively transcends the law of
Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London, New York,

Routledge, 1994, pp. 5-10 and 26-29.
322. Cf. debates on “The Role of General Principles of Law and General
Assembly Resolutions”, in Change and Stability in International Law-Making
(eds. A. Cassese and J. H. H. Weiler), Berlin, W. de Gruyter, 1988, pp. 47-48
(interventions of J. H. H. Weiler and E. Jiménez de Aréchaga).
323. Cf. ibid., pp. 54-55 (intervention of A. Cassese).
324. G. White, “The Principle of Good Faith”, in The United Nations and
the Principles of International Law — Essays in Memory of M. Akehurst (eds.
V. Lowe and C. Warbrick), London, New York, Routledge, 1994, pp. 231 and
236.
325. M. Lachs, “Some Thoughts on the Role of Good Faith in International
Law”, in Declarations on Principles, a Quest for Universal Peace — Liber
Amicorum Discipulorumque B. V. A. Roling, Leyden, Sijthoff, 1977, pp. 47-55 ;
M. K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne sur
le droit des traités”, 151 RCADI (1976), p. 20 ; Clive Parry, “Derecho de los
Tratados”, in Manual de Derecho Internacional Público (ed. M. Sørensen), 5th
reimpr., Mexico, Fondo de Cultura Económica, 1994, pp. 229 and 200-201.
treaties 326, being characterized by doctrine as either a norm of cus-

tomary law 327 or a general principle of International Law 328.
Its insertion into the aforementioned Vienna Convention was
endowed with a clearly axiomatic character : it came to appear in a
convention of codification, which asserted in an incontrovertible
way its wide scope. But, already well before its acknowledgment in
the Vienna Convention of 1969 referred to 329, the principle pacta
sunt servanda effectively appeared, as already indicated, as, more
than a general rule of interpretation of treaties, a precept of custom-
ary International Law or a true general principle of International
Law, endowed with widespread jurisprudential recognition 330. The
extent of the principle pacta sunt servanda, as well as the ultimate
question of the validity of the norms of International Law, transcend
the particular ambit of the law of treaties 331 ; the principle pacta sunt
servanda is, in any case, deeply rooted in the international legal
system as a whole.
Good faith is, in turn, inherent in any legal order, guiding the
behaviour of the subjects of law. Four years after the adoption of the
1970 UN Declaration on Principles of International Law, the ICJ, in
the Nuclear Tests case (1974), stressed the fundamental character of
the principle of good faith, in pondering that “one of the basic prin-
ciples governing the creation and performance of legal obligations,
whatever their source, is the principle of good faith” 332. The principle
of good faith has a key position in International Law and all legal
326. The law of treaties, like the law on the international responsibility of
States, are closely linked to the very foundations of International Law ;
P. Reuter, Introduction au droit des traités, 2nd ed., Paris, PUF, 1985, p. 32.
327. E.g., B. Conforti, Derecho Internacional, Buenos Aires, Zavalía Ed.,
1995, p. 67 ; and cf. H. Mosler, “The International Society as a Legal Com-
munity”, 140 RCADI (1974), pp. 115-116 ; R. R. Baxter, “Treaties and Custom”,
129 RCADI (1970), pp. 31, 43, 57 and 102-103.
328. Ian Brownlie, Principles of Public International Law, 5th ed., Oxford,
University Press, 1998, p. 620.
329. Cf. Lord McNair, The Law of Treaties, Oxford, Clarendon Press, 1961,
pp. 493 and 505 ; and, for the historical and doctrinal evolution of the principle
pacta sunt servanda, cf., e.g., M. Sibert, “The Rule Pacta Sunt Servanda : From
the Middle Ages to the Beginning of Modern Times”, 5 Indian Yearboook of
International Affairs (1956), pp. 219-226 ; J. B. Whitton, “La règle pacta sunt
servanda”, 49 RCADI (1934), pp. 151-268.
330. E. de la Guardia and M. Delpech, El Derecho de los Tratados y la
Convención de Viena, Buenos Aires, La Ley, 1970, p. 276.
331. Cf. J. L. Brierly, The Basis of Obligation in International Law, Oxford,
Clarendon Press, 1958, p. 65 ; J.L. Brierly, The Law of Nations, 6th ed., Oxford,
Clarendon Press, 1963, p. 54.
332. ICJ, Nuclear Tests (Australia v. France), ICJ Reports 1974, p. 268, para. 46.
systems, providing them with an ethical basis, and surely standing

above positive law ; it is metajuridical, and constitutes “the starting
point of a progressive moralization of International Law” 333.
The principle of the duty of international co-operation has gained
ground in the last decades, if one bears in mind, for example, the
relevance of international co-operation in various areas, such as, for
example, peacekeeping and peacebuilding within the ambit of the
law of the United Nations 334. Intensified international co-operation
accounts for the impressive developments in recent decades in cer-
tain domains of International Law, such as, for example, the interna-
tional protection of human rights and of the human environment.
The principle of the duty of international co-operation is indeed
related to that of bona fides : one can in fact find express support in
international case-law for the principle of the duty of international
co-operation in good faith 335. Principles of International Law consti-
tute altogether the pillars of the international legal system itself.
As the clause of domestic jurisdiction (Art. 2 (7)) of the UN
Charter had in mind the relations between the Organization and
member States and did not expressly address intervention in inter-
State relations, it was much to the credit of the 1970 Declaration on
Principles to have formulated the principle of non-intervention by a
State or group of States in the internal or external affairs of another
State 336. One and a half decades later, the ICJ, in the Nicaragua v.
United States case (1986), in expressly invoking inter alia the 1970
Declaration on Principles, stated that the principle at issue
“forbids all States or groups of States to intervene directly or
indirectly in the internal or external affairs of other States. . . .
Intervention is wrongful when it uses methods of coercion . . .
The element of coercion, which defines, and indeed forms the
essence of, prohibited intervention, is particularly obvious in
333. E. Zoller, La bonne foi en droit international public, Paris, Pedone,

1977, pp. 354 and 339-340, and cf. pp. 12-13, 346 and 352.
334. Cf., e.g., A. James, “The Principle of Co-operation : United Nations
Peacekeeping”, in The United Nations and the Principles of International Law
— Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London,
New York, Routledge, 1994, pp. 160-174.
335. Cf. Ph. Cahier, “Changements et continuité du droit international. Cours
général de droit international public”, 195 RCADI (1985), pp. 85-86 and 89.
336. G. Abi-Saab, “Some Thoughts on the Principle of Non-Intervention”, in
International Law : Theory and Practice — Essays in Honour of Eric Suy (ed.
K. Wellens), The Hague, Nijhoff, 1998, pp. 227-234.
the case of an intervention which uses force, either in the direct

form of military action, or in indirect form of support for sub-
versive or terrorist armed activities within another State. . . .
These forms of action are therefore wrongful in the light of
both the principle of non-use of force, and that of non-inter-
vention.” 337
To the Special Committee which drafted the 1970 Declaration on
Principles the formulation of the principle of non-intervention
expressed a “universal legal conviction” ; the principle had its basis
in customary law, and was reasserted in successive international
treaties 338. And as for judicial practice, it may be recalled that,
already in 1949, in the Corfu Channel case, the ICJ warned that
intervention was but a “manifestation of a policy of force . . .
reserved for the most powerful States”, which “might easily lead to
perverting the administration of international justice itself” 339. Half a
century later, the United Nations Millennium Declaration, adopted
by the UN General Assembly (resolution 55/2) on 18 September
2000, has stated that the principles of the UN Charter “have proved
timeless and universal” (para. 3). Half a decade later, in its recent
2005 World Summit Outcome (of 15 September 2005), the UN
General Assembly has again evoked the principles of the UN
Charter, expressly referring to the aforementioned 1970 Declaration
on Principles (para. 73).
2. The projection in time of the evolving principle of self-determina-

tion of peoples
Principles of International Law, as formulated in the UN Charter
and restated in the 1970 UN Declaration on Principles, besides
retaining their full validity in our days (supra), have had significant
projections in time, accompanying pari passu, and guiding, the evo-
lution of International Law itself. This applies to all aforementioned
principles, but one striking illustration of those projections may here
337. ICJ, Nicaragua v. United States case, Judgment of 27 June 1986

(Merits), ICJ Reports 1986, p. 108, para. 205.
338. T. Mitrovic, “Non-Intervention in the Internal Affairs of States”, in
Principles of International Law concerning Friendly Relations and Cooperation
(ed. M. Šahović), Belgrade, New York, Institute of International Politics and
Economics, Oceana, 1972, pp. 221, 256-257 and 248.
339. ICJ, Corfu Channel (United Kingdom v. Albania), Judgment of 9 April
1949 (Merits), ICJ Reports 1949, p. 35.
be singled out, pertaining to the principle of equality of rights and

self-determination of peoples, pointing towards the overcoming of
the traditional inter-State dimension of International Law.
The case of East Timor is illustrative of the relevance of the prin-
ciple of self-determination. Prior to independence, East Timor was a
non-self-governing territory, the international status of which was
governed by the law of the United Nations (Chapter XI of the UN
Charter). Shortly after Indonesia’s military occupation of East Timor
on 7 December 1975 (followed by its annexation by a law of 15 July
1976), the UN Security Council 340 deplored the armed intervention
of Indonesia in East Timor ; in its turn, the UN General Assembly 341,
in addition to likewise deploring the Indonesian military interven-
tion, came to refer to Portugal as the “administering power” of East
Timor, in the ambit of the law of the United Nations — a condition
which Portugal was to maintain for years, in the light of successive
General Assembly resolutions on the international legal status of the
then Territory of East Timor 342.
In its resolutions, the UN General Assembly stressed the right of
self-determination of the people of East Timor, in the understanding
that that right had not been exercised. It was precisely in the con-
dition of “administering power” that Portugal lodged a complaint
against Australia before the ICJ for alleged breach of the right to
self-determination of the Timorese people, for having Australia cele-
brated a treaty (known as that of the Timor Gap) with Indonesia
relating to the exploration of oil resources in the continental shelf of
East Timor 343. This episode contributed to place the case of East
Timor again in a position of relevance in the political agenda of the
United Nations 344 ; with the complaint of Portugal — as “adminis-
340. Resolutions 384 (1975), of 22.12.1975, and 389 (1976), of 22.4.1976.
341. Resolution 3485 (XXX), of 12.12.1975, besides seven other resolutions.
342. There were eight such resolutions of the UN General Assembly, added to
two others of the Security Council.
343. On the increased foreign interest in oil resources in the region (conti-
nental shelf of East Timor), cf. R. S. Clark, “The ‘Decolonisation’ of East Timor
and the United Nations Norms on Self-Determination and Aggression”, Internatio-
nal Law and the Question of East Timor, London, CIIR, IPJET, 1995, pp. 90-91.
344. For a general historical account of the case of East Timor, cf., e.g., J.
Ramos Horta, Funu — The Unfinished Saga of East Timor, Trenton, New Jersey,
Red Sea Press, 1987, pp. 1-207 ; S. Inbaraj, East Timor — Blood and Tears in
ASEAN, Chiang Mai, Thailand, Silkworm Books, 1995, pp. 1-183 ; C. O. Quaye,
Liberation Struggles in International Law, Philadelphia, Temple University
Press, 1991, pp. 177-182 ; L. Hannikainen, “The Case of East Timor from the
Perspective of Jus Cogens”, in International Law and the Question of East
Timor, London, CIIR, IPJET, 1995, pp. 108-111.
tering power” — before the ICJ, the case of the East Timor again
gained momentum 345.
Earlier on, the assertion of the right of self-determination by the
1960 UN Declaration on the Granting of Independence to Colonial
Countries and Peoples 346 and subsequent resolutions of the UN
General Assembly on the matter, came to count on judicial recog-
nition, mainly by means of the Advisory Opinions of the ICJ
on Namibia (of 21 June 1971) and on the Western Sahara (of
16 October 1975). In the first Advisory Opinion, the Hague Court
pondered, in relation to the mandates system, that the developments
in the last 50 years — disclosing the expansion of the corpus juris
gentium in the present domain — left little margin for doubt that
“the ultimate objective of the sacred trust was the self-determination
and independence of the peoples concerned” 347. And, in the second
Advisory Opinion, the ICJ concluded in favour of the application of
resolution 1514 (XV) of the UN General Assembly
“in the decolonization of Western Sahara and, in particular, of
the principle of self-determination through the free and genuine
expression of the will of the peoples of the Territory” 348.
In the restatement of the principle of equality of rights and self-
determination of peoples by the 1970 UN Declaration on Principles
of International Law (cf. supra), a clause was inserted explaining
that a non-self-governing territory — under the UN Charter — has a
separate and distinct status from the territory of the State which
administers it, which persists until the people living in it exert their
right of self-determination in accordance with the principles and pur-
poses of the UN Charter 349.
In sum, a non-self-governing territory in the sense of Chapter XI
345. Cf. A. A. Cançado Trindade, “Parecer : O Caso do Timor-Leste (1999) :

O Direito de Autodeterminação do Povo Timorense”, 1 Revista de Derecho de la
Universidad Católica del Uruguay (2000), pp. 63-83.
346. The well-known 1960 Declaration on the Granting of Independence to
Colonial Countries and Peoples (UN General Assembly resolution 1514 (XV),
of 14.12.1960) came to strengthen the international status of non-self-governing
territories and of territories under the trusteeship system (para. 5) and to affirm
in a categorical way the right of self-determination of their peoples.
347. ICJ, Avisory Opinion on Namibia, ICJ Reports 1971, p. 31, para. 53
(emphasis added).
348. ICJ, Advisory Opinion on the Western Sahara, ICJ Reports 1975, p. 68,
para. 162 (emphasis added).
349. A. A. Cançado Trindade, Princípios do Direito Internacional . . ., op. cit.
supra footnote 245, pp. 61 and 72.
of the UN Charter has an international legal status which generates

obligations of respect to the right of self-determination of the
people living in it, of the safeguard of the human rights of its
inhabitants, and of non-exploration of their natural resources 350.
Such obligations are opposable erga omnes, both vis-à-vis the State
which administers the territory at issue and vis-à-vis all the other
States : they are obligations owed to the international community as
a whole.
Recent developments in contemporary International Law disclose
the dimensions both external and internal of the right of self-deter-
mination of peoples : the former means the right of every people to
be free from any form of foreign domination, and the latter refers to
the right of every people to choose their destiny and to affirm their
own will, if necessary against their own government. This distinc-
tion, endorsed by contemporary doctrine 351, challenges the purely
inter-State paradigm of classic International Law : the emergence of
the International Law of Human Rights came to concentrate atten-
tion on the treatment dispensed by the State to all human beings
under its jurisdiction, on the conditions of living of the population,
in sum, on the function of the State as promoter of the common
good.
The theory and practice of contemporary International Law
effectively acknowledge the vindication of the rights of peoples.
An international instrument such as the 1981 African Charter of
Human and Peoples’ Rights, for example, sets forth not only civil
and political rights (Arts. 3-14), and economic, social and cultural
rights (Arts. 15-18), but also the rights of peoples (Arts. 19-24),
with a mechanism of implementation common to all (Arts. 46-59
and 62). The rights of peoples have, moreover, counted on arbitral
350. Cf., in this respect, e.g., Ian Brownlie, “The Rights of Peoples in
Modern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford,
Clarendon Press, 1988, pp. 1-16 ; [Various authors,] Les résolutions dans la for-
mation du droit international du développement (Colloque de 1970), Geneva,
IUHEI, 1971, pp. 63-67 (permanent sovereignty over natural resources) ;
A. J. Lleonart y Amselem, op. cit. supra footnote 314, pp. 15-478.
351. Cf. A. Cassese, Self-Determination of Peoples — A Legal Reappraisal,
Cambridge, University Press, 1995, pp. 1-365 ; P. Thornberry, “The Democratic
or Internal Aspect of Self-Determination with Some Remarks on Federalism”,
Modern Law of Self-Determination (ed. Ch. Tomuschat), Dordrecht, Nijhoff,
1993, pp. 101-138 ; Ch. Tomuschat, “Self-Determination in a Post-Colonial
World”, in ibid., pp. 1-20 ; A. Rosas, “Internal Self-Determination”, in ibid.,
pp. 225-251 ; J. Salmon, “Internal Aspects of the Right to Self-Determination :
Towards a Democratic Legitimacy Principle ?”, in ibid., pp. 253-282.
and judicial recognition, as acknowledged, for example, by the case

of the Maritime Delimitation between between Guinea and Guinea-
Bissau 352.
Furthermore, in the international contentieux, cases of initiatives
of States on behalf of peoples, so as to protect them, may be
recalled : clear indications to this effect are found, for example, in
two unilateral applications instituting proceedings before the ICJ,
namely, that of New Zealand (against France) in the case of the
Nuclear Tests (1973-1974), and that of Nauru (against Australia) in
the case of the Phosphate Lands (1989-1992) 353.
The well-known aforementioned obiter dicta of the ICJ affirming
the applicability of self-determination to all non-self-governing terri-
tories (Advisory Opinion on Namibia, 1971) and recognizing the
right of self-determination through the “free and genuine expression
of the will of the peoples of the Territory” (Advisory Opinion on the
Western Sahara, 1975), came to foster the definitive consolidation of
the justiciability of the right of self-determination of peoples 354. In
the fortunate expression of the Separate Opinion of Judge Dillard in
the Advisory Opinion on the Western Sahara, “it is for the people to
determine the destiny of the territory and not the territory the destiny
of the people” 355. There is, thus, a whole doctrinal and jurispruden-
tial development, corroborated by the practice of States and of inter-
national organizations, in support of the right of self-determination
of peoples 356.
352. In this case, in its award of 18.2.1983, the Arbitral Tribunal which
decided the case referred to the “legitimate claims” of the parties as developing
States and to the right of the peoples concerned to achieve the level of economic
and social development which preserves fully their dignity ; cit. in Ian Brownlie,
The Human Right to Development, London, Commonwealth Secretariat
(Occasional Paper Series), 1989, pp. 1-2, and cf. p. 13 n. 1.
353. A. A. Cançado Trindade, Direitos Humanos e Meio-Ambiente —
Paralelo dos Sistemas de Proteção Internacional, Porto Alegre, S.A. Fabris Ed.,
1993, pp. 186-187.
354. M. C. Maffei, “The Case of East Timor before the International Court of
Justice — Some Tentative Comments”, 4 European Journal of International
Law (1993), pp. 223-238 ; C. M. Chinkin, “East Timor Moves into the World
Court”, in ibid., pp. 206-222. On the position of the so-called Organization of
Unrepresented Nations and Peoples (UNPO), cf. M. C. van Walt van Praag,
“The Position of UNPO in the International Legal Order”, Peoples and
Minorities in International Law (eds. C. Brölmann, R. Lefeber and M. Zieck),
Dordrecht, Nijhoff, 1993, pp. 313-325.
355. ICJ Reports 1975, p. 122.
356. Cf., on the matter, e.g., United Nations, Compilation of General Com-
ments and General Recommendations Adopted by Human Rights Treaty Bodies,
UN doc. HRI/GEN/1/Rev.3, of 15.8.1997, p. 13 (paras. 1-2 and 6).
3. Principles of International Law, the quest for justice and the uni-
versality of International Law
On successive occasions the principles of International Law have

proved to be of fundamental importance to humankind’s quest for
justice. This is clearly illustrated by the role played, inter alia, by
the principle of juridical equality of States 357. This fundamental
principle — the historical roots of which go back to the II Hague
Peace Conference of 1907 —, proclaimed in the UN Charter and
enunciated also in the 1970 Declaration on Principles, means ulti-
mately that all States — factually strong and weak, great and small
— are equal before International Law, are entitled to the same pro-
tection under the law and before the organs of international justice,
and to equality in the exercise of international rights and duties 358.
Despite successive attempts to undermine it, the principle of
juridical equality of States has remained, from the II Hague
Peace Conference of 1907 to date 359, one of the basic pillars of
International Law. It has withstood the onslaught of time, and shown
itself salutary for the peaceful conduct of international relations,
being ineluctably associated — as it stands — with the foundations
of International Law. It has been very important for the international
legal system itself 360, and has proven to be a cornerstone of
International Law in the United Nations era. In fact, the UN Charter
gave it a new dimension, and the principle of juridical equality of
States, in turn, paved the way for, and contributed to, new develop-
ments such as that of the system of collective security, within the
ambit of the law of the United Nations 361. It has been rightly
357. R. Fernandes, Le principe de l’égalité juridique des Etats dans l’activité

internationale de l’après-guerre, Geneva, Impr. A. Kundig, 1921, pp. 18-19 and
21-22.
358. A. Magarasevic, “The Sovereign Equality of States”, in Principles of
International Law concerning Friendly Relations and Cooperation (ed.
M. Šahović), Belgrade, New York, Institute of International Politics and
Economics, Oceana, 1972, pp. 176-178, 197 and 212.
359. Cf. R. P. Anand, “Sovereign Equality of States in International Law”,
197 RCADI (1986), pp. 54-58, 63-66, 77-79, 91-100, 117-126, 157-159 and 189-195.
360. A. Miele, La Comunità Internazionale, Turin, G. Giappichelli Ed., 2000,
pp. 8 and 24.
361. On the basis of the understanding that the preservation of international
peace and security is a matter of international concern, is a common concern of
all States and of the international community ; C. Warbrick, “The Principle of
Sovereign Equality”, in The United Nations and the Principles of International
Law — Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick),
London, New York, Routledge, 1994, pp. 210 and 213-214.
remarked that respect for the principle of juridical equality of States

facilitates the work of the United Nations, whose voice represents
“the authentic voice of mankind”, and gives expression to the
“juridical conscience of nations” 362.
In its turn, the emergence and consolidation of the principle of
equality of rights and self-determination of peoples came to herald
the overcoming in our times of the old inter-State dimension of
International Law ; self-determination, in particular, takes into
account subjects of International Law other than States, and could
simply not exist or operate in a merely or exclusively inter-State
context 363. Its remarkable projection in the last decades, as already
pointed out, was to enable the discernment of the external and inter-
nal dimensions of self-determination (cf. supra), and the definitive
incorporation of the rights of peoples into the conceptual universe of
contemporary International Law.
Last but not least, it is not surprising to find that voluntarist-posi-
tivists, who have always attempted to minimize the role of general
principles of law, have always met the opposition of those who sus-
tain the relevance of those principles, as ensuing from the idea of an
objective justice 364, and guiding the interpretation and application of
legal norms and rules. The international legal system is supported
not only by the observance by States (and other subjects of
International Law) of international norms and rules, but also — and
above all — by their commitment to preserve and promote that sys-
tem as a whole 365 ; and it is the principles of this latter that can best
ensure the cohesion and integrity of the international legal system as
a whole 366. Those principles are intertwined with the very founda-
tions of International Law, pointing the way to the universality of
this latter.
362. R. P. Anand, op. cit. supra footnote 359, pp. 125-126.

363. G. Abi-Saab, “La reformulation des principes de la Charte et la transfor-
mation des structures juridiques de la communauté internationale”, in Le droit
international au service de la paix, de la justice et du développement —
Mélanges M. Virally, Paris, Pedone, 1991, pp. 4 and 6-7.
364. Ch. Rousseau, Principes généraux du droit international public, Vol. I,
Paris, Pedone, 1944, pp. 926-927.
365. J. I. Charney, “Universal International Law”, 87 AJIL (1993), p. 532.
366. C. Wilfred Jenks believed that an enquiry into the general principles of
law (found in distinct legal systems, and further encompassing the principles of
International Law itself) could much contribute to provide the “basic founda-
tions of a universal system of international law” ; C. W. Jenks, The Common
Law of Mankind, London, Stevens, 1958, pp. 106 and 120-121, and cf. p. 172.
Writing in 1935, A. Verdross propounded the “universal idea of

law”, emanating from human conscience, conforming the existence
of a “fonds juridique commun”, source of the general principles of
law 367. Over three decades later, A. Favre sustained, in 1968, that
general principles of law are “the expression of the idea of justice”
having a universal scope and expressing the “juridical conscience of
humankind” ; rather than deriving from the “will” of States, they
have an “objective character” and constitute a “fonds juridique com-
mun pour l’ensemble des Etats”, thus securing the unity of law and
enhancing the idea of justice to the benefit of humankind as a
whole 368. One cannot prescind from the general principles of law,
which emanate, in my understanding, ultimately from the universal
juridical conscience, as the material “source” of all Law. The inter-
national legal order owes its effectiveness, its universality and its
very existence to those principles. General principles of law encom-
pass the principles of International Law, and express the opinio juris
communis of the international community, in the construction of a
new jus gentium, the International Law for humankind.
367. A. Verdross, “Les principes généraux du droit . . .”, op. cit. supra foot-
note 196, p. 202. On his part, H. Lauterpacht sustained that the universality of a
“substantial body of International Law” is to a large extent based on the general
principles of law, which “by definition” have a universal character and applica-
tion, “independently of any express or implied manifestation of the will” of the
members of the international community ; furthermore, the universality of some
provisions of conventional international law stems from “compelling considera-
tions of humanity” ; International Law Being the Collected Papers of Hersch
Lauterpacht (ed. E. Lauterpacht), Vol. I (General Works), Cambridge, University
Press, 1970, pp. 114-117.
368. A. Favre, “Les principes généraux du droit, fonds commun du droit des
gens”, op. cit. supra footnote 222, pp. 369, 374-375, 379, 383 and 390.
122
CHAPTER IV
THE PRIMACY OF INTERNATIONAL LAW OVER FORCE
I. Introduction
The sustained and continuing validity of the general principles

of International Law provides the foundations for the application of
its norms. In this turmoiled beginning of the twenty-first century,
there is growing need to reaffirm, in particular, the primacy of
International Law over force. Such reassertion is, in my view, an
ineluctable duty of every jurist, who cannot contribute with his
silence to the apparent attempts at deconstruction of International
Law in our days. It is a duty to be performed even more vigorously
at a difficult moment of world crisis such as the present one —
reflecting a deep crisis of values — in which the international sys-
tem itself is threatened with rupture by the unwarranted use of force,
outside the framework of the UN Charter.
II. The Crystallization and Continuing Validity of the Principle

of Non-Use of Force
May I begin by recalling a recent episode. In the evening of

25 February 2003, in face of the announcement of a forthcoming
armed attack against Iraq by a self-designated “coalition of States”,
I convened a public ceremony at the headquarters of the Inter-
American Court of Human Rights (IACtHR) in San José, Costa
Rica, to reaffirm a long-standing and deeply rooted belief in the
primacy of International Law over force. The Court’s room of
public hearings was overcrowded 369. In my address that evening, I
saw fit to point out that
“In this same room, yesterday, we witnessed a historical
public hearing before the Inter-American Court. Amidst news
369. With the presence of Ambassadors and other representatives States,

international organizations and non-governmental organizations. The proceed-
ings of that memorable ceremony have been published by the IACtHR (cf. foot-
note 370, infra).
of the imminence of a new war . . ., the Delegations of twelve

Latin American countries appeared before this Court, as inter-
vening States (Mexico, Honduras, Nicaragua, El Salvador,
Costa Rica) or as observers (Uruguay, Paraguay, Dominican
Republic, Brazil, Panama, Argentina and Peru), in advisory
proceedings [on the Juridical Condition and Rights of
Undocumented Migrants], thereby renewing their faith in Law.
While in other latitudes there was and there is talk of the use
of force, we here renew our faithfulness in Law (in the head-
quarters of our Court in a country which has opted for not
having an army).” 370
In other parts of the world, international lawyers likewise
expressed their hope that International Law would prevail, and the
armed attack would not take place 371, with all its negative conse-
quences for the international legal order. Most regrettably it did, in
breach of Article 2 (4) of the UN Charter, commonly regarded, in
historical perspective, as one of the most important provisions of the
UN Charter 372. The long history behind the fundamental principle of
the prohibition of threat or use of force, may here be briefly recalled,
in a moment of outburst of generalized violence all over the world,
of unilateralisms and indiscriminate use of force, presenting a con-
370. A. A. Cançado Trindade, “Los Aportes Latinoamericanos al Primado del

Derecho sobre la Fuerza”, in Doctrina Latinoamericana del Derecho
Internacional, Vol. II (eds. A. A. Cançado Trindade and F. Vidal Ramírez), San
José, Costa Rica, IACtHR, 2003, p. 39.
371. Cf., e.g., “Appel de juristes de droit international concernant le recours
à la force contre l’Irak”, 36 Revue belge de droit international (RBDI) (2003),
pp. 266-274 ; “The Australian Section of the ICJ Questions the Proposed Attack
on Iraq”, in ibid., pp. 286-287 ; “Statement by Japanese International Law
Scholars on the Iraqi Issue”, in ibid., pp. 293-294 ; “ICJ [International Com-
mission of Jurists] Deplores Moves toward a War of Aggression on Iraq”, in
ibid., pp. 297-298 ; declaratory resolution of the Instituto Hispano-Luso-
Americano de Derecho Internacional (IHLADI), reviewed infra, and reproduced
in 16 Anuario del IHLADI, Madrid (2003), pp. 657-658. And, after the armed
attack on Iraq, cf., on the need to respect and ensure respect for International
Humanitarian Law, the Declaration of Bruges, adopted by roll-call vote by the
Institut de droit international, reproduced in 70 Annuaire de l’Institut de droit
international (Session de Bruges, 2003), II, pp. 284-289.
372. Furthermore, it is nowadays generally recognized that States ought to
settle any dispute peacefully (by the methods provided under Article 33 of the
UN Charter) until the Security Council makes a determination under Article 39
of the Charter ; T. O. Elias, “Scope and Meaning of Article 2 (4) of the United
Nations Charter”, in Contemporary Problems of International Law : Essays
in Honour of G. Schwarzenberger on his 80th Birthday (eds. Bin Cheng and
E. D. Brown), London, Stevens, 1988, pp. 70-74 and 77.
siderable challenge to all those who deposit their confidence in the

law of nations.
In fact, over a century ago, the I Hague Peace Conference
(1899) ended with an eloquent declaration, which retains its topicality,
to the effect that
“The limitation of military expenses, which presently weigh
heavy on the world, is much to be desired for the sake of both
material and moral development of humankind.” 373
In the course of the League of Nations era, the 1928 General Treaty
for the Renunciation of War as an Instrument of National Policy
became of almost universal application, playing a considerable role
throughout that era 374, and causing an impact on both theory and
practice of International Law. This was significant, as, before
the Pact, “according to the prevailing positivist opinion, Public
International Law was indifferent towards the State’s extra-legal
decision to go to war” 375. The Briand-Kellogg Pact (which entered
into force on 24 July 1929) and the subsequent international practice
put an end to that indifference. Soon the Pact became the first
worldwide prohibition of war 376.
The cumulative effect of the Briand-Kellogg Pact of 1928, the
Pact Saavedra Lamas of 1933, the Stimson doctrine (of non-recog-
nition of situations generated by force, of 1932), on the practice
of International Law, was to the effect of crystallizing a customary
norm of condemnation of illegality of the use of armed force as
instrument of national policy. The prohibition of war in International
373. Cit. in G. Best, “The Restraint of War in Historical and Philosophical

Perspective”, in Humanitarian Law of Armed Conflict : Challenges Ahead —
Essays in Honour of F. Kalshoven (eds. A. J. M. Delissen and G. J. Tanja),
Dordrecht, Nijhoff, 1991, p. 19.
374. Ratified or adhered to by 63 States, which avoided making reservations
to it (before the World War II only 4 States were not bound by its provisions),
and remaining still in force ; cf. I. Brownlie, op. cit. infra footnote 422, pp. 23
and 25.
375. B. Roscher, “The ‘Renunciation of War as an Instrument of National
Policy’ ”, 4 Journal of the History of International Law/Revue d’histoire du droit
international (2002), p. 294.
376. Despite not having provided for a mechanism for peaceful settlement of
disputes. In the inter-war period, no other Treaty had more States Parties than it ;
B. Roscher, op. cit. supra footnote 375, pp. 295-297 and 303, and cf. p. 299. In
the years that followed its adoption, several States issued pronouncements of
principle endorsing its terms, and some States even foresaw sanctions for acts
which violated the Pact, in the ambit of their domestic law (constitutions and
penal codes).
Law had become opinio juris communis. Three decades after the his-
torical II Hague Peace Conference, the principle of the non-use of
force found eloquent expression, in the American continent, in the
Declaration of Principles adopted by the Inter-American Conference
of Lima of 1938 377. Shortly afterwards, that principle transcended
that regional ambit to reach the universal one, set forth as it was in
Article 2 (4) of the UN Charter 378, in culmination of a long and
dense evolution of consolidation of the prohibition of the threat or
use of force 379. Shortly afterwards, in its Judgment in the Corfu
Channel case (1949), the International Court of Justice (ICJ)
endorsed the principle of non-use of force in clear and emphatic
terms :
“The Court can only regard the alleged right of intervention
as the manifestation of a policy of force, such as has, in the
past, given rise to most serious abuses and such as cannot,
whatever be the present defects in international organization,
find a place in International Law. Intervention is perhaps still
less admissible in the particular form it would take here ; for,
from the nature of things, it would be reserved for the most
powerful States, and might easily lead to perverting the admin-
istration of international justice itself.” 380
Subsequently, three significant Declarations, adopted by the UN
General Assembly in a period of less than two decades — the 1970
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in Accordance with the
377. Followed by the Declaration adopted in Mexico by the Inter-American

Conference on Problems of War and Peace of 1945. Cf. J.-M. Yepes, “La con-
tribution de l’Amérique latine au développement du droit international public et
privé”, 32 RCADI (1930), pp. 744-747 ; and J. C. Puig, Les principes du droit
international public américain, Paris, Pedone, 1954, pp. 23-25.
378. The prohibition of war was, thus, in fact, formulated in Europe, where,
notwithstanding, it regrettably kept on being practised, with millions of mur-
dered persons. The Latin American countries, in their turn, kept on condemning
intervention and the use of force (short of war), which often victimized them, to
the point of contributing successfully to set forth the principles of non-interven-
tion and non-use of force both in the 1945 UN Charter (Art. 2 (4)) and in the
1948 OAS Charter (Art. 18). G. Arangio-Ruiz, The United Nations Declaration
on Friendly Relations and the System of the Sources of International Law,
Alphen aan den Rijn, Sijthoff, Noordhoff, 1979, pp. 118-120.
379. With historical roots in the I and II Hague Peace Conferences (1899 and
1907, respectively).
380. ICJ, Corfu Channel (United Kingdom v. Albania), Merits, ICJ Reports
1949, p. 35.
Charter of the United Nations 381, the 1974 Definition of

Aggression 382, and the 1987 Declaration on Enhancing the
Effectiveness of the Principle of the Non-Use of Force 383 — clearly
expressed the view prevailing in the international community that
the prohibition of the use of force or of forcible intervention was
generally understood in absolute terms 384. The 1987 Declaration
restated the principle as set forth in the UN Charter and numerous
other documents, and asserted its universal character 385.
The UN International Law Commission itself, on its part,
endorsed (in 1966) the understanding that the prohibition by the UN
Charter of the use of force has the character of jus cogens, and
expressed (in 1978) the view that a violation of the prohibition of
aggression can result in an international crime 386. As recalled by
E. Jiménez de Aréchaga, except for the hypothesis of self-defence in
the terms of the UN Charter and of an enforcement measure ordered
or duly authorized likewise by an international organization such as
the United Nations, the use of force constitutes a delict 387. On the
occasion of the fiftieth anniversary of the Hague Academy of
International Law, in his survey of the contribution of the courses at
the Academy to the development of International Law, R.-J. Dupuy
remarked that
381. Cf. Chap. III, supra.
382. Which, reflecting a minimum consensus on a matter surrounded by
much discussion, limited itself to the use of armed force in inter-State relations,
conferring upon the UN Security Council the power of determination of the act
of aggression. The Definition incorporated the principle of non-recognition of
situations generated by aggression, and had the merit of securing the least,
namely, the Security Council could no longer ignore an act of aggression alleged
by certain States, without opposition ; J. Zourek, “Enfin une définition de l’ag-
gression”, 20 AFDI (1974), pp. 9-30.
383. Conformed by a preamble of 21 paragraphs and an operative part with
33 paragraphs.
384. C. Gray, International Law and the Use of Force, Oxford, University
Press, 2000, pp. 5, 27-28 and 51.
385. Paragraph 10. It further referred to, and insisted on, disarmament, and
acknowledged the relations between the principle at issue and other principles of
International Law, such as those of peaceful settlement of disputes and of the
duty of international co-operation ; cf. T. Treves, “La Déclaration des Nations
Unies sur le renforcement de l’efficacité du principe du non-recours à la force”,
33 Annuaire français de droit international (AFDI) (1987), pp. 383, 388-390
and 396-398.
386. M. Díez de Velazco, Las Organizaciones Internacionales, 12th ed.,
Madrid, Tecnos, 2002, pp. 177-178.
387. E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo,
Madrid, Tecnos, 1980, pp. 116-117 ; and cf. E. Jiménez de Aréchaga, “Inter-
national Law in the Past Third of a Century”, 159 RCADI (1978), pp. 87 and
111-113.
“l’Académie a, sans nul doute, éprouvé dès le début beaucoup

de répugnance à admettre qu’il puisse y avoir un droit de l’Etat
à recourir à la force” 388.
In the same understanding of the absolute prohibition of recourse
to force have also manifested themselves — besides successive
resolutions of the UN General Assembly — the Final Act of the
Conference of Security and Co-operation in Europe (Helsinki,
1975), and the Charter of Paris for a New Europe (of 21 November
1990). Thus, restatements of that fundamental principle of Interna-
tional Law multipled themselves along the years, in doctrine, case-
law, and international practice, giving unequivocal testimony of its
crystallization, continuing validity, and imperative character. The ICJ
itself, in the Nicaragua v. United States case (1986), reasserted the
principle of the prohibition of the use of force as “being not only a
principle of customary International Law but also a fundamental or
cardinal principle of such law” 389. The principle at issue, further-
more, served along the years as basis for the conclusion of numerous
treaties and instruments in the domains of disarmament and of main-
tenance of international peace and security. The contemporary
apologists of the use of force seem to make abstraction of one century
of evolution of International Law.
III. The Primacy of Law over Force as a Cornerstone

of Contemporary International Law
Interventions in inter-State relations disclose the disparities of

power among States, unilaterally decided by the same power which
executes them, acting unjustifiably as “judge and party in each
case”, perpetrating “acts of force against those who cannot defend
themselves” 390. Interventions become the privilege, and monopoly,
of the great powers 391 ; the weaker count on the Law to defend them-
388. R.-J. Dupuy, “La contribution de l’Académie au développement du droit
international”, 138 RCADI (1973), p. 58.
389. ICJ, Nicaragua v. United States case, Judgment of 27 June 1986 (Merits),
ICJ Reports 1986, p. 100, para. 190 ; in this connection, the ICJ expressly referred
to the 1970 Declaration on Principles, and to the 1975 Helsinki Final Act ; cf. ibid.,
p. 100, paras. 188-189, and cf. p. 84.
390. I. Fabela, Intervention, Paris, Pedone, 1961, p. 232 ; I. Fabela, Inter-
vención, 1st ed., Mexico, UNAM, 1959, pp. 141 and 26.
391. The principle of the juridical equality of States, just as that of the equal-
ity before the Law, are antithetical to any schemes of unilateralism or self-help,
which aggravate factual inequalities inevitably privileging the great powers.
selves, and rely on the precise formulation and compulsory applica-

tion of “a universal normative order” 392. The contemporary heralds
of militarism do not seem to take into account the enormous sacri-
fices of past generations 393. In an historical moment like the present
one, of sombre recrudescence of indiscriminate use of force 394, in
which it regrettably appears again trivial to speak of war, there is
pressing need to face the new threats to international peace and secu-
rity within the framework of the UN Charter, and to insist on the
realization of justice at the international level 395 as the best guarantee
for peace. Only with the strengthening of the United Nations and
other international organizations of universal character, with strict
observance of the general principles of International Law, can one
contain and control the frenzy of violence, unilateralism and self-
help 396, based usually on force rather than Law.
The more lucid legal doctrine and the more learned commentaries
of the UN Charter point out that the letter and spirit of its Article 51
(on self-defence) are opposed to the pretension of the so-called “pre-
ventive self-defence”, and definitively disauthorize it 397. Its own legis-
lative history clearly indicates that Article 51 is subordinated to the
392. J. Castañeda, Obras Completas, Vol. I : Naciones Unidas, México D.F.,
Colegio de Mexico, Secretaría de Relaciones Exteriores, 1995, p. 522.
393. Only in the armed conflicts and despotisms of the twentieth century,
86 million human beings were killed.
394. This was evidenced more than half a decade ago, when, as from 1998,
one attempted to “justify” such use of force by means the invocation of an
alleged “implicit authorization” of the UN Security Council ; in the following
year, one attempted to “explain” the use of force by means of an alleged “autho-
rization ex post facto”, by the same Security Council (bombardments of Iraq,
1998, and of Kosovo, 1999, respectively). With that, one attempted to render
“relative” one of the basic principles of the UN Charter, that of the prohibition
of threat or use of force, set forth in Article 2 (4) of the UN Charter.
395. Cf. A. A. Cançado Trindade, “Los Aportes Latinoamericanos al Derecho
y a la Justicia Internacionales”, in Doctrina Latinoamericana del Derecho
Internacional, Vol. I (eds. A. A. Cançado Trindade and A. Martínez Moreno),
San José, Costa Rica, IACtHR, 2003, pp. 33-64.
396. R. P. Anand, “Sovereign Equality of States in International Law”, 197
RCADI (1986), pp. 54, 58, 107 and 164.
397. Cf., e.g., B. Simma (ed.), The Charter of the United Nations — A
Commentary, Oxford, Oxford University Press, 1994, pp. 675-676 ; A. Cassese,
“Article 51”, in La Charte des Nations Unies — Commentaire article par article
(eds. J.-P. Cot and A. Pellet), Paris, Brussels, Economica, Bruylant, 1985,
pp. 770, 772-773, 777-778 and 788-789 ; I. Brownlie, International Law and the
Use of Force by States, Oxford, Clarendon Press, 1981 (reprint), pp. 275-278 ;
J. Zourek, L’interdiction de l’emploi de la force en droit international, Leiden,
Geneva, Sijthoff, Inst. H. Dunant, 1974, p. 106, and cf. pp. 96-107 ; H. Kelsen,
Collective Security under International Law (1954), Union, New Jersey, Law-
book Exchange Ltd., 2001 (reprint), pp. 60-61 ; Chr. Gray, International Law
and the Use of Force, op. cit. supra footnote 384, pp. 112-115 and 192-193.
fundamental principle of the general prohibition of the threat or use

of force (Article 2 (4) of the Charter), besides being subjected to the
control of the Security Council 398. The unconvincing and frustrated
attempts to widen the scope of Article 51 (on self-defence) of the
UN Charter, so as to encompass an alleged and unsustainable “pre-
ventive self-defence”, have never succeeded to provide an answer to
the objection to the effect that to admit it would be to open the door
to reprisals, to the generalized use of force, to aggression, amidst the
most complete conceptual imprecision 399 and discretionality (of the
powerful). Had the so-called “doctrine” of “preventive self-defence”
been applied, for example, in the Cuban missile crisis (1961-1962),
the world would possibly no longer exist, fatally victimized by the
use of nuclear weapons by the two superpowers of the epoch 400. In
our days, with the alarming proliferation of weapons of mass
destruction, the principle of the prohibition of the threat and use of
force (Art. 2 (4)) of the UN Charter imposes itself even more force-
fully 401, disclosing a truly imperative character 402.
In fact, Article 2 (4) prohibits both the use and the threat of armed
force. Nowadays, the institutional response to threats or breaches of
peace or acts of aggression is found in Chapter VII of the UN
Charter, not in “preventive self-defence” (a privilege of the great
powers), which is disruptive, aggravating disorder and anarchy in
the international community 403. Under the UN Charter there is no
398. Cf. H. Kelsen, The Law of the United Nations, London, Stevens, 1951,
p. 792.
399. J. Delivanis, La légitime défense en droit international public moderne,
Paris, LGDJ, 1971, pp. 50-53, and cf. pp. 42, 56 and 73 ; L. D. San Martino,
Legítima Defensa Internacional, Buenos Aires, Ed. Ciudad Argentina, 1998,
pp. 30-31 and 40-42, and cf. pp. 48-49.
400. In his thoughtful account of that crisis, A. Chayes disclosed that “pre-
ventive self-defence” was at a stage contemplated by some “realists” naturally
supporting the unrestricted use of force, but was fortunately promptly discarded
(A. Chayes, The Cuban Missile Crisis, Oxford, University Press, 1974, pp. 62-
66), and sound reason at last prevailed, to the benefit of the then present, and
succeeding, generations, ultimately to the benefit of humankind.
401. G. I. Tunkin, El Derecho y la Fuerza en el Sistema Internacional,
Mexico, UNAM, 1989, pp. 121, 151 and 155 ; and cf., to the same effect, the
warning — in face of the constant growth of human capacity of destruction —
of Quincy Wright, A Study of War, 2nd ed., Chicago, London, University of
Chicago Press, 1983 (Midway reprint), pp. 404 and 372-373.
402. A. A. Cançado Trindade, “El Primado del Derecho sobre la Fuerza como
Imperativo del Jus Cogens”, in Doctrina Latinoamericana del Derecho Inter-
nacional, op. cit. supra footnote 370, pp. 51-66.
403. J. A. Pastor Ridruejo, “Ha Sido Legal el Uso de La Fuerza en
Afganistán ?”, in Los Retos Humanitarios del Siglo XXI (ed. C. Ramón Chornet),
Valencia, PUV, University of Valencia, 2004, pp. 103 and 105-106.
“anticipatory self-defence”, which only challenges the general prin-

ciples of International Law that have preserved international peace
and security throughout the last six decades 404. What is “anticipa-
tory” is Law itself, rather than the use of force. “Preventive attacks”
have no support in international practice either 405.
It has been aptly pointed out that, if permissible self-defence
(under the UN Charter) is governed by the principles of necessity
and proportionality, how will the so-called “preventive” self-defence
comply with the principle of proportionality if the armed attack has
not occurred ? This would mean that a State victimized by an armed
aggression would have its self-defence limited by the requisite of
proportionality, while a State which invokes “preventive” self-
defence would have no such limitation, other than its own subjective
assessment of the situation, which would lead to a juridical absur-
dity 406.
“Preventive” self-defence is, not surprisingly, rejected by the
overwhelming majority of States 407 : it would be open only to the
great powers, undermining the principle of the juridical equality of
States, sinking the world in anarchical self-help, aggravating the
effects of factual disparities of power in the international scenario.
What is needed, quite on the contrary, is “a universal normative
order” 408. Article 51 of the UN Charter, as consistently interpreted
404. L. Condorelli, “Vers une reconnaissance d’un droit d’ingérence à l’en-

contre des ‘Etats voyous’ ?”, in L’intervention en Irak et le droit international
(eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone,
CEDIN, 2004, pp. 51-52 and 56.
405. As illustrated by the negative reactions and criticisms to the so-called
“preventive” attacks by Israel on Iraq (in 1981), by South Africa on Lesotho (in
the epoch of apartheid, by the United States on Sudan (in 1998), and by Israel
in the “six-day-war” (in 1967. Cf. Th. Christakis, “Vers une reconnaissance de la
notion de guerre préventive ?”, in L’intervention en Irak et le droit international
(eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone,
CEDIN, 2004, pp. 23-25 and 27.
406. Th. Christakis, op. cit. supra footnote 405, pp. 20-21 ; not surprisingly,
there are no UN resolutions endorsing “preventive” self-defence, and all
regional treaties on security (from 1935 to date) condition self-defence to a prior
armed attack (ibid., pp. 22-23).
407. Cf. F. Nguyen-Rouault, “L’intervention armée en Irak et son occupation
au regard du droit international”, 108 Revue générale de droit international pub-
lic (2003), pp. 835-864 ; O. Corten, “Opération ‘Iraqi Freedom’ . . .”, op. cit.
infra footnote 413, pp. 205-243.
408. J. Castañeda, Obras Completas, Vol. I : Naciones Unidas, Mexico D.F.,
Colegio de Mexico, Secretaría de Relaciones Exteriores, 1995, p. 522. And cf.
G. Guerrero, La codification du droit international, Paris, Pedone, 1930, pp. 182
and 175, and cf. pp. 9-10, 13, 24, 27 and 150 ; A. Álvarez, Exposé de motifs
et Déclaration des grands principes du droit international moderne, Paris,
and applied to date, has not been “amended” by the practice of

power-holders or self-helpers ; it is the UN Security Council that
regulates the use of force in the international system, in accordance
with the relevant provisions of the UN Charter.
The current attempted return, by the contemporary apologists of
the use of force, to “preventive wars”, is unwarranted and retro-
grade, a dangerous threat to the achievements of International Law
in a century of evolution (from the two Hague Peace Conferences, of
1899 and 1907, until the present). The system of collective security
of the Charter, essential to world peace, was erected upon the prin-
ciples of the prohibition of the threat or use of force in inter-State
relations and of the peaceful settlement of international disputes 409.
Nothing in International Law authorizes a State, or a group of States,
to launch sponte sua an international armed attack (such as the inva-
sion and occupation of Iraq, in 2003) — outside the framework of
the UN Charter 410 — under the pretext of dismantling arsenals of
weapons of mass destruction — while a few of them possess some
of the major arsenals of weapons of mass destruction in the world.
To that end, there are multilateral mechanisms of control and pro-
hibition, created by international conventions, which are to be
applied and strengthened, towards world disarmament. There are,
moreover, the enforcement measures foreseen under Chapter VII of
the UN Charter, to face threats to international peace and security, to
be applied by a strengthened United Nations. The much-needed and
much-protracted reforms of the UN Charter appear nowadays neces-
sary and urgent, in order to strengthen the United Nations system of
collective security, so as to enable the United Nations to secure
respect for the principles and purposes set forth in Articles 2 and 1
of its Charter 411.
Eds. Internationales, 1938, pp. 8-9, 16-21 and 51 ; A. Álvarez, Le droit interna-
tional de l’avenir, Washington, Institut Américain de Droit International, 1916,
pp. 7-8, 26, 71, 114, 134-136 and 146-149 ; R. Fernandes, A Sociedade das
Nações, Rio de Janeiro, Imprensa Nacional, 1925, pp. 5-6, 9 and 26.
409. These principles warn that any exception to the regular operation of such
system ought to be restrictively interpreted.
410. And deliberately confusing and manipulating the contents and legal
effects of UN resolutions, such as, e.g, the recent attempt to “link” Security
Council resolution 1441 (particularly its vague and generic paragraph 13), of
November 2002, to Security Council resolutions 678 (of 1990) and 687 (of
1991), adopted much earlier in a distinct context, to try in vain to justify “pre-
ventive” armed attacks.
411. O. Corten, Le retour des guerres préventives : le droit international
menacé, Brussels, Ed. Labor, 2003, pp. 42-44, 56 and 80.
It is in difficult moments of world crisis such as the current one,

that one ought to, with all the more reason, reassert and preserve the
foundations and principles of International Law. “Implicit authoriza-
tion” and “authorization ex post facto” by the Security Council of
the use of force are manifest distortions of Chapter VII of the UN
Charter 412. In the operation of the system of collective security, there
is a presumption in favour of peaceful settlement, and eventual
exceptions to that are to be restrictively interpreted, as that system
was built upon the principles of non-use of force and peaceful
settlement of disputes 413.
IV. The Emerging Right to Humanitarian Assistance
The idea of justice underlies International Law from the thinking

of its founding fathers to our days, in the adoption and application
of enduring norms that can secure international peace 414. Invoking
a “collective conscience” 415, A. Ulloa drew attention, in the mid-
twentieth century, to the progressive universalization of International
Law, remarking that it was not surprising that the “rules of humani-
tarian character” were the first ones to be universally applied 416. The
412. Cf., e.g., Ph. Weckel, “L’emploi de la force contre la Yougoslavie ou la

Charte fissurée”, 104 Revue générale de droit international public (RGDIP)
(2000) pp. 19-36 ; M. Šahović, “Le droit international et la crise en ex-
Yougoslavie”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional,
Castellón, Spain (1999) pp. 417-418 ; J. M. Ortega Terol, La Intervención de la
OTAN en Yugoslavia, Oviedo, Septem Ed., 2001, pp. 19-21 and 39-40 ;
D. Momtaz, “ ‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle du
non-recours à la force”, 82 RICR (2000), No. 837, pp. 89-101 ; P. Kovács,
“Intervention armée des forces de l’OTAN au Kosovo — Fondement de l’obli-
gation de respecter le droit international humanitaire”, 82 RICR (2000), No. 837,
pp. 122 and 127-128, and cf. pp. 119-120 and 124.
413. This appears, moreover, as the only way to secure a “minimum of inter-
national cohesion” in face of the challenges currently facing the international
legal order ; L.-A. Sicilianos, “L’autorisation par le Conseil de sécurité de
recourir à la force : une tentative d’évaluation”, 106 RGDIP (2002), pp. 7, 39-
40, 42-43 and 47-48. And cf. O. Corten, “Opération Iraqi Freedom : peut-on
admettre l’argument de l’ ‘autorisation implicite’ du Conseil de sécurité ?”, 36
RBDI (2003), pp. 218-219, 224-227 and 237-243.
414. A. Ulloa, Derecho Internacional Público, Vol. I, 2nd ed., Lima, Impr.
Torres Aguirre, 1939, pp. 3 and 14. Considerations of power, on their turn, are
not static or permanent factors at the international level, but are rather constantly
changing, “lasting or disappearing in the evolution of history” ; A. Ulloa,
Derecho Internacional Público, Vol. II, 4th ed., Madrid, Ed. Iberoamericanas,
1957, p. 218, and cf. p. 460.
415. Ibid., Vol. II, p. 301.
416. A. Ulloa, Derecho International Público, Vol. I, cit. supra footnote 414,
pp. 21-22 and 74.
worldwide survey Customary International Humanitarian Law

(2005), recently undertaken by the International Committee of the
Red Cross, identifies the universal common core of International
Humanitarian Law 417.
Throughout the nineties, the tragedy of the genocide in Rwanda
(1994) 418, the difficulties of defining “security areas” in the case of
Bosnia and Herzegovina (1993-1995) 419, and the much-criticized
NATO “campaign of bombardments” in the case of Kosovo (1999) 420,
among others, have drawn attention to the need to enhance humani-
tarian assistance on a concerted multilateral basis 421, within the
framework of the UN Charter (of a strengthened United Nations), in
search of the realization of justice, putting an end to iniquities.
Distinctly from “interventionist” operations 422 — always surrounded
by controversy — the right to humanitarian assistance finds clear
417. Cf. ICRC, Customary International Humanitarian Law (eds. J.-M.

Henckaerts and L. Doswald-Beck), Cambridge, University Press, 2005, Vol. I,
pp. ix-liii and 3-621 ; Vol. II, pp. 3-1982 ; and Vol. III, pp. 1983-4411.
418. For critical accounts, cf., e.g., A. Destexhe, Rwanda and Genocide in the
Twentieth Century, London, East Haven Conn., Pluto Press, 1995, pp. 1-88 ;
B. Bruneteau, Le siècle des génocides — Violences, massacres et processus
génocidaires de l’Arménie au Rwanda, Paris, A. Colin, 2004, pp. 202-214 ;
K. A. Acheampong, “Our Common Morality under Siege : The Rwanda Genocide
and the Concept of the Universality of Human Rights”, 4 Review of the African
Commission on Human and Peoples’ Rights (1994), pp. 31-40.
419. Created in the region by decision of the UN Security Council during the
conflict.
420. Cf. criticisms, in e.g., A. Roberts, “El Papel de las Cuestiones
Humanitarias en la Política Internacional en los Años Noventa”, in [Various
Authors,] Los Desafíos de la Acción Humanitaria — Un Balance, Barcelona,
Icaria Ed., 1999, pp. 49, 62-63 and 70 ; D. Momtaz, “ ‘L’intervention d’huma-
nité’ de l’OTAN au Kosovo et la règle du non-recours à la force”, 82 Revue
internationale de la Croix-Rouge (RICR) (2000), No. 837, pp. 89-101 ; P. Kovács,
“Intervention armée des forces de l’OTAN au Kosovo — Fondement de l’obli-
gation de respecter le droit international humanitaire”, 82 RICR (2000), No. 837,
pp. 122 and 127-128, and cf. pp. 119-120 and 124.
421. It has become manifest that “interventions” of a “humanitarian” charac-
ter (by a handful of States) were incapable of “solving” cases of massive ethnic
violence and of grave and systematic violations of human rights ; A. J.
Kuperman, The Limits of Humanitarian Intervention — Genocide in Rwanda,
Washington DC, Brookings Institution, 2001, pp. vii-ix and 109-119.
422. The Ministerial Declaration of 24 September 1999 of the Meeting of
Foreign Ministers of the Group of 77 — as pertinently recalled by Ian Brownlie
— distinguished between “humanitarian assistance” and other UN activities, and
“rejected the so-called right of humanitarian intervention” as without foundation
in the UN Charter or in International Law (para. 69) ; this represented the view
of 132 States, including 23 from Asia, 51 from Africa, 22 from Latin America
and 13 from the Arab world. I. Brownlie, “‘International Law and the Use of
Force by States’ Revisited”, 21 Australian Year Book of International Law
(2001), p. 21.
and unequivocal support in International Law, and the United

Nations Organization has contributed to that. Successive resolutions
of the UN General Assembly 423 have effectively expressed a “uni-
versal recognition of the right of the victims to humanitarian assis-
tance” ; the international legal order has, thereby, “experienced in
this matter the evolution from the right of humanitarian assistance
to the right to humanitarian assistance” 424. Instead of unsustainable
“humanitarian” intervention, the right to humanitarian assistance is
thus affirmed, with emphasis on the needs of the victims 425.
Humanitarian assistance, as it ensues from some UN General
Assembly resolutions, is in fact ineluctably linked to the fulfilment
of the basic needs of the victims 426. It is the victims who occupy a
central position in humanitarian assistance, which is enhanced with
the faithful observance and application of the norms of International
Humanitarian Law. While the so-called “humanitarian intervention”
shifts attention to the factual or material capacity to intervene, humani-
tarian assistance evokes, on a distinct plane, the imperatives of human
solidarity. The former singles out the factual potential of action of
the intervening agent, the latter the fulfilment of the basic needs of
the victims, as titulaires of the right to humanitarian assistance 427.
The emphasis is, thus, in my understanding, to be placed on the
assistance to be given to those in need of it, rather than on the fac-
tual capability of the intervening actors. The adequate criterion lies
in the focus on the beneficiaries of assistance, those in need of it, and
entitled to it, rather than on those rendering it. The former are the
423. Resolution 43/131, of 8.12.1988 ; and resolutions 45/100, 45/101, and
45/102, of 14.12.1990 ; and resolution 46/182, of 19.12.1991.
424. M. C. Márquez Carrasco, Problemas Actuales sobre la Prohibición del
Recurso a la Fuerza en Derecho Internacional, Madrid, Tecnos, 1998, pp. 204-
205. As to the free access to victims being a “customary rule”, cf. A. do Amaral
Júnior, O Direito de Assistência Humanitária, Rio de Janeiro, Ed. Renovar,
2003, pp. 249-250.
425. C. Zanghi, “Fondements éthiques et moraux du droit à l’assistance
humanitaire”, in [Various Authors,] Colloque international sur le droit à l’assis-
tance humanitaire — Actes (Paris, 25-27.1.1995), Paris, UNESCO, 1996, pp. 7
and 10, and cf. pp. 3-10 ; and cf. J.-M. Arbour, Droit international public, 4th
ed., Cowansville, Quebec, Ed. Y. Blais, 2002, p. 648 ; A. Dieng, “L’action du
système des Nations Unies et le droit à l’assistance humanitaire”, in [Various
Authors,] Colloque international sur le droit à l’assistance humanitaire . . ., cit.
supra (this footnote), pp. 50 and 52-53, and cf. pp. 47-53.
426. E.g., UN General Assembly resolutions 43/131 (of 08.12.1988), 45/100
(of 14.12.1990) and 46/182 (of 19.12.1991).
427. A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, Vol. I, 2nd ed., Porto Alegre, Brazil, S.A. Fabris Ed., 2003, pp. 429-
433.
ones who can best identify their own basic needs of assistance ; they
are the titulaires of the right to humanitarian assistance 428. The
ultimate foundation for the exercise of such a right is the dignity
inherent in the human person, in all human beings.
If attention is drawn to those who require assistance — as it ought
to be — and these latter deem that they indeed need it, the aim of
humanitarian assistance will more appropriately be fulfilled. Recent
developments in this domain have in fact disclosed that humani-
tarian assistance has been evolving in the light of the needs of pro-
tection, in the conceptual framework of the corpus juris of
the International Law of Human Rights and of International
Humanitarian Law, which provide elements for the construction of a
right to humanitarian assistance, and the corresponding duty to pro-
vide it 429. The focus would, in sum, be on the human person, on the
titulaires of the right to humanitarian assistance 430. The realization
of this right to humanitarian assistance lies in the confluence
between International Humanitarian Law, International Human
Rights Law and the law of the United Nations 431. It finds inspiration,
above all, in the principle of humanity, permeating customary Inter-
national Law itself, and enabling the victims themselves to request
and receive humanitarian assistance 432.
428. A. A. Cançado Trindade, “Reply [Assistance Humanitaire]”, in 70
Annuaire de l’Institut de droit International, Session de Bruges (2002-2003),
Part 1, pp. 536-540.
429. Cf., in this respect, the Guiding Principles on the Right to Humanitarian
Assistance (1993) of the International Institute of Humanitarian Law in San
Remo (Principles 1-3 and 6).
430. The UNESCO Colloquy of Paris (of 1995) on the matter effectively con-
cluded by approaching the question as from the angle of the subjective right of
the victims to humanitarian assistance, of the determination of the active and
passive subjects of this right, and of the pressing need to secure the direct access
to the victims to be assisted or protected — foreseen, in fact, by UN General
Assembly resolutions 43/131 (of 8.12.1988) and 45/100 (of 14.12.1990) ; cf.
“Conclusions du Colloque”, in Colloque international sur le droit à l’assistance
humanitaire . . ., op. cit. supra footnote 425, pp. 197-198, and cf. pp. 195-198.
431. E.g., some provisions of the IV Geneva Convention on International
Humanitarian Law of 1949 (Arts. 23, 55 and 59-61) and of the Protocols I
(Arts. 69-70 and 54) and II (Arts. 14 and 18) of 1977, and certain basic principles
of the UN Charter besides resolutions of the General Assembly and the Security
Council on humanitarian assistance ; H. Fischer and J. Oraá, Derecho Inter-
nacional y Ayuda Humanitaria, Bilbao, University of Deusto, 2000, p. 81, and
cf. pp. 17-101 ; [Various Authors,] Colloque international sur le droit à l’assis-
tance humanitaire . . ., op. cit. supra footnote 425, pp. 133-135 and 137-138
(intervention by V. Muntarbhorn).
432. This right has also found expression in certain resolutions of the General
Assembly (cf. supra) and the Security Council (e.g., those pertaining to the con-
flicts of Somalia and Bosnia-Herzegovina) ; the same does not occur with the so-
There occurs, nowadays, an unfortunate diversification of sources

(sometimes not even identified) of violations of human rights, of
which bear witness several situations of extreme hardship, distress
and deprivation, which affect vulnerable sectors of the population in
distinct latitudes, and call for humanitarian assistance 433. Instead of
approaching the matter from the standpoint of the use of force, there
is pressing need to develop the potential of International Law itself
— that is, of the legal elements — in the formation, progressive
development and crystallization of the right to humanitarian assis-
tance. In my understanding, emphasis should be laid on the primacy
of law over force, in the provision of humanitarian assistance to
those who stand in need of it. The key test here would be, in my
view, the clear recognition that the basic needs of assistance to
human beings anywhere, in their quest for survival as well as in their
just aspirations to live with dignity, ought to be fulfilled. Human
beings are the titulaires of the right to humanitarian assistance 434.
Reference may here be made, in this connection, to the consider-
able and unprecedented expansion of beneficiaries of provisional
measures of protection (especially those ordered by the IACtHR in
the course of the last half-decade) 435, which have contributed to the
development of a right to humanitarian assistance. Such right bears
witness of the viability and desirability of rendering that assistance
on the basis of Law, rather than force, as a response to current needs
of the international community, affecting vulnerable and growing
segments of the population in various countries.
V. The Decivilizing Effects of Unwarranted Use of Force

On quite a distinct level, the dangerous sophism of “preventive”
armed attacks is destructive not only of the whole structure of the
organized international community, but also of the values which
called “humanitarian intervention” (on the part of one or more States individu-
ally, or a group of them), which finds no support in the UN Charter (or other
treaties), nor in resolutions of the General Assembly or the Security Council.
H. Fischer and J. Oraá, op. cit. supra footnote 431, pp. 82-83 and 86-87.
433. Such situations bring to the fore the duty erga omnes to provide the
requested humanitarian assistance.
434. To the extent that their international legal personality and capacity is
properly acknowledged, this right may gradually become justiciable ; in its turn,
the current phenomenon of the expansion of legal personality and capacity in
international law (encompassing those of the human person) responds to a press-
ing need of the international community of our days ; cf. Chaps. IX and X, infra.
435. Cf. Chap. II, supra.
inspire it. If, in the domestic legal order, society precedes law, at the
international level — it has rightly been pondered — occurs pre-
cisely the opposite : it is International Law which precedes interna-
tional society, and this latter cannot even be conceived or exist with-
out the former 436. It is the Law which is preventive or anticipatory,
and not force, in the form of armed attacks, aggressions, unilateral
interventions, and terrorist acts, which violate it openly.
It may be recalled that already the ancient Greeks were aware of
the devastating effects of the indiscriminate use of force and of war
over both winners and losers, revealing the great evil of the substi-
tution of the ends by the means : since the times of the Iliad of
Homer until today, all “belligerents” are transformed in means, in
things, in the senseless struggle for power, incapable even to “sub-
ject their actions to their thoughts”. As Simone Weil so perspica-
tiously once observed, the terms “oppressors and oppressed” almost
lose meaning in face of the impotence of everyone in front of the
machine of war, converted into a machine of destruction of the spirit
and of fabrication of the “inconscience” 437. As in the Iliad of Homer,
there are no winners and losers, all are taken by force, possessed by
war, degraded by brutalities and massacres 438. Homer’s perennial
message is as valid and poignant in his times in ancient Greece as in
our days :
“War — I know it well, and the butchery of men.
Well I know, shift to the left, shift to the right
my tough tanned shield. That’s what the real drill,
defensive fighting means to me.
I know it all, . . .
I know how to stand and fight to the finish,
twist and lunge in the War-god’s deadly dance.
. . . For a young man all looks fine
and noble if he goes down in war,
hacked to pieces under a slashing bronze blade —
he lies there dead . . . but whatever death lays bare,
436. B. Boutros-Ghali, “Le droit international à la recherche de ses valeurs :
paix, développement, démocratisation”, 286 RCADI (2000), pp. 20, 18 and 30,
and cf. p. 37.
437. S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión
Social, Barcelona, Ed. Paidós, Universidad Autónoma de Barcelona, 1995,
pp. 81-82, 84 and 130-131.
438. S. Weil, “L’Iliade ou le Poème de la Guerre (1940-1941)”, in Œuvres,
Paris, Quarto Gallimard, 1999, pp. 527-552.
all wounds are marks of glory. When an old man’s killed

and the dogs go at the grey head and the gray beard
. . . — that is the cruellest sight
in all our wretched lives !” 439
Throughout the centuries, the “butchery of men” has kept occur-
ring endlessly 440, and lessons do not yet seem to have been suffi-
ciently learned — in particular the pressing need and duty to secure
the primacy of Law over brute force. Thus, in ancient Rome M. T.
Cicero pondered, in his De Legibus 441, that there was “nothing more
destructive for States, nothing more contrary to right and law,
nothing less civil and humane, than the use of violence in public
affairs” 442. And in his De Republica 443, Cicero added that nothing
was “more damaging to a State” and “so contrary to justice and law”
than recourse “to force through a measure of violence”, where a
country had “a settled and established constitution” 444.
In this same line of concern, by the end of the eighteenth century,
in his essay on Perpetual Peace (1795), Immanuel Kant eloquently
warned :
“il faut ajouter qu’être stipendié pour tuer ou être tué semble
impliquer l’utilisation des hommes comme de simples
machines et instruments aux mains d’autrui (de l’Etat), ce qui
ne se laisse pas bien accorder avec le droit de l’humanité dans
notre propre personne” 445.
Whether perpetrated by States (or in their name) or non-State
entities, the brutalities and massacres in different parts of the world,
of past decades and of the sombre times we now live in, have pro-
439. Homer, The Iliad, New York, London, Penguin Books, 1991 (re-ed.),
pp. 222 and 543-544, verses 275-281 and 83-89.
440. For an eloquent and historical account, cf., inter alia, e.g., Bartolomé de
Las Casas, Brevísima Relación de la Destrucción de las Indias (1552), Bar-
celona, Ediciones 29, 2004 (re-ed.), pp. 7-94 ; Bartolomé de Las Casas,
Tratados, Vol. I, Mexico, Fondo de Cultura Económica, 1997 (reprint), pp. 14-
199, and cf. pp. 219, 319 and 419.
441. On the Laws, Book II, circa 51-43 BC.
442. M. T. Cicero, On the Commonwealth and On the Laws (ed. J. E. G.
Zetzel), Cambridge, University Press, 2003 (re-ed.), Book III, ibid., p. 172.
443. Circa late 50s-46 BC.
444. M. T. Cicero, The Republic — The Laws, Oxford, University Press,
1998, p. 166 (Book III, para. 42).
445. Cit. in La paix (Textes choisis, ed. M. Lequan), Paris, Flammarion, 1998,
pp. 173-174.
found decivilizing effects. The 1997 UNESCO Declaration on

the Responsibilities of the Present Generations towards Future
Generations stated that
“The present generations should spare future generations the
scourge of war. To that end, they should avoid exposing future
generations to the harmful consequences of armed conflicts as
well as all other forms of aggression and use of weapons, con-
trary to humanitarian principles.” 446
Nothing in the UN Charter transfers to one or more of its member
States the power to decide unilaterally that the peaceful means of
settlement of international disputes have been “exhausted”, and
nothing in the UN Charter authorizes one or more of its member
States to decide motu propio, and pursuant to their own criteria (or
lack of them) and strategies, as to the use of armed force. Those who
proceed in this way, besides violating the UN Charter and the basic
principles of International Law, have their international responsi-
bility engaged. In sum, no State is allowed to place itself above
the Law.
“Preventive” armed attacks, unilaterally launched, have profound
decivilizing effects. What, then, in our days, do the terms “civilized
nations” 447 mean, devoid of the colonialist connotation of the past ?
“Civilized nations” are no other than those which respect
International Law 448 and abide by its general principles. Ultimately,
“civilized nations” are those which recognize and respect, in any cir-
cumstance, the primacy of Law over force as an imperative of jus
cogens. In the recent episode of the invasion and occupation of Iraq
(2003), and the ongoing hostilities in the occupied country, the most
446. Art. 9 (2).

447. Coined in Article 38 (1) (c) of the ICJ Statute.
448. This associates the expression to an international legal order of a uni-
versal dimension, which seeks justice and peace and discards unwarranted
recourse to force ; J. A. Carrillo Salcedo, Soberanía de los Estados y Derechos
Humanos en Derecho Internacional Contemporáneo, 2nd ed., Madrid, Tecnos,
2001, p. 180. From this outlook, “civilized nations” are those which fully
respect, and ensure respect for, the exercise of human rights to all persons under
their respective jurisdictions, as the best measure of the degree of civilization” ;
A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos
Humanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, p. 344. In this
respect, already in the nineteenth century, a universal writer, F. M. Dostoievski,
warned that the degree of civilization reached by any society can be assessed by
entering into its prisons and detention centres ; F. M. Dostoievski, Souvenirs de
la maison des morts (1862), Paris, Gallimard, 1997 (re-ed.), pp. 35-416.
numerous victims — like those of terrorism in different parts of the

world — have invariably been innocent and unprotected civilians
(including children) 449.
The heralds of this new Peloponnesian war of the twenty-first
century, like those of their predecessors over the centuries, have had
their decisions vested with empty words and false rhetorics, seeking
thereby a hiding place in the recondite labyrinths of their own
irresponsibility (and impunity). What does one witness after
all ? Devastation, revenge, violations of International Humanitarian
Law 450 and of International Human Rights Law 451, the practice of
torture and other abuses against prisoners — opening wounds and
leaving scars that will take generations to heal 452. In this line of con-
cern it was pertinently warned by Jean Pictet, four decades ago, in
an almost premonitory tone, that “it would be a disastrously retro-
grade step for humanity to try to fight terrorism with its own
weapons” 453.
Force only generates force, and one cannot pretend to create a
new “international order” on the basis of unilateralism and unwar-
449. A situation portrayed by some “strategists” (and part of the media) as

“collateral damages”, a euphemism with which they seek to avoid listening
to the voice of conscience, and which reflects in an unequivocal way the deep
crisis of values in the world in which we live.
450. Cf. J. Cardona Lloréns, “Libération ou occupation ? Les droits et devoirs
de l’Etat vainqueur”, in L’intervention en Irak et le droit international (eds.
K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone, CEDIN,
2004, pp. 221-250 ; G. Abi-Saab, “Les Protocoles additionnels, 25 ans après”, in
Les nouvelles frontières du droit international humanitaire (ed. J.-F. Flauss),
Brussels, Bruylant, 2003, pp. 33-36 ; Y. Sandoz, “L’applicabilité du droit inter-
national humanitaire aux actions terroristes”, in ibid., pp. 71-72.
451. In its Judgment of 8.7.2004, in the case of the Brothers Gómez
Paquiyauri v. Peru, e.g., the IACtHR pondered that “the prohibition of torture is
absolute . . ., even in the most difficult circumstances, such as war, threat of war,
‘fight against terrorism’ . . .” ; there is nowadays an “absolute prohibition of all
forms of torture . . . which belongs . . . to the domain of international jus
cogens” (paras. 111-112).
452. It has been timely remarked, in relation to some of the armed conflicts
we witness nowadays, that
“the repressive methods used by Israel against the Palestinians, the desta-
bilization of Iraq after the American intervention, including the emergence
of a new terrorist resistance, the more than uncertain stabilization of
Afghanistan, the inability of Russia to bring peace to Chechnya by the use
of force, none of these events is a success story” ; M. Bothe, “The
International Community and Terrorism”, in Les nouvelles menaces contre
la paix et la sécurité internationales/New Threats to International Peace
and Security, Paris, Pedone, 2004, pp. 59-60.
453. J. Pictet, The Principles of International Humanitarian Law, 1st ed.,
Geneva, ICRC, 1966, p. 36.
ranted use of force, over the corpses of thousands of innocent vic-

tims (victimized by all kinds of terrorism, perpetrated by non-State
entities as well as sponsored by States themselves), destined, amidst
indifference, to oblivion. The projection in time of the cardinal prin-
ciple of the prohibition of the threat or use of force cannot be over-
looked. In fact, nothing in International Law authorizes a State or
group of States to proclaim themselves defenders of “civilization”
— and those which pretend to take such a course of action, making
recourse to the indiscriminate use of force, outside the framework
of the UN Charter, do so in the opposite sense to the purpose
professed.
More than half a century ago (in 1950), the learned historian
Arnold Toynbee warned that the improvement of military technique
was symptomatic of the “decline of a civilization”, and the growing
expenditures with militarism would fatally lead to the “ruin of civi-
lizations” 454. Another remarkable writer of the twentieth century,
Stefan Zweig, in referring to the “old savagery of war”, likewise
warned against the décalage between technical progress and moral
ascent, in the face of “a catastrophe which with one sole blow made
us move backwards a thousand years in our humanitarian endeav-
ours” 455. The horrors of past conflicts in the twentieth century — the
two world wars and successive atrocities victimizing millions of
human beings — should be kept in mind, in particular by the con-
temporary apologists of recourse to force. It is not the function of
international lawyers to seek “solutions” for threats to international
peace and security through the use of force : this is a distortion of the
legal profession, as such solutions are to be found within the domain
of Law.
VI. Final Observations : The Primacy of Law over Force as an

Imperative of Jus Cogens
In the last decades, one has witnessed a true conversion of the

traditional and surpassed jus ad bellum into the jus contra bellum
of our days ; this is one of the most significant transformations of
454. A. Toynbee, Guerra e Civilização, Lisbon, Edit. Presença, 1963 (re-ed.),

pp. 20, 29 and 178-179. And cf. J. de Romilly, La Grèce antique contre la vio-
lence, Paris, Ed. Fallois, 2000, pp. 18-19 and 129-130.
455. S. Zweig, O Mundo que Eu Vi, Rio de Janeiro, Ed. Record, 1999 (re-ed.),
p. 19, and cf. pp. 474 and 483, and cf. p. 160.
the contemporary international legal order 456. Law has an objective

validity, which resists the violation of its norms. It is inadmissible to
try to equate Law with force, which would moreover reflect a men-
tal vice consisting in not distinguishing the world of Sein from that
of Sollen 457. Law stands above force. One cannot pretend to erect a
new “international order” on the basis of the use of force 458, while
the fundamental principle applicable in that order throuth almost a
century of evolution of International Law has been precisely to the
opposite effect, namely, that of non-use of force 459. Law prevails
over force. The violation of a basic principle of International Law
does not generate a “new practice” 460, but rather engages the inter-
national responsibility of the wrongdoers.
Every faithful international lawyer has the ineluctable duty to
stand against the apology of the use of force, which is manifested in
our days through distinct “doctrinal” elaborations. One attempts, for
example, to widen the scope of Article 51 of the UN Charter so as to
encompass an unsustainable “preventive self-defence” 461. One
advocates recourse to “countermeasures” (a term reminiscent of the
456. M. C. Márquez Carrasco, op. cit. supra footnote 424, Madrid, Tecnos,
1998, p. 263. For a long time already, it has been contended that, even eventual
recourse to force by States, on given occasions, has never affected the primacy
of the jus cogens provision of Article 2 (4) of the UN Charter ; cf., e.g.,
T. O. Elias, op. cit. supra footnote 372, p. 84 ; A. A. Cançado Trindade, “El
Primado del Derecho sobre la Fuerza como Imperativo del Jus Cogens”, in
Doctrina Latinoamericana del Derecho Internacional, op. cit. supra foot-
note 370, pp. 51-66.
457. A. Truyol y Serra, Fundamentos del Derecho Internacional Público, 4th
ed., Madrid, Tecnos, 1977, pp. 47 and 56-57.
458. [Various Authors,] La pratique et le droit international (Geneva
Colloquy of 2003), Paris, Pedone, SFDI, 2004, pp. 116 and 120. It may well be,
as pointed out in this Colloquy, that “persistent objectors” of yesterday have
become “persistent violators” of today ; ibid., pp. 120, 233 and 300-301.
459. Likewise, repeated violations of International Human Rights Law and
International Humanitarian Law have not altered these latter ; on the contrary,
they have promptly reacted to such violations and have strengthened, rather than
weakened ; cf. ibid., pp. 300-301 (intervention by L. Condorelli).
460. One cannot expect an illicit act or practice to generate legal effects (ex
injuria jus non oritur).
461. The XXII Congress of the Hispano-Luso-American Institute of
International Law (IHLADI), held in San Salvador, El Salvador, adopted a
declaration, approved by ample majority on 13 September 2002, which rejected
categorically the “doctrine” of the so-called “preventive self-defence”, bear-
ing in mind the UN Charter, customary international law and the general prin-
ciples of law, as well as relevant norms and the principles of International Huma-
nitarian Law. Cf. text of the declaration in IHLADI, 16 Anuario del Instituto
Hispano-Luso-Americano de Derecho Internacional, Madrid (2003), pp. 657-
658.
old practices of reprisals and retaliation) 462, outside the framework

of the truly central chapter of International Law of the international
responsibility of States 463. One invokes uncritically “humanitarian
intervention or ingérence”, instead of vindicating the right of the
affected populations to humanitarian assistance. One speaks of “per-
sistent objector”, instead of focusing attention on the needed con-
struction of an opinio juris communis. One has even attempted to
issue a death certificate on Article 2 (4) of the UN Charter, without
foreseeing its harmful consequences for humankind as a whole. One
could, in fact, compile a whole glossary of harmful neologisms,
empty of any juridical meaning and bearing a potential of disastrous
consequences for the international legal order. This reflects the
dangerous world in which we live, engulfed into a profound crisis
of values.
The common denominator of all these new “doctrines” is their
minimization or undervaluing of the foundations of International
Law, besides the emphasis on the primitivism of the indiscriminate
use of force. It is known that, for the necessary struggle against ter-
rorism, within the Law, there are nowadays twelve international con-
ventions and protocols at universal level 464, added to seven other
conventions at regional level 465, which are to be applied and duly
462. Cf. criticisms of M. Virally, “Panorama du droit international contempo-

rain. Cours général de droit international public”, 183 RCADI (1983), p. 218.
463. Cf. criticisms of Ph. Allott, “State Responsibility and the Unmaking of
International Law”, 29 Harvard International Law Journal (1988), pp. 23-24.
464. Namely, the 1963 Convention on Offences and Certain Other Acts
Committed on Board Aircraft ; the 1970 Convention for the Suppression of
Unlawful Seizure of Aircraft ; the 1971 Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation (and its 1988
Protocol) ; the 1973 UN Convention on the Prevention and Punishment of
Crimes against Internationally Protected Persons ; the 1979 UN International
Convention against the Taking of Hostages ; the 1980 Vienna Convention on the
Physical Protection of Nuclear Material ; the 1988 Rome Convention for the
Suppression of Unlawful Acts against the Safety of Maritime Navigation (and
the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of
Fixed Platforms Located on the Continental Shelf) ; the 1991 Montreal
Convention on the Marking of Plastic Explosives for the Purpose of Detection ;
the 1997 UN International Convention for the Suppression of Terrorist
Bombings ; and the 1999 UN International Convention for the Suppression of
the Financing of Terrorism.
465. Namely, the 1971 OAS Convention to Prevent and Punish Acts of
Terrorism Taking the Form of Crimes against Persons and Related Extortion that
Are of International Significance ; the 1977 European Convention on the
Suppression of Terrorism ; the 1987 SAARC Regional Convention on
Suppression of Terrorism ; the 1998 Arab Convention on the Suppression of
Terrorism ; the 1999 Convention of the Organization of the Islamic Conference
complied with. At the present moment of world crisis — a true

crisis of values —, of a worrisome attempted rupture of the inter-
national system of collective security, there is pressing need to reassert
the primacy of International Law over brute force 466, as an impera-
tive of jus cogens. “Preventive” armed attacks and indefinite “counter-
measures” do not find any support whatsoever in International Law ;
on the contrary, they openly violate it. They rely on spurious “doc-
trines”, which show the way back to the law of the jungle 467, besides
multiplying their defenceless, silent and innocent victims in different
parts of the world.
The most lucid international legal doctrine has characterized the
principle of the prohibition of the threat and use of force as belong-
ing indeed to the domain of jus cogens 468, and has added that viola-
tions of this principle do not weaken its imperative character 469. The
condemnation of the use of force has been qualified as the “most
remarkable” feature of the UN Charter 470 — representing, effec-
tively, a notable advance in relation to the Covenant of the League of
Nations. The function of the international lawyer is not simply that
of taking note of what States — or some particular States, the most
powerful ones — do ; his function is to identify and say what the
Law is, the Law which derives its authority from certain principles
on Combating International Terrorism ; the 1999 OAU Convention on the

Prevention and Combating of Terrorism ; and the 2002 OAS Inter-American
Convention against Terrorism.
466. The ICJ, stressing the role of opinio juris in the Nicaragua v. United States
case (1986), effectively affirmed the fundamental character of the principle of
the prohibition of the threat and use of force, recognized both in the UN Charter and
in customary International Law ; cf. ICJ Reports 1986, p. 97 para. 181.
467. Cf. cit., in this sense, in A. Cassese, “Article 51”, in La Charte des
Nations Unies — Commentaire article par article (eds. J.-P. Cot and A. Pellet),
Paris, Brussels, Economica, Bruylant, 1985, p. 777.
468. R. St. J. Macdonald, “Reflections on the Charter of the United Nations”,
in Des Menschen Recht zwischen Freiheit und Verantwortung — Festschrift für
Karl Josef Partsch, Berlin, Duncker & Humblot, 1989, p. 45 ; R. Mac-
donald, “The Charter of the United Nations in Constitutional Perspective”,
20 Australian Year Book of International Law (1999), p. 215 ; and cf. C. Lang,
L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice, Paris,
LGDJ, 1990, pp. 135 and 253 (in relation to International Humanitarian
Law).
469. Cf. M. Díez de Velazco, Las Organizaciones . . ., op. cit. supra foot-
note 386, p. 177 ; and cf. E. Schwelb, “Some Aspects of International Ius
Cogens as Formulated by the International Law Commission”, 61 American
Journal of International Law (1967), pp. 946-975.
470. D. Uribe Vargas, La Paz es una Trégua — Solución Pacífica de
Conflictos Internacionales, 3rd ed., Bogotá, Universidad Nacional de Colombia,
1999, p. 109.
of right reason (est dictatum rectae rationis) 471. Law, definitively,

does not silence, not even when recourse is made to weapons either
by States or non-State entities. Well above force stands the Law, just
as above the will stands the conscience.
471. A. A. Cançado Trindade, O Direito Internacional em um Mundo em

Transformação, Rio de Janeiro, Edit. Renovar, 2002, p. 1109 ; and cf. Chap. I,
supra.

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85

FOUNDATIONS OF INTERNATIONAL LAW

FOUNDATIONS OF INTERNATIONAL LAW :

One cannot study International Law making abstraction of its

II. The Position and Role of the General Principles of Law

Every legal system has fundamental principles, which inspire,

198. M. Virally, “Le rôle des ‘principes’ dans le développement du droit

international levels), the necessary primacy of law over force,

legitimacy. Hence the constant reaffirmation or restoration, pur-

213. Formed by H. Gros Espiell, S. Picado and L. Valladares Lanza.

III. The Fundamental Principles as Substratum

It is evident that these principles of law do not depend on the “will”,

If, by chance, any doubts are raised as to the extent of application

226. M. Chemillier-Gendreau, “Principe d’égalité et libertés fondamentales

IV. The Acknowledgment of General Principles of Law by the

1. General principles of law and the quest for justice

In the course of the drafting of the Statute of the Permanent Court

232. PCIJ, Advisory Committee of Jurists, Procès-Verbaux of the Proceedings

whether the dictates of their conscience” were in agreement with the

that, as further pertaining to the substratum of all international legal

2. Principles of International Law as pillars of the international

Notwithstanding, considerably more attention was devoted to the

240. An exposé de motifs of a declaration of principles of International Law,

expression to the idée de droit, and furthermore to the idée de jus-

V. The 1970 UN Declaration on Principles of International Law

1. General considerations in historical perspective

A quarter of a century after the adoption of the United Nations

249. G. M. Danilenko, Law-Making in the International Community,

The Declaration was formulated and adopted in an international

tional disputes ; non-intervention ; duty of international co-operation ;

258. Cf. L. T. Lee, “The Mexico City Conference of the UN Special

nized as such. In order to address this question, and for a better

2. The formulation of the principles of International Law

Throughout the whole work of the Special Committee, one of the

263. For a fuller account, cf., e.g., A. A. Cançado Trindade, Princípios do

Council, of the use or threat of force by certain States on some occa-

269. Resolution 2160 (XXI) of 1966 of the UN General Assembly was

(Security Council and General Assembly) and regional organizations

for expressing a “universal juridical conviction” in the principle of

assistance in accordance with the principles and purposes of the UN

296. UN docs. A/6165, para. 61 ; and A/7831, para. 28.

As to the debates on the seventh principle, that of good faith in

3. The 1970 Declaration on Principles as a contribution to the iden-

The 1970 Declaration on Principles of International Law concern-

the Draft Declaration on the Rights and Duties of States prepared by

States, set forth in the 1970 Declaration, became the object of a

Natural Resources”, 13 International and Comparative Law Quarterly (1964),

Likewise significant was the fact that the Declaration succeeded in

VI. Concluding Observations

In the light of the considerations developed in the present chapter,

1. The sustained validity of the principles of International Law

321. I. Sinclair, “The Significance of the Friendly Relations Declaration”, in

Declaration further asserted that each of the principles contained

Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London, New York,

treaties 326, being characterized by doctrine as either a norm of cus-

systems, providing them with an ethical basis, and surely standing

333. E. Zoller, La bonne foi en droit international public, Paris, Pedone,

the case of an intervention which uses force, either in the direct

2. The projection in time of the evolving principle of self-determina-

337. ICJ, Nicaragua v. United States case, Judgment of 27 June 1986

be singled out, pertaining to the principle of equality of rights and

345. Cf. A. A. Cançado Trindade, “Parecer : O Caso do Timor-Leste (1999) :

of the UN Charter has an international legal status which generates