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. 21 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. 22 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 21 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.” 22 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 .
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