What Is The Theory Of Consent International Law Essay

The chief exponent of the theory of consent was Bynkershoek, which was later
followed by more refinements by other jurists such as Zorn, Triepel and Anzilotti. [1]
Bynkershoek took the position that the express or implied consent was the source of
the basis of obligation in international law, and there was no room for existence of
Inter- State law beyond what had been consented by them either expressly or
impliedly. [2] According to these exponents, it is the will of the state that commands
obedience both in municipal law and international law. Zorn goes to the extent of
treating it as a branch of municipal law. [3] Triepel believed the common will of the
States was the basis of the validity of international law, pointed out that it
depended on the agreements between States, which included not only treaties but
also custom and the common will was the only creative source of international law.
The exponents of the doctrine of consent maintain that the will of the State is the
binding force of international law, but they also put emphasis on the way the
consent is expressed by the State. [5] The will of the State is said to be expressed in
domestic law through legislation and in the case of international law through
consent to international rules. The consent theory is divided into two forms, the
actual consent theory and the theory of hypothetical consent. [6] According to some
theorists international law is based on the actual consent of the States, it may be
implied by way of custom or it might be expressly shown through treaties or other
international agreements. [7] The States will is manifested in the form of
conventional and customary rules and since they have consented to them, the rules
are binding upon them, and nothing can be law to which they have not consented.
[8]

OPPENHEIMS VIEWS

According to Oppenheim common consent is the basis of international law as a

legal system. [9] The common consent to internationally valid rules regarding
important matters such as international civil aviation, the use of international water
bodies is a necessity. This common consent cannot mean that all states must at all
times expressly consent to every part of the body of rules constituting international
law, since such common consent can never be established. [10] The membership of
the international community is constantly changing: new states are formed and
they join the international. Dissent of a particular from a particular rule is not to be
taken as a withdrawal of consent to the system as a whole.

The common consent that is meant is thus not consent to particular rules but to the
express or tacit consent of states to the body of rules comprising international law
as a whole at any particular point of time. Thus new states which come into
existence and become members of the international community are subject to the
body of rules for international conduct in force at the time of their admission. [11]
No single state can say on its admittance into the community of nations that it will
be bound by Rule x of international law and not by Rule Y. Their admission into the
international community is based on their acceptance to all the rules In force except
the ones which are binding on states who are party to some treaty.

JELLINEKS VIEWS

According to Jellinek, the rules of international law derive their binding force
because the State consents to the limitations on its sovereignty. However though
consent can easily be discerned for conventional rules, it is difficult to do so with
customary rules. [12] To this, positivists attribute tacit or implied consent, i.e.
the states acquiescing to customary rules. They admit that sometimes it is
impossible to find any express consent in treaties, state papers, public documents,
diplomatic notes, or the like to be bound by particular customary rules. They
therefore consistently with their consensual theory, argue that in such exceptional
cases the consent must be regarded as being implied or tacit. They observe that
the membership of the society of States involves an implied consent to the
established rules of customary international law. Such general implied consent
could only be conditioned by some fundamental rule of international law itself, and
it would be still necessary to explain the source and origin of this fundamental rule.
[13]

ANZILOTTIS VIEWS

According to Anzilotti [14] , a prominent positivist, the principle of pacta sunt

servanda(i.e. the agreements between states are to be respected) is the
fundamental norm and an absolute postulate of international legal system from
which the international law derives its binding force and authority. [15] This has now
been codified in Article 26 of the Vienna Convention of the Law of treaties, 1969.
Article 2 provides that every treaty in force is binding upon the parties to it and
must be performed by them in good faith. Anzilotti holds that just as in the case of
treaties, customary rules are based on the consent of states and there is an implied
agreement. The main defect in this analysis is that the norm pacta sunt servanda is

only partially an explanation of the binding force of international law. Anzilottis

views that customary rules are binding on the states by virtue of an implied pactum
is no more convincing than the tacit consent argument of other positivists. It has
been rightly observed by Gihl , the realisation that international customary law
does not rest on a agreement and that the tenet pacta sunt servanda is itself a rule
of customary law led to a new formulation of the basic norms.

THEORY OF AUTO-LIMITATION

Having come to the conclusion that States do observe international law and will
violate it on an issue which is vital to their interest, the question arises as to the
basis of obligation in international law. [17] The nineteenth century with its business
oriented philosophy stressed the importance of the contract, as the legal basis of an
agreement freely entered into by both sides, and this influenced the theory of
consent in international law. [18] States were independent, and free agents, and
accordingly they could be bound by their own consent. There was no authority in
existence able theoretically or practically to impose rules amongst the various
member states. The approach found its extreme expression in the theory of auto
limitation, or self limitation which declared that states could only be obliged to
comply with international legal rules if they had first agreed to be obliged. [19] The
rules of international law are adopted to the extent when the states have voluntarily
restricted their sovereignty. The sovereignty is absolute is absolute in so far as a
State agrees to its limitation. Thus a state has freedom of action, except in so far as
it has agreed to the rules restricting that freedom.

CRITICISMS OF THE THEORY OF AUTO LIMITATION

However the theory maybe criticised on the following grounds. In the first place the
theory is based on a pre supposition that there exists a State will which is nothing
but the will of the people. It does not explain the fact. For example, when the a
treaty has been ratified by say Great Britain, we can if we like say that the
ratification is an expression of Great Britains will to become bound by a treaty. This
language however is very alluring and figurative, merely describes a situation of
fact, that the British executive organ has ratified the treaty, and that the British
people through their representatives have become responsible for their fulfilment of
treaty obligations. The state will is therefore a mere falcon de parler, as the only will
or wills which operate are those of the individuals who govern Great Britain.

Secondly auto limitation is no limitation at all. It implies that the state can free itself
from self imposed restriction, but in practice this is not possible. Thirdly, the theory
has been criticised by Brierly, Friedmann and other jurists on the ground that the
theory completely fails to explain how it is known that a state can only be bound by
self imposed obligations or why this theory of sovereignty should be accepted in
advance of proper examination of the actual character of international law. Besides
there is some incoherence in the argument to show that states, because their
sovereignty, can only be subject to be bound by rules which they have imposed
upon themselves.

CRITICISMS OF THE THEORY OF CONSENT

The basis of international law on the theory of common consent of the States can be
assailed on grounds more than one. Several objection have been raised against it,
the prominent ones amongst them are:

Treaties and custom are no longer considered to be the only sources of international
law. Art 38(1)(c) of the Statute of the International Court of Justice accepts the
general principles of law recognised by civilised nations as a source of
international law. This helps the judges to develop the content of international law.
This shows us that consent is always not necessary for international law to become
functional.

The theory of consent is also not fully applicable in case of treaties. Dispositive
treaties are examples of treaties which are binding on the states without their
consent. a striking example is paragraph 6 of Article 2 of the United Nations
Charter, which provides that the United nations is to ensure that non member states
shall act in accordance with the principles of the Charter so far as may be necessary
for the maintenance of international peace and security. [20]

It is difficult to reconcile the facts with a consensual theory of international law. In

the case of customary rules, there are many instances where it is quite impossible
to find any consent by states to the binding effect of these rules. Moreover, the
consensual theory breaks down in the crucial case of a new state admitted to the
family of nations, as for example Kazakhstan which was earlier a part of the Soviet
Union did not consent to its international commitments which were binding on it at
the time of its birth. [21] Such a new state is bound by international law from the

date of its emancipation without an express act of consent. The idea that in such an
instance there is a tacit or implied consent, merely strains the facts. The reality is
that other states look to the new state to comply with the whole body of
international law. This has consistently been the attitude of two influential Great
powers, the United States of America [22] and Great Britain [23] .

One of the major defects of the consent theory is that it can be used to justify the
withdrawal of consent from a rule. The question to be asked at this juncture is
whether by withdrawing consent, can a State eliminate its international obligations?
According to Brierly, a State cannot deny that it has violated international law when
it does not act in accordance with a treaty which it had concluded. But if the treaty
was said to be no longer binding after withdrawal of, it would lead to the conclusion
that a state can by its unilateral act enforce its unconditional right to relieve itself
from any obligation which it was bound under the treaty. Thus the State would not
be under any obligation because the consent which was the source of the obligation
had been withdrawn. As Brierly comments, a consistently consensual theory would
have to admit that if the consent is withdrawn, the obligation created by it comes to
an end. [24]

According to Westlake:

It is enough to show that the general consensus of opinion within the limits of the
European civilisation is in favour of the rule

Thus the test which is to be applied is whether the rule is one which is generally
recognised by the society of nations. Thus it is not necessary when invoking a
particular rule of international law against a particular state to show that the state
has assented to it diplomatically.

CONCLUSION

These objections to the theory of consent are by no means exhaustive, but they
prove to illustrate the main defect of the theory which lies in the fallacy of the belief
that there has to be consent amongst the States for international law to operate. In
spite of its many weaknesses, the consensual theory has had one very valuable
influence on the science of international law. It has concentrated attention on the

actual practice of states by emphasising, perhaps unduly, that only those rules
which states do in fact observe can be rules of international law. It is because of its
consensual basis and its wide acceptance in the International community that
international law can be equated with State law and that is the main reason why it
is challenged. Without any community interest and the general consent of the
application of rules, international law would have no function. [25] The International
Court of justice also took support of this theory while delivering judgements in the
Asylum Case [26] , the Anglo-Norwegian Case [27] and the US Nationals in Morocco
case [28] . [29] This has led to a more realistic outlook in the works of international
law, and to the elimination of much that was academic, sterile and doctrinal.

States obey international law due to a variety of factors. It cannot be said that the
true basis of international law lies neither in the consent amongst states nor
exclusively in natural law. [30] It is mainly due to their self interest that States
obey international law. A state recognizes the fact that it is better to obey
international law rather than to lose all the advantages gained from it. Thus in cases
where there are reciprocal benefits in question, a State will hesitate to break the
law. [31] Thus most rules in international law are based on identical or reciprocal
benefits of both the nations. Thus self interest seems to be the basis for
compliance with international law. In Lissttzyns views, there are three reasons for
obeying the law: self interest, sense of moral obligation and habit. [32] Man as a
reasonable human being will obey international law as long as it is in his self
interest.

Theory of fundamental rights

1. Concept and Basic Problems
1 Being the most prominent among the different subjects of
international law, a State is by definition endowed with the
capability of bearing rights and duties under international law.

Whilst these may derive from a variety of sources of international

law, including treaties and customary international law, the
question arises as to the existence of rights and duties inherently
linked to the creation and the essence itself of a State and, thus,
independent of other sources of legal obligation of a voluntary or
customary, particular or general character (General International
Law (Principles, Rules, and Standards)). This explains the use of
the expression fundamental rights and duties of States (in
contrast with rights and duties of States per se, which would
encompass the whole of international law) and justifies the fact
that only select material specifically focussing on rights and
duties of the proposed fundamental character will be dealt with
hereinafter.

2 The recognition of a set of fundamental rights and duties leads

to the need to clarify their precise content and exact nature. With
regard to the former aspect, two separate themes have
traditionally been addressed, namely, on the one hand, the
enumeration and identification of such fundamental rights and
duties and, on the other hand, the specific implications of each of
them in terms of normative impact for the States concerned. As to
the nature of fundamental rights and duties, their position within
the international legal order appears particularly problematic,
with special reference to the circumstance that, according to the
theory under consideration, they would constitute the
constitutional basis upon which are founded all other international
law rules, in turn to be considered of a secondary or accessory
character (see also International Legislation).

2. Origin and Evolution of the Debate

(a) Historical Background

3 The theory of fundamental rights and duties originated in the

17th century, with the founding of modern international law, when
States unequivocally proclaimed their independence and
sovereignty with supreme and unquestionable institutional
authority over social phenomena occurring within their jurisdiction
while progressively setting up a network of mutual relationships
with other States (History of International Law, 1648 to 1815;
International Relations, Principal Theories). This historical period is
generally thought to begin in 1648, after the Thirty Years War
(Westphalia, Peace of (1648)), as States, on the one hand,
affirmed their independence from papacy and the empire and, on
the other hand, established an exclusive dominion over a specific
territorial community, thus determining the obliteration of various
centres of feudal and communal power that had taken shape over
the previous centuries in a pluralistic fashion (History of
International Law, Ancient Times to 1648).

(b) Philosophical Background: Early Teachings and Evolution of

the Debate
4 From a political philosophy perspective, the doctrine of natural
law proved to be highly influential in contributing to the evolution
of the theory of fundamental rights and duties of States (Natural
Law and Justice). Because of its character, ius naturale emerged
as a possible source for the regulation of inter-State as well as
inter-individual relationships. Starting with the 17th century, the
view was developed, especially by Hugo Grotius, of a natural legal
order applying also to moral persons or collective entities such as
States. Among the early supporters of the theory of fundamental
rights and duties of States, mention must be made of Christian
Wolff, Emerich de Vattel, and Georges Frdric Martens. In the
writings of Wolff, in particular, one may findarguably for the first
timethe presentation of a complete system of rights and duties
of States. De Vattel, considered by some to be the real founder of

the theory of fundamental rights and duties of States, elaborates

on the Wolffian theory by emphasizing the idea of comparability
of States to individuals living in the state of nature as
interdependent and yet free subjects. Martens, in turn, builds
even further upon the findings of the preceding authors and
develops a system based on the right to security and
independence, the right to equality, and the right to mutual
commerce. Already at this stage, however, the theory of
fundamental rights and duties of States appears to have lost
some of its original components, especially because Martens
abandons, at least in part, a strict natural law approach by
inserting in his writings some significant elements of juridical
positivism (see also Legal Positivism).

5 The 18th and 19th centuries witness the contribution of

eminent figures such as Henri Grgoire and Jeremy Bentham. With
the formers Dclaration du Droit des Gens, on the one hand, a
catalogue of fundamental rights and duties is set forth which
comprises principles such as independence, equality (States,
Sovereign Equality), sovereignty, jurisdiction (Jurisdiction of
States), non-intervention (Intervention, Prohibition of), selfdefence, mutual respect of the rights of all, immunity of
ambassadors (Immunity, Diplomatic), and pacta sunt servanda.
The latters most crucial contribution, on the other hand, consists
in a draft declaration, mainly of a political nature, based on
equality and independence of States. The innovations brought
about by these scholars, however, relate to the form rather than
to the substance of fundamental rights and duties of States,
which they suggest for the first time as a topic suitable for
inclusion in a written legal instrument. As a consequence of their
contribution, the theory under consideration will then become
closely interwoven with the process of codification and
progressive development of international law (see para. 9).

6 In the 20th century the debate on fundamental rights and

duties continues and a greater variety of positions emerges.
Proposals for declarations of rights and duties of States are tabled
by jurists such as Albert de Lapradelle, Victor M Maurtua, and
Alejandro Alvarez. In addition, various international organizations
and bodies become increasingly involved in the debate and
provide the forum for the discussion of projects and draft texts. In
1919, for example, the American Institute of International Law
adopted a Declaration of Rights and Duties of Nations consisting
of six articles and mentioning self-preservation, independence,
equality, and jurisdiction as well as the principle of the correlative
character of rights and duties. Again in 1919 the Institut de Droit
international invites de Lapradelle to prepare a draft declaration
of rights and duties of nations, which was discussed in Rome in
1921 and at The Hague in 1925 but never adopted. Finally, a work
by Alvarez entitled Expos de motifs et projet de dclaration sur
les donns fondamentales et les grands principes du droit
international de lavenir, including chapters on Rights of States,
Their Limitations and Duties of States, Groups of States and
Continents, after having been submitted since 1931 to a
number of European and American academic circles, was
subsequently amended and developed into a declaration adopted
in 1936 by the 39th session of the International Law Association
(ILA).

7 Several authors, however, oppose the concept of basic or

fundamental rights and duties altogether. The Italian jurist
Anzilotti, for example, writing in 1906, firmly criticizes the
influence of a naturalist approach to international law, with
particular reference to the alleged existence of a set of
fundamental rights of States and what he considers to be a
subjective selection of criteria and rules operated by individual

authors. Hans Kelsen, in turn, expressly rejects the theory that

there are fundamental rights and duties under general
international law in the sense that the principles establishing
these rights and duties have a greater obligatory force than
others and states that such a theory has no basis in positive
international law (2667). Crucially, positions such as the ones
that have just been referred to, do not question the content or the
importance of those rights and duties as constituent elements of
the international legal order, but, rather, deny the correctness of
a theoretical construction based upon their qualification as a
source of legal rights and obligations for States distinct fromand
possibly of a higher ranking thanordinary customary or
conventional rules.

8 More recently, a critical approach to international law in

general and, in particular, to standard academic justifications of
State rights has been taken by authors such as David Kennedy
and Martti Koskenniemi. The latter, in particular, in the context of
his analysis of international law as an attempt to deprive
international relations of their political component has in
particular opposed standard doctrinal justifications of State rights,
based on factual statehood or legislative enactments, since
neither facts nor rules may be considered self-evident or
objective.

3. Efforts towards the Codification of Rights and Duties of States

(a) The Montevideo Convention, the Organization of American
States, and the Organization of African Unity
9 With regard to the development of written legal instruments
dealing with fundamental rights and duties of States, several
significant results were achieved during the 20th century. The

Montevideo Convention of 1933 constituted one of the first

examples of insertion of rights and duties of States in a
multilateral legally binding instrument. Whilst no express
recognition was given on that occasion of their fundamental
character, rights recognized by the Montevideo Convention
included the right to political existence, independence, selfpreservation, jurisdiction, and equality. As to the duties, mention
was made, inter alia, of non-intervention, respect for other States
rights and the pacific settlement of disputes.

10 The Charter of the Organization of American States (OAS)

(OAS Charter), adopted in 1948, contained a full Chapter
devoted to Fundamental Rights and Duties of States. It was by
all means an original solution, to be partially explained by the
political peculiarities that characterized the American Continent at
that time. Sometimes considered a political manifesto rather
than a document of a strict juridical nature, the Charter, in its
current version as last amended by the Protocol of Managua in
1993, contains, in Chapter IV (Arts 1023), several provisions of
general importance, such as the one according to which every
American State has the duty to respect the rights enjoyed by
other American States in accordance with international law (Art.
11); and the one according to which fundamental rights of States
may not be impaired in any manner whatsoever (Art. 12).

11 As to the specific rights that are mentioned therein, Art. 10

OAS Charter refers to the right to equality and affirms that States
are equal, enjoy equal rights and equal capacity to exercise these
rights, and have equal duties. Significantly, the circumstance is
stressed that the rights of each State exist regardless of its power
to actually ensure their exercise but rather, upon the mere fact of
its existence as a person under international law. The OAS

Charter also provides, in its Art. 13, for a States right to defend
its integrity and independence, to provide for its preservation and
prosperity and, consequently, to organize itself as it sees fit. The
exercise of these rights, according to the same provision, is
limited only by the exercise of the rights of other States in
accordance with international law. Moreover, pursuant to Art. 15
OAS Charter, the right of each State to protect itself and to live its
own life does not authorize it to commit unjust acts against
another State. Additional rights dealt with in the OAS Charter are
that to exercise jurisdiction over all inhabitants, whether nationals
or aliens, within the limits of one States national territory (Art.
16) and to develop cultural, political, and economic life freely and
naturally, subject to the safeguard of rights of individuals and the
principles of universal morality (Art. 17). Art. 19 asserts the duty
not to intervene in a foreign States affairs by the use of armed
force or any other form of interference or attempted threat
against the personality of the State or against its political,
economic, and cultural elements, whilst Art. 20 forbids the use of
coercive measures of an economic or political character as a
means to force the sovereign will of another State. The OAS
Charter, finally, embodies the right to territorial inviolability by
preventing military occupation or any other direct or indirect
measure of force taken by another State (Art. 21). The use of
force in international relations among American States is also
prohibited, with the sole exception of self-defence and other
measures for the maintenance of peace and security adopted in
accordance with existing international treaties (Arts 22 and 23)
(see also Use of Force, Prohibition of; Use of Force, Prohibition of
Threat; Aggression).

12 In the same vein, in 1963, the Charter of the Organization of

African Unity (OAU Charter) was also adopted, comprising two
articles especially devoted to rights and duties of Member States

and setting out, in particular, the principle of equal rights and

duties of Member States (Art. V) and a pledge to observe the
principles enumerated in Art. III of the Charter, including those
relating to sovereignty, non-interference, and peaceful settlement
of disputes (Art. VI). It has to be noted, however, that the 2000
Constitutive Act of the African Union (AU), which has abrogated
and replaced the OAU Charter from 2001, does not contain any
provision expressly devoted to rights and duties of Member
States. In fact, only a declaration along the lines of Art. III of the
OAU Charter is maintained, stating that the Union shall function
in accordance with a number of principles, some of which, in
any event, are nonetheless explicitly drafted in terms of rights
(eg Art. 4 principle (j) Constitutive Act of the African Union, which
refers to the right of Member States to request intervention from
the Union in order to restore peace and security).

(b) The Work of the International Law Commission

13 In 1949, as a part of the report covering the work of its first
session, the International Law Commission (ILC), submitted to the
General Assembly (United Nations, General Assembly) the text of
a Draft Declaration on Rights and Duties of States (Declaration).
It comprised 14 articles detailing four rights (independence,
jurisdiction, equality, and self-defence) and ten duties (not to
menace international peace and order, to peacefully settle
disputes with other States (Peaceful Settlement of International
Disputes), to refrain from resorting to war as an instrument of
national policy, to refrain from giving assistance to any State
action in violation of the duty not to resort to war, to carry out
international obligations in good faith (Good Faith [Bona fide]),
and to conduct relations with other States in accordance with
international law and with the principle that sovereignty of each
State is subject to the supremacy of international law.

14 The General Assembly commended the work undertaken by

the ILC and expressed the view that the Draft Declaration did
indeed mark a significant contribution towards the progressive
development and the codification of international law.
Nonetheless, because of the insufficient interest attracted by it,
the Draft Declaration was at a first stage postponed, later
abandoned, and never adopted by the General Assembly. As
observed by several commentators, States appeared not
particularly keen on the topic and provided very little feedback on
the work of the ILC. In addition, no State has, since 1949, ever
requested the issue to be taken up again within the United
Nations. Whilst this does not mean, of course, that individual
elements of the Draft Declaration cannot be said to correspond to
actual international law obligations of a customary nature, it is
nonetheless clear that there is no general international
agreement as to the need to resort to an international law
instrument detailing the basic rights and duties of States.

(c) The Declaration on Principles of International Law concerning

Friendly Relations and Co-operation among States
15 Many of the rights and duties contained in the Draft
Declaration were later reaffirmed in the context of the Declaration
on Principles of International Law concerning Friendly Relations
and Co-operation among States (UNGA Res 2625 [XXV]; Friendly
Relations Declaration [1970]), unanimously adopted by the
General Assembly on 24 October 1970. It has to be noted, at the
outset, that the Declaration (and particularly its general part) is
drafted in terms of principles rather than rights and duties and
that it makes explicit and extensive reference to the provisions of
the United Nations Charter (UN Charter) and to the rights and
duties of Member States that are established thereby.

16 As far as the individual principles are concerned, these include

in particular: 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 cooperate with one another in accordance with the Charter; e) the
principle of equal rights and self-determination of peoples; f) the
principle of sovereign equality of States; and g) the principle that
States shall fulfil in good faith the obligations assumed by them in
accordance with the Charter.

17 As noted by Jos M Ruda in 1987, due to its compromising

nature, its recommendatory character, and its very broad and
sometimes contradictory content, the contribution of the Friendly
Relations Declaration to the issue of fundamental rights and
duties of States is relatively modest. Some important aspects
touched upon by the Declaration were, however, later taken up by
the Final Act of the Helsinki Conference on Security and Cooperation in Europe (Conference on Security and Co-operation in
Europe, Final Act [done 1 August 1975] (1975) 14 ILM 1292)
(Helsinki Final Act (1975)). Self-determination, for example, was
on that occasion spelled out very clearly as a principle involving a
right of all people to establish with total freedomwhen and how
they so desiretheir political system without outside interference
and to pursue according to their own wishes their political,
economic, social and cultural development. Subsequent
international practice has further clarified, on the one hand, that

the creation of a sovereign State must constitute an actual

exercise of self-determination of peoples and, on the other hand,
that the territorial integrity and political independence of a
sovereign State must be protected subject to the existence of a
government representing all the people of the territory regardless
of race, creed, or colour (eg United Nations General Assembly
Resolution 46/7 of 11 October on the conditions of democracy and
human rights in Haiti). More generally, the Helsinki Final Act has
set out its own Declaration on Principles Guiding Relations
between Participating States codifying and recognizing the
fundamental importance in this respect of the following principles:
sovereign equality; respect for the rights inherent in sovereignty;
refrain from the threat or use of force; inviolability of frontiers;
territorial integrity of State; peaceful settlement of disputes; nonintervention in internal affaires; respect for human rights and
fundamental freedoms, including the freedom of thought,
conscience, religion, or belief (Religion or Belief, Freedom of,
International Protection); equal rights and self-determination of
peoples; co-operation among States; fulfilment in good faith of
obligations under international law.

B. Notion
1. Enumeration of Fundamental Rights and Duties of States
(a) Independence
18 Among the supporters of the theory of fundamental rights and
duties of States, there is also no agreement as to their exact
number and precise identification. As seen in Section A, doctrinal
works and codification efforts have in fact often taken different
approaches in this respect. In addition, the perception as to which
rights and duties are in fact fundamental has changed over the
years. It is, nonetheless, generally accepted that the common
core of fundamental rights and duties of States may be

represented by the right to independence, sovereignty, equality,

and self-preservation.

19 The notion of independence was scrutinized as early as 1931

in the context of the advisory opinion dealing with the customs
system established at that time between Germany and Austria
(Customs Regime between Germany and Austria [Advisory
Opinion]). The view was taken by the Permanent Court of
International Justice (PCIJ) that an entity that cannot fulfil the test
of legal independence shall not be considered as having an
international legal status altogether, let alone external
sovereignty or independence.

20 Several international judicial decisions have tackled the issue

of independence. These include, for example, the PCIJs judgment
in the Lotus Case (The Lotus [France v Turkey] PCIJ Series A No
10; Lotus, The) and the judgement rendered by the International
Court of Justice (ICJ) in the Military and Paramilitary Activities in
and against Nicaragua Case (Nicaragua v United States of
America) (Merits) ([1986] ICJ Rep 14). What emerges from such
authoritative precedents is that, in the absence of a legal norm
prohibiting a particular conduct, the right to independence implies
the possibility for States to behave freely as members of the
international community. To put it differently, one States right to
independence finds its only limit in international norms of
customary or voluntary character. Since the world community has
not developed as a hierarchic structure, the subjection of States
to international law has also to be looked at with particular
attention: States, in fact, have a duty to abide by those norms to
whose formation they have contributed by concluding (and
subsequently ratifying) an international agreement, or which have
spontaneously emerged as customary rules.

21 In this connection, the concept of independence is, on the one

hand, unrelated to (and in any event does not contradict) the idea
that a State is in any case subject to international law and the
international legal order. On the other hand, the legal
independence of a State (in the sense that has just been recalled)
does not exclude the simultaneous presence of economic or
political dependence. However, such independence and, even
more so, the qualification as a State of a particular entity must
be assessed empirically on the basis of the relevant factual
situation and not only pursuant to declarations of a merely
political nature, a consideration that casts some doubts over
recent developments such as the proclamation of the Declaration
of Independence of Kosovo of 17 February 2008 and the
subsequent recognition of Kosovo by a number of States.

(b) Sovereignty
22 Sovereignty is closely related to independence. As a matter of
fact, the two concepts have sometimes been interpreted as
different sides of the same attribute. This is reflected, inter alia,
by the usual qualification of independence as external
sovereignty of States. As an attribute of the State, sovereignty is
generally thought to require the presence of a community,
consisting of a territory and a population governed by an
organized political authority.

23 According to long-standing international law practice,

[s]overeignty in the relations between States signifies
independence and [i]ndependence in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any other
State, the functions of a State (Island of Palmas Case

[Netherlands v United States of America] 838) (Palmas Island

Arbitration).

24 Among the implications of the right to sovereignty, is

therefore the corresponding prohibition to intervene in matters
within the domestic jurisdiction of other States. This principle has
been incorporated in the Friendly Relations Declaration (see para.
15), according to which no State or group of States has the right
to intervene, directly or indirectly, for any reason whatsoever, in
the internal or external affairs of any other State, with particular
reference to armed intervention and all other forms of
interference or attempted threats against the personality of the
State, the use or the encouragement of economic, political, or any
other type of measure to coerce another State in order to obtain
the subordination of the exercise of its sovereign rights, and to
secure from it any kinds of advantages (see also Economic
Coercion).

(c) Equality
25 According to the right to equality (or equal treatment), all
States occupy the same position within the international
community, have the same legal capacity, and bear equal rights
and duties regardless of their size or power. The right has been
enshrined, inter alia, in the Friendly Relations Declaration (see
para. 15), the 1963 OAU Charter and the 2000 Constitutive Act of
the Organization of African Unity (see para. 12). The rule
according to which par in parem non habet imperium, ie no State
can legitimately claim jurisdiction over another State, is generally
considered to constitute one specific application of the principle
at issue. Pursuant to such a rule, in fact, in particular, States are
granted a significant degree of immunity from the jurisdiction of
foreign courts on the basis of the idea that a Stateat least as far

as its acta iure imperii are concernedcannot be legitimately

judged by one of its peers (State Immunity).

26 The right to equal treatment is also present in the law of

international organizations (International Organizations or
Institutions, Internal Law and Rules; International Organizations or
Institutions, Membership). Within the United Nations system, for
example, all States are entitled to one vote (International
Organizations or Institutions, Voting Rules and Procedures). There
are, however, significant exceptions since, for example, only five
States have the right to permanently sit as members of the
Security Council as well as the power to veto its decisions of a
non-procedural character (United Nations, Security Council). Even
more evident derogations exist in international financial
organizations, where the principle one State, one vote is
abandoned, as a general rule, in favour of a voting system which
is based on the contributing capacity of every single State (see,
for example, the law and practice relating to the organizations
established on the occasion of the Bretton Woods Conference
[1944] and, in particular, the International Bank for
Reconstruction and Development (IBRD), and the International
Monetary Fund (IMF)). A further departure from the principle
characterizes the Council of the European Community (EC),
whereby participating States, pursuant to the rule currently
embodied in Art. 205 para. 2 EC Treaty (Treaty establishing the
European Community [consolidated text] [2002] C325/33) are
accorded a number of votes that reflects their respective
economic and demographic weight (European [Economic]
Community).

27 More generally, the idea of State equality does not reflect the
immense differences that actually exist among members of the

international community. This has an important impact, inter alia,

in terms of capacity of influencing the evolution of customary
international law, since the greater variety of interests and
activities that characterizes major States renders them
particularly influential in this specific respect.

(d) Self-Preservation
28 There is widespread consent that the right of every State to
self-preservation and the corresponding duty not to prejudice the
preservation of other States is to be included among the basic or
fundamental rights. Such a right, according to early
commentators, developed as a right to preserve, maintain, and
protect a States independence, sovereignty, and equality. It is for
this reason that some authors regard it as a mere corollary of the
preceding rights. Others, on the contrary, see it as the only truly
fundamental right of States. The existence of a fundamental right
to survival has been confirmed by the ICJ in a recent advisory
opinion relating to the legality of the threat or use of nuclear
weapons, which recognized the fundamental right of every State
to survival as a basis for admitting its right to resort to selfdefence (Legality of the Threat or Use of Nuclear Weapons
[Advisory Opinion] [1996] ICJ Rep 226) (Nuclear Weapons Advisory
Opinions).

(e) Other Proposed Fundamental Rights and Duties of States

29 Over the years, several other rights, and corresponding
duties, have been considered of a fundamental nature in
addition to the ones referred to above. These include, for
example, the right to come into existence, the right to mutual
commerce, the right to establish relationship with other States,
the right to peaceful coexistence, and the right to security.

2. Common Features of Fundamental Rights and Duties

30 Fundamental rights and duties are thought to belong to the
original legal status of States. Thus, they are in principle objective
and independent of any expression of willingness. Being
inherently linked to the existence of States as legal persons, they
have been viewed in the past by some authors as being
inalienable and absolute in nature. An alternative and more
careful approach, however, has also been proposed according to
which, whilst the originality of such rights and duties cannot be
denied, the possibility of their subsequent modification or
withdrawal is indeed admitted.

31 Whilst there is no clear view as to the exact enumeration of

fundamental rights and duties, they would indeed appear to share
some common features. Their content, first of all, is of a
framework nature, to be completed and integrated on a case-bycase basis by legal rules specific to individual sectors. In addition,
instead of definite questions and problems, such rights and duties
usually relate to basic or general aspects of international law.
Third, and finally, they aim at governing the friendly and peaceful
coexistence as well as building the basis for achieving more
sophisticated forms of co-operation among States (see also Cooperation, International Law of).

32 The fact remains that, because of their unique content, some

of the rights and duties under discussion have been inserted by
several authors in a peculiar sub-category of customary law, that
of international law principles, for the purpose of highlighting the
fact that, whilst having the same normative strength of ordinary
customary law rules, they represent the core of the regulatory

structure of the international community. Without giving to the

expression a hierarchic meaningand by making it very clear that
the same does not relate to the wholly different concept of
general principles of lawit may be argued that this is because
such principles, for the reasons that have been given so far, do
in fact represent a sort of flexible constitution of the
international legal system. In addition, insofar as they are covered
by the list of principles included in Art. 2 UN Charter, such rights
and duties will prevail, pursuant to Art. 103 UN Charter, over any
contrasting obligation taken by a Member State of the United
Nations (UN) by way of an international accord.

C. General Evaluation
33 A major change of perspective with regard to the theory of
fundamental rights and duties of States has been brought about
as a consequence of the profound modifications that have been
witnessed by the philosophical and social scenarios in the course
of the last four centuries. As explained above, the theory under
consideration originated in a context characterized by a pressing
need, on the one hand, to protect States from external
interferences and, on the other hand, to uphold the supreme
power of States over other pre-existingand potentially
competingsocial groups. It is therefore not surprising that a
number of appropriate dogmatic tools were soon developed with
a view to vesting States with the legal status and the specific
authority necessary in order to preserve their characters and to
ensure their mutual coexistence.

34 Given such a setting, the question remains open as to

whether the concept of fundamental rights and duties is not
merely of historical interest, considering the existence of severe
restrictions on State sovereignty, the phenomenon of failed States

(Failing States), the duty to co-operate with other States, the

trend to grant recognition only to States that fulfil certain
requirements, and other principal features of contemporary
international law.

35 More generally, the process of globalization which is currently

under way has the potential of determining the establishment of a
renewed international legal order, based on the emergence of
additional subjects and actors, an expansion of the role of
substantive international law and the establishment of innovative
accountability mechanisms at the international level. For a
number of reasons, globalization and its consequential effects, is
bound to further adjust the doctrine of fundamental rights and
duties of States as it was originally envisaged.

36 Notwithstanding the declining fate of the theory of

fundamental rights and duties of States, it cannot be denied that
international law rules such as the ones relating to independence,
sovereignty, and equality of States still occupy a central role in
the international legal order. This, however, cannot be justified on
the basis of their hierarchical position, but, rather, has to be
explained because of the peculiar content of the rights and duties
under consideration. Such rights and duties, in fact, continue to
be crucial to the functioning of the international legal order as
they provide a set of basic obligations which support the peaceful
coexistence of independent and sovereign States.