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The Declaration of Principles of International Law Concerning Friendly Relations: A Survey

Published online by Cambridge University Press:  28 March 2017

Robert Rosenstock
Robert Rosenstock*
Affiliation:
٭Legal Affairs, U. S. Mission to the United Nations
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Extract

In 1963 the United Nations General Assembly established the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations1 and instructed it to consider the following principles

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 5 , October 1971 , pp. 713 - 735
Copyright
Copyright © American Society of International Law 1971

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References

1 The cumbersome title was the product of extensive negotiations. The Eastern Europeans wished to call the item “Principles of Peaceful Coexistence.” The West opposed this title because the Charter contained no such concept, because the concept was a negative or passive one incompatible with the affirmative obligations of co-operation created by the Charter, and because it was desired to avoid having the subject become a vehicle for propaganda for the Khrushchev-sponsored doctrine of “peaceful coexistence.” The term “friendly relations” is derived from the Charter. The phrase “in accordance with the Charter” was added in order to make it clear that an examination of existing Charter norms was being undertaken and not a revision of the Charter or an elaboration of new norms. For an analysis of the early work of the Special Committee and of the General Assembly, see the excellent, balanced article by Piet-Hein Houben, “Principles of International Law Concerning Friendly Relations and Co-operation among States,“ 61 A.J.I.L. 703 (1967); and E. McWhinney, “'Peaceful Co-existence’ and Soviet- Western International Law,” 56 ibid.951 (1962), and “Friendly Relations and Cooperation among States: Debate at the Twentieth General Assembly, United Nations,“ 60 ibid. 356(1966).

2 The decision to work on the basis of consensus was based on the view that any other approach would produce a far less useful document, which would record the level and degree of disagreement rather than set forth a body of norms to which all the states on the Committee could adhere and which could thus be regarded as an authoritative statement of key principles of the Charter. This agreement was strained nearly to the breaking point on several occasions, and at no time were the General Assembly Rules of Procedure suspended. Any delegation had at all times the right to insist on their application and consequently on having decisions taken by vote. It is the writer's view that the forbearance shown by the delegations in adhering to the consensus approach was well rewarded. There are times when consensus is particularly useful, for example when there may be thought of creating “instant international law.” Obviously it can be overdone and turned into a nightmare of vetoes. Working by consensus requires the same forbearance on the part of all concerned as is true in the case of the veto in the Security Council.

3 See statement by Mr. Brennan (Australia), U.N. Doc. A/C.6/SR.1178 (1970).

4 Cf.statement by Mr. Csatorday (Hungary) to the effect that the declaration would not have the status of a treaty and could not be considered jus cogens,but that it would fall into the category of “general principles of law.” U.N. Doc. A/C.6/SR.1180 (1970). Mr. Yasseen (Iraq) went further and proclaimed the text to be jus cogens. U.N. Doc. A/C.6/SR.1180 (1970). The United States expressed the following view of the nature of the work at the mid-point of the Assembly's work on the principles: “The significance of this gradual accumulation of areas of agreement can best be understood in light of the nature of the operation in which we are involved. For some years the Assembly has been engaged in formulating legal texts which will be authoritative interpretations of broad principles of international law expressed in the Charter. By the very nature of General Assembly action, the juridical value of such texts is directly dependent on the general support that they command. Obviously formulations representing the general agreement of the Membership of the United Nations have important juridical value. A formulation merely setting forth various highly controversial majority views, by contrast, is totally ineffectual as a declaration of international law. It is legally significant only as evidence of the extent of divergence of opinion within the international community.“

5 Report of Special Subcommittee of Committee IV/2 on the Interpretation of the Charter, 13 UNCIO Docs. 831-832. The final paragraph of that document reads as follows: “It is to be understood, of course, that if an interpretationmade by any organ of the Organization or by a committee of jurists is not generally acceptableit will be without binding force. In such circumstances, or in cases where it is desired to establish an authoritative interpretation as a precedent for the future, it may be necessary to embody the interpretation in an amendment to the Charter. This may always be accomplished by recourse to the procedure provided for amendment.” (Emphasis supplied.)

6 Under Art. 31 of the Vienna Convention on the Law of Treaties: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.

7 By calling this paper a survey, the writer hopes to avoid any disappointment at the lack of extensive analysis of the legal concepts involved outside the context of the Friendly Relations exercise, as well as the absence of extensive references to particular statements made by one delegation or another. The summary records of the Committee, set out in U.N. Docs. A/AC.125/SR.1 et seq.,and the six excellent Reports of the Committee, found in U.N. Docs. A/5746, A/6230, A/6799, A/7326, A/7619, A/8018, as well as the records of the discussion of the item in the General Assembly at the 17th through 24th Sessions are available and deserve close attention. Indeed, it is hoped that others with different points of view and a detachment lost to me as a result of extensive participation will also publish papers in this rich field. In doing so, it is suggested that they join the writer in bearing in mind, if not scrupulously following, the advice of Professor Riphagen who stated at the 114th meeting: ”… the draft declaration, despite its title, could not be interpreted as one would interpret a carefully drafted legal document. The method of work adopted by the Committee, according to which the wording of principles or parts of principles had been negotiated at different sessions and between different groups of members had inevitably led to overlapping, inconsistencies in wording, lacunae and redundancies. No opportunity had yet been given to review the draft declaration as a whole from a legal point of view, and it did not seem likely that such a review would be seriously undertaken. Consequently, one could not attach legal consequences to the fact that the same notions had often been expressed in the draft declaration in different wordings and that clauses which, once incorporated in one principle or part of a principle, should, in logic and law, also be inserted in another principle or part of a principle, had not been soinserted. In particular, any argumentation a contrario—already in any case a dubious process of reasoning in the interpretation of international legal documents—would be inadmissible in respect of the terms of the present draft declaration.“ U.N. Doc. A/AC.125/SR.114.

8 General Assembly Res. 2625 (XXV), Oct. 24, 1970, U.N. General Assembly, 25th Sess., Doc. A/Res/2625 (XXV); 65 A.J.I.L. 243 (1971).

9 “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.” This is, of course, not the same as imposing obligations on third states. It is a statement of potential consequences, not a statement of legal obligations on third states.

10 See also the Geneva Protocol of 1924 for the Pacific Settlement of Disputes, which contains the declaration that, “a war of aggression constitutes … an international crime.“

11 Czech draft Declaration, U.N. Doc. A/AC.125/L.16, par. 2, March 17, 1966.

12 References to articles are always to articles of the U.N. Charter unless otherwise indicated.

13 See statement by Mr. Gimer (U.S.), U.N. Doc. A/S.6/SR.1180 (1970). The U.S. repeated this assertion several times in the course of the work of the Committee and it was never challenged.

14 U.S. Delegation Press Release 4706, Nov. 17, 1965.

15 The resolution “Condemns reprisals as incompatible with the purposes and principles of the United Nations.” U.N. Doc. S/5650 (1964). It is probably true that the Kellogg-Briand Pact had accomplished virtually the same end when it stated that “the settlement or solution of all disputes or conflicts … shall never be sought except by pacific means.” See also the Corfu Channel case, [1949] I.C.J. Rep. 4. Nevertheless, the text on reprisals was a significant act of codification in the sense of making the general rule more specific.

16 U.N. Doc. A/AC.125/L.24, par. 4(c) (1966).

17 Since 1945 there has been a significant difference of opinion on the scope and meaning of this article, with the Soviet Union on the one hand arguing that everything relating to the postwar peace settlements is beyond the competence of the United Nations, including all situations arising from the War. The Western states took the view that Art. 107 served to provide for peace settlements which involved transfers of territory and to prevent the “enemy state” from using the organs of the United Nations to contest any decisions or actions of the Allied Powers. See Goodrich, Hambro, Simms, Charter of the United Nations, 633-637 (1969). The different situations of Japan, which is a Member and therefore has no fears of a prospective wording on the matter but has domestic political concerns about a retrospective reading, and that of the Federal Republic of Germany, which is not a Member of the United Nations and which was indirectly threatened by Soviet comments at the time of the invasion of Czechoslovakia in 1968, complicated the work of the Committee. The competing pressures on this point caused the U.S. Representative to state at the 114th meeting of the Special Committee: “the Charter of the United Nations does not contain any provision that would limit the application of the first three sentences of the tenth paragraph … with respect to the Federal Republic of Germany.” U.N. Doc. A/AC.125/SR.114 (1966).

18 Reference to the work of the Committee on the Definition of Aggression has been deliberately omitted because it seems unlikely that the legal lacunae, if any, will ever be filled by a definition drafted by that body. No text dealing exclusively with the rights and duties of states with respect to the use of force will ever solve the dilemma. The system of collective security must be made to function more effectively, and a definition of aggression is unlikely to make the system a more workable one.

19 A Modern Law of Nations 166 (1948). See also K. Skubiszewski, “Use of Force by States. Collective Security. Law of War and Neutrality,” in Manual of International Law 745-746 (S0rensen ed., 1968); L. Henkin, “Force, Intervention and Neutrality in Contemporary International Law,” 1963 Proceedings, Am. Soc. Int. Law 147-150. But see the statement by President Kennedy on Oct. 22, 1962, in connection with the Cuban missile crisis, 47 Department of State Bulletin 715 (1962). Sir Humphrey Waldock has expressed the view, “It is enough if there is a strong probability of armed attack—an imminent threat of armed attack.” “The Regulation of the Use of Force by Individual States in International Law,” 81 Hague Academy, Recueil des cours 500 (1952). Along the same lines are the views of W. Friedmann, The Changing Structure of International Law 258-259 (1964), and D. W. Bowett, Self-Defence in International Law 191 (1958).

20 Letter dated May 23, 1967, from the Permanent Representatives of Canada and Denmark addressed to the President of the Security Council, U.N. Doc. S/7902 (1967).

21 U.N. Docs. S/PV.1343 to 1346 (1967).

22 Brierly, The Law of Nations 318-319 (5th ed., 1955). The passage has unfortunately been deleted in the sixth edition (1963) by Sir Humphrey Waldock.

23 U.N. Doc. A/AC.125/SR.114 (1970).

24 U.N. Doc. A/6320, p. 23 (1966).

25 In addition to the self-serving statements by a number of states that they regarded the term in the restricted sense, there were statements by those who would have preferred the broader view but expressed regret that the text supported the restrictive view. See statement by the delegation of Nigeria U.N. Doc. A/AC/125/114 (1970).

26 For an excellent discussion of the drafting history of the text on this principle, see Heuben, toe. cit.,note 1, above, at 710-716.

27 The persistent efforts of Professor Riphagen account for this achievement.

28 The formulation of this principle must be read in light of Professor Arangio Ruiz' statement referred to on p. 724 above.

29 Those of the newer states which refused to support a more progressive text on this principle can be only partially excused on the ground that they are following the example of the major Powers. More can be expected than an adherence to the lowest common denominator.

30 U.N. Doc. A/AC.119/SR.32 (1964).

31 U.N. Doc. A/5997 (1965).

32 U.N. Doc. A/PV.1406 (1965).

33 U.N. Doc. A/C.I/L.343/Rev.l (1965).

34 See Working Paper I (U.N. Doc. A/5746, par. 106) of Mexico City. This paper had not been finally agreed to at the Friendly Relations Committee meeting because of the problems with the term “violate,” discussed above. The text nevertheless formed the basis for the core of Res. 2131 and the text ultimately agreed upon by the Friendly Relations Committee. See U.N. General Assembly, 20th Sess., Official Records, Supp. No. 14 (A/6014), p. 11; 60 AJ.I.L. 662 (1966).

35 Statement by Ambassador Charles W. Yost, U.N. Doc. A/C.1/SR.1423.

36 U.N. Doc. A/AC.125/L.13 (1966).

37 This shift over a period of years is evidence that those who say the General Assembly is frustrated because a particular Permanent Member is taking a negative position may be allowing pessimism to blind them to the fact that even giants move when they are brought to perceive it to be in their interest to do so. For another example, see the history of the Charter amendments increasing the size of the Security Council and the Economic and Social Council, and compare the initial Soviet statements with its eventual ratification.

38 In part this entire dispute reflected philosophical differences as to the nature and r6Ie of General Assembly resolutions and, for the Latin American states, a fear that if they agreed to reopen the questions answered by Res. 2131 (XX), they would be weakening the importance of the resolution, which had been voted for by such disparate states as Cuba, the Soviet Union, the United States, and Syria, to name a few. Indeed, only the principled abstention of the United Kingdom prevented the unanimous adoption of that resolution.

39 “In considering the scope of ‘intervention,’ it should be recognized that in an interdependent world, it is inevitable and desirable that States will be concerned with and will seek to influence the actions and policies of other States, and that the objective of international law is not to prevent such activity but rather to ensure that it is compatible with the sovereign equality of States and self-determination of their peoples. “The United Kingdom delegation wished to state its understanding that the concept of intervention in the ‘external affairs’ of States was to be construed in the light of that commentary.” U.N. Doc. A/AC.125/SR.114.

40 This is a part of the general problem of how to take into account the differences in economic organization between state-trading and free-market economies. More broadly, Professor Hazard, speaking of most-favored-nation clauses, stated the problem in the following terms: “The clause cannot operate to encourage expansion of trade by opening markets on a non-discriminatory basis to low-cost producers because factors other than cost and tariffs influence the decisions of state-trading buyers. In short, the most-favorednation clause has proved itself to be no longer a sufficient desideratum for privateenterprise states in their commercial tariff concessions by private-enterprise states.“ “Commercial Discrimination and International Law,” 52 A.J.I.L. 495 (1958).

41 See Houben, op. cit.note 1 above, at 724, particularly note 116, for a discussion of Communist ideology on this point.

42 U.N. General Assembly, 15th Sess., Official Records, Supp. No. 16 (A/4684), p. 66.

43 U.N. Doc. A/AC.125/SR.114, p. 33 (1970). Indeed, this terse statement describes how the Committee approached several resolutions in various of the principles about which there was disagreement as to the legal effect of the resolution per se.

44 The inclusion of the last phrase at the suggestion of Mr. Engo (Cameroon) was a useful addition to the impliedly open-ended list contained in the Annex to Resolution 1541 (XV).

45 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Art. 60, U.N. Doc. A/Conf.39/27 (1969); 63 A.J.I.L. 875 (1969).

46 In Manual of Public International Law, 771-772 (Sørensen ed., 1968); cf.Professor Stone's comments on the Manual, 63 A.J.I.L. 157, 162 (1969).

47 The term “affirmation” of Art. 2(i) was deliberately used in this case as the agreed text adds little to what was agreed in San Francisco in 1945 when the Technical Committee gave the following list of elements included in the notion of “sovereign equality“: “(1) the states are juridically equal; “(2) that each state enjoys the rights inherent in full sovereignty; “(3) that the personality of the state is respected, as well as its territorial integrity and political independence; “(4) that the state should, under international order, comply faithfully with its international duties and obligations.” 6 UNCIO Docs. 457.

48 U.N. Doc. A/AC.125/25 (1970). A United States proposal related to the failure of the U.S.S.R. and its allies and France to accept the financial burdens of membership.

49 A doctrine long accepted by international lawyers in the West and supported by such Afro-Asian countries as Cameroon, Kenya, Japan, Lebanon, and Nigeria. The highly restrictive Soviet doctrine of state sovereignty made it impossible for the Soviet Union or its allies to accept even this theoretical limitation on untrammeled freedom of action by states.

50 The compromise text which came so close to obtaining agreement was proposed by Kenya and read: “Each State has the right to freely dispose of its natural wealth and natural resources. In the exercise of this right, due regard shall be paid to the applicable rules of international law and to the terms of agreements validly entered into.” Although such a statement is logically more a corollary of the principle than an element, it is unfortunate that this phrase, expressing the essence of Res. 1803 (XVII), the most authoritative General Assembly pronouncement on the matter, did not find its way into the declaration in some form or other.

51 U.N. Doc. A/AC.125/SR.114 (1970).

52 The arguments that were made dealt primarily with unequal treaties, particularly in their relationship to state succession.