The fundamental principles governing international relations

1. When the international community emerged no state was powerful enough to impose its will and principles on all other members of the community and to proclaim a set of fundamental principles to regulate social intercourse. Legal principles evolved spontaneously based on states convergent interests. While there was no overreaching principle that had binding force with respect to all members of the world community, states seemed to base their actions on three basic postulates: freedom, equality and effectiveness. Freedom meant that state had a wide range of action on the international scene (freedom to form alliances with whomever they chose to, to enter into agreements that were aligned with their interests etc.). Equality meant that no state had legal authority to impose a set of norms on any other state. Finally the concept of effectiveness meant that international law took into account existing power relationships and translated them into legal rules. In other words, this principle is based on the theory that only those claims and situations which are effective can produce legal consequences. For example: if a new state emerges from secession, it will be able to claim international status only after it can demonstrate that it controls permanently and durably a defined territory and the population that lives therein. Under traditional international law, force was the principal source of legitimation. Situations were recognized as legal if they rested on firm display of authority. Under modern international law, certain states have advanced the argument that legality should prevail over authority and that a situation should not be recognized as legitimate, although it is effectives, so long as it offends fundamental values. The above three postulates are a consequence of the laisser-faire attitude that dominated traditional international law. 2. Because of WWII and the massive loss of human life, states attempted to lay the foundations of a system to insure world peace and security. UN Charter, art. 2 proclaimed the following principles: - self determination of people - peaceful settlement of disputes - prohibition of the threat or use of force In the 60s socialist and developing countries that emerged from the era of colonialism demanded that the above principles be expanded so as to reflect the new international reality. The principles agreed upon in the 60s were proclaimed in the Declaration on Friendly Relations of 1970, which was adopted by consensus but is not legally binding. These principles restated the ones in art. 2 of the UN Charter and extended their application to all states (art. 2 applies only to those states members of the UN). The principles as expanded are: - sovereign equality of all states - self-determination of people - ban on threat or use of force

the peaceful settlement of disputes the non-interference in the domestic affairs of other states duty of co-operation with the mission of the UN good faith

Some of these standards (cooperation and good faith) unless they are made part of legally binding instruments remain expressions of policy guidelines. We should also note that the above stated principles are not the only principles of international law and that many principles have emerged from state practice. A look at various treaties, declaration, states diplomatic practices have led to the emergence of certain principles that have universal scope. In a world that is divided (politically, economically, culturally), when we speak of principles we mean those standards on which there is universal consensus, such that it attributes those standards the rank that constitutional principles have within national systems. The sovereign equality of states One of the major principles proclaimed by the UN Charter and reaffirmed by the Declaration of 1970 is the sovereign equality of all states. There is unanimous consensus on this principle and therefore it has come to be considered as a fundamental premise on which all international relations rest. Sovereignty Sovereignty comprises the following powers: 1. Authority (jurisdiction) over individuals living on the territory of a sovereign state. This jurisdiction has 3 forms: jurisdiction to prescribe legally binding norms upon private and public entities within the territory of the state; jurisdiction to adjudicate (power to settle disputes over legal subjects within territory or sometimes outside territory); jurisdiction to enforce legal norms. Prescriptive jurisdiction Principle: it is usually territorial Exception: extraterritorial jurisdiction; sometimes, states may enact legal norms that are binding on the basis of nationality and thus, have extraterritorial scope; or norms that regulate conduct that is beyond the territory of the state, but is deemed prejudicial to its interest. Extraterritorial jurisdiction is exercised in dealing with terrorism abroad. It may not however infringe on the sovereignty of other states by providing enforcement acts that take place on foreign territory. Examples: 1986 Omnibus Diplomatic Security and Antiterrorism Act which asserted US jurisdiction over attacks on US national abroad; Helms-Burton Act 1996 that provided for sanctions against foreign companies that purchased property in Cuba confiscated in 1960 from US owners.

Jurisdiction to adjudicate Principle: is based on territoriality, active nationality (based on nationality of offender)/passive nationality (nationality of the victim), or the protective principle (jurisdiction over offences that affect a states national interest). Exception: universal jurisdiction (relates to acts committed by foreigners against foreigners on foreign soil). According to the principle of universal jurisdiction a state is empowered to bring to trial persons accused of international crimes regardless of the place of commission of the crime, or the nationality of the victim or offender. Some states have a restrictive view of this principle and apply universal jurisdiction only if the accused is in that states custody; other states have taken a broader approach and apply the principle even when the accused is not in the custody of the forum state. These states have justified extraterritorial jurisdiction by saying that it pertains only to the most serious crimes which warrant international protection and that such exercise of jurisdiction does not infringe upon sovereignty of another state, nor does it constitute undue interference in its internal affairs. Many of the states that initially supported a liberal view of extraterritorial jurisdiction have later tempered their approach. For example, Spain later limited the application of that principle to situations where the forum state has failed to exercise jurisdiction. Jurisdiction to enforce Question: An Algerian national has murdered several French nationals in Algeria blaming them of espionage. France has sent some private individuals who have captured the perpetrator and have brought it to justice before the French courts. Is this legal under international law? Would Algeria have a claim against France? Could it ask for compensation? See Eckman case p. 52. Principle: confined to the territory of state where act occurred. The principle of sovereignty commands that acts of enforcement cannot be exercised by a state beyond its territory without the consent of the state where enforcement was sought. That was confirmed by the PCIJ in the Lotus case. What about a situation where an individual has been abducted from foreign territory and brought to justice in a different state? Most state courts have complied with the Lotus principle. UK courts (in Regina case) held that British courts should decline jurisdiction over the accused if he has been brought to the UK after being abducted. The abduction constitutes a violation of international law and the principle of sovereignty and the right approach for trying such individuals would be to request the cooperation of the state where the accused resides and demand extradition. U.S. - The Ker-Frisbie doctrine is applied in the context of extradition and generally holds that criminal defendants may be prosecuted in United States courts regardless of whether their presence has been obtained through the use of applicable extradition treaties.

In Ker v. Illinois, 199 U.S. 436 (1886), a messenger forcibly kidnapped the defendant from Peru and brought him back to the United States, even though he had been sent to Peru with a valid warrant and instructions to obtain the defendant with the cooperation of the local authorities. Addressing Ker's due process challenge, the United States Supreme Court held that "such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court." Frisbie v. Collins, 342 U.S. 519 (1952), presented a case in which the defendant was tried in Michigan after being abducted by Michigan authorities in Chicago. Applying its decision in Ker, the Supreme Court upheld the conviction over challenges based on due process and federal kidnapping laws. More recently, the Supreme Court relied on the Ker-Frisbee doctrine in United States v. Alvarez-Machain, 504 U.S. 655 (1992). lvarez Machan, a Mexican citizen who was abducted and brought to the United States at the direction of the Drug Enforcement Administration. The Court rejected the argument that such abductions undermine the usefulness of extradition treaties, and it refused to read general principles of international law weighing against such abductions into the Mexican extradition treaty. 2. Power to freely use the territory under a States jurisdiction, especially to further every states national security. 3. Question: Can the US send some enforcement agents in Mexico to capture U.S. drug-dealers that are responsible for the death in the U.S. of several Mexican citizen? No. See for similar facts Dominguez v. State. The right of a state to exclude others from its territory. States have a right to regulate, and therefore to exclude private and public activities from their territory and if these acts are imputable to foreign entities who lack authorization to engage in such activities, the victim state may claim compensation Legal Equality All states are legally equal. Their equality may be disturbed by factual their geographical location, whether they have natural resources or not. Legal constraints that one State may impose on its self a valid if that state accepts them knowingly and in the free exercise of its sovereign powers. Non-intervention in the internal or external affairs of other states The principle of non-intervention is designed to ensure that each state respects the ghts of other states. This principle has led to the evolution of several customary rules:

rule prohibiting the interference in the internal organization of a foreign state a state may not bring pressure to influence the institutions of another state, nor may it interfere in the relations between a state and its own nationals. Can a state allow on its territory an organization that aims at overthrowing the government of a foreign state? Yes, especially if the subversive activity is carried out by private persons without any involvement by the state on which territory the activity takes place. However, since 1945 there emerged a consensus among states the traditional prohibition of indirect armed aggression, also should cover the toleration by states of subversive activities against states organized in the territory of the former. What can a state do to be in compliance with the rule in such case? Maybe proceed to expulsion of the individuals concerned; restriction on the traffic of arms and ammunitions. The customary rule that evolved from the principle of non-interference only prohibits a state from instigating, organizing and lending its support to such organizations. Rule that states are duty-bound from assisting insurgents when a foreign government is faced with civil strife

Before 1945, these rules could have been derogated from if a states considered its interests to be paramount. Csq the protection afforded by these rules was precarious. Since 1945, principle was reinvigorated by the introduction by the UNC of the principle of non-recourse of threat or use of force. The proliferation of international organization prompted states to define the contours of this principle so as to delineate the areas that are still immune from outside interference. The evolution of human rights which led to possibility of states to exert pressure over other states in applying human rights standards. New forms of intervention economic pressure, economic coercion which can destablize a countrys political system. Economic pressure is legal unless they are designed to coerce another state so as to obtain from it a subordination of the exercise of its sovereign rights and to secure from it an advantage of some sort. Various subtle forms of undue influence through the more powerful states standing in international organizations.

Prohibition of the Threat or Use of Force Art. 2.4 of the UNC All members shall refrain in their international relation from the threat or use of forceWorld peace and the prevention of armed conflict were the main impetus behind the UN and its charter. Art. 2.4 was gradually transformed into a general rule of law, binding even non-member states. UNC allows certain very limited exceptions to the rule: self defense- art 51 (Nothing in the
present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United

Nations, until the Security Council has taken measures necessary to maintain international peace and security); enforcement action by regional agencies art 53 (enforcement action by regional agencies such as for example the OAU Organization of African Union. Only military force is proscribed Only threat or use of force in interstate relations was banned. This allowed states to resort to force to suppress insurgents on their own territory, or to fight against liberation movements in the context of territories subject to colonial domination. States have been traditionally hostile towards insurgents as they are disturbing the status quo by trying to topple a lawful government. Csq states prefer to treat insurgents as a domestic occurrence and withhold granting them the status of international subjects. This reluctance is more marked in recent times because of the rapid spread of ethnic feuds in many developing states esp in Africa where the arbitrary borders that were decided by the colonial powers are likely to lead to secession. Also, the growing influence of nationalist and religious groups. After the adoption of this principle, socialist countries brought to light several issues: the spread of wars of national liberation in the colonial territories and the fact that the colonial powers were authorized to use force under the pretext that these constituted domestic conflicts. powerful states used economic pressure to subjugate developing countries some states (like Israel when it occupied the Arab territories in 1967) resorted to war and conquered foreign territories without sanction from the international community.

As a result, compromise between socialist countries and West produced the following situation: gl prohibition against threat or use of force against States or people having a representative organization (national liberation movements) and falling under one of the categories entitled to self-determination (colonial people, people under foreign occupation, or falling under racist regimes). Distinction between grave forms of use of force and less grave forms. In Nicaragua v. USA - training or providing economic, military or logistical or other assistance to rebels fighting against the central authorities in another country may be regarded as a threat or use of force or as an intervention in the internal or external affairs of another state, but it does not amount to armed attack. Hence, it does not entitle the target state to resort to self-defence. Prohibition of anticipatory self-defence As a general rule self-defence may not be used to repel and indirect armed aggression. US and Israel have contended to the contrary. Israel, on the occasion of its attacks against Palestinian camps in Lebanon in 1970-1983 claimed that the violation of sovereign rights of the attacked state was justified by the fact that the

latter tolerated or actively supported terrorist activities against the territory and assets of the attacking state. Territory may not be acquired through the threat or use of force customary rule according to Legal Consequences of the Construction of a Wall. So, conquest does not transfer a legal title of sovereignty, even if situation is effective. Extreme forms of economic coercion amounting to threat or use of force are prohibited.

Great Powers have given broad interpretation and abused such exceptions. Frequently, it is the failure of the UN collective system for enforcing peace that has led to the expansive view on the law of self-defense. States have invoked art. 51 in cases which hardly amounted to self-defense - e.g. la Belle disco incident where the action could hardly be said to constitute self-defense and had a strong punitive and deterrent purpose.

Peaceful Settlement of Disputes

Read Art. 2.3 UNC. Objective is to prevent breach of peace and security. Read. Ch. 6 reaffirms this principle. This principle has been extended overtime as a corollary principle to the customary rule prohibiting the use of force. It was affirmed by the ICJ in Nicaragua and ct stated that that principle has also acquired force of customary rule. Principle means that states are required bona fide to use peaceful means in settling their disputes negotiation, meditation, resort to arbitration or judicial determination of their claims, without having the obligation of choosing one means over another. If one of these peaceful means of settlement fails, states are encouraged to pursue other peaceful measures to settle their disputes and refrain from actions that may endanger or compromise the peaceful settlement of a situation. So when is a state in breach of this principle? Should such resort prove unsuccessful, States may resort to countermeasures subject to certain limitations: cannot resort to countermeasures immediately without first asking a state to discontinue the wrongful act or to repair damages and without first attempting to negotiate a peaceful settlement of the dispute.

Respect for Human Rights Since WWII this principle has risen to the level of the fundamental principles of equal sovereignty of the states and the principle of non-interference.

Major instruments that lie at its origin are the UNC, the Universal Declaration of 1948 and the two Covenants on Human Rights of 1966. Evolution of a general principle prohibiting gross violations of human rights; most states have come to accept such violations as reprehensible. Minor or sporadic violations do not present general international concern. It imposes on all states an obligation to refrain from violating fundament rights (religious freedom, right to a fair trial, right to due process). The principle is erga omnes any state may insist on it being respected by any other state. Self- Determination of People This principle appears to be entrenched firmly in only 3 situations: - anti-colonialist standard = people under colonial domination have the right to external self-determination by establishing their own sovereign state or by associating with another independent state - ban on foreign military occupation = subjects of military occupation also have the above 2 choices - racial groups need be given full access to government = if so denied they can resort to external self-determination (achieve independence or integrate into an existing state) or even internal self-integration (pursuit of eco, political, social and cultural development within an existing state). The principle has evolved into a body of law that is comprised of: a general principle casts light on some difficult situations, gives unity to customary rules and sets out the essence of self-determination customary rules they emanate from the general principle and deal with specific situations (e.g. the rule on the internal self-determination of racial groups that have been subject to discrimination in being denied equal access to government). international norm that has binding effect art. 1 common to the both UN Covenants on Human Rights 1966 confers on the people of all the contracting parties the right to internal self-determination

What kind of rights does the principle of self-determination of people engenders? Rights: people have rights against the oppressor state and claims against 3rd party states (esp. claim that they refrain from sending troops in support of the oppressor); Obligations: every state is duty bound to allow free ex of this principle and is enjoined from denying this right forcibly.

3rd party states have right to support people entitled to self-determination, short of sending military support; must refrain from aiding the oppressor; can claim respect for principle from states that deny it. What is the impact of the principle of self-determination? extends the gl ban on the use of force. Force cannot be used to deny peoples right to self-determination, cannot be used against colonial people or people subjected to occupation, cannot be used against racial groups that are denied access to government. It has granted liberation mvts license to use force to respond to forcible denial of the right, which is in derogation of the customary ban of the use of force Impact on intl law in areas of acquisition, transfer or loss of title over a territory. Cannot acquire land by annexation if breach of the principle; pcpl renders null and void a treaty that provides for transfer of territories when no account is taken of the population involved.

Limits on the principle? application is selective and limited not applied to ethnic, national, religious, linguistic groups (which do not also constitute racial groups).

Why these limitations? Whats the risk? Characteristics of the principles? those reflecting the traditional structure ere enshrined in general rules and attracted unanimous support, partly bcs intl community then was more homogenous. New pcples are the expression of conflicting views of states when no consensus, states fall back on old pcple which are loose, general, broad, multifaceted and somewhat ambiguous. Except for sovereign equality, all other pcples address themselves to all other subjects of international law Rights and obligations derived from these principles are erga omnes. New principles (hence not those on sovereign equality and non-intervention) confer community rights. What are community rights? Pcles give legal entitlement to any subject of international law to claim compliance with pcple from any other subject regardless of injury Jus cogens principles (respect for human rights e.g. prohibition of racial discrimination, apartheid, slavery) have special force and are peremptory in nature. Many states have made pronouncements to that effect. While valid and applicable to all states, they rely heavily on UN mechanisms for implementation and enforcement.

These principles are closely intertwined. International subjects must comply with all of them. How to reconcile these principles? Exercise: facts of Refrence re/ Secession of Quebec Exercise: