"Polish Yearbook of International Law" 1994, vol. XXI

POLISH YEARBOOK OF

INTERNATIONAL LAW

xxI

ANDRZEJ WASILKOWSKI (Editor-in-Chief) RENATA SZAFARZ

WLADYSLAW CZAPLI SKI

Advisory Board

PIOTR DARANOWSKI, GENOWEFA GRABOWSKA, KAZIMIERZ LANKOSZ, JERZY MAKARCZYK, ANDRZEJ MACZYN SKI, JERZY POCZOBUT, KRZYSZTOF SKUBISZEWSKI, KAROL WOLFKE

The editors express their gratitude to the Committee for Scientific Research of the Republic of Poland for the supporting of the publication of the present wolume.

POLISH ACADEMY OF SCIENCES

INSTITUTE OF LEGAL STUDIES

POLISH YEARBOOK OF

INTERNATIONAL LAW

xxI

1994

U

WYDAWNICTWO NAUKOWE SCHOLAR

Warszawa 1995

international law, conflicts of laws, and different aspects of relationship

between international law and municipal legal system. The Yearbook is open

for Polish and foreign authors. The principal language of publication is

English, but publishing texts in French is possible in exceptional cases.

All texts express exclusively personal views of the authors. Authors bear

full responsibility for statements and opinions expressed in the published

studies.

Manuscripts should be addressed to:

Dr Wtadyslaw Czapliuiski

Institute of Legal Studies

Polish Academy of Sciences

ul. Nowy Swiat 72

PL 00-330 Warszawa

Tel.-Fax (022) 267 853

All manuscripts should be sent in triplicate with footnotes double space

at the end of the manuscript. Instruction for authors available on request. If

possible, the texts can be sent on IBM-PC diskette elaborated with Word

Perfect 5.1.

The present volume should be cited as: 21 PolYBIL (1994)

O Copyright by Institute of Legal Studies

Polish Academy of Sciences, Warszawa .1995

ISSN 0554-498X

Printed in Poland

Wydawnictwo Naukowe SCHOLAR, Warszawa 00-103 ul. Kr6lewska 43/92. Objitogd 30,5 ark. wyd.; 24,25 ark. dnik.

Contents

RENATA SZAFARZ,

CSCE

Contribution

to

the

Establishment

of the European

LegalOrder

PAULTAVERNIER,La réforme du

Conseil

desécuritédes Nations Unies. Etat dela questiondela représentation équitable au Conseil de sé

curit

éet de

l’augmentation du nombre de

ses

membres

PIOTRDARANOWSKI,The Resolutionsof the Security Council of the

United

Nations Aimed atMaintenance

or

Restorationof International Peace and Security and the PolishLegal Order. The Practice of Implementation and

Its Prospects

RYSZARDPIOTROWICZ,The TimeFactor in the Creation of Rules

of

Customary International Law

VILENASVADAPALAS,Aspectsde processus de laresponsabilité

internationale

JAN PRUSZYŃSKI,Restitutionand

Revindication

ofArt

Treasures

Spoiledor

Displaced During or inResultof War

GEOFF GILBERT,State Sovereignty asa Guarantee of an Individual’ s Human Rights -SelectedAspects

JAN KLUĆKA,Comparative Studyof Internal Legal Regulations of Council of Europe

Member

States Concerning the Protection of

National

Minorities

(With special attention to the relevant legal regulation of the Slovak

Republic)

PÉTER KOVÄCS,Minoritasante portas (ou: laHongrieetla protection des minorités

aux

anné

es

90)

KIERAN STCLAIR BRADLEY,

Fundamental

Rights and the

European

Union: a Selective

Overview

BAKHTIYAR R. TUZMUKHAMEDOV, Interpretation of Discrepancies in

Russian and English Texts of International Treaties and Possible Impact on Implementation

FRANCISZEK LONGCHAMPS DE BÉRIER,The Roleof

International

Dispute Resolution

in

Transboundary Air

Pollution

Law

ALINA JURCEWICZ,TheApplicationof the General Provisions of the Rome TreatytoAgriculture

JÓZEF SKĄPSKI,The

EEC Convention

on

theLaw Applicableto

Contractual

Obligations

of

19 June

1980

asa

“ Model

” of International Legal Regulations

of

Obligations

in Domestic Legal System,with Special Regard to the Polish Law

MICHAEL WOLLENSCHLÄGER,ALEXANDER SCHRAML,The Basic Right

of Asylum

in

Germany After the

Reform

of1993

7 41

55

69

87 121 145

163

187 213 249

269

283

-

291

Polish Practice

in

International

Law

Selected Jurisprudence oftheSupremeCourtandtheConstitutionalCourtComprising Cases Pertaining PublicandPrivateInternational Law,published in1994-byEWA

R.SZAFARZ, Rozwój prawa międzynarodowego Europy

.

Z problematyki „europejskiejprzestrzeni

prawnej”,[TheDevelopmentof the InternationalLaw ofEurope.Some Problems of“the European LegalSpace”]

-

by KarolWolfke

R.MÜLLERSON,InternationalLaw,Rights andPolitics

.

DevelopmentsinEasternEurope andthe CIS

-

by WładysławCzapliński

J.BARCZ,UdziałPolskiwkonferencji 2 + 4.Aspektyprawnei proceduralne,[TheParticipation of

Polandin the 2+ 4 Conference.Legal andProceduralAspects]

-

by WładysławCzapliński. . . A.RANDELZHOFER,O. DÖRR,Entschädigung für Zwangsarbeit?

-

by WładysławCzapliński. . . . G.BURDEAU,B.STERN,Dissolution,ContinuationetSuccessionenEuropedel’_Est,Montchrestien

-

byWładysławCzapliński

Y.Z. BLUM,Eroding the United NationsCharter

-

by Rudolf Ostrihansky

V.VADAPALAS, La miseenoeuvredelaresponsabilitéinternationale del’Etat

-

byWładysław Czapliński

O.BRING,S.MAHMOUDI,CurrentInternationalLaw Issues.NordicPerspectives.Essaysin Honour

of JerzySzJucki

-

byWładysławCzapliński

K.GINTHER et al(eds.), Völkerrecht zwischen normativenAnspruch und politischerRealität. Festschrift für KarlZemanek

-

by WładysławCzapliński

H.

-

J.HEINTZE, Selbstbestimmungsrecht und Minderheitenrechte im Völkerrecht

-

by Władysław Czapliński

C.BRÖLMANN,R. LEFEBER,M. ZIECK(eds.), PeoplesandMinoritiesin InternationalLaw

-

by WładysławCzapliński

W. KAHL, Das Grundrechtsverständnis der postsozialistischen VerfassungenOsteuropas by

-

WładysławCzapliński

R.LAWSON,M.DEBLOIS(eds.), TheDynamicsof theProtectionofHumanRightsinEurope.

EssaysinHonourofH.G.Schermers

-

byCezaryMik

D.M.BEATTY(ed.),HumanRights and JudicialReview.A comparativePerspective

-

byCezary

Mik

K.DRZEWICKI, C.KRAUSE&A.ROSAS(eds.),SocialRightsas HumanRights: A European Challenge

-

byKatarzynaLasak

T.EWART, The Admissibility of Human Rights Petitions

.

TheCase law of the European Commission ofHuman RightsandHumanRights Committee

-

byCezary Mik

W.D.ANGEL(ed.), The InternationalLaw of Youth Rights.Source,Documents and Commentary

-

by AdamŁopatka

G.VAN BUEREN, TheInternationalLawon theRightsof the Child

-

byAdam Łopatka Recueil desCours

.

Academy ofInternational Law

-

byWładysławCzapliński

D.O’_KEEFE,P.Z

.

TWOMEY(eds.), Legal Issues ofthe MaastrichtTreaty

-

byWładysław Czapliński.. .

R. DEHOUSSE(ed.),Europeafter Maastricht.AnEverCloserUnion?

-

byWładysławCzapliński. . . . C.H.CHURCH,D.PHINNEMORE, EuropeanUnionand European Community.AHandbookand

CommentaryonthePost-MaastrichtTreaties-by WładysławCzapliński

A.K.UHL, Der Handelmit Kunstwerken imeuropäichenBinnenmarkt.Freier Warenverkehrversus nationaler Kulturgutschutz

-

byJanPruszynski

J.KOLASA(ed.),European Communities.SelectedLegal Aspects,partI; EuropeanCommunities(The

Union).SelectedLegal Aspects, partII

_-

byGenowefa Grabowska

S.A. PAPPAS(ed.),CurrentTrends and Developmentsin theCase-LawoftheCourtofJustice ofthe

EuropeanCommunities,AnnualReview,vol.1

-

by Rudolf Ostrihansky

G.BENNETT(ed.),Conserving Europe’s NaturalHeritage:TowardsaEuropean EcologicalNetwork

-

byHanna Machińska

E.REINHOLD,WechselundScheckimWettbewerbder Zahlungsmittel.Untersuchungen und vergleichende Analysenzum notwendigen EinwendungsausschlußimVerhältnis kausal

verbundenerParteien

-

byKazimierzZawada

Books

received

326 327 329 330 331 332 334 335 336 338 339 340 341 343 345 348 349 350 353 354 355 357 357 359 362 363 365 366 371

Polish Bibliography of International

Law

. . . .

21 POLISH YEARBOOK OF INTERNATIONAL LAW

1994

PL ISSN 0554-489X

CSCE Contribution to the Establishment

of the European Legal Order*

RENATA SZAFARZ

1. General Remarks

The All-European international law includes at present legal elements of the CSCE process, conventions adopted within the Council of Europe, treaties adopted under the auspices of UN Economic Commission for Europe as well as some other basically All-European treaties. This essay discusses the first of the aforementioned points.

"Final Act of the Conference on Security and Co-operation in Europe" signed in Helsinki on 1 August 1975 is the first and basic CSCE document.1 It is not a treaty under public international law,2 it is a political document.3 However, as it will be proved below (sections 2 and 4), it is not deprived of certain essential legal significance.

. _{This paper was written before the CSCE Budapest Summit 1994. According to the decisions of this} Summit, CSCE has been known - as of January 1, 1995 - as the Organization on Security and Cooperation in Europe (OSCE).

, This document is cited by A.D. R o t f e I d: "From Helsinki to Madrid, Conference on Security and Cooperation in Europe", Document 1973-1983, 110ff (1983), and A. B I o e d (ed.): "From Helsinki to Vienna: Basic Documents of the Helsinki Process', 43ff (1990).

2 This view is generally, almost unanimously, recognized in the doctrine. See, for example A.Ch. K i s s, M.F. D o m i n i c k: "The International Legal Significance of the Human Rights Provisions of the Helsinki Final Act", 13 Vanderbild IITIL 314 (1980); 0. S c h a c h t e r: "The Wtillight Existence of Nonbinding International Agreements", 71 AJIL 296ff (1977); and Non-Conventional Concerted Acts, in: M. B e d j a o u i

(ed.), "International Law: Achievements and Prospects", 265 (1991); M. B o w k e r, P. W i I I i a m s: "Helsinki: Ten Years After. Helsinki and West European Security", 61 lnt. Aff 613 (1985); J.A. G r i g e I i o n i s:

"K voprosu o pravovoy prirodie Zakluchitelnogo Acta Soveshchania po bezopasnosti i sotrudniechestvu v Europe" 1975, 171 (1977); H.S. R u s s e 11: "The Helsinki Declaration: Brbdingnag or Lilliput?", 70 AJIL 242, 247, 248 (1976); A. B 1 o e d (ed.), "From Helsinki to Vienna"..., op. cit., p. 11; P. v a n D i j k: "The Final Act of Helsinki - Basis for a Pan-European System?", 11 NethYBIL 109, 113 (1980); G. R y s i a k: "Akt Koficowy KBWE a miqdzynarodowe Pakty Praw Czlowieka", Prz.Stos.Mnar 1/77 (1979); J.F. P r e v o s t:

"Observations sur la nature juridique de l'Acte final de la Conference sur la securite et la cooperation en Europe", 21 AFDI 142 (1975); K. B I e c h: "Prinzipien-Erkliirung der KSZE-Schlussaktee", 31 AuA 260-261 (1976); K. S k ub i s z e w s k i: "Akt Koficowy KBWE w swietle prawa miqdyznarodowego", Patistvo i Prawo,

12/4-5 (1976); G. G i I _{a s: "Miqdzynarodowe normy polityczne", Prz.Stos.Mnar. 3/17 (1978); W. P} o e g g e l: "Akt Koficowy KBWE a interpretacja zasady nienaruszalno/ci granic w RFN", 20 SM 117 (1977); J. S y m o-n i d e s: "Deklaracja zasad stosunk6w miqdzypafistwowych KBWE", 28 SM 10/25 (1975); A.D. R o t f e I d: "Europejski system bezpieczeristwa in stait nascendi", 98 (1990); J.E.S. F a w c e t t: "The Helsinki Act and International Law", 12 RBDI 6 (1977); H. B I i x: "The Helsinki Declaration on Principles Guiding Relations Between States", 31 REgiDI 7 (1975); T. B u e r g e n t h a 1: "CSCE Human Dimension: The Birth of a System, Collected Courses of the Academy of European Law", vol. 1, Book 2, 200 (1992);

In general terms, the Helsinki Final Act contains following categories of provisions: principles, declarations of intention, recommendations and the programme of action.4 Some norms, in particular principles, are closely connected with international law while other norms are of political and moral character. This shape of the CSCE Final Act was a result of the Federal Republic's of Germany not wishing to have a document which would resemble a peace treaty confirming the division of Germany. The Soviet Union, on the other hand, did not want the human right clauses to be included in the treaty .5

The CSCE Final Act was signed in Helsinki by high level representatives of 35

states. Those included all European states existing at that time except Albania, as well as the United States of America and Canada.

The CSCE based on the Helsinki Final Act constituted the second All-European forum with the UN Economic Commission for Europe being the first one. It developed, as it sometimes happens, as a result of contradictory expectations of both the democratic West and authoritarian East of Europe. The Western states considered the CSCE, above all, as a possible means for introducing democratic changes into the Eastern part of Europe, bearing in mind concerns regarding the human rights and their own security. On the other hand, the former European socialist states were mainly aiming at sealing the territorial status quo set up in the post-war Europe. Furthermore, both parts of Europe tried to intensify co-operation in various fields. In other words, those states aimed at strengthening the infrastructure of peaceful co-existence in Europe.

The CSCE process, which began in Helsinki in 1975, includes the follow-up meetings of the representatives of the states participating in the CSCE i.e. Belgrade

-1977, Madrid 1980-1983, Vienna 1986-1989, Helsinki 1992. Among other CSCE meetings6 particular attention should be paid to the Paris summit, which was held between 19 and 21 November 1990, i.e. after the famous "Autumn of Nations", which swept through the Central and Eastern Europe in 1989. The Paris summit decisions, particularly the Charter of Paris for a New Europe, constituted a breakthrough for the whole CSCE process. First, the participating states' intention put forward in the aforementioned Charter was to transform Europe into a unified political, economic,

The unclear concept of "a special legal act" was put forward in this context by J.F. P r e v o s t, op. cit.,

p. 142; A.Ch. K i s s, M.F. D o m i n i c k, op. cit., pp. 314-315 and G.V. I g n a t e n k o: "Zakluchitelny akt obshchevropeyskogo soveshchanya w Helsinki", Pravovedene, 99, 102 and 103 (1996).

The Final Act is considered to be a legally binding instrument by Y.P. B I i s h c h e n k o: "Zakluchitelny akt Soveshchanya po bezopasnosti i sotrudnichestvu v Evrope -dalneysheye razvitye mezhdunarodnogo prava",

Sovetskoe Gosudarstvo i Pravo, 12/89-90 (1976).

3 I do not use the soft law concept in this context, since, as was rightly pointed out by P.M. D u pu y, "soft law is a paradoxical term for defining an ambiguous phenomenon. Paradoxical because, from a general and classical point of view, it usually is considered that the rule of law is hard, i.e compulsory, or simply does not exist. Ambiguous because the reality thus designed, considering as well its manifestations as its legal effects, is

very often difficult to identify clearly" (in: A Hard Look at Soft Law, PASIL 381 (1988).

" As has been emphasized by K. S k u b i s z e w s k i the originality of this Final Act consists in the

establishment of an international prograimne of co-operation, op. cit., p. 4.

See on this subject -J.-C. G a u t r o n: "Droit europden", 9 (1991).

6 Approximately 30 multilateral CSCE meetings were held during the period 1975-1993. Most of them were meetings of experts in various fields.

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER

social and legal area. Second, the Charter gave way to the process of CSCE institutionalisation: permanent organs with certain powers were established.7 _{Due to} this fact, one can now speak of the CSCE in terms of an international, intergovernmental organisation in statu nascendi.8

In principle, all follow-up meetings as well as meetings of experts have resulted in the adoption of certain political documents.9

The set of documents created in this way makes the title of P. van Dijk's article: "The final Act of Helsinki - Basis for a Pan-European System?"'" prophetic. Whenever the aforementioned documents refer to international law, "obligations" are highlighted. However, when the rules adopted within the CSCE process are referred to, the term "commitments" is applied. Sometimes "principles" are mentioned separately, i.e. ten principles contained in the Helsinki Final Act, which have become a decalogue of the whole CSCE process.

In the 1980s the Western states' expectations connected with the CSCE began do fulfil. The reason for change was the "human dimension of the CSCE" combined with the principle of non-interference in the domestic affairs of states; the latter principle has eliminated the so-called Brezhnev doctrine. As a result of those and other factors, 'I the famous "Autumn of Nations" in Europe took place, i.e. peaceful but revolutionary entry by the Central and East European states of the path of democracy, rule of law and the market economy. With account being taken of the various factors that have contributed to the aforementioned changes, the Charter of Paris for a New Europe states in the introduction that "the courage of men and women, the strength of the will of _{the peoples and the power of the ideas of the Helsinki Final Act have opened} a new era of democracy, peace and unity in Europe".2 _{Similarly according to the} CSCE follow-up meeting document adopted in Helsinki in 1992, entitled "Challenges of Change", "The CSCE has been instrumental in promoting changes".'3

As a result Europe is gradually becoming a homogeneous region regarding its political and economic system. Furthermore, as it will be presented below (sections 2 and 3), the states participating in the CSCE process have committed themselves to acknowledging parliamentary democracy as the only legitimate form of government in Europe.

7 _{Namely, these are the following organs: CSCE Council of Ministers, Committee of Senior Officials, the}

CSCE Secretariat, Conflict Prevention Centre, Office for Free Elections (later transformed into the Office for Democratic Institutions and Human Rights). Subsequently other organs were set up, too.

See R. S z a f a r z, "CSCE: an International Organization in Statu Nascendi?", in. A. B I o e d, W. d e

J o _{n g e (eds.), "Legal Aspects of a New European Infrastructure", 15-21 (1992). CSCE will acquire the status}

of an international organization as soon as its organs and institutions have a legal foundation, i.e. a statute

(ibidem, p. 21). In my opinion J. Menkes and A. Prystrom have described the CSCE as an international organization too soon. These authors consider the Paris Charter for a New Europe to be the CSCE statute (lnstytucjonalizacja ochrony praw czlowieka w systemie KBWE), 45 SM 7-12/43 (1992).

' The Geneva CSCE Meeting of Experts on Peaceful Settlement of Disputes (October 1992) was an exception in this respect, namely, during this Meeting a legal document, i.e. a convention, was also adopted (see below, section 4).

P. v a n D i j k, op. cit., pp. 97ff.

Other essential factors were the following: the actions of "Solidarity" in Poland, as well as perestroyka, new thinking and glasnost in the Soviet Union after 1985.

j2 Charter of Paris for a New Europe, 20 ILM 193 (1991).

Consequently, the idea of "peaceful coexistence" of states with different ideological, economic and political systems ceased to exist. Today, there is only one system as

a standard and pattern.

The recent changes in Europe have also resulted in the number of CSCE participating states being extended. Following new CSCE members can be identified: Albania, all the states which have emerged after the breakup of both the former Soviet Union4 and Yugoslavia (except Macedonia) as well as the Czech Republic and Slovakia

- after the dismemberment of Czechoslovakia. In effect, a total of 53 states participate in the CSCE process at the moment. 15 The CSCE follow-up meeting document, signed in Helsinki in 1992, describes therefore the community of states participating in the CSCE process as a community, which comprises "free and democratic states from Vancouver to Vladivostok".6 This area is also defined as the "CSCE region" further in the document, and the CSCE itself - as "a regional arrangement in the sense of Chapter VIII of the Charter of the United Nations".7 Nevertheless, the CSCE still retains the phrase "in Europe" in its title as it is still mainly concerned with the All-European order. In the 1992 Helsinki document, quoted above, it is clearly declared that "the CSCE is a forum for dialogue, negotiation and co-operation, providing direction and giving impulse to the shaping of new Europe".' 8

Additionally, the conclusion of Convention on Conciliation and Arbitration within the CSCE (see section 4 below) constitutes another important result of the recent changes, which have occurred in Europe. It is the first treaty governed by public international law concluded in the framework of the CSCE process.

With regard to time that has passed as well as changes which have occurred in Europe, if one assesses the value of the Helsinki Final Act of 1975 it is evident that it was a certain modus vivendi adequate to the bipolar situation in Europe at that time. However, its effectiveness as well as the effectiveness of some further documents adopted within the CSCE turned out to be amazing and seemed to exceed all expectations. As A. Wasilkowski has commented: "it can be said, with some simplification, that the conduct of states participating in the CSCE is such as if they had forgotten that from a formal point of view their obligations are not contractual. They act as if they were obliged not only politically but also legally".19

11 Russia succeeded to the former Soviet Union, but other 14 post-Soviet states were separately admitted to the CSCE. The idea behind the admission to the CSCE of all Asian post-Soviet states was to prevent Islamic fundamentalism and Chinese influence in these states. These goals were to be achieved by the strengthening of the drive towards democracy and protection of human rights in the region. This reasoning and efforts were based on the conviction that the situation in Central Asia indirectly influenced Europe (through Russia). Security reasons were also considered.

11 It is necessary to add that in 1992 the new Yugoslavia was suspended as a state participating in the CSCE (because of its involvement in the conflict in the Bosnia-Herzegovina area).

'6 Declaration and Decisions from Helsinki Summit, 31 ILM 1390 (1992). 17 Ibidem, p. 1392.

11 Ibidem.

" A. W a s i I k o w s k i: "Constitutional Rules concerning the Place of International Norms in Municipal Law and the Peaceful Settlement of Disputes in Europe", in: D. B a r d o n n e t (ed.): "The Peaceful Settlement of International Disputes in Europe: Future Prospects", Workshop 1990. 628 (1991). Similarly -see A. B I o e d (ed.): "From Helsinki to Vienna"..., op. cit., 11; A.D. R o t f e I d: "Spotkanie Wiedefiskie KBWE a zarys nowego systemu bezpieczefistwa europejskiego", 42 SM (1989) and J.A. G r i g e l i o n i s, op. cit., 171.

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER 1 I

2. The Problem of the Legal Character

of Principles Contained in the Helsinki Final Act of 1975

The "Declaration on Principles Guiding Relations between Participating States" is undoubtedly the most important part of the CSCE Final Act signed in Helsinki on

1 August 1975.2" Clearly, since the Declaration itself is contained in a political document

- the Final Act, from this point of view it also has political nature. Yet, strict and multiple ties of the respective principles listed in the Declaration with the general international law, constitute another issue to be looked into. This issue has been vividly discussed in the international law doctrine some time ago. As usual, it resulted in

a wide range of opinions, including extreme ones, being expressed on the subject under consideration. The first of the extreme views is that the set of ten principles included in the Declaration constitutes a system of international law norms of thejus cogens type."' It is a wrong opinion since the regional particular principles cannot be a source of jus cogens. It is due to the fact that the concept of juris cogentis norms contains the requirement of the consent by the international community as w whole.22 At most, it may be claimed that some principles included in the Declaration fall in line with thejuris cogentis norms expressing them more or less precisely.23

The second extreme view argues that the principles contained in the Declaration are only of political character, i.e. they have the same political nature as the Helsinki Final Act.24 For example, considering if the Helsinki Act principles could be regarded as an act of interpretation and application of international law, J. Gilas says: "This point of view cannot be accepted either. First, an array of principles - or their consequences - among those contained in the Helsinki Act, are new principles, which do not have sufficient background in the UN Charter and the General Assembly Declaration of 1970. Second, the UN Charter principles are considered to bejus cogens

norms and therefore they cannot be altered other than only in the same mode in which they were developed, i.e. by the international community. Similarly, the development of a new jus cogens principle, requires the consent by the international community as a whole. Third, since the principles of friendly relations and co-operation of states based on international law have a universal character, it is thus not allowed for them to be modified, altered or interpreted with the binding effect for the international community - by a separate group of states, even if those were all the states from

2" Cited by A.D. R o t f e I d (ed.): "From Helsinki to Madrid"..., op. cit., 113ff. The Declaration of Principles in quoted below as published in this book.

2' The following authors support this view: W. P o e g g e 1: Kwestia obowiqzujqcego charakteru aktu koficowego KBWE przy szczeg61nym uwzglqdnieniu 10 zasad, Prz.Stos.Mnar 1/16 (1976); V.A. M a z o v: "Principy Helsinki - principy sotrudnichestva gosudarstv Europy", SGP 9/102 (1976); S.A. M a I i n i n: "Soveshchanye v Helsinki (1975 g.) i mezhdunarodnoe pravo", Pravovedenye 2/22 (1976).

22 In this spirit - see also J. G i I a s, op. cit., p. 19; and J. T y r a n o w s k i: "Integralnogd terytorialna, nienaruszalno. 6 granic i samostanowienie w prawie miqdzynarodowym", 155 (1990).

23 In this sense I understand K. S k u b i s z e w s k i's opinion that "at least some principles are peremptory rules (jus cogens)", op. cit., p. 13.

24 This opinion has been expressed by H.S. R u s s e 1 1, op. cit., 248; K. B I e c h, op. cit., 260, and J. Gil as, op. cit., 18-19.

a particular geographical region".2 5 _{One has to disagree with the above arguments.} First, as it will be proved below, so-called "new principles" do not express entirely new norms of the international law. Second, to a certain extent it is always possible to supplement or develop evenjus cogens norms and even by a limited number of states; only alteration or modification of those norms, which has a derogative effect, is excluded. Third, the CSCE participating states did not intend to "modify", "alter" or "interpret" the international law principles with the binding effect for all the states.

Apart from the extreme views presented above, which are in a sense of an exceptional character, in the doctrine one can encounter a variety of opinions indicating a wide range of ties between the Helsinki Declaration principles and international law. Above all, many authors point to the fact that the principles enshrined in the Declaration express principles of general international law.26

At the same time, they rightly indicate that to a large extent obligatory character of principles contained in the Declaration arises out of other sources. For it is based on such foundations as

-above all - the UN Charter and associated with it - Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (the UN General Assembly Resolution 2625 (XXV) of 24 October 1970), as well as other treaties and customary law. Therefore, some authors enhance the fact that the CSCE decalogue repeats and confirms the principles which are already in force on the aforementioned bases.27 Additionally, some authors underline that the principles include both de lege lata and

25 J. G ilas, op. cit., 18.

26 See, forexample, K. Skubiszewski, op. cit., 11-12and 13;G.Cohen Jonathan, J.-P. J a c q u 6: "Obligations Assumed by the Helsinki Signatories", in: T. B u e r g e n t h a I (ed.): "Human Rights, International Law and the Helsinki Accord", 52 (1977); J.A. G r i g e I i o n i s, op. cit., 1I; L. H a n n i-k a i n e n, "The Declaration of Principles Guiding Relations between States of the European Security Conference from the Viewpoint of International Law, Instant Research on Peace and Violence", 99, 10 (1976); P. v a n D i j k, op. cit., 113 and 120; D. N i n i 6, "Les implications g~nrrales juridiques et historiques de la Declaration d'Helsinki", 154 RCADI 65, 68 (1977); G. R y s i a k, op. cit., 77; W. K m i t o w s k i: "Normy spoleczno/ci miqdzynarodowej", 43 SM 10/122 (1990); V. Y a ros I a v t s e v: "Basis of European Security", Int.Aff 5/18-19 (5/18-1976); A.D. R o t f e I d: "Republika Federalna Niemiec wobec KBWE i jcj Aktu Koiicowego", in: G16wne probleinyprawne normnalizacji stosunkdw PRL-RFN, 72 (1979); J. S y m o n i d e s: "Deklaracja zasad"..., op.

cit., 25ff; B. R y c h I o w s k i, J. S y m o n i d e s: "Bezpieczefistwo i wsp6lpraca europejska a koncepcja

pokojowego wspolistnienia", 28 SM 9/10-1 (1975); J. M e n k e s, A. P r y s t r o m, op. cit., s. 36.

N.A. 0 u c h a k o v generally supports this view but makes an exception for inviolability of frontiers principle ("Le drveloppement des principes fondamentaux du droit international dans I'Acte final sur la s6curit6 et la coopbration en Europe", in: J. M a k a r c z y k (ed.): "Essays in International Law in Honour of Judge Manfred

Lachs", 219, 232 (1984). According to T. B u e r g e n t h a I's opinion, this thesis refers to the following principles: refraining from the threat or use of force, sovereign equality, non-intervention in internal affairs and territorial integrity of States (op. cit., 201).

2? See, forexample, A.Ch. K i ss,M.FD om i nic kop. cii., pp. 305 and 306; D. N i n, i : "TheNature and Significance of the Final Act of the Conference on Security and Co-operation in Europe", IRMP 1-2/17 (1977); P. v a n D i j k, op. cit., 113; A. M o v c h a n: "Problems of Boundaries and Security in the Helsinki Declaration", 154 RCADI 34 (1977); J.F. P r e v o s t, op. cit., p. 146; R. B i e r z a n e k: "Bezpieczeistwo regionalne w systemie ONZ", 185 (1977; A.D. R o t f e I d: "Konferencja Bezpieczeristwa i Wsp6lpracy w Europie. Zagadnienia prawne", 31 PiP 1-2/89 (1976); B. S z c z e c h u r a: "Akt Koficowy KBWE a podstawy prawne bezpieczefistwa europejskiego", 35 SM 773 (1982); A.N. T a I a I a e v: "Helsinki: principy i realnost", 12 (1985).

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER

de legeferenda elements.2" This opinion is not precise, nor is precise the view that progressive development of international law has been achieved in the decaloque.29 For it was not the CSCE participating states' intention to develop international law, even as regards their mutual relations. All the principles' elements exceeding the actual international law should be treated as merely political elements.30 Another issue is if and to what extent the later turn of events, in particular the later practice in the application of those principles, could have resulted in their acquiring of the status of regional/particular custom.

It is true however, that the Helsinki Declaration principles include both legal and political contents, with the former prevailing. As a whole, they were conceived in such a way as to satisfy specific European needs and requirements.

In general terms, putting legal principles into a political document like the Helsinki Final Act does not necessarily deprive those principles of their legal character; it is explicitly stated by some authors.3' Also, containing some - relatively insignificant

-new, political elements in the decalogue does not deny the legal character of the principles' main elements.

In the above context the opinion is expressed that putting legal principles in a political document leads to legal strengthening and "enrichment" of the actual character of those principles.32

In the subject's literature particular attention has been paid to relations between principles contained in the Helsinki Final Act Declaration and those formulated in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of United Nations (the General Assembly Resolution 2625 (XXV), 24 October 1970).31 First, authors quite commonly stress the fact that - from the formal point of view - the Helsinki Declaration covers a wider range as it contains ten principles while the UN Declaration of 1970 - only seven of them. Second, it is emphasized that the Helsinki Declaration does not confine itself to simply repeating the UN Declaration principles.34 The UN Declaration of

21 For example, D. N i n i 11 "Les implications grnrrales"..., 68-69.

29 So, inter alia, A. M o v c h a n, op. cit., 13; J. S y m o n i d e s: "Deklaracja zasad"..., op. cit., 48; Y.P. B I ishch en ko, op. cit., 83; N.A. Ouch akov, op. cit., 222.

30 As J.E.S. F a w c e t _{t rightly points out The undertakings in the Final Act do not ... as a matter of law,}

add to or modify the obligations of participating States under customary or conventional international law, op. cit., No. 1-2, p. 7. J. S y m o n i d e s is not correct when maintaining that also the precise "concretization" of the principles under consideration is (legally) binding, in "Deklaracja zasad"..., op. cit., 12; A.Ch. K i s s, M.F. Domi nick, op. cit., 300; R. B ierzanek, op. cit., 184; H. B i x, op. cit., 8.

32 For example, D. N i n i 6 has written: the fact that a political commitment is assumed with regard to a legal obligation should make it more, not less, legally compelling ("The Nature and Significance"..., 17).

Also in this spirit but more cautiously - T. B u e r g e n t h a 1, op. cit., 201-202.

33 This Declaration is cited by G. A r a n g i o-R u i z: "The UN Declaration on Friendly Relations and the System of the Sources of International Law", Annex I, at 318ff (1979). General remarks on this Declaration -see also R. R o s e n s t o c k: "The Declaration of Principles of International Law concerning Friendly Relations: a Survey", 65 AJIL 713 (1971).

I For example, A. C a s s e s e has written: In fact, the Helsinki Declaration - while it does restate UN principles - in many respects goes fiirther and also elaborates and refines those principles by adapting them to conditions obtaining in Europe"(The Helsinki Declaration and Self- Determination, w: T. B u e r g e n t h a I (ed.): "Human Rights, International Law and the Helsinki Accord", 105 (1977).

1970, as such, includes legally binding principles35 but it is not comprehensive enough.36 For it does not comprise all possible principles implied by the UN Charter.

The Helsinki Declaration contains, from the formal point of view, still three more principles. Those are as follows: territorial integrity of states principle, inviolability of frontiers principle and human rights protection principle. Sometimes, in the literature the above principles are described as "specifically European".37 _{However, this opinion} is only partially right. Namely, it is right to the extent, to which it concerns the formulation of legal elements into separate principles. Nevertheless it is unsubstantiated when it suggests that in general international law, including the UN Charter, there are no norms referring to issues such as territorial integrity, respect for state frontiers or human rights protection. Yet, as it will be proved below, while commenting on particular principles, such norms already existed at the time of signing the Helsinki Final Act. They exist nowadays too.

Taking into account all that was said above, one can propose the following view regarding the legal character of principles formulated in the Helsinki Declaration: the Helsinki decalogue is undoubtedly based on general international law. In particular, the Helsinki Declaration principles contain numerous binding provisions for the CSCE participating states, as they reflect the general international law principles. Those are the principles arising out of the UN Charter provisions, the UN Declaration of 1970 and the customary law. In other words, the Helsinki Declaration decalogue refers to general international law norms, in principle, repeating, confirming and strengthening them. "In principle" - since its specific formulation is indeed original and, moreover, the CSCE decalogue also contains some new, strictly political elements. In any case, only those provisions of the Declaration, which had the same contents as general international law norms, were legally binding at the time of signing the CSCE Final Act of 1975.

It has to be emphasized that the Declaration of CSCE principles did not have a derogatory effect. One should remember about this particularly when claiming that in the CSCE catalogue international law principles have been interpreted and moreover

- specified, developed or - to some extent - altered. The new, political elements of the CSCE principles only supplement international law principles, which are already in force (see below). However, it is still an open question if and to what extent those new political elements of the 1975 Helsinki principles have reached the All-European custom status by now.

Additionally, there is an indirect argument indicating that there are substantial ties between CSCE Declaration principles and general international law principles. This is included in the ending part of the Declaration: "The participating States, paying due

35 Inter alia, this was persuasively proven by J.J. S a I n on: "Introduction to the Law of Friendly Relations between States", in: M. B e dj a o u i (ed.): "International Law", op. cit., 421.

3 For example, this is ascertained by R. R o s e n s t o c k, op. cit., 735.

3 So, for example, A.D. R ot fe I d: Europejski system bezpieczeristwa..., 86, and R. B i e r z an e k. who has ascertained that it is not accidental that specifically European principles concern respect for the territorial status quo and human rights, since in the history of Europe the drive to change state frontiers has led miany titnes to wars, and the idea of human rights originated and developed in this part of the world, op. cit., 187.

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER

regard to the principles above and, in particular, to the first sentence of the tenth Principle, "Fulfilment in good faith of obligations under international law", note that the present Declaration does not affect their rights and obligations, nor the corres-ponding treaties and other agreements and arrangements". This provision suggests that, at least theoretically, the principles formulated in the Declaration might affect "rights" and "obligations" of states as well as "treaties", "agreements" and "arrange-ments". Furthermore, attention should be paid to the fact that it was considered necessary to include such a provision only in one part of the CSCE Final Act, i.e. only in the Declaration of principles.38 This distinction of the Declaration of principles is very significant in the context under consideration.

As regards the issue of CSCE decalogue's assessment, which was carried out in the doctrine of various states participating in the CSCE process, it has to be emphasized that as for the former socialist countries' doctrine, the fully legal character of all the Helsinki principles was underlined while in the western states' doctrine prevailed far reaching restraint and caution regarding legal elements of the CSCE principles. Apparently, it is only now that conditions for formulating more balanced and uniform opinions in this respect developed.

As a result, in Europe, and at present in the Euro-Atlantic-Central Asian region, which has become the CSCE region, the Helsinki decalogue supplements the UN Declaration principles of 1970. This leads to strengthening of the respective principles of international law in the aforementioned region. In any case, the Helsinki principles should be interpreted as not contradictory to the principles of general international law, which, in many cases, have the jus cogens character.

Furthermore, the Helsinki declaration of Principles of 1975 can be invoked as an evidence of recognising the customary norms of general international law by the respective states.39

The analysis of specific principles contained in the Helsinki Declaration leads to the following remarks:

Principle I. Sovereign equality, respect for the rights inherent in sovereignty. The provisions of this principle's first and main paragraph are not in essence different from those, which can be found in the text of "The principle of sovereign equality of states", contained in the UN Declaration of 1970.40 W.A. Mazov's opinion claiming that in the Helsinki text the principle of sovereign equality of states was 'further developed"'" can be referred to the second paragraph of this principle but only in a particular sense. Namely, this "development" does not entail addition of any new elements not included in the UN Declaration but is confined to specifying and

31 This was also pointed _{out by. D. N i n / i : "The Nature and Significance"..., 17.}

" See Case concerning Militry and Paramilitary Activities in and against Nicarague, (MeriLs), ICJ Reports 1986, at 100 and 107, para 204. In the legal writing an identical attitude is presented by 1. B r o w n I i e: "Principles of Public International Law", 578 (1990).

Similarly - see L. H a n n i k a i n e n, op. cit., 95.

enumerating of various possible elements included in the paragraph (b) of the UN principle. This paragraph states that "Each state enjoys the rights inherent in full sovereignty".42 It is obvious that enjoying the rights inherent in full sovereignty means, inter alia, the possibility of conducting changes in state frontiers in accordance with international law, the right to belong or not to belong to international organisations, the right to become or not to become a party to international treaties, including alliances as well as the right to neutrality. Also, the obligation to respect each state's right to define and develop its relations with other states "in accordance with international law and in the spirit of the present Declaration", foreseen in the Helsinki principle, results indirectly but definitely from the UN Declaration's paragraph (b), quoted above. Since all the countries, due to their sovereignty, have the right to freely develop their international relations, the obligation to mutually respect all the respective decisions, actions etc. by all the states is an indispensable corollary to this right.

The mention of "the spirit of the present Declaration" included in the text of the Helsinki Declaration, constitutes an element, which exceeds the formula of the sovereign equality of states principle, set out in the UN Declaration.

Principle II. Refraining from the threat or use of force

The basic content of the principle is the same in both Declarations in question. Furthermore, in both declarations one can also find various additional elements constituting the development of this principle's consequences or enhancing various aspects within its scope. For example, the UN Declaration mentions the national liberation actions problem (indirectly), the issue of mercenaries, problems of a civil war and terrorism. On the other hand, the development of the aforementioned principle in the Helsinki Declaration includes the following three provisions:

- "No consideration may be invoked to serve to warrant resort to the threat or use of force in contravention of this principle".

- "Accordingly, the participating states will refrain from any acts constituting a threat of force or direct of indirect use of force against another participating state".

- "Likewise they will refrain from any manifestation of force for the purpose of inducing another participating state to renounce the full exercise of its sovereign rights". In my opinion the first of the quoted provisions constitutes an expressis verbis repetition of a content element, contained in the general formula. In principle, this concerns the second provision as well, with the mention of "indirect" use of force reaching further than it might have been presumed from the literally understood general formula. As far as the third provision is concerned, it should be admitted that to the extent, to which "the manifestation of force" does not pose a threat of force at the same time, it plainly exceeds the general formula and therefore the formula adopted in the UN Declaration too. It is undoubtedly a political element of this principle.

42 Here and below I quote the UN Declaration of 1970 as published by G. A r a n g i o-R u i z, op. cir.,

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER I /

Additionally, inclusion of the aforementioned provisions into the Helsinki Declaration was the result of the Western states' strive to counter the so-called Brezhnev doctrine.'3

Principle III. Inviolability of frontiers

The inviolability of frontiers principle is only included in the Helsinki Declaration. As far as the UN Declaration is concerned, the most important element of this principle is contained in the text of the refraining from the threat or use of force principle. It states explicitly that "Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of any State...". Apart from this basic element, the emancipated Helsinki principle on inviolability of frontiers includes other elements too. It is, above all, the use of the word "assaulting" instead of the "use of force". This provides the European principle with a broader scope.

The second essential element of the principle under consideration is that "The participating States regard as inviolable all one another's frontiers as well as the frontiers of all States in Europe". This "inviolability" incurs the impossibility of either "assaulting" the frontiers or issuing territorial claims. With regard to the above, in the second paragraph of the European principle the CSCE participating states committed themselves to "refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State".

Various opinions have been expressed as to the character of the Helsinki principle on inviolability of frontiers. N.A. Ouchakov denies it, as the only principle in the decalogue, any legal force." Some authors, like S. Dabrowa 5 and A. Movchan,46 point to this principle as an example of the progressive development of international law. The context of their deliberations indicates that they are primarily concerned with the emancipation of the inviolability of frontiers principle, carried out in Helsinki. However, it is a matter of form rather than substance.

L. Hannikainen places this principle among those, which, in his opinion, "do not bring much new into international law".47 Furthermore, as J. Symonides has commented, "the inviolability of frontiers - recognition of the territorial status quo - was not only a postulate but a binding principle of international relations at the time of CSCE's convening, which was referred to in many inter-state statements and declarations and, above all, included in treaties concluded between both the Soviet Union and Poland and the Federal Republic of Germany"." G.V. Ignatenko and J. Tyranowski are devoted

4" See - on this subject - R. S a p i e n z a: "The Prohibition of Resort to the Use of Force in the Final Act of the Conference on Security and Cooperation in Europe", in: A. C a s s e s e (ed.): "The Current Legal Regulation of the Use of Force", 424 and 425 (1986).

4 N.A. Ouchakov, op. cit., 219and227.

4. S. D b row _{a: "Zasady nienarusyalnogci granic i integralnogci terytorialnej pafistw na KBWE", 28 SM} 11/14 (1975)

' A. M _{o v c h a n, op. cii., 22.}

4 L. Hannikainen, op. cit.,96.

4 J. S y m o n i d e s: "Prawo miqdzynarodowe a utrzymanie pokoju i bezpieczefistwa". 42 PiP 3/27 (1987). The attitude of the American negotiatorof the CSCE Final Act, H.S. R u s s e 1l, seems to bc similar; he

proponents of the thesis acknowledging the legal force of the Helsinki inviolability of frontiers principle. The first author remarks categorically that "the legal strengthening of the inviolability of frontiers as a separate principle of international law is of particular significance".49 Furthermore, according to J. Tyranowski, "The inviolability of frontiers principle is a binding principle of international law in the mutual relations between European states, the USA and Canada. This conclusion cannot be undermined by the fact that presumably not all the elements in the principle's legal content have been fully established or recognised to a sufficient degree".50

Summing up the above, I would like to emphasize that in 1975 at least one of the elements contained in the inviolability of frontiers principle, namely the duty to refrain from issuing the territorial claims, was neither as widely recognised by the international community of states nor by European states only, so as to claim that this principle wholly reflected the international law norms in force at that time. The provision in question should' be considered a political element of the Principle HI. The fact that the duty to refrain from issuing territorial claims has acquired a treaty basis in bilateral relations of some states (see so-called normalisation treaties concluded between the FRG and the USSR, Poland, Czechoslovakia and the GDR) is no obstacle to such an apprisal.

The issue of state frontiers recognition is another aspect of the Helsinki principle on the inviolability of frontiers. Namely, the former socialist states' doctrine in this respect was that the principle's formula meant the recognition of all the frontiers in Europe, i.e. the recognition of post-war status quo." Opposed to this was the American Helsinki Final Act negotiator H.S. Russell, who said that the inviolability of frontiers principle "did nothing to recognise existing frontiers in Europe".52

In fact, the principle in question does not make use of the word "recognise" but of "regard". In my opinion, in case of the Helsinki inviolability of frontiers principle, in 1975 account could at most be taken of defacto frontiers recognition but not dejure.

Referring the inviolability of frontiers principle to the present situation in the CSCE region, one has to admit that apart from territorial changes, including frontier changes, being not in breach of this principle, there are clear cases of its violation. The provision ruling out issuing of any territorial claims is also being breached (particularly in both former Yugoslavia and the USSR).

Principle IV. Territorial integrity of states

Almost all elements of the Helsinki territorial integrity of states principle are contained in the UN Declaration of 1970, in the text of principles on non use of force,

has written that the principle under consideration "does not depart materially from previous international

arrangements on frontiers...", op. cit., 249.

C.V. lgnatenko, op. cit.,94. 50 J.Tyranowski, op. cit., 156.

5' See, forexampleJ. S y mon ides: "Deklaracjazasad ... op. cit., p. 35; J. T y r a n o w s k i: "Zasada nienaruszalnogci granic w prawie miqdzynarodowym", 79-82 (1987); N.A. 0 u c h a k o v, op. cit., 230.

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER

sovereign equality of states and equal rights and self-determination of peoples. The only new element in relation to the UN Declaration content is a provision excluding "other direct or indirect measures of force in contravention of international law". However, it should be emphasized that although this element exceeds the text of UN declaration itself, it does not exceed the international law in force. Consequently, one can reckon that the whole text of the Helsinki territorial integrity of states principle, referring several times to the UN Charter and international law, reflects norms of general international law in force.

The fact that in the CSCE Declaration text norms concerning territorial integrity of states were admitted the status of an autonomous principle is a matter of form rather than substance.53 It is only in this sense that one can speak of "the progressive development of international law".54

Principle V. Peaceful settlement of disputes

All elements of the European principle on peaceful settlement of disputes are also included in the text of an analogous principle contained in the UN Declaration. L. Hannikainen is right when he states that "from the viewpoint of international law the text of the European Declaration does not contain any new aspects".55

Principle VI. Non-intervention in internal affairs

As J. Symonides has rightly commented, "the content of non-intervention in internal affairs principle agreed upon by the CSCE matches, in principle .... formulae adopted in the UN Declaration of 1970".56 The only element of the European principle's text not corresponding with its application in the UN Declaration is the phrase "regardless of their mutual relations" contained in the first paragraph of the principle. However it is only an enhancement or specification of an element contained in the general formula of the principle. The genesis of this provision is connected with the Western states' strive to counter the so-called Brezhnev doctrine.57

Principle VII. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief_I

While the former socialist states participating in the CSCE considered the inviolability of frontiers principle to be the "most important", in the opinion of the Western states it was just a protection of human rights principle that was viewed as

5 In this spirit also J. T y r a n o w s k i who has ascertained that the European principle concerning territorial integrity of States is a regional codification of elements of the general principle in this respect ("Zasada

nienaruszalnobi granic"..., op. cit., 77).

4 SeeY.P. Blishchenko, op. cit., 86.

s L. Hann ikainen, op. cit.,97.

6J. S y m o n i d e s: "Daklaracja zasad"..., op. cit., 41. Also in this sense -L. H a n n i k a i n e n, op. cit.. 97,andT. B uergenthal, op. cit., 174.

having such a character.5" This is precisely why, by means of mutual concessions, the respective provisions acquired the status of separate principles in the CSCE Helsinki Declaration. Thus, they acquired the status of basic principles - for the first time in the

history of international relations.

As far as the UN Declaration is concerned, certain general norms concerning the protection of human rights and fundamental freedoms are included in the contents of the principle of cooperation of states as well as in the principle of equal rights and self-determination of peoples.

Various views have been expressed in literature on the precise content and character of the Helsinki human rights principle. H.S. Russell, the American negotiator of the CSCE Final Act, asserted that "some of the most innovative concepts contained in the Declaration"59 _{had been reflected in Principle VII. Thus, the author seemed to indicate} that basically this principle did not contain legal elements or contained only a few of them. G. Rysiak also believes that from this point of view Principle VII is the "weakest" among all the Helsinki Declaration principles. In his opinion "state practice in both bilateral and multilateral relations does not provide as strong basis for its acceptance as, for example, such practice in respect of Principles III and IV".6

However, this author has admitted that "the justification for treating it as a binding principle of international law may result from its inclusion in the UN Charter and the General Assembly Declaration".6 In this connection it should be emphasized that only the main elements of the European principle have been reflected in the UN Charter and the UN. Declaration.

On the other hand, certain authors have expressly stated that Principle VII "as a whole did not introduce new substantial elements in the field of human rights and fundamental freedoms".62

Perhaps, it is with this idea in mind that T. Buergenthal has written that "Principle VII contains elements that merely reaffirm preexisting human rights obligations".63

But it cannot be excluded that this author wanted in this way to express his conviction as to the legal character of the principle under consideration.

A.Ch. Kiss and M.F. Dominick are even closer to the affirmation of the legal character of Principle VII when they state that this Principle "may be considered as more than a simple restatement of existing and generally recognized principles".64 Finally, L. Hannikainen seems to go the farthest by affirming that Principle VII "should be counted among the basic principles of international law".65

58 I have in mind the political appraisals by states, because from a formal point of view all principles of the Helsinki have the same status and the same "primary" significance. All these principles should also be interpreted as mutually interrelated.

51 H.S. R u s s e l, op. cit., 268.

11 G. R y s i a k, op. cit., 77.

61 Ibidein.

62 _{G. R y s i a k, op. cit., 75. Similarly - see J.E.S. F a w c e I t, op. cit., 7 and J. S y m o n i d e s:} "Miqdzynarodowa ochrona praw czlowieka", 147 (1977). The latter author has emphasized that: In thefield of hanan rights protection the Final _{Act does not surpass a level which has already been achieved in the UN}

system" (ibidem).

63 T. Buergenthal, op. cit., 176.

, A.Ch. Kiss, M.F. Dominick, op. cit., 305. 65 L. Hannikainen, op. cit.,97-98.

CSCE CONTRIBUTION TO THE ESTABLISHMENT OF THE EUROPEAN LEGAL ORDER

When interpreting Principle VII in the light of the doctrinal opinions quoted above, one may formulate the following conclusions. First, the main elements of this principle, reflected earlier in the UN Charter and the UN Declaration, were certainly legally binding in 1975. Second, as far as treaties are concerned, including the International Covenants of Human Rights of 1966, Principle VII only confirms that their provisions will be binding for the states parties. All references to the Universal Declaration of Human Rights of 1948 may assume a different character depending on whether the legal, or only the political character of this Declaration is recognized.66 _{Finally, the} following provisions included in Principle VII seem to be of an exclusively political character: paragraph 5, paragraphs 7 and 8 - partly, to the extent they refer to the

fulfilment of obligations provided for in the political declarations.

As far as the general significance of Principle VII is concerned, one may mention

the view that this principle (together with other principles of the decalogue) have played a greater role in the development of the human rights in Europe than the whole

"Basket HI" of the CSCE Final Act.

Principle VIII. Equal rights and self-determination of peoples

To some extent, the principle concerning equal rights and self-determination of peoples contained in the Helsinki decalogue is broader in scope than the analogous principle included in the UN Declaration of 1970. It refers to rights of peoples/nations, irrespective of whether or not they live in their own, independent and sovereign states. 67

In the UN Declaration the said principle is limited to the problem of liquidation of colonialism.68

To the extent in which the European principle applied to nations already living in their own independent states, it seemed in 1975 to have a political character. However, the "merging" of the customary international law principle concerning self-determination of peoples and the European principle, cannot be excluded.69

Principle IX. Co-operation among States

The principle concerning co-operation among states included in the CSCE decalogue goes further than the analogous principle contained in the UN Declaration.

"6 As it was rightly underlined by L. H an n i k a i n e n, there is a strong support among authors for the view that the Universal Declaration of Human Rights, as well as some other declarations have become parn of customary

law (ibidem, 98).

6 See also A. C a s s e s e, op. cit., 100.

The following authors emphasize that the principle of self-determination developed in the UN system is limited to the liquidation of colonialism problem: J. S y m o n i d e s: "Deklaracja zasad"..., op. cit., 44 and

mentioned above A. C a s s e s e, op. cit., 106. However, this second author also mentioms views to the contrary. I This perspective was indicated by A. C a s s e s e in the following way: Of couse, if the 35 signatories

consistently modify their behaviour to comply with the Helsinki Declaration, then the custonar"', law on sell determination and Principle VIII might tend to converge and even to amalgamate. This would, among other things, mean that Principle VIII would become legally binding, at least as to the 35 sinatories, and this in turn

would affect the entire scope of the customary and written law on self-determniotion. as it is applied to the entire international community (op. cit., 107).