Кризис международного права: современный контекст

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The nature of international law and the international system

relationship between the Council and the Court are clear and, after all, the Court did not decline to give the Advisory Opinion just because the matter of Israeli/ Palestinian relations was constantly before it. So it may be then, that only if the Security Council has taken concrete measures in respect of a dispute will the Court decline to exercise its jurisdiction - contentious or advisory - over a legal question (see section 10.8.5.11).

A second welcome development is the growth of specialised judicial institutions concerned with discrete issues of international law. The Iran-US Claims Tribunal, charged with unravelling the legal morass left by the ejection of the USA from Iran in 1979, provides a model for the judicial settlement of inter-state disputes and the Ethiopia/Eritrea Claims Commission is operating in much the same way to resolve issues arising from the separation of these two countries. Similarly, the Yugoslavia, Rwanda and Somalia War Crimes Tribunals and the International Criminal Court (ICC) reflect the growing importance of individuals as subjects of international legal disputes. Both the Yugoslavia and the Rwanda Tribunals have tried and con­victed and sentenced individuals, the Somalia tribunal is investigating cases and the Prosecutor of the International Criminal Court is currently investigating three situations and pursuing a number of cases against named persons.

Thirdly, many problems of international law arise in the national courts of states. Usually, this involves a dispute between a state and a private individual but some­times simply between two nationals. In either case, the national court may decide a substantive question of international law, which will then be binding on the par­ties. Moreover, awards of domestic tribunals, even if not voluntarily complied with, may be enforced by the normal enforcement machinery of the national legal sys­tem, subject only to certain immunities which foreign states enjoy (see Chapter 7). Again, in practice, such awards are seldom ignored because of the effect this would have on the relations between the state of jurisdiction and the state against whom the order was made.

i.4 The effectiveness of international law

It has already been suggested that the great majority of the rules of international law are followed consistently every day as a matter of course. It is normal to obey international law. This is something that is overlooked by some critics of the system and it goes a long way to refute their claims that international law is nothing more than a haphazard collection of principles that can be ignored at will. In this section we will examine some of the reasons why international law does work.

1.4.1 The common good

There is no doubt that a very important practical reason for the effectiveness of international law is that it is based on common self-interest and necessity. Today, international society is more interdependent than ever and the volume of inter­state activity continues to grow. International law is needed in order to ensure a stable and orderly international society. It is in every state's interest to abide by the rules of international law, for they lay down orderly and predictable principles for the conduct of international relations and international commerce. For example, it

The nature of international law and the international system 11

is vital that the allocation of the scarce resources of the high seas and ocean floor is achieved smoothly and equitably and it is only through rules of international law -binding on all states - that this can be achieved. Likewise with the protection of the environment and the management of climate change. Thus, a major reason why international law works is that it provides a stable and authoritative regime for the conduct of international relations and the regulation of global issues in an increas­ingly interdependent world.

1.4.2 The psychological Rubicon

Law has a self-perpetuating quality. When it is accepted that the principles govern­ing the activities of a society amount to 'law', as is the case with states and inter­national law, the rules of that system assume a validity and force all of their own. For example, if a state is presented with a choice of action, one which is legal and one which is not, it will take pressing reasons for the state to act consciously in violation of the law'. Breaking international law, like breaking national law, is not a matter to be taken "lightly and certainly it is not the preferred course of conduct for a state. There is, in other words, a psychological barrier against breaking international law simply because it is law. If a state does embark on such a course of conduct, its action will be described as 'unlawful' or 'illegal', and these are regarded as more powerful forms of criticism than behaviour which is simply 'immoral' or 'unacceptable'. The psychological force of international rules as a system of law is a reason in itself why international law is obeyed.

1.4.3 The practitioners of international law

International law operates hand in glove with international politics and diplomacy. Its most potent field of operations is, in fact, in the Foreign Offices and legal depart­ments of the world's governments and in international organisations. While it is tempting to think of international law as operating in the abstract and impersonal terms of 'governments', 'organisations' and 'states', in practice the application of international law is a matter for the considered judgment of some individual some­where. This may be a judge of the ICJ or national court, a legal adviser at the UN or a government official. Along with the army of legal advisers available to non­governmental organisations, these are the actual practitioners of international law. The crucial point is that the great majority of these officials will have been trained in the national law of their own countries and they are likely to approach inter­national law in the same way as they would any other legal system. The practitioners of international law may have a 'habit of obedience' derived from their own training as national lawyers which serves to encourage respect for international law.

1.4.4 The flexible nature of international law

International law is not an 'adversarial' system of law. As we shall see when consid­ering the sources of international law, many of its rules have evolved from the practice of states and often these do not stipulate rigid obligations or confer over­riding legal rights. Indeed, in some circumstances, the substance of a rule may be unclear, as was the case with the law on the breadth of the territorial sea until the

12 The nature of international law and the international system

deliberations of the Third UN Conference on the Law of the Sea. It is a fact of the sys­tem that in many areas it may not be possible to achieve a clear and unambiguous statement of a state's legal position. This is the flexible nature of international law. This flexibility may be perceived as a weakness, for states need to know with some degree of certainty the precise scope of their legal obligations and the extent of their legal rights. Uncertainty is the mother of instability. In international law, however, the flexible or open-ended nature of the rules means that disputes are less likely to be seen as 'right' versus 'wrong'. The absence of rigid and precise obligations leads to modest claims and, because there may be no objectively 'right' answer, there is a premium on compromise. Moreover, the flexible nature of international law means that a state may be able to choose from a range of policies, all of which will be legal. It will not be hamstrung or feel 'boxed in'. The fact that international law rarely leaves the state with only one course of action is a great advantage for a system so bound up with politics and diplomacy.

l.4.5 The political cost

There is much a state can lose through a violation of international law. Apart from the legal sanctions that might be imposed (see section 1.3 above), there are other political and economic costs to be paid. The loss of influence and the loss of trust consequent upon a breach of the law may mean a reduction in overseas trade, loss of foreign aid or a refusal to enter into negotiations over some other matter. Similarly, many states may not be prepared to enter into new treaties with a state if it has a history of violating existing agreements. When the USA invaded Grenada, for example, the loss of influence and trust throughout the states of the non-aligned world was a cost that hampered future US policy in the Caribbean. The same is true of its use of force in Panama in 1989, especially in respect of Latin American states, and the true international cost of US and UK intervention in Iraq and Afghanistan is still not known. Similarly, New Zealand may doubt the bona fides of France after the Rainbow Warrior affair and the UK was for many years wary of Argentinian promises after the latter's invasion of the Falkland Islands. Who will listen to a US lecture on human rights while prisoners are detained without trial at Guantanamo Bay? Moreover, apart from these more tangible considerations, one should not underestimate the very public and embarrassing criticism which flows from a breach of international law, especially in such fields as human rights and crimes against humanity. In November 1998, the USA issued an apology 'to the Government and people of Paraguay' following its violation of the Vienna Convention on Consular Relations, as highlighted by the Case Concerning the Vienna Convention on Consular Relations (Paraguay v US) (Provisional Measures) 1998 ICJ Rep 248. Unfortunately, this embarrassment was not enough to prevent the USA apparently violating the same Convention in a similar way in the La Grand case (Case Concerning the Vienna Convention on Consular Relations (Germany v US) 1999 ICJ Rep). Evidently, some states are more easily embarrassed than others.

1.4.6 Sanctions

The types of sanction and the enforcement machinery known to international law have been considered previously. These also will play some part in ensuring that the

The nature of international law and the international system 13

law is obeyed. They represent one more motive for compliance, as they do in national law.

is The weakness of international law

It would be a mistake to conclude that international law is a perfect system. There is much that could be reformed and enhanced. However, as a practical matter, the development of international law can be achieved only by states themselves. The United Nations, other international organisations and the International Law Commission may propose substantive changes in the law or changes in procedure, but the development of the system depends ultimately on the political will of sov­ereign states. If the system is believed to work satisfactorily for most of the time, as most states appear to believe, there will be no great movement to reform, especially if this involves a diminution of state power. This is not to underestimate the role that non-governmental organisations play in pushing for reform, but in the final analysis it is only states that can enter into effective multilateral treaties concerning questions of global significance and only states whose practice can influence the speedy development of customary rules of international law. The creation of the International Criminal Court is a good example of when this succeeds, but we still wait for effective international rules on such matters as climate change and the pro­tection of ethnic minorities in existing states.

1.5.1 Lack of institutions

International law lacks many of the formal institutions present in national legal systems. There is no formal legislative body, no court machinery with general com­pulsory jurisdiction and no police force. Of course, this does not mean that the functions typically carried out by such bodies are neglected in international law, for new rules can be created, disputes can be settled judicially and obligations can be enforced. It does mean, however, that international law does not operate in the sys­tematic manner so typical of, say, the legal system of the UK. While this may not be a serious defect because of the different purpose of international law, there will always be some difficulties, especially if malefactors are perceived to be able to vio­late the law with impunity. The impact of events in Iraq and The Sudan may well cause many states to ponder these weaknesses and it remains to be seen whether the result is a general willingness to violate the law more often (because it is apparent that the system is imperfect) or a desire to do something about the structural enforcement weaknesses of the system. Again, the absence of a central organisation responsible for law creation may be a disadvantage when there is a need to develop a comprehensive and general body of rules, as with the law concerning protection of the international environment. The customary law-making process may be too slow when new rules are needed quickly or circumstances change rapidly, as in the area of international communications. Lastly, the absence of a compulsory court structure means that some disputes may persist for decades to the detriment of all concerned, as with Argentina and the UK over the Falkland Islands, and India and Pakistan over Jammu-Kashmir.

14 The nature of international law and the international system

i.5.2 Lack of certainty

The disadvantage of a system of flexible and open-ended rules is a lack of certainty. It sometimes seems that many of the disputes between states occur precisely because the rule of international law governing their conduct is not clear, rather than that one state is deliberately behaving illegally. For example, disputes generated by trans-boundary pollution (e.g. the Chernobyl incident) are only made worse by the lack of clear rules defining the ambit of state responsibility for apparently lawful acts. On the other hand, if lack of certainty does mean less entrenched disputes, this may be advantageous in a system of law that does not have many formal institutions.

1.5.3 Vital interests

It is true of all legal systems that the vital interests of its subjects may prevail over the dictates of the law. Sometimes this is recognised by the legal system itself, as with the law of self-defence and necessity in international law, but usually it is not. International law is no different from national law in this respect and it is unrealis­tic to expect perfect obedience. However, it may be that because international law lacks formal enforcement machinery, the temptation and opportunity to violate the law is greater than in other systems. In this sense, international law is 'weaker' than the law of the UK or other states. When a state believes its 'vital interests' to be threatened, it is not certain that international law will be able to prevent illegal conduct. Such was the case, for example, with the invasions of Afghanistan, Iraq and Lebanon and the Israeli violation of Argentinian sovereignty in seizing the war criminal, Adolf Eichmann, in 1960. Yet, this is not to say that international law is irrelevant in times of crises. Importantly, it may serve to modify a state's conduct to bring it closer to the legal norm, if not actually within it. The US bombing of Libya in 1986, for example, appears to have been limited to military targets because this was less likely to be condemned by other states, and the same is true of NATO's bombing of Serbia in 1999. So, while international law may not prevent a state from engaging in illegal conduct when its vital interests (or vital community goals?) are at stake, it may soften that state's reaction to a crisis. Also, on a more general level, it may be that the purpose of international law is not to resolve major political and diplomatic problems at all or to be 'inhibitive' in the same way as national law. One view of international law is that its first task should be to ensure that the international community runs on orderly and predictable lines. In this it largely succeeds.

1.5.4 Vital rules

Every system of law contains rules prohibiting certain conduct which, if unchecked, would destroy the society regulated by that system. In national legal systems there are rules prohibiting murder and other forms of violence, and in international law there is a general prohibition against the use of force. For some critics the validity of the legal system as a whole stands or falls by the degree to which these vital rules are obeyed or enforced. International law has had a poor record in this regard and many of the 'glamorous' incidents referred to above involve the use of force by one state against another. International law often seems powerless to prevent these major

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1.6.1 Thecc

John Austin His view of '1 sovereign, ar were disobey tion of order: tive law'. Thi; search for th national law' a sovereign. (law develops commands, i: within the pr

The nature of international law and the international system 15

ruptures of the fabric of international society and, again, it is weak law because of it. Dealing with the consequences of a violation of these rules is often too late, as the peoples of Kuwait, Bosnia, Iraq and The Sudan will bear witness.

This is a valid criticism of international law and needs to be recognised as such. However, the inability of international law to prevent or control outbreaks of vio­lence is not as destructive as it would be if it occurred in national legal systems. The factual context of international law is quite different from the operational field of national law and aggression between states is something quite different from acts of violence between individuals. The violence used by an individual in a society can be overwhelmed easily by the forces at the disposal of the central authority with very little chance of major disruption to the state itself. In international society, an act of aggression by one state against another state has far greater consequences and the costs of controlling it forcefully are exceptionally high. It is quite possible, for example, for the forces available to the aggressor to outweigh the forces available to the enforcers of the law and, even if they do not, the loss of life and consequential economic damage caused by inter-state violence is quantitatively and qualitatively different from anything likely to occur within national boundaries. This is perhaps the reason why more determined action was not taken in the territory of the former Yugoslavia in the early stages of the dispute. Of course, this is not an argument advocating that international law should have no rules prohibiting acts of violence. Rather, it is a suggestion that because of the field of operation of international law, rules of physical enforcement are not as desirable or practical as they are in other legal systems. This is a fact of international life, albeit not a palatable one.

1.6 The juridical basis of international law

If, then, we accept that international law is 'law', albeit a very different kind of law from that which we find in national legal systems, from where does it derive its legal validity? What is the juridical origin or source of international law? Why is it law? These are questions that have vexed jurists for many years and a number of theories have been developed. These are considered below.

1.6.1 The command theory

John Austin was one of the greatest legal philosophers of the nineteenth century. His view of 'law' was that it comprised a series of commands or orders, issued by a sovereign, and backed by the threat of sanctions (enforcement) if the commands were disobeyed. Consequently, unless the rules of a system amounted to a collec­tion of orders backed by threats, emanating from a sovereign, they were not 'posi­tive law'. This theory has had a profound and, perhaps, unwarranted impact on the search for the juridical origin of international law. According to Austin, 'inter­national law' is not 'positive law' because it does not result from the commands of a sovereign. Customary law, for example, develops through state practice and treaty law develops through consent. Thus, international law, because it is not made up of commands, is properly to be regarded as a species of 'positive morality' and is not within the province of jurisprudence.

16 The nature of international law and the international system

As a general description of what law is, this theory has now been largely discredited. The picture of law as a series of commands issued by a sovereign and backed by threats does not even describe national law accurately, let alone inter­national law. Moreover, Austinian theory may be dismissed in so far as it suggests that international law is the same sort of animal as national law. The sovereignty theory misinterprets the function of international law because its primary purpose is not to coerce or command states, but to enable them to interact freely by laying down orderly, predictable and binding principles. Austinian theory cannot explain why states themselves regard international law as binding even when there is no 'sovereign'.

1.6.2 The consensual theory

The basic tenet of the consensual theory is that the binding quality of international law - its existence as Taw' - flows from the consent of states. It is said to be a 'posi-tivistic' system of law based on the actual practice of states. In its pure form, this consensual or positivist theory stipulates that no international law can be created without the consent of the state which is to be bound. Thus, 'new' states would not be bound by pre-existing rules because consent is the source of all legal obligations. International law is said to flow from the will of the state. It is formed from the real­ities of international life rather than its desirabilities. It is created by what actually goes on (consent), rather than according to some higher moral principles.

This theory recognises that a state's consent may be given in a variety of ways -express in treaties or implied in custom - but essentially the system of international law is based on voluntary self-restriction. In this regard, the consensual theory has certain attractions, for it appears to reflect accurately what goes on in international society. The rule that states are bound by their treaty obligations {pacta sunt servanda -treaties must be observed) seems to be based on consent because, as we shall see, treaties are generally binding on a state only if it deliberately and positively accepts the terms. Similarly, it is not inconceivable to regard customary law as being con­sensual, for consistent state practice may be tantamount to agreeing to be bound by the rule that then develops.

However, there are certain difficulties with the consensual approach to inter­national law, both theoretical and practical. First, as a matter of legal theory, it is not at all clear why states can be bound only by self-imposed obligations. There seems to be no necessary reason why this should be so, especially since many rules are not really referable to consent. Indeed, if there exists a rule that says 'states can create law only by consent', where did that rule come from? Where is the legal authority for the pacta sunt servanda) 'consent rule? If we say that states have always behaved as if consent was fundamental to the creation of legal norms, we can ask further why it is that customary practice should have the authority to validate legal rules? In fact, the search for the legal source of the consent rule can go on ad infinitum, for we can always ask one more question and take one more step up the 'ladder of authority'.

Second, on a practical level, consent does not explain the existence of all legal obligations. The last 25 years have witnessed the birth of many 'new' states, includ­ing former dependencies of colonial powers and former members of defunct feder­ations (Yugoslavia, USSR). If consent is the basis of international law, how is it that

The nature of international law and the international system 17

these new states are bound by pre-existing rules of customary law? There is no doubt that they are bound by the general obligations of international law, yet they have not had the opportunity to accept or reject them. It has been suggested that consent for new states is implied, either specifically by their 'first act' of state prac­tice under an existing rule, or generally by acceptance of membership of the inter­national community. This is, however, no more than a fiction, since it would allow states to 'opt out' of certain rules if the intention not to be bound was made known. This simply does not happen. To talk of consent in such circumstances is unrealis­tic and ignores the pre-existing validity of international law for new states. Similarly, a change in circumstances may expose an existing state to rules of cus­tomary law with which previously it was unconcerned, yet it is still bound without its prior consent. For example, Panama and Liberia did not have the chance of objecting to customary maritime law before they became influential maritime states. In fact, even the binding quality of the ultimate consensual instrument - the treaty - cannot be explained fully by use of the consent theory. There is, for example, a limited class of treaties, known as dispositive treaties, which are mainly concerned with territorial issues and which bind all states. After the UK ceded to China by treaty in 1997 that part of the Hong Kong colony which was sovereign UK territory, no other state claimed (or could claim) that the UK was still the sovereign by alleging that they were not a party to the UK/China bilateral treaty. Other states have not consented to this transfer of jurisdiction but they are bound by it. More importantly, there are certain fundamental rules of customary law (rules of jus cogens) which cannot be altered by the express agreement of states, even if in treaty form. If consent was the basis of international law, nothing would be unalterable by treaty.

In general, then, the consensual theory is attractive but it does not describe accur­ately the reality of international law. When we consider the sources of international law in Chapter 2, it will become apparent that consent is a method for creating binding rules of law, rather than the reason why they are binding.

1.6.3 Natural law

In almost complete contrast to the consensual approach is the theory of inter­national law based on natural law doctrines or 'the law of nature'. This presupposes an ideal system of law, founded on the nature of man as a reasonable being. Thus, rules of law are derived from the dictates of nature as a matter of human reason. International law is said to derive its binding force from the application of 'the law of nature' to the methods of law creation used by states. Natural law can be con­trasted with positive (consensual) law, the latter being based on the actual practice of states while the former is based on objectively correct moral principles.

Empirically, natural law theory finds little support in international law. Given that the method of law creation in international law is so heavily dependent on consent or practice, it is difficult to maintain that there is some guiding body of principles to which states defer when creating law. In general, concrete rules of international law are derived from what states actually do, rather than what 'the law of nature' supposes they should do. However, 'natural law' may be a good descriptive label for such concepts as equity, justice and'reasonableness which have been incorporated in substantive rules of law,, such as those dealing with the

18 The nature of international law and the international system

continental shelf, human rights, war crimes and rules of jus cogens. In this sense, natural law may be part of the sources of international law under the category 'gen­eral principles recognised by civilised nations' (see Chapter 2). Natural law does not, however, explain why international law is binding, especially if we remember that the states of the world are so diverse that it is impossible to find any universal moral or ideological thread tying them together.

1.6.4 Ubi societas, ubi jus

It may be that the juridical origin of international law lies in practical necessity. It can be argued that 'law' is the hallmark of any political community which exists for the common good. Law is necessary for the society to function and, because it is necessary, it is ex hypothesi binding. Therefore, because international society is a community of interacting and interdependent states, it also needs rules governing its life. These are the rules of international law which provide a set of stable, orderly and predictable principles by which the society can operate.

Obviously, this view of international law is a pragmatic and uncomplicated one. To a certain extent it is tautologous because it stipulates that international law is binding because it has to be binding. Apart from this objection, is it also true that states form a 'community' at all? There appear to be few shared values and each state seems more concerned with the interests of itself and its nationals than with the common good. Yet, this is a rather one-sided view of international society and, whatever the practice of a minority of states, isolationism is a thing of the past. There is little alternative to cooperation and compromise in most areas of international activity. The merit of this pragmatic view is that it roots the binding quality of international law in an 'extra­legal' concept. It does not seek to explain international law in terms of the way its rules are created, their substance, or by reference to some higher authority. Rather, the legal quality of international law lies in the fact that it is needed and that this is recog­nised by states themselves, the legal persons to whom it is addressed.

1.6.5 Variations on a theme

As well as the general theories of international law considered in the previous sec­tions, there are many variations of these themes. These relate both to the structure of international law as a whole and to specific topics within the body of substantive international law. Some of these truly discuss the juridical origins of international law, while others argue for one or other philosophical or theoretical approach to the interpretation or application of existing rules. The following is a selection:

(a) Deconstructionist theories. Some jurists (e.g. Koskenniemi) argue that inter­national law has no legal objectivity at all. It is not a system of 'law' in the sense that it can be used to justify or criticise international behaviour on a rational or objective basis. It is, rather, a conjunction of politics, morality and self-interest that can be used alternatively to justify or condemn any behaviour according to the stand­point of the critic. Legal language and the apparent habit of obedience are seen as smokescreens for behaviour that would have occurred in any event and for reasons unrelated to the existence of a so-called legal rule.

(b) 'Value' orientated theories. Some jurists (e.g. McDougal, Lasswell and Feliciano) see the role of international law as the pursuit of certain pre-existing community

The nature of international law and the international system 19

values. All rules should be interpreted and applied consistently with these values. Of course, this presupposes that there is agreement as to what these 'values' actually are, although 'world public order' is a favourite starting point.

(c) Realist theories. Some jurists argue that the real importance of international law lies not in the validity or otherwise of its claim to be law, but in the impact it makes on the conduct of international relations (see the analysis in Scott, 5 EJIL (1994) 313). It is enough to justify the existence of international law that it is accepted as a major influence on international politics; whether or not it is accepted as law is neither here nor there, nor whether it is disobeyed or obeyed. Its function as the oil in the engine of international politics is what matters.

(d) Non-statist theories. Some jurists reject the fundamental concept of inter­national law as a system of law created primarily by states for states. They argue, from differing starting points, that this is a far too narrow view of international law, especially in the modern era (see e.g. Allot in Eunomia). Such jurists often stress the importance of international law for individuals, or as a means of achieving justice (sometimes at the expense of stability) or as a means of accommodating the cultural and ethnic diversity of a modern international society that is no longer centred on Europe. This is a favourite theme of the modern era and gains many supporters because of the possibility that international law could be used to check the excesses of otherwise sovereign states. Whether such a view of international law would be possible without the foundations laid by legal rules that were undoubtedly created by states, for states, is an open question.

Any attempt to reach a conclusion about the nature of international law or its claim to be a 'system of law' is bound to attract criticism from all sides. Yet it must not be for­gotten that the origin of the binding character of law is a general problem. It is an issue for national law as well as international law. Usually, in national legal systems there are formal institutions, like the UK Parliament, whose task is to create law and which may be regarded as a 'source of law'. However, while the existence of such institutions enables us to identify what is or is not 'a law', they do not explain why it is law. It may be that the constitution authorises Parliament to make law, but from where does the constitution derive its authority? This is a problem we have seen before. In national systems, the search for the juridical origin of law goes beyond the existence of institu­tions or constitutions and international law loses nothing in this respect by their absence. The juridical origin of law is a large question and it is a mistake to think that only international law fails to find an answer. In the end, if an answer to this question is needed, the first and most powerful reason why international law is to be regarded as law is that it is recognised as such by the persons whom it controls, the states and other subjects of international law. If this begs the question somewhat, we should remember that international law is not the only system to be unsure of the answer.

1.7 The future of international law

The 'decade of international law' (GA Res 45/90) has come and gone and the inter­national community has entered the 21st century. At the start of the 1990s, the end of the 'cold war' brought uncertainty but actually heralded a new era of cooperation

The nature of international law and the international system

among the five permanent members of the Security Council and a consequential increase in the influence of the United Nations. The present decade is unlikely to witness such a fundamental realignment, but the challenges facing international law are no less pressing.

The next few years will see the wider exercise of jurisdiction by the International Criminal Court and, no doubt, a widening of the scope of international law to embrace in even more detail non-state entities such as individuals, organisations and corporations. This is nothing new, but perhaps the pace of this development will gather speed. Likewise, to give but a few examples, there will be significant advances in international environmental law, in the law of international commu­nications and more treaty codification of customary law. In the United Nations itself, calls for the abolition of the 'veto' and/or an increase in the number of per­manent members of the Security Council are becoming louder and more persistent. In contrast, many international lawyers believe that 'regionalisation' will replace 'universality' as the most effective template for managing the international com­munity. So, perhaps, there will be different rules of international law for Europe, and Africa or North America. Certainly, regional organisations seem more prepared to take on the task of regulating the conduct of its members rather than submit to 'outside' regulation. There is uncertainty, but the world is changing and inter­national law must change with it.

All this will have an impact on a system of law that was conceived originally as a set of rules to govern sovereign states in their international relations. Of course, it remains true that the majority of concrete rules of international law are created by states for states and that conceptions of 'sovereignty' and independence are deeply rooted in the fabric of international society. Nevertheless, it seems that the institu­tions of international law are changing, and will have to change further, to accom­modate the slow but steady move to rules aimed at controlling states (even in their dealings with their own nationals inside their own territory) instead of rules which simply facilitate their interaction. Much will depend on how international law copes with the issue of effective enforcement. A set of rules that facilitates inter­action between states without over-prescribing a particular course of action can sur­vive with little or weak enforcement machinery. A set of rules that seeks to control states in their actions needs a stronger enforcement mechanism if it is to achieve its goals. Is this likely, or will the attempt fail and bring the whole edifice of inter­national law into disrepute?

Валерий Зорькин (Председатель Конституционного суда РФ) http://www.ksrf.ru/ru/Press-srv/Smi/Pages/ViewItem.aspx?ParamId=3622

Все мы с нарастающей тревогой наблюдаем разрастание нынешнего глобального политического кризиса, в большой степени связанного с событиями на Украине. По понятным причинам этот кризис вызывает у нас в России особое беспокойство.

У этого кризиса ярко выражена та сторона, которая прямо и непосредственно затрагивает и сферу внутригосударственного права, и сферу международного права. Об этом я и буду говорить.

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