CYIL vol. 7 (2016)

ERNEST PETRIČ

CYIL 7 ȍ2016Ȏ

of international law, distinguishing between ‘principles’ and ‘rules’ of international

law in a clear cut manner, as is the case with national law, is unfounded.

Numerous

norms of international law which are binding and sufficiently clear in terms of

substance assume the form and the name of “principles”, although their normative

substance indicates that they are actually “norms” which determine, in a sufficiently

clear manner, an obligation of conduct for the States, the rights and obligations

of the subjects of international law. Thus, for example, the normative obligations

of States, their rights and duties under the

mare librum

“principle” clearly derive

from the substance of this principle of international law. The same applies to many

other principles, e.g. the principle of non-discrimination, the principle governing

the seabed and ocean floor, outer space and celestial bodies as res

communis omnium

the principles on the prohibition of armed reprisals against civilians, the principle

governing the right of innocent passage, etc. All these cases involve dispositions

that are “principles” by form but norms by substance, i.e. rules which normatively

determine the substance of these and other “principles” of international law, some

of which have the

jus cogens

nature due to general consensus and their substance

(protection of fundamental values).

The above mentioned also applies to the principles of the UN Charter. It is true

that the Charter and the Declaration of Seven Principles deal with “principles”, with

“basic principles”. However, with the Declaration of Seven Principles defining the

substance of these principles with its binding interpretative authority, it becomes

clear, through the analysis of its substance, that it undoubtedly defines the normative

obligations determining the rights and obligations of States as follows from these

“fundamental principles”. The wording of the Declaration of Seven Principles is

illustrative as well: “States have the duty to fulfil, “each State has the duty to comply

fully and in good faith”, and “conduct themselves in compliance”, “shall refrain”,

“every State has the duty to refrain from”, “shall cooperate”. These are thus concrete

legal obligations arising from these principles.

It will definitely be interesting to hear

the standpoint of the International Law Commission (ILC) regarding the principles

of the Charter with respect to

jus cogens

. Also, it should not be overlooked that the

Declaration of Seven Principles establishes that the “principles” of the Charter, which

are defined, concretized by this declaration, are “basic principles” of international

law and, as a consequence, they refer to all the States that should be guided by these

principles in their international conduct and that should develop their international

For similar considerations see C. MIK, op. cit., p. 35: “[…] the structure of international law norms,

as compared to norms of national law, is usually atypical.”

K. HOSSAIN, op. cit., p. 95: “This declaration […] speaks consistently of the obligations of “every

State” and characterizes those principles as basic principles of international law. As a result, these main

principles gain the status of peremptory norms […].”; similarly R. KOLB is of the opinion that the

norms contained in the Charter, as well as UNSC resolution based on the Charter, constitute

jus cogens

op. cit. (Theories), p. 169

et seq