Mezinárodní právo na prahu 21. století (dosažený stav, neúspěchy a perspektivy)

The study deal with selected problems of international law at the time of change of the 20th and 21st centuries. Such a milestone gives an opportunity to review the achieved state and trends in this system of law. Of course, not only progressive developments but also some failures and defeats are immanent to international law. The only difference between the international law and any other field of human activities is that the consequences of all changes, positive or negative, may be of greater importance. Constant features, changes, contemporary problems and developments are to be analysed in three parts. The first one focuses on subjects of international law and other actors of international relations today. From this point of view, the contemporary international law can be characterised by the changing role of states and of their sovereignty. Although they are still the original and most important subjects, their role seems to relatively decrease because of the increasing influence of other players on the international scene. It is precisely the increasing number and power of international organisations and emergence of individuals as subjects of international law that has changed its shape in the second half of the 20th century. International protection of human rights not only became one of the dynamic branches of international law, but it also modified the traditional concept where only states had rights and duties under international law (as its subjects), whereas the status of subordinated natural and juridical persons was a matter of internal law. However limited the legal personality of individuals is, this is a new feature of international law at least at the regional level, where special conventions grant individuals (i.e. all human beings as such) of substantive rights and procedural capacity to claim their rights against a state before international judicial or non-judicial organs. Unlike the universal protection of human rights that emerged after 1945, the international protection of minorities dates back to the 1920s. However, the protection of minorities rights under the auspices of the League of Nations was selective and not universal. Only the new states in Europe had obligations imposed by the peace treaties, while the Great Powers escaped form the system and kept their freedom of action. The emphasis on the individual rights after the WW II was thus a logical reaction to the breakdown of the old system of the League of Nations. Except of Art. 27 of the International Covenant on Civil and Political Rights (1966), the international legal protection of minorities was missing until the early 1990s. Then new developments in the eastern and central Europe made from the protection of ethnic, religious and linguistic minorities a topical issue which called for a response. One way is characterised by adoption of political instruments, such as the Pace on Stability or Recommendation 1202 (1993) of the Parliamentary Assembly of the Council of Europe, that serve as a reference for imposing obligations on the new candidate states. These obligations and their monitoring are of selective nature and may be called discriminatory. The other way relies on the adoption of legally binding instruments providing for general obligations of all states parties, such as the Framework Convention for the Protection of National Minorities (1995). Another new factor in the contemporary international relations is the emergence of transnational corporations. Their economic power, activities in several countries and ability to use the conflict of national jurisdictions create a challenge for states. They tend to establish regulations for the TNCs in form of “Codes of conduct” or “Guidelines” (as is the case in the framework of OECD). Despite their non-binding nature these documents have a different real impact. Although the TNCs have an increasing role in international relations, they still lack legal personality in international law. There is a certain difference between the procedural capacity of individuals under human rights treaties and the possibility of a corporation to lodge an arbitration proceeding before the International Centre for Settlement of Investment Disputes according to the 1965 Washington Convention. On one hand, the right of individual complaint is based on a multilateral treaty providing for the integral obligations erga omnes partes and, therefore, any individual may claim his or her rights against any state party to such a treaty. On the other hand, the mere ratification of the Washington Convention is not sufficient for the establishment of jurisdiction of ICSID, as a special consent of the state is needed (should it be in a bilateral investment treaty or in an investment contract). Since the protection of investments remains at the level of bilateral obligations, the investor must be national of another contracting state than the state party in a dispute. The second part deals with the norm making in international law. The most obvious aspect is the quantitative increase of international law regulation, including in the new fields of relations that were not covered by the traditional international law, such as human rights protection, international environmental law, Space law, international economic law. Developments in some of these areas stimulate also a new emerging regime of international liability for injurious consequences arising from activities not prohibited by international law. The law of international organisations is another dynamic branch of the contemporary international law. During last 50 years, international law has thus undergone not only a quantitative development but also a qualitative change of its structure. This is a challenge for aur research and teaching in this field. Unlike the classical problem of sources (i.e. forms of legal norms), the issue of classification of rules of international law according to their content has appeared only recently in the theory of international law. The precondition for such a theoretical reflection is a certain stage of development where international law became a real system with its inherent structure. International law is not any longer a kind of “primitive” law including only primary rules, but englobes also “secondary rules” in all possible meanings (rules of recognition, rules of change and rules of adjudication in Hart’s concept or responsibility and sanction rules in Ago’s concept). However, a structure of rules of international law is much more complex and some Czech scholars since 1960s have dealt with principles of international law as a matter of priority. This principles oriented research seems to reach its limits. Of more important nature is another approach in the Czech and foreign theory that focuses on the distinction between dispositive and peremptory norms of international law (jus dispositivum and jus cogens). A thorough analysis of the concept of peremptory norms must go beyond the 1969 Vienna Convention on the Law of Treaties, although its Article 53 is a necessary basis. The process of identification of jus cogens includes several elements but the nullity of a treaty contrary to such a norm seems to be a decisive aspect. However, the wording of Art. 53 leaves some questions open, for ex. How to interpret “norm adopted and recognised by an international community of states as a whole”. The question, how large the majority of states must be, makes sense only for a subjectivist concept of international law based on the regulation of relations among sovereign states not subordinated to any ordre public or common values. If one however rejects this consensualism in favour of an objectivistic concept, it does not. It is not only a form (customary), but mainly a content of rule that gives it a peremptory character, as jus cogens is a result of a higher intensity of the social interest. This approach seems to be reflected inter alia in the judgement of the International Court of Justice in Barcelona Traction case or in Article 19 of the International Law Commission draft articles on State responsibility. Sources of international law have also undergone, in spite of their relative stability, a certain development. Substantive differences, formal equality and mutual complementarity may characterise the relationship between custom and treaty. As to the customary law, a refusal of consensual theory and combination of static and dynamic models are very helpful. Of special interest is a phenomenon of multilateral diplomacy behind the adoption of codification conventions as well as acts of international organisations. The consensual nature of treaties makes adoption of a binding convention on codification and progressive development of certain areas of international law quite difficult. Same examples of failures of such projects at the stage of adoption or entry into farce (for the lack of ratification) are well known see for ex. the concept of common heritage of mankind). Adoption of a resolution of an international organisation seems to be easier but its implementation in not ensured, in particular in case of non-binding acts, called also soft law (see for ex. a decline of the New International Economic Order). Acts of international organisations are to be divided into several categories, including (1) binding decisions issued on the basis of treaty authorisation, (2) acts having impact on treaty or customary law making, by anticipation or interpretation of legal norms, and (3) acts of purely programmatic or recommendation nature. Application of international law is a crucial aspect in evaluating an effectiveness of this legal system. That is why the third and final part focuses on two distinct and yet interrelated subjects: application of international law both in internal legal orders and in the international legal order. The starting point is that breaches of international legal norms, which often occur and are rightly criticised, do not mean a collapse of the legal system. In any legal order, there are violations of its rules, sanctions are not always imposed, but these rules do not terminate. In fact, even in situations where the implementation of effective sanctions is not very likely, the offending state tries to invoke a circumstance to legitimise its wrongful act and other states object; therefore the norm can not be replaced by a new norm. Even at the end of the 20th century there is no generally accepted solution of the theoretical dispute between monism and dualism. The solution remains at the level of internal law (Constitutions, as a rule) of individual states. A clear trend is, however, that a number of self-executing norms of international law increases and more and more states refer in their Constitutions co treaties and also to generally recognised rules of international law, that become directly applicable in their internal legal orders. In the international legal order, that is still decentralised system, states remain the main actors in law making, application and enforcement. Nevertheless, international law sets up limits for their exercise of unilateral (self-help) enforcement measures. After the end of “Cold War” the UN Security Council tends to play a more active role. The establishment of two ad hoc International Criminal Tribunals for ex-Yugoslavia and Rwanda and the adoption of the Statute of a permanent International Criminal Court at the Conference in Rome on 17 July 1998 seem to be also promising steps towards the international law in 21st century.