5 The fundamental principles governing international relations
5.1 Introduction
No state was powerful enough during period of crystallization of international community to impose its own legal system or values or set a standard of behaviour at international level.
Values which emerged by consensus of state practice as paramount:
Freedom – grant wide sphere of legitimate action to states
Equality – start from assumption of legal equality of states
Effectiveness – tend to legitimize situations which have acquired de facto force
laissez-faire approach of classical international law
UN Charter’s principle values a big departure from this
Sovereign equality of states
Peaceful settlement of disputes
Prohibition of threat or use of force
However, by 1960s clear that these Charter values did not go far enough. Developing and socialist countries wanted a revision to expand and update the Charter’s core values, because
They wanted their own basic demands in international law
They wanted to discuss, negotiate, and agree upon basic standards of conduct with traditional members of world community
So: UN 1970 Declaration on Friendly Relations (resolution 2626 – XXV, adopted by consensus, but not legally binding) – added to Charter’s three first values:
Ban on intervention in internal or external affairs of other States
Duty of co-operation
Good faith
Principle of equal rights and self-determination of peoples
However, fact that these were agreed in a resolution does not make them principles of international law. Have to look at state practice to determine whether they in fact have universal scope and legally binding force.
These principles make up the overriding legal standards that form the constitutional principles of the international community. They help diverse community with often conflicting interests get along somewhat (really?).
5.2 The sovereign equality of States
5.2.1 General
The sovereign equality of states, of all the fundamental principles regulating IR, is the only one that everyone agrees on. It has the support of all groups of States, irrespective of ideologies, political leanings, and circumstances. Whole body of international law rests on idea of sovereign equality of states.
P
rinciple
has two distinct notions
5.2.2 Sovereignty
Sovereignty confers these powers and rights:
Power to wield authority over all the individuals living in a territory
Power to freely use and dispose of territory under the State’s jurisdiction and perform all activities deemed necessary or beneficial to the population living there.
Right that no other state may intrude on another state’s territory (right to exclude others, jus excludendi alios)
e.g. Cases of bounty hunters seizing criminals and tacking them back to face trial, violation of country’s sovereignty that criminal was hiding out in. BUT US Supreme Court trampled on this in Alvarez-Machain (1992), holding that capture of a Mexican man wanted to face charges in US court was legitimate and not a violation of extradition treaty.
Right to immunity for state representatives acting in their official capacity. Acts performed by State officials in international relations are not seen as individual acting on behalf of state, but as state itself acting. As a result, individuals cannot be brought to trial if such actions are contrary to international law. However, there are exceptions in the case of crime and in the case of individual actions in which person would be immune from both foreign jurisdiction and domestic arrest.
Right to immunity from jurisdiction of foreign courts for acts or actions performed by the State in its sovereign capacity and immunity for execution measures taken against the use or planned use of public property or assets for the discharge of public functions
Right to respect for life and property of State’s nationals and State officials abroad
5.2.3 Legal Equality
Formally speaking, no member of the international community can be placed at a disadvantage; all must be treated on same footing.
This means that states which are factually weaker remain in that position and don’t get a handicap or special treatment to compensate for structural inequality.
It also means that legal constrains are only valid or legitimate if accepted in full freedom by the State concerned.