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 The Principles of the International Legal System International law has something close to a constitutional document, or perhaps more exactly a manifesto: a statement of the fundamental principles upon which the international legal order is based. It is the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, adopted by the UN General Assembly in  as resolution  (XXV). It was negotiated between  and , with all the attention to detail that would be expected in the negotiation of a major international convention. It was, moreover, adopted at the height of the Cold War, in the decade that saw the building of the Berlin Wall, the Cuban Missile crisis, the Vietnam War, and the break-up of the remains of the old colonial empires. And yet resolution  was adopted without a vote, thus signalling that it represented a consensus. It therefore has a peculiar importance, as the irreducible core of principles upon which States that were diagonally opposed, and States that preserved their NonAligned status, could agree as the foundation of the international order. The resolution sets out seven basic principles: (a) The principle that States 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, (b) The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered, (c) The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter, (d) The duty of States to co-operate with one another in accordance with the Charter, (e) The principle of equal rights and self-determination of peoples, The Principles of the International Legal System  (f ) The principle of sovereign equality of States, (g) The principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter, so as to secure their more effective application within the international community. These are principles and not rules. In the influential distinction drawn by Ronald Dworkin rules have an all-or-nothing character but principles do not. Rules are applied by deciding if a case falls within the rule; and if it does, the rule stipulates what decision must be reached. For instance, if x is a member of the family of a diplomatic agent, x enjoys the privileges and immunities specified in Articles  to  of the  Vienna Convention on Diplomatic Relations. There is no room for manoeuvre, no possibility of arguing that some of those privileges and immunities do not apply. Principles, on the other hand, are not all-or-nothing norms. They are rather reasons for reaching a conclusion, factors weighing in favour of a particular decision. A principle may, however, be displaced or superseded by another principle. For instance, while the principle that States should not use force against other States is firmly established in international law, that principle yields to the right of a State to use force to defend itself if it is attacked. The distinction between rules and principles, though controversial, is useful here because it indicates that the principles with which we are concerned may be invoked in any context as reasons for a particular decision. They have a pervasive importance that entitles them to be regarded as fundamental principles of the international legal system; and they underlie all of the other principles and rules discussed later in this book. Some of the principles in resolution , such as the prohibition on the threat or use of force, have been developed in some detail and will be discussed in later chapters. But it is worthwhile examining the principles themselves, because of their fundamental significance. .          First place is given in resolution  to the principle that States shall refrain in their international relations from the threat or use of force. The scope of this principle is wider than may at first appear. As subsequent paragraphs of the resolution make clear, it prohibits, for example, not only 1 Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard University Press, ).  International Law armed aggression against other States, but also the use of force to violate boundaries and armistice lines, the use of force in reprisals, and the organization or encouragement of irregular forces for incursion into another State. The latter aspect is reinforced by the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to . . . involve a threat or use of force. The prohibition serves two functions. One is to establish the basic rule that international disputes should not be settled by the use of armed force. That principle is taken for granted now; but international society has been organized on this basis for less than a century. The move towards this position began at the first Hague Peace Conference in  when the major powers agreed upon peaceful procedures for the settlement of international disputes ‘with a view to obviating, as far as possible, recourse to force in the relations between States’ as it was put in the  Convention for the Pacific Settlement of International Disputes. While that Convention did not forbid, or even limit, recourse to war it was intended to promote peaceful settlement as the preferable alternative. Though there were earlier agreements limiting the manner in which war might be conducted, the first limitation upon the actual right to go to war did not appear until the adoption of the Covenant of the League of Nations, the predecessor of the United Nations, in . As I explain further in Chapter , the Covenant merely imposed a cooling-off period before States could resort to force; but in  the General Treaty for the Renunciation of War (also known as the Briand-Kellogg Pact or the Pact of Paris) went a stage further. Originating in a proposal by the French Foreign Minister and Nobel Peace Prize Winner, Aristide Briand to the United States’ Secretary of State, Frank Kellogg, that the two States should lead by example and make a formal renunciation of war, the Pact was opened up for adherence by all States; and  of them did adhere. The States Parties solemnly declared in the Pact: in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. ‘War’ turned out to be an elusive concept. There was some argument as to whether the Pact prohibited uses of force falling short of war; and the Pact was not a great success. It, and the League, appeared powerless in the face of the international violence of the s. It was this background The Principles of the International Legal System  of limited and unsuccessful attempts to abandon and outlaw the use of force as an instrument of foreign policy that lay behind the absolute prohibition of the threat or use of force in international relations, expressed in the Article () of the UN Charter and elaborated at the beginning of resolution . That first function of the prohibition is addressed to the question, how should States go about the protection and advancement of their national interests? It is, one might say, the equivalent of the ‘play nicely’ edict issued to children in a playground. The second function is much more specific, the equivalent of the firm word in the ear of the playground bully. It establishes a duty on each State not to threaten or use force against the territorial integrity or political independence of another State; and a correlative right for each State not to have force threatened or used against it. The second function is a matter of precise obligations owed by each individual State to each other individual State—one of the obligations that Iraq violated when it invaded Kuwait in . Whereas the first function focuses upon the whole of international society and on the system of international law, the focus of concern here is on the violator and the victim. Moreover, the breadth of the duty and its extension to the prohibition of the fomenting of terrorist acts in other States is designed to underpin the integrity and inviolability of each State. These two functions are not formally recognized as distinct aspects of the principle, which refers simply to the principle of the non-use of force in various contexts. But the conflation of the two functions can lead to confusion. It is sometimes said of particular uses of force that they are not aimed at ‘the territorial integrity or political independence’ of the State against which force is used, but are intended only to compel that State to comply with its international obligations. The Israeli raid on Entebbe airport in , in which Israeli passengers were rescued from a hijacked jet, is one example. Such claims (whether or not they are legally valid) may address the rights and interests of the target State; but they do not address the broader community interest in the maintenance of the principle of the non-use of force in international relations. The central issue in practice is how and by whom a decision may be made that particular use of force is justified, given the individual rights, duties, and interests of the States using force and of the States against which force is used. How, in other words, can the international community release States from the obligation not to use force? There is a clear answer to this, which is that under the UN Charter force may be used only in self-defence or with the authorization of the Security Council. The issue, explored further in Chapter , is whether that clear answer is satisfactory.  International Law .       The second of the principles set out in resolution  is ‘the principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered’. At its heart this principle is essentially a corollary of the principle of the non-use of force; but it extends further. States are not obliged merely to refrain from using force to settle disputes: they are under a positive obligation to seek to settle disputes by peaceful means of their choice. This positive duty reflects the interest that all States have in the resolution of disputes that may run out of control and threaten international peace and security if they are not addressed and resolved timeously. .    - The third principle is curiously entitled ‘[t]he principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter’. This principle ‘concerns’ the duty, rather than simply stating what the duty is. It is one of the most potent and elusive of all international principles, whose importance warrants its quotation in full: No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State. The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention. Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State. Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security. This principle, which had been solemnly declared in UN General Assembly resolution  (XX) (the Declaration on the Inadmissibility of The Principles of the International Legal System  Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty), again reinforces the principle of the non-use of force, in its second role as the guarantee of the integrity and inviolability of each State. It does so not by proscribing one particular form of pressure—the threat or use of force—but by forbidding all action that is intended ‘to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind’. Even the encouragement of such action is forbidden. In this way the principle affirms the central right of each State to independence and to self-determination: that is, the right freely to choose its political, economic, social, and cultural system. To people accustomed to privacy and a right to individuality, the right to be secure against intervention may appear to be an obvious element of the international order. No matter what we may be thinking to ourselves, we do not go up to strangers and tell them that we think that the design of their coat is ugly and offensive; even less would we think of using force to make them change their attire. We would not ordinarily tell a stranger that we thought their choice of partner, or their way of bringing up their children, was dangerously misguided. Why should we feel any more entitled to intervene in the domestic affairs of foreign States? This individualistic view carries over into the international field. The influential liberation theology of the s  emphasized that while the problems of oppressed peoples around the world might be caused by a small number of States, industries, or other groups, liberation from oppression must be fought for and won by the oppressed themselves: liberation cannot be secured by foreign aid or foreign intervention. Something of this view survived in the reaction against the  invasion of Iraq. Some accepted the argument that it was desirable that the Saddam régime be overthrown, but thought that this was a matter that should come from within Iraq, and neither imposed nor materially assisted by foreign States. This individualistic view is, however, neither historically constant nor necessarily transposable into the normative structure of international relations. The focus on individual autonomy, rather than on a person’s role and position in society, appears to be a characteristic that has grown within the past half-millennium. The priority given to the idea of individual 2 See, e.g., Gustavo Gutiérrez, We Drink From Our Own Wells (Maryknoll, NY: Orbis Books, ). Gutiérrez wrote a study of Bartolomé de las Casas, the sixteenth century theologian whose writings touched on issues of international law and who engaged in the great Valladolid Debates of – with Juan Ginés de Sepúlveda, concerning the rights of the indigenous peoples of ‘Latin’ America: see Las Casas: In Search of the Poor of Jesus Christ (Maryknoll, NY: Orbis Books, ).  International Law choice, and of the parallel right of each State to choose its own structure and destiny (which is often said to lie at the heart of the classical ‘Westphalian’ conception of Statehood) were corollaries of this movement. But while the idea of individual autonomy gained hold, the idea of national autonomy remained a relatively subtle and attenuated concept. United States’ doctrine illustrates this well. The Monroe Doctrine, enunciated by President James Monroe in his  State of the Union Address, is often cited as an affirmation of the principle of non-intervention. In as much as it asserted that the European powers should not meddle in the affairs of American States—and notably the recently independent United States and the newly independent South American Republics— that is correct. But the Doctrine also asserted that any such meddling with States in the United States’ ‘hemisphere’ (the Americas) might be regarded as a threat against the United States, against which the United States might react. This is evident in the text of the Doctrine: In the wars of the European powers in matters relating to themselves we have never taken any part, nor does it comport with our policy so to do. It is only when our rights are invaded or seriously menaced that we resent injuries or make preparation for our defense. With the movements in this hemisphere we are of necessity more immediately connected, and by causes which must be obvious to all enlightened and impartial observers. The political system of the allied powers is essentially different in this respect from that of America. This difference proceeds from that which exists in their respective Governments . . . We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety. With the existing colonies or dependencies of any European power we have not interfered and shall not interfere, but with the Governments who have declared their independence and maintained it, and whose independence we have, on great consideration and on just principles, acknowledged, we could not view any interposition for the purpose of oppressing them, or controlling in any other manner their destiny, by any European power in any other light than as the manifestation of an unfriendly disposition toward the United States. The threat of a United States’ reaction was spelled out in the ‘Roosevelt Corollary’, announced in President Theodore Roosevelt’s remarkable  Address to the Congress, which set out a vision of the role and responsibilities of the United States that anticipated attitudes which were asserted a century later. Roosevelt announced that the United States was ready ‘to take action which in a more advanced stage of international relations would come under the head of the exercise of the international The Principles of the International Legal System  police’, noting that ‘a great free people owes it to itself and to all mankind not to sink into helplessness before the powers of evil’. He then continued to expound his reading and development of the Monroe Doctrine: Our interests and those of our southern neighbors are in reality identical. They have great natural riches, and if within their borders the reign of law and justice obtains, prosperity is sure to come to them. While they thus obey the primary laws of civilized society they may rest assured that they will be treated by us in a spirit of cordial and helpful sympathy. We would interfere with them only in the last resort, and then only if it became evident that their inability or unwillingness to do justice at home and abroad had violated the rights of the United States or had invited foreign aggression to the detriment of the entire body of American nations. It is a mere truism to say that every nation, whether in America or anywhere else, which desires to maintain its freedom, its independence, must ultimately realize that the right of such independence can not be separated from the responsibility of making good use of it. The United States’ State Department has observed that the Roosevelt corollary ‘inverted the original meaning of the [Monroe] doctrine and came to justify unilateral U.S. broadened in Latin America’.  But in truth Roosevelt simply spelled out what was truly a corollary of the original doctrine. All States are to be free from foreign intervention: the issue is, who will intervene to prevent such intervention. Talleyrand understood the point when he wrote of the concept of non-intervention, ‘c’est un mot métaphysique, et politique, qui signifie à peu près le même chose qu’intervention’. Non-intervention has thus long combined a basic principle that States should not meddle in one another’s internal affairs with an ill-defined body of exceptions allowing intervention in circumstances where some essential interest of the intervening State is imperilled. The question is, what circumstances warrant intervention? There is a pragmatic answer, and a legal answer to that question. Some sense of the practical answer can be gained by considering the occasions on which intervention has taken place. Many instances from the years prior to the drafting of the Declaration of Principles spring to mind: among them are the United Kingdom–United States intervention in Iran in  to assist in the overthrow of the Mussadeq regime; the Soviet interventions in Hungary in  and Czechoslovakia in ; the intervention by United States and Belgian forces in Stanleyville in the Congo in ; the United States’ interventions in Cuba in the Bay of Pigs , and the Cuban Missile Crisis in ; India’s intervention in the civil war in East Pakistan in 3 .  International Law , from which Bangladesh emerged as an independent State; the United States’ intervention in Chile to assist in the overthrow of President Allende’s Government in ; Israel’s intervention at Entebbe airport, Uganda in ; Tanzania’s intervention in Uganda in  to assist in the overthrow of Idi Admin; the United States’ interventions in Grenada in , and in Panama ; the NATO intervention in Kosovo in ; and the United States–United Kingdom intervention in Iraq in . Readers with some sense of history will immediately appreciate that the list includes a range of episodes which differ widely in the context in which the intervention took place and the justifications that were offered for the intervention. The interventions in Hungary and Czechoslovakia are generally regarded as attempts to prop up a particular brand of communism in Soviet satellite States. The interventions in the Congo in  and in Uganda in  were operations to rescue persons held hostage. The interventions in Bangladesh, Uganda, and Kosovo are often seen as instances of humanitarian intervention, where action was justified despite the non-intervention principle by the need to avert grave, large-scale suffering. The Iranian and Chilean interventions are often seen as naked attempts to preserve western economic interests. The Cuban interventions, and perhaps Chile and Panama also, appear to have been exercises in the maintenance of United States’ hemispheric interests. And in the ghastly confusion of the  invasion of Iraq, ‘regime change’ loomed large as a supposed justification—though that is less a justification than a description of the action taken. Among those different circumstances some appear to have gained a measure of international acceptability. Intervention to rescue nationals, as in Entebbe, is one example; intervention to prevent a humanitarian catastrophe, as in Kosovo, is another. By no means all States have accepted the legality even of interventions in those narrow circumstances. Some States remain deeply concerned by any weakening of the non-intervention principle, fearing that it may lead to widespread interventions by powerful States for their own interests on one pretext or another. Even States such as the United States, which have a not inconsiderable record of intervention in third States, complain of interventions in the Middle East by States that are ‘sponsors of terrorism’. It is also sometimes said that there is a right to intervention in order to assist the process of self-determination (which is the subject of another of the principles in the  Declaration), and in order to counteract intervention by another State—for example, in order to ‘balance’ support for one side in a civil war. These grounds are, however, much more controversial. Some such The Principles of the International Legal System  interventions might be justified as exercises of self-defence by the intervening State, and some on the basis that the intervention was requested by the government of the State in which the intervention takes place. In these two cases the intervention is characterized in such a manner as to fall within the scope of well-established rules of law. Certain other kinds of intervention appear to be generally regarded as unlawful. Interventions to topple or install a particular regime, as in Hungary and Czechoslovakia and the Bay of Pigs fiasco, are prominent among them. But there is still much uncertainty in this area, partly because the lawfulness of an intervention turns upon the reasons for which it is undertaken and it is difficult to pinpoint the true reasons for State action. Furthermore, the reasons for State action are almost always manifold, with some possibly lawful reasons sitting alongside others that may be plainly inadequate as bases for the intervention; and the reasons given may themselves conceal very different motives for action. In the light of this uncertainty within the concept, the broad principle of non-intervention is tolerable so long as States feel that the exceptions to it are broad enough, or narrow enough, to be reasonable. As Percy Winfield once wrote, ‘the non-intervention rule appears to be a patent consequence of independence with a host of disorderly exceptions fastened on to it’.  Thus far I have been concerned for the most part with armed intervention, of the kind that the International Court held in the Nicaragua case amounted to a violation of international law.But, as I noted at the outset, the concept of non-intervention is much broader than this. The breadth of the principle was reflected in a further General Assembly resolution, /; the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States. That resolution sought to extend the scope of the principle, setting out a duty not to use economic aid as a tool of intervention, and obliging States to prevent the use of corporations under their jurisdiction and control as instruments of political pressure or coercion. The resolution, adopted by  votes to  with  abstentions, was opposed by many States, particularly the developed States against which such provisions were primarily directed, and cannot be regarded as stating or having passed in its entirety into customary international law. Nonetheless, though such ‘interferences’ may not amount to violations of the principle of non-intervention, they may be unlawful on some other ground. 4 P.H. Winfield, ‘The History of Intervention in International Law’,  BYIL , at p.  (–). 5 ICJ Reports , p.  at paragraphs –, –.  International Law Take, for example, the case of jurisdiction having extra-territorial effect, such as a law forbidding murder committed abroad by a national. That would be regarded as uncontroversial, even though it purports to criminalize activity within the jurisdiction of another State. But what of a law forbidding bigamy committed abroad by nationals, which might be thought necessary in order to prevent the avoidance of the bigamous liaisons inside the State that would arise as a result of marriages conducted outside the State? From the point of view of the legislating State this looks perfectly reasonable. But would it amount to intervention in the affairs of a State that permitted bigamous marriages? And what of a law that, say, criminalizes attacks on a religion. If such a law is applied extraterritorially, could the consequent limitation on freedom of speech in another State amount to intervention in that State? Or would a law criminalizing extraterritorial cartels amount to a denial of the right of the State where such a cartel is based and operates with the approval of that State, to choose its economic system? There is evidently a question in such cases of the propriety of the action taken; but the cases would not necessarily be regarded as instances of the violation of the principle of non-intervention. It is just as likely that they would be analysed in terms of the limits upon a State’s jurisdiction, or of human rights. That overlap is important, and I shall return to it later. For now, however, I shall let it rest, but underline the curious potency of this principle and its powerful internal contradictions. .    - States have the duty to cooperate with one another, irrespective of the differences in their political, economic and social systems, in order to maintain international peace and security and to promote international economic stability and progress, the general welfare of nations and international cooperation free from differences based on such differences. That formulation of the duty in resolution  (XXV) may sound banal. Who would argue that States are entitled to pursue naked selfinterest, regardless of the consequences for other States, or to obstruct action taken by other States? But the principle is more significant than it may initially appear. First, the principle is notable for what it rejects, which is not simply the pursuit of national self-interest but the idea of a crusade. Some schools of thought within certain political ideologies, such as Communism, and within certain religions, such as Christianity and Islam, have a profound commitment to the conversion of the whole world. This is usually seen by The Principles of the International Legal System  the crusader as saving or liberating other people from sin or oppression or some other individual or social deformation. Some of those other people, blinded by the false consciousness of the proletariat (surely one of the most wonderful instruments of political analysis ever put at the disposal of governments and would-be governments) or its equivalent, may not wish to be saved or liberated; but that is no reason to call off the crusade. Such thinking is one of the core ideas against which the principle of non-intervention is directed; but it has an enduring currency and was the subject of an influential debate at the end of the twentieth century over the ‘clash of civilizations’.  During the Cold War, in particular, it was widely believed that Communist States were constantly plotting to bring down the governments of Capitalist States and convert those States to communism, and vice versa. Indeed, the belief in China that the Soviet Union had gone soft in the global battle for communism was one of the main ideological reasons for the split between those countries in the s. The Soviet attitude was pragmatic, and articulated in a legal context in the concept of ‘peaceful co-existence’,  i.e., the idea that rather than being locked in a permanent antagonistic struggle, the two great social orders could co-exist in a kind of sporting rivalry from which the superior philosophy (communism) would eventually and inevitably emerge triumphant. It is this idea that the principle of co-operation expresses. States may differ in their philosophies; but that is no reason why they should not work together for the good of all. The duty to co-operate is so general that it is difficult to see how it can be enforced; but it can be instantiated. In other words, while it may be practically impossible to establish that a State is failing to co-operate in the broad aims of promoting international peace, security, economic stability and progress, and the general welfare of nations, it is certainly possible to establish a legal duty to co-operate in specific legal contexts and to measure a State’s compliance with it. This is done, for example, in the United Nations Convention on the Law of the Sea, Article  of which stipulates that ‘States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention’. That obligation was the subject of litigation in the MOX Plant case, in which Ireland claimed that the United Kingdom was in breach of its Convention duties in being insufficiently co-operative in the framing and implementation of measures to defend against terrorist 6 See Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (London: Simon & Schhuster, ). 7 See, e.g., G. Tunkin (W.E. Butler, trans.), The Theory of International Law (London: George Allen & Unwin, ).  International Law attacks on the United Kingdom’s Sellafield nuclear plant on the shores of the Irish Sea and on ships carrying nuclear materials to and from that plant. Although that case was withdrawn from the UNCLOS tribunal in the wake of a ruling from the European Court of Justice that disputes over non-co-operation between EU States must go to the European Court, there can be no real doubt that tribunals can and will rule on compliance with such specific duties of co-operation. The duties under the Law of the Sea Convention are paralleled in many other treaties, particularly treaties relating to environmental protection and shared resources. Among the most prominent instances are the  International Convention on Oil Pollution Preparedness, Response and Co-operation, the Basel Convention on the Control ofTransboundary Hazardous Wastes and their Disposal, the  UNESCO Convention for the Protection of the World Cultural and Natural Heritage, the  Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes, and the  Convention on the Law of the Non-navigational Uses of International Watercourses. In the field of shared resources there is at least a rudimentary rule of customary international law mandating co-operation between interested States. In the Lac Lanoux arbitration in  the Tribunal, faced with a dispute over the proposed diversion of waters of the River Carol, which runs from Lake Lanoux through France and Spain, held that States are obliged to seek, by preliminary negotiations, terms for an agreement on the development of a shared resource which might affect other States sharing that same resource. It found no duty actually to reach agreement, much less a duty to refrain from the development unless the agreement of the other States is obtained beforehand. But there is here the reflection of a customary law duty of co-operation. It is well to think of it as a reflection, rather than a seed, of a customary law duty because in some contexts there is in State practice a more highly developed notion of co-operation. In civil law jurisdictions there is a well-established concept of voisinage, a legal regime that flows from the sociological phenomenon of the frontier—a concept distinct from that of the border. A frontier is an area around the border line between two States. As one text puts it: frontiers are outer-oriented, with their attention directed to those areas of friendship and danger which lie beyond the state. Boundaries on the other hand are inner-oriented. They neither denote nor connote relationships. They are the physical manifestation of the sovereign limits of state territory and power. 8 Hastings Donnan and Thomas M. Wilson, Borders. Frontiers of Identity, Nation and State (Oxford; New York: Berg, ), p. . The Principles of the International Legal System  In frontier zones there is a special need for co-operation, for example in the provision of public services such as roads, railways, electricity, water, and sewage disposal, in the pursuit of criminals, and in the use of shared resources—boundaries often follow the course of rivers. One area in which the principles of voisinage are particularly well developed in practice is the utilization of boundary waters. In Scandinavia, for instance, there is a long tradition of bilateral treaty-making on the subject, and of the institutionalization of co-operation by the establishment of binational mixed commissions with extensive executive and judicial powers. .       -   The principle of equal rights and self-determination is stated in resolution  to apply to ‘all peoples’; it was addressed primarily to the situation of colonies and non-self-governing territories. The idea that colonies were entitled to independence had been widely accepted by the s, particularly in the United Kingdom (the mood changed more slowly in the other colonial powers), even if it was driven more by a reappraisal of the economic costs and benefits of maintaining the colonial system than by a reappraisal of the moral and political arguments concerning colonialism. In  General Assembly resolution  (XV) had declared the subjection of peoples to alien subjugation, domination, and exploitation a fundamental denial of human rights, and affirmed the right of all peoples to self-determination. Conscious of the potential of that principle for destabilizing international relations by encouraging distinct ethnic groups within States (such as the Basques in Spain and the Tamils in Sri Lanka) the General Assembly went on to declare in resolution  that ‘any attempt aimed at the total or partial disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the United Nations’. That effectively limited resolution  (XV) to the interpretation of self-determination which regarded the independence of former colonies within their existing borders as the natural expression of self-determination. The principle was affirmed in the  International Covenant on Civil and Political Rights, and in the 9 See Malgosia Fitzmaurice and Olufemi Elias, Watercourse Co-operation in Northern Europe (The Hague: Asser, ).  International Law International Covenant on Economic, Social and Cultural Rights adopted in the same year, and is regarded as an essential condition for the effective guarantee and observance of individual human rights. How much further, beyond the colonial situation, does the principle of equal rights and self-determination reach? Certainly it reaches far enough to render unlawful the forcible occupation and annexation of inhabited territory, as the decision of the International Court made clear in the East Timor case. Beyond that, the position is unclear. The main problem lies in deciding what constitutes a ‘people’ entitled to the right. Before the people determine their future, someone must determine who are the people. Are the Palestinians entitled to self-determination? The Scots, the Welsh, the English, Texans, or Falkland Islanders? Attempts have been made to define the concept of a ‘people’. A meeting of UNESCO experts in  set out a working definition, referring to the common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity. But the political implications of the principle are so great that all definitions are controversial. And once ‘the people’ is defined, who determines its future? If the Scots have a right to self-determination, do the inhabitants of England, Wales, and Northern Ireland also have a vote on the question? If the people of Northern Ireland are a ‘people’ for the purposes of self-determination, is the Catholic minority bound to accept the wishes of the Protestant majority? In  Gibraltarians voted by , to  in favour of retaining the link with Britain, rather than passing under Spanish sovereignty. Does the principle of self-determination entitle the population of Gibraltar to change its mind? Is the United Kingdom obliged periodically to ask the Gibraltarians if they still wish to remain a British territory? There are no clear answers to these questions, and the lack of certainty on such fundamental aspects of the principle underlines the fact that it was essentially a child of its time, rooted in the movement for decolonization and unsure of its role beyond that context. .        The sovereign equality of States is a prominent element of the catechism of international lawyers, fundamental and unshakeable in theory but baseless and with few meaningful consequences in practice. Equality matters 10 See General Comment  () of the UN Human Rights Committee, . 11 See Opinion No.  of the Arbitration Commission on the EC Conference on Yugoslavia,  ILR . The Principles of the International Legal System  in a democracy, where everyone has one vote and the minority may be legally bound by the decisions of the majority. But there is no democratic structure on the international plane. True, the ‘one State—one vote’ principle prevails in most international organizations; and in circumstances in which States decide to proceed by the ‘consensus’ procedure, any State, regardless of size or power, is able to block the adoption of a resolution. But as there is no international legislature through which the majority may impose its will on the minority, this point has rather less importance than it has in a municipal system. What this principle does do is to articulate a principle that meshes with, and is arguably implicit in, the other principles set out in the resolution  Declaration. If we ask which States are secure against threats or uses of force or benefit from the prohibition on non-intervention the answer is, each of them. No matter how great or small, each State is juridically equal. Nicaragua, with a population smaller than that of New York and a land area comfortably under % that of the United States, was able to bring the United States before the International Court of Justice to account for the alleged breaches by the United States of Nicaragua’s rights under international law. True, the US decided to boycott the merits phase of that case (having lost its argument that the Court lacked jurisdiction): but that is a risk in any court. Powerful, slippery, or very popular defendants often succeed in escaping a summons to a court. At one time the principle of sovereign equality was widely supported as the cure for the arrogance with which the Old Powers of Europe treated the newer, and less powerful States. Condescension and a certain hauteur may serve the grandees of government well in their dealings with their subjects at home, but they rarely work well when dealing with the brittle egos of the grandees of some other State. Diplomacy is easier and more effective if all are treated with equal courtesy. Of course, no-one believes that this reflects any real equality between States: neither the superpower nor the micro-State has any delusions about the distribution of power and influence on the international plane. There is an international pecking order as keenly appreciated as any feudal hierarchy: superpowers, regional powers, local powers, those surviving on alms, and the occasional eccentric who manages to operate at least temporarily outside the normal social rules. All have their international analogues. 12 But not all. In several economic and financial institutions votes are allocated so as to reflect the differences in the wealth or financial commitment of the Member States. See Chapter  below.  International Law The principle reflects a genuine belief that communities that have, through the accidents of history and diplomacy, acquired the status of Statehood have a right to be left alone to pursue their own economic, cultural, and political ambitions, at least as long as they do not upset their neighbours. It also embodies the presumption that in international organizations all States will have equal votes and equal access to the procedures and facilities of the organization, although that presumption may be rebutted and States may (and do) agree to establish organizations based on a different distribution of powers and rights. And it reflects the belief that as a matter of principle laws should apply to all States alike. The equal application of the law may seem to be an elementary proposition, an axiom of any legal system: but it is not. As I shall explain in the chapters dealing with the economic and environmental law, international law has developed a notion of what some scholars have called the ‘duality of norms’— that is, the idea that in some fields it is unfair and unrealistic to impose the same legal obligations on every State. The burdens of improving and protecting the environment, or of moving further towards free trade, should be borne by those best able to carry them. One might say that in cases where differential obligations are imposed the law still applies equally, in as much as each State is equally bound by the rules that apply to it, and it is simply the range of applicable rules that varies from State to State. That is, of course, true; but only at a level of abstraction that conceals the practical reality, which is that in certain fields the principle of sovereign equality has been departed from because it has appeared to States to be in the interests of justice and the efficient promotion of global interests to do so. .      The final principle set out in the  Declaration of Principles is that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter. Not, you will notice, assumed under the Charter, but in accordance with the Charter. Obligations assumed under valid treaties and under customary international law are included. This principle again may appear vacuous. Who would argue that a State is entitled to approach the fulfilment of its obligations in bad faith? But that view takes little account of cultural differences. One of the free entertainments that London offers on a wet afternoon is the pleasure of going into a Knightsbridge store, taking an expensive jacket to the checkout desk, and starting to haggle with the sales assistant over the price. Behaviour that is perfectly normal and expected in the markets of Abijan or Jerusalem seems to rip a small hole in the social fabric The Principles of the International Legal System  of west London, producing a conversation that proceeds according to two quite different and irreconcilable sets of rules. The acceptance of laws is no less prone to the impact of cultural differences. Imagine how a foreign diplomat, whose education in English included the dissection of The Merchant of Venice, would see western conceptions of law. When Portia demands that Shylock take only his pound of flesh and not one drop of blood she is engaging in the kind of argument that gives lawyers the reputation of combining pedantry, slickness, and self-righteousness on a scale beyond the imagining of most mortals. Who would sign a treaty with Portia as the representative of the other party? Who would subscribe to a court where a lawyer could raise that sort of argument without fear of disciplinary action? Conceptions of the nature and role of law vary significantly from culture to culture. In the west we are accustomed to the strict interpretation of laws, and the swift dismissal of cases in court. The idea that one party can be wholly responsible for a breakdown in contractual relations leading to a breach of contract is normal. In other cultures it may be different. Disputes are talked through; relationships survive breaches of particular obligations. The law is more flexible, more a guide towards a just solution than a procrustean bed within which social relations must be fitted. The principle of good faith in resolution  (XXV) has two aspects, and the first is to make plain that in international law literal interpretations and applications of legal instruments must not be allowed to defeat the evident intentions of those who made them. As I explained in the context of the law of treaties, the rule in international law is that texts are interpreted in accordance with their ordinary meaning in their context and in the light of their object and purpose. A good example of the application of the principle of good faith arose in the Rainbow Warrior arbitration between New Zealand and France. French agents had bombed the Greenpeace vessel, Rainbow Warrior, while it was in harbour in Auckland, New Zealand, in  prior to a voyage on which it intended to protest against French nuclear tests in the Pacific. Fernando Pereira, a photographer on board the ship, died as a result of the attack. Two French government agents pleaded guilty to his manslaughter and to criminal damage, and were sentenced to three years in custody at a French military base on the Polynesian island of Hao, under an agreement between New Zealand and France which stipulated that they would be prohibited from leaving the island for any reason without with the mutual consent of both governments. Both agents were repatriated to France without New Zealand’s consent, one (Alain Mafart) because of illness, the other (Dominique  International Law Prieur) because she was pregnant and her father had a fatal illness. France said that the extreme urgency of the situation precluded attempts to obtain New Zealand’s consent. The arbitral tribunal established to hear New Zealand’s complaint that France had broken the agreement, found that France was under a duty to make a good faith effort to try to obtain the consent of New Zealand to the transfer of the prisoners, and that in the case of Captain Prieur France had failed in this obligation. The second purpose of the principle of good faith is simply to reinforce the point that States are bound by the law and by the treaty obligations that they assume. Simple as that point is, it encapsulates the essence of the Rule of Law in international society. .           The Declaration closes with a ‘General Part’, often overlooked, in which the General Assembly declared that: In their interpretation and application the above principles are interrelated and each principle should be construed in the context of the other principles. And it declared further that: The principles of the Charter which are embodied in this Declaration constitute basic principles of international law, and consequently appeals to all States to be guided by these principles in their international conduct and to develop their mutual relations on the basis of the strict observance of these principles. The interrelationship between the principles will be apparent from what I have said about them. The injunction to develop international relations on the basis of them requires a word of explanation. The declaration of the principles was, as the preamble to resolution  (XXV) makes clear, an exercise in the ‘progressive development and codification’ of principles already implicit in the structure of the UN Charter, with the aim of promoting the realization of the purposes of the United Nations. The resolution was explicitly stated not to prejudice ‘the provisions of the Charter or the rights and duties of Member States under the Charter or the rights of peoples under the Charter taking into account the elaboration of these rights in this Declaration’. In other words States may use 13 See  ILR . In the case of Major Mafart the Tribunal decided by a – majority that France had not breached its obligation. The Principles of the International Legal System  the principles progressively in order to advance, but not to impede, the purposes of the United Nations, which include the maintenance of international peace and security, the development of friendly relations among States based on respect for the principle of equal rights and self-determination of peoples, and the achievement of international co-operation on solving international problems of an economic, social, cultural, or humanitarian character. In truth, the principles set out in the Declaration function more as policies than as normative principles. The principles of sovereign equality and good faith can barely be described as being norms in themselves, although they may be instantiated in, or in relation to, more specific norms that are derived from State practice or from treaties. That is not to say that none of the principles in resolution  (XXV) could operate as substantive norms—there is clearly a substantive norm prohibiting the use of force, corresponding to the principle in the resolution, for instance. The point is rather that the principles operate in the context of the resolution not as rules but as policies. One might say that the  Declaration of Principles defines the grain of international law, and instructs States to work with the grain rather than against it in developing international law. This is one of many examples of the need in legal analysis to be clear as to the kind of norm that one is dealing with, and its function in the particular context in which it arises. .   The basic principles (or policies) of the international legal system determine the kind of system that international law is intended to sustain. But there is one crucial element missing. Resolution  (XXV) says that States are bound to fulfil their obligations, and indicates what some of those obligations are; but it does not indicate what the consequences of a failure to fulfil those obligations might be. Consequences are important. I may decide that I should check my footnotes more carefully, or the principles of a religion may stipulate that I must act in a certain manner; but unless there are (or I believe that there are) some consequences of failing to do these things, they are merely aspirations or commitments rather than rules of conduct. If I fail to comply with them they are simply added to the lists of my failed resolutions. The same is true of the stipulations of international law. If no consequence attaches to their breach, we should question whether they are rules of law or statements of policy or aspiration. Examples abound. If one analyses the so called ‘third generation’