IX. Using the diagram speak on the International Legal Subjects

Traditional Subjects (full legal capacity)

States Insurgents

New Subjects ( limited legal capacity)

International organizations		Individuals		National liberation movements

Additional material for discussions, reports, presentations:

International Law - Antonio Cassese

Oxford University Press

First edition 2001 - p.3-11, 46-55, 66-77

Second edition 2005 – p.3-17, 71-80, 124-131, 134-144.

Unit 2. The fundamental principles governing international relations

Introduction

Most States have written constitutions that lay down the fundamental principles regulating social intercourse. Principles are the pinnacle of the legal system and are intended to serve as basic guidelines for the life of the whole community. Besides imposing general obligations, they also set out the policy lines and the basic goals of State agencies. Furthermore, they can be drawn upon for the construction of legal provisions, in case rules on interpretation prove insufficient.

The position is different in the world community. When this community came into existence, no State or other authority set forth any fundamental principles for regulating international dealings: no member State had enough power to impose standards of behaviour on all other members. A body of law gradually evolved under the impulse of convergent interests and exigencies of States, but no general, overarching principle was agreed upon. However, the increase in the corpus of rules by the gradual accretion of new norms made it clear that States spontaneously and almost unwittingly based their lawmaking on a few fundamental postulates from which they drew inspiration. Close scrutiny of the legal standards emerging in the first stages of development of the international community shows that States substantially acted upon at least three postulates: freedom, equality, and effectiveness. They differ from the general principles of national legal systems, which are legally binding.

The three postulates are clearly the synthesis of what could be concisely denned as the 'laissez-faire approach' of classical international law. Under this approach, all States are equally free to do what they like provided they abide by certain 'rules of the game'. Moreover, if in the exercise of this almost unfettered freedom, they bring about new situations by force, the law gives its blessing to these situations.

The adoption of the UN Charter in 1945 heralded a very significant change: the draftsmen laid down in Article 2 a set of fundamental principles by which all the members of the UN were to abide. They were: sovereign equality of all UN Members; peaceful settlement of disputes; prohibition of the threat or use of force.

However, in spite of the great impact of the Charter principles on the evolution of the international community, it gradually emerged in the 1960s that they were too loose and did not meet the demands of new States. Indeed, far-reaching changes had taken place in the international community in the aftermath of the Second World War as a result of the demise of colonialism and the spread of the socialist State model. More particularly, numerous new members had joined the world community whose political outlook differed substantially from that of older States.

It should not be thought, however, that the mere tact of being included in the list proclaimed in the Declaration upgrades a standard of behaviour to the rank and status of a universal and fundamental principle. It also is necessary for the standard to be laid down in a set of norms of general import. Standards such as those on co-operation, or on good faith, as long as they are not enshrined in instruments elevating them to the rank of sweeping guidelines for the conduct of international subjects, may remain expressions of policy guidelines. By the same token, it is not true that only those principles laid down in the Declaration may make up the body of fundamental principles of international law.