RIR6007/RIO7009 J. Erne, 2. Nov.

2010

PRINCIPLES OF INTERNATIONAL LAW 1

• Sovereignty
• Equality
• Consent
• Duty of States to co-operate
• Non-intervention
• Settlement of international disputes by peaceful means
• Prohibition of threat or use of force
• Right to self-defence
• Respect for human rights
• Equal rights and self-determination of peoples
• Reciprocity

Literature:
Guzman – The whole book
Anghie 48-52, 98-100, 245-309, 310-320
Malanczuk 2010 8th edn., alternatively 7th edn. 32, 1-8, 9-34
Brownlie 2008 16-19, 25-29
/Kiviorg jt 2010 22-28/
 2 1st lecture, 2.11.2010
J. Erne

Pursuant to Article 38 (1) of the Statute of the

International Court of Justice, the general principles
of law recognized by civilized nations constitute a
source of international law.

Article 38:
1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting States;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.

Principles of international law are considered that

important that their existence is recognized by every
major legal system.
 3 1st lecture, 2.11.2010
J. Erne

I SOVEREIGNTY
Distinguished are:
• sovereignty of the peoples;
• State sovereignty.

Sovereignty of the peoples:

The Charter of the UN begins with the words: „We the

peoples of the United Nations determined” – thus, the Charter
of the UN refers to sovereignty of the peoples.

State sovereignty:

Corfu Channel case (The United Kingdom vs. Albania) – the first
case registered in the Register of the ICJ (not the PCIJ!) of 22 May
1947, judgment of the year 1949.
The case concerns almost all principles of international law, perhaps
except international treaty law and its principles.
Parties of the case: The United Kingdom and Albania.
x

• Characteristics of State sovereignty

• Immunities and other limits to sovereignty

 4 1st lecture, 2.11.2010
J. Erne

II EQUALITY

Article 2 (1) of the Charter of the UN:

„The Organization is based on the principle of the sovereign
equality of all its Members“ – discuss the Article in the light of the
veto-system in the UN!

III CONSENT

All legal constraints on States must be approved by States – a State is

only bound by the obligations it consents to.

The International Court of Justice has explained that international law

„flows“ out of the free will of sovereign States.
Jan Klabbers is of opinion that it should not be presumed that
constraints of that principle are allowed.
Nevertheless, according to such theory, international law is permissive
law, which means that as long as not forbidden things are permitted,
that in turn contravenes the idea in the case LOTUS.

• QUESTION: What is the consequence if a State refuses to give its

consent or does not consent any more?
 5 1st lecture, 2.11.2010
J. Erne

IV DUTY OF STATES TO CO-OPERATE

The duty of States to co-operate with one another inter alia means
internationalization of waterways. Co-operation is also required by
technical and commercial developments.
The duty to co-operate can be seen, for instance, in co-operation
within international organizations.

V NON-INTERVENTION

The principle means (Merilin Kiviorg):

1) prohibition of the threat or use of force;

2) international co-operation;

3) development of international human rights.

The principle first and foremost prohibits the threat and use of force.
International law has not developed a general rule prohibiting the use
of other means of intervention (for instance, economic sanctions,
boycott, political destabilization, propaganda, agitation, influencing
international financial institutions, etc.).
If the aim of an interference is to harm a State’s sovereign rights and
to benefit from that – this may be contrary to the principle of non-
interference.
 6 1st lecture, 2.11.2010
J. Erne

VI SETTLEMENT OF INTERNATIONAL DISPUTES BY

PEACEFUL MEANS

Article 2 (3) of the Charter of the UN:

„All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered“.

This principle has grown out of international customary law and thus
applies toward all States.

The means of pacific settlement of disputes are written to Article 33

of the Charter of the UN as follows:
• negotiations;
• enquiry;
• mediation;
• conciliation;
• arbitration (ad hoc and permanent);
• judicial settlement.
The list is not closed.
 7 1st lecture, 2.11.2010
J. Erne

VII PROHIBITION OF THREAT OR USE OF FORCE

Article 2 (4) of the Charter of the UN: „All Members shall refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any
other manner inconsistent with the purposes of the United Nations“.

According to M. Kiviorg and P. Malanczuk:

• the general prohibition of the threat or use of force became the
general principle of international law after the II World War.
• The principle has acquired the status of international customary law
and is binding also to the States not Members of the UN.
• Consequently, the norm may be classified as ius cogens norm that is
an absolute prohibition and allows exceptions only under certain
determined circumstances.

VIII RIGHT TO DELF-DEFENCE

Article 51 of the Charter of the UN:

„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. Measures taken by Members in the exercise of this right of
self-defence shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security“.
 8 1st lecture, 2.11.2010
J. Erne

Conditions of self-defence:
1) If an armed attack occurs;
2) The attack is addressed against a Member of the UN (=State);
3) The attack is armed;
4) Self-defence must be proportional compared to attack:
5) Co-operation with the Security Council of the UN.

IX RESPECT FOR HUMAN RIGHTS

The real career of human rights in Europe started after the II World
War.

• Council of Europe
• European Convention on Human Rights
• European Court of Human Rights

X EQUAL RIGHTS AND SELF-DETERMINATION OF

PEOPLES

Article 1 (2) of the Charter of the UN:

„To develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take
other appropriate measures to strengthen universal peace“.
 9 1st lecture, 2.11.2010
J. Erne

XI RECIPROCITY

The subjects of international law mutually respect certain rights or

obligations. Non-fulfilment by one subject of an obligation is the basis
for non-fulfilment of another subject.

Those above are not the only principles of international law, but
recognized are also:

• general principles of law;

• principles of law related to particular areas, for instance, principles
of international treaty law (for instance, pacta sunt servanda; rebus sic
stantibus, etc.), principles of administration of law (fairness, principle
of legal expectations, res inter alios acta, etc.), etc.

Main differences between international law and State law (Jan

Klabbers, but double translation):

1) much politics in international law;

2) enforcement of international law is problematic;
3) absence of the ultimate legislator;
4) absence of international police;
5) absence of such sanctions that could be there;
6) jurisdiction of international adjudicators is not obligatory, but
depends on States’ consent.
(See also Peter Malanczuk, pp. 3-5)
 10 1st lecture, 2.11.2010
J. Erne

WHY INTERNATIONAL LAW STILL WORKS?

(Jan Klabbers, but double translation, and influence of Benedict
Kingsbury):
1) States are free to obey;
2) societal pressure on States;
3) bureaucratic inertia;
4) high degree of involvement and influence of States (so called
Foreign Office model in international law);
5) principle of reciprocity;
6) high degree of (legal)politics.