15 October 2020

The Fundamental Principles of International Law: An Enduring Ideal?

2020 marks the 50th anniversary of the 1970 Friendly Relations Declaration, which provided the canonical formulation of seven foundational principles of international law. Yet, the current political context seems largely inauspicious for genuine celebration as these principles face daunting challenges. Jorge Viñuales, Harold Samuel Professor of Law and Environmental Policy at the University of Cambridge and Adjunct Professor at the Graduate Institute, has asked some of the world’s most distinguished international law scholars from different horizons and generations to re-examine the past, present and possible futures of the fundamental principles in The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law (Cambridge University Press). As he explains in this interview, the volume is part of a wider project, with a wider goal.

In your introductory chapter, you present a novel perspective on the evolution of the foundational principles of international law. You see their enactment and restatement as normative events, and you frame their analysis through the process of the “collective memory of cultural objects”. Can you tell us more about how you developed this perspective?

When I was a student at the Institute, I had the benefit of attending the lectures of what is now an “endangered species”, namely generalist international lawyers. In their teaching, they placed great emphasis on the principles formulated in the Charter and the Friendly Relations Declaration. Over time, however, it became increasingly clear that such broad approaches were rather difficult to find elsewhere. More generally, the Friendly Relations Declaration (FRD), despite its truly foundational character, did not seem to attract much attention. In 2012, before moving to Cambridge, I taught a seminar at the Institute on the fundamental principles of international law, which took the FRD as its main organising instrument. When preparing the syllabus and the bibliography for the seminar, my initial impression regarding the loss of interest in the FRD was confirmed by the wide gap in the literature. It felt like a massive hole at the very heart of the discipline. 

Now, international law, like virtually any other human activity, has its changing fashions. At the beginning, I thought that the lack of interest in the FRD and, more fundamentally, on its synthesis of principles was just an effet de mode. But as the years went on, I couldn’t help thinking that the gap had both wider roots and wider implications. In order to understand the implications, I started by exploring the roots. In this process, I came across a line of work in social psychology on the collective memory of cultural objects that seemed to describe the fate of the FRD fairly well. According to this literature, the collective memory of a cultural object follows two main trajectories. First, contemporaneous interactions (“communicative memory”) regarding the object can lead to a sudden and steep increase in attention to the object (in a social network context, we would call this “going viral”). Such attention peaks and, depending on the degree of penetration of the object in more stable social supports (e.g. other cultural objects such as writings, physical supports such as monuments, or institutions), a second, much longer and declining trajectory sets in, driven by “cultural memory”. These trajectories describe how the collective memory of cultural objects as diverse as academic papers (in physics), songs, films and even celebrity evolve over time. The main insight lies in what drives the evolution, namely communicative and cultural memory.

Drawing on this work, I thought these insights could be used to understand not just the evolution of the FRD as a cultural object, but that of the “event” constituted by the normative synthesis of several principles endorsed in the 1970s by both industrialised countries (from the West and the Soviet bloc) and newly independent and developing countries. This seemed particularly important in the present context because the normative consensus of the post-1990 world, largely based on the hegemony and normative influence of the US, has blown into pieces. We are well into a phase of renewed normative contestation, which may turn into open defiance of at least some of the principles we have long taken for granted.

While you underline the discomfort and contestation of the choices upheld by the post-1990 normative consensus, how could a new synthesis of principles be achieved? 

It is true that the so-called “Washington” consensus prevailing after 1990 in some areas, particularly economic and political liberalism, had major problems. But the US hegemony gave the impetus for another normative decade, the 1990s, analogous to the 1960s. The position of the US in such normative development was complex. But its two main tenets, economic liberalism, through the establishment of the WTO and development of foreign investment protection, as well as political liberalism, through the promotion of a certain conception of democracy, had a profound normative influence. In the early 1990s, a fundamental aspect of sovereign equality, the choice of the form of government, became under siege with the growing discourse relating to the democratic form of government as a condition for membership in certain regional organisations or even to be recognised as a State. But such normative pressure did not crystallise in either a new principle or a reformulation of an older one (e.g. sovereign equality, self-determination, non-intervention). And then, starting in the early 2000s, the US normative dominance started to disaggregate as a result of its controversial “war on terror”, its invasion of Iraq, the world economic crisis, and the rise of competing powers, particularly China and an increasingly assertive Russia. Now, some more fundamental tenets, such as respect for human rights or territorial integrity, are being not only challenged but defied by the normative stances taken by emerging powers. 

Thus, in the last decade, the post-1990 consensus has given way to a still unidentified normative mosaic. Whether that is a positive or a negative development is a matter of debate. To be sure, international legal scholars have debated these issues. One important body of literature concerns the so-called constitutionalisation of international law, which seemed more workable in the 1990s than in the late 2000s. Much work has also been devoted to certain specificities within the operation of principles, such as the so-called “anticipatory self-defence” in the context of the prohibition of the use of force. What I found somewhat curious was that the normative synthesis itself, the broad but fundamental set of principles providing both the identity and the foundations of the international legal order identified in the FRD and some other instruments, has attracted so little attention. 

Whether a “new” synthesis is in the making or is at all necessary is difficult to say. My own view is that the fundamental principles we have, i.e. those developed in the Charter and subsequently expanded (human rights, environmental protection, access to and use of the global commons, etc.) and re-elaborated, remain an enduring ideal whose value should be recalled, re-examined, refreshed and possibly more. Whatever the process through which that may be done, it can only start with a renewed engagement with such principles.

You write that the re-examination undertaken in the volume is “only part of a wider project, with a wider goal” and a step towards an “integrative view of a rules-based international order”. Can you elaborate on that? 

What I meant by that is fairly simple: the “wider project” is to bring back both principles and their synthesis to the centre stage of international legal scholarship, and the “wider goal” is to change the way in which we train international lawyers, so as to form a new generation of well-rounded international lawyers, with both technical skill and humanist values.

To use a metaphor, we should be training “surgeons” who can perform a specialised surgical intervention without losing sight of the broader interconnections of the human body and the intellectual roots of their art. In other words, technical dexterity should not come at the price of narrow specialisation, and theoretical distance should not forego real-life relevance. Somewhere in the middle lies a more satisfactory balance consisting of a genuinely empowering combination of theory and skill. The Institute has been traditionally strong in this area, but only a handful of other institutions can say as much. 

A renewed focus on foundational principles could be a “tactical” step to achieve a more satisfactory balance. This book project is, in turn, a “tactical” step to come closer to such a renewed focus. My hope is that the contributions of many prominent colleagues, who represent diverse combinations – all very successful – of both theory and skill, will be as inspiring to younger generations as they have been to me when running this project.

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Full citation of the chapter:
Viñuales, Jorge E. “Introduction: The Fundamental Principles of International Law – An Enduring Ideal?” In The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law, edited by Jorge E. Viñuales, 1–11. Cambridge: Cambridge University Press, 2020.

Interview by Ana Beatriz Balcazar Moreno, PhD Candidate in International Law; editing by Nathalie Tanner, Research Office. 
Banner picture: excerpt from an image by Hand drawn Art/