Effectiveness and Legitimacy in International

Law
Heidelberg – Concluding Observations
Christian Tomuschat*

The Symposium held today and tomorrow extends far beyond the nor-
mative realm. Over the course of time, lawyers have become painfully
aware of the necessity to consider the law within its societal context. Rigid
positivism à la Laband or Kelsen is definitively a thing of the past. In inter-
national law, this insight has always been one of the paradigmatic bases of
systemic analysis. States, the main addressees of international law, could
never be conceived of as a flock of sheep ready at any time to follow the or-
ders of a supreme commander. To date, there is no such commander. Under
the Charter of the United Nations, States are defined as “sovereign” enti-
ties, i.e. human communities that shape their existence according to their
own wishes without outside interference. Essentially, notwithstanding in-
tense research on the issue, it remains an unresolved riddle why the gov-
ernments of the world have agreed to regulate their mutual relations by a set
of rules called “international law”. It is trivial to observe that all States have
a vivid interest in a stable framework of normative precepts. Such a frame-
work ensures predictability and reliability in international relations, permit-
ting people to live according to planning for life in a rational fashion, avoid-
ing incidental ruptures and impromptu decision-making.
But this structural interest in stability and durability of international rela-
tions does not constitute a full guarantee ensuring that everything ordered
or prohibited by law will happen as forecast by the normative program. To
this very date, the international legal order remains largely built on hope
and trust. Undeniably, the maxim holds: pacta sunt servanda, and could be
enlarged to read: Lex internationalis est servanda. Yet domestic legal sys-
tems and the international legal systems differ fundamentally in many key
respects. Domestic legal systems are not only made up of substantive rules,
but comprehend regularly sophisticated enforcement machinery that en-
sures actual implementation of the rules formally in force. An organization

* Dr. Dres. h.c., em. Professor, Humboldt University Berlin, Faculty of Law; President,
OSCE Court of Conciliation and Arbitration.

ZaöRV 77 (2017), 309-320

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
310 Tomuschat

unable to enforce the law it has enacted would sooner or later break down
or end up in chaos for its members. On the other hand, enforcement is tra-
ditionally the Achilles’ heel of international law. In our time, under the aus-
pices of peaceful cooperation, most States are prepared to enter into far-
reaching commitments in many fields of life. But their attitude vis-à-vis ap-
propriate remedies remain fairly reserved. Only the European States have to
a great extent shed this reluctance. The European Union has constructed an
admirable system of supervision, control and enforcement that comes close
to what normally can only be found at State level – but has recently had to
acknowledge that the juridical ought may all of a sudden be pushed aside by
realities with an overwhelming impact: Rules for the Euro and rules for the
admission of migrants and asylum seekers were made in paradise, i.e. in fa-
vorable conditions of optimism and confidence in the future, and were sur-
prisingly fast overturned by unforeseen circumstances.
This Symposium has set for itself the objective to consider what specific
factors and elements favor compliance with the applicable rules of interna-
tional law. It was not the ambition of the organizers to develop a general
theory of the effectiveness of international law. Such an endeavor would be
doomed from the very outset since the key determinants lack precisely de-
fined contours. First: What is international law? Only a few years ago I told
my students that international law was the complex of rules regulating es-
sentially the mutual relations among States, some openings ratione personae
having extended the scope of application towards international organiza-
tions and even individual human beings. Today, this explanation would be
considered an old-fashioned and overcome definition. In an article pub-
lished by International and Comparative Law Quarterly a few days ago,
Rosalyn Higgins underlined that “international law is not just a law for
States. It impacts upon individuals, corporations, and NGOs”, creating for
them both rights and responsibilities under international law.1 To be sure,
this expansion should not be ignored. However, it would certainly be pre-
mature to pronounce the demise of the State as the principal actor in inter-
national relations.
Another conceptual change is taking place regarding the notion of bind-
ingness of international law. It is an implicit premise of the traditional doc-
trine of sources of international law, as it has crystallized in Art. 38 of the
Statute of the International Court of Justice (ICJ), that the different classes
of international norms listed in that provision are binding in the normative
sense: they establish rights and duties under international law; their viola-
tion entails consequences covered under the title “international responsibil-

1 The UN at 70 Years: The Impact Upon International Law, ICLQ 65 (2016) 1, 3.

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
 Effectiveness and Legitimacy in International Law 311

ity”, and they are related to one another by some general principles which
one might call – according to personal taste and preference – the constitu-
tion of the international community. Since many years, this somewhat static
concept of international law, focused on Art. 38 of the ICJ Statute, has come
under challenge. Rightly, attention has been drawn to the fact that alongside
the classical sources of international law a voracious competitor, namely soft
law, has conquered for itself a shadow seat. There is no need to explain that
precepts of soft law have all the external features of genuine rules of interna-
tional law with the one major exception in that they are not binding in the
normative sense. Soft law abounds in all fields. Even States, which have the
unchallengeable power to produce truly binding law, many times prefer to
confine themselves to drawing up declarations, codes of conduct, or other
instruments that do not partake of the specific quality of authentic rules of
international law: their bindingness. Everyone present here knows the main
examples of soft law, starting with United Nations (UN) General Assembly
resolutions that set out the principles and rules governing a specific area of
international relations, continuing with drafts of the International Law
Commission (ILC) and ending up with artfully constructed mechanisms
like the Organization for Security and Co-operation in Europe (OSCE)
which calls itself an organization – but does not wish to be a phenomenon
anchored in the word of the international legal order in the proper sense,
taking its pride in being based on “political” commitments. Many diverse
motives can be found to explain the preference thus shown for an architec-
ture that remains outside the law in the strict sense. Mostly, governments
feel that they fare better if they do not burden themselves with obligations
that, in case the relevant promises are not kept, cannot be characterized as
tortuous acts. In the case of the ILC draft on State responsibility, a simple
calculation prevailed. It was anticipated that an international treaty-making
conference would entail huge costs and that eventually such a conference
could possibly fail on account of the unwillingness of a few States to deposit
an instrument of ratification. It was felt that the draft set of rules prepared
by the ILC was well balanced and amounted essentially to a codification of
the existing body of rules of customary law on the matter. Why therefore
incur tremendous costs and run the risk of failure since the rules to be in-
cluded in an international treaty instrument existed in any event? This, of
course, is a specific configuration where soft law is only the formal cloak
that surrounds a body of binding rules in the true sense.
Soft law originates not only from the activity of States and intergovern-
mental organizations, but also from many organizations that are not State-
founded or funded. The most diverse kinds of organizations endeavor to

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
312 Tomuschat

establish model rules in their specific sectors of activity. Well-known organ-

izations working with the aim of promoting the general interest are the In-
stitut de droit international or the International Law Association. In a wider
sense, their articulations may be called international law since in any dispute
about legal issues they need to be taken into account inasmuch as they in-
variably provide solutions that have been carefully researched and have as
their background the same materials that form the practice element of cus-
tomary law and reflect in any event common sense and good judgment.
At this point, I come back to our Symposium. One of the presentations,
Evelyne Lagrange’s comparison between the expert bodies under the differ-
ent multilateral conventions on human rights and the Universal Periodic
Review (UPR), had as its task to ascertain the effectiveness of the two paral-
lel procedures. In principle, the expert bodies act as agents for the imple-
mentation of the rights enshrined in the convention concerned. They super-
vise and control truly binding international agreements. On the other hand,
UPR, which addresses all States irrespective of their membership in the rel-
evant UN conventions, is essentially focused on the Universal Declaration
of Human Rights (UDHR) of 1948. Every State member of the UN is sub-
jected to intensive questioning, no substantial differentiation being made in
that regard between the conventional instruments and the UDHR as the
relevant yardstick. It has turned out that it is not so much the intrinsic char-
acter of the substantive rules concerned which matters but rather the speci-
ficities of the procedure. Experts are more objective, rarely can any kind of
bias be detected in their observations – but they are just experts, appointed
by governments, not decision-makers with political clout themselves. To be
judged by its peers is much more scary for a country, a test taken more seri-
ously, which has also led governments to trying at least to manipulate the
procedure by mobilizing their friends and allies taking the floor with flow-
ery words of praise and recognition only.
A short conclusion: It is true that soft law cannot be adduced before the
International Court of Justice as the direct source of international rights or
obligations. But it can always be presented as the reflection of a rule per-
taining to one of the legal sources accredited by Art. 38 of the Statute of the
ICJ. Additionally, because of its political aura, soft law can be more effec-
tive than a truly binding set of rules of international law. Thus, from 1977
onwards, the Helsinki Final Act proved to be a more effective push factor
than the International Covenant on Civil and Political Rights whose
worldwide applicability downgraded it in the eyes of many pessimistic ob-
servers.

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
 Effectiveness and Legitimacy in International Law 313

Many authors claim that the enlargement of the concept of international

law towards the field of transnational relations between and among private
non-State actors is another necessary addition to its original scope ratione
materiae. It is true that in many fields, in particular in international eco-
nomic law, private and public law are so closely intertwined that it has often
become difficult to disentangle that imbroglio of normative substance.
However, this wide concept of international law is unsuitable for our cur-
rent purposes. It is our aim to inquire into the effectiveness and legitimacy
of State-made law, or law in whose production or implementation govern-
mental authorities play a preponderant role. Business relations across bor-
ders constitute an important element of our globalized world. But the sta-
bility of such relations depends on other contingencies than the treaties
concluded between States, and their legitimacy is a non-issue from the
commercial point of view.
Saying that the legitimacy of a rule promotes its effectiveness is no more
than a truism. In its entirety, law must be handled by human beings. Rules
that are considered as being illegitimate and are therefore emotionally and
intellectually rejected, will always risk being circumvented, side-lined, or
applied contrary to their true meaning. Here again, it emerges that no com-
prehensive answers can be given. The effectiveness and legitimacy of inter-
national law varies depending on the spheres of societal life the relevant
rules seek to regulate.
In its classical period before World War I, international law regulated
mainly the external relations between States, with few links to their domes-
tic space. States were conceived of as closed entities with firm borders that
determined their scope of jurisdiction. At that time, the concept of matters
pertaining exclusively to domestic jurisdiction, today codified in Art. 2(7) of
the UN Charter, was coined. Indeed, internal and external matters could be
neatly distinguished. Foreign matters comprised diplomatic and consular
relations, issues of war and peace, the law of the sea and other matters visi-
bly transcending State boundaries. In this regard, the billiard ball model of
international relations arose, which still today is widely used in the theory
of international relations. States were seen as closed entities, although some
departures from this model of absolute territorial sovereignty occurred
from time to time, especially regarding the agricultural sector where for in-
stance one finds examples of transnational regimes for the protection of in-
sect-eating birds.
The core regime of international law was reshaped after World War II by
the UN Charter. It comprises in particular State sovereignty, the principle
of non-use of force and the principle of non-interference. The legitimacy of

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
314 Tomuschat

this regime is uncontested, enjoying general recognition. Fortunately, all the

States and governments of this world are aware of the necessity of disposing
of a solid groundwork of principles that ensure peaceful coexistence among
nations. Not a single government takes the view that it may act exclusively
according to its own will, without having to respect the applicable princi-
ples of international law. The new doctrine of Third World Approaches to
International Law rights emphasizes that during the epoch of colonialism
the Western States shaped many rules that worked exclusively to their own
benefit. In particular, governmental structures existing in Africa or in Asia
were generally not recognized as States so that their territories could be oc-
cupied without any infringement of the law. However, Third World Ap-
proaches to International Law (TWAIL) abstains from challenging today’s
system of international law that has brought an enormous gift to the new
nations: the concept of sovereign equality. Sovereign equality, stipulated in
the UN Charter as the primary principle of international law (Art. 2(1)), is
the key to self-determined development. It means emancipation and free-
dom. It would be incredibly unwise to reject sovereign equality as the cor-
nerstone of today’s architecture of international law. On the other hand,
TWAIL complains of a lack of solidarity among nations of the world, given
the extreme degrees of poverty in many parts of the world. In this regard,
TWAIL is right, but their complaints amount to a call for active develop-
ment of the law.
Or are we blind to the exigencies of the extant social components of con-
temporary international law? One can observe a current trend in the legal
doctrine postulating that the traditional geographical division of spheres of
jurisdiction is outdated. States should generally assume responsibility for
occurrences beyond their borders if fundamental interests of the interna-
tional community are at stake. The concept of universal jurisdiction for in-
ternational crimes is a first step in that direction. But generally universal
jurisdiction becomes operative only when an alleged offender is found in
the territory of the State concerned. Can a State have obligations that go
beyond its territory, having to come to the rescue of populations threatened
by war, by famine, by environmental disasters? Such inferences do not fit
within the traditional thinking in international law. Malgosia Fitzmaurice
has given us ample food to think. Are we truly an international community
where such duties of solidarity are a natural and self-evident element of the
constitutive legal order, or would we be trying to construct a utopian archi-
tecture overburdening States with obligations that can at most have a moral
character?

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
 Effectiveness and Legitimacy in International Law 315

Not much new can be said about the effectiveness of the classical “nega-
tive” rules of international law in our time. The theory of international rela-
tions has been working for decades in order to find out what factors are de-
terminative for compliance with the principle of non-use of force. Not a
single one of the presentations we have heard has focused on the relevant
criteria that may prompt a State to have recourse to, or to abstain from,
armed force. The relevant motives, incentives and reasons cannot easily be
influenced by legal mechanisms. The Security Council with its strengths
and weaknesses is well known. We have not attempted to involve ourselves
in the debate about the enlargement of the Security Council – which is
largely utopian. To be sure, a composition more representative of the inter-
national community can be imagined without any difficulty. Africa, Latin
America and the Asian countries have no permanent seat on the Security
Council, China being a universe of its own. Yet it would remain to be seen
whether the enlargement of the Security Council by the addition of sup-
plementary permanent seats according to criteria of equitable regional dis-
tribution would really enhance the effectiveness of the Council.
Now a great stride has to be taken. The subject matter of international
law has fundamentally changed during the last decades, starting with the
advent of the United Nations in 1945. The authors of the Charter realized
already at the time of the founding conference of San Francisco that interna-
tional peace and security are profoundly affected by the internal situation in
individual States. Internal violence breeds external violence, peace needs
stable foundations in human societies everywhere. Therefore, they pledged
to “promote social progress and better standards of life in larger freedom”
(UN Charter, Preamble, para. 4). One may call this a turning point. To be
sure, Art. 2(7) of the Charter stated categorically that the world organiza-
tion shall not intervene “in matters which are essentially within the domes-
tic jurisdiction of any state”. This proviso was taken literally for many years
until the sixties of the last century. However, after the two International
Covenants had been adopted, the door was flung wide open. It became evi-
dent that the practice of human rights does not come within the domestic
jurisdiction: the way in which a State treats its citizens interests the entire
international community.
At the same time, it was progressively realized that mankind has common
responsibilities and that there exists an urgent need to settle by way of
agreement issues that a single state cannot effectively address. One of those
new fields of activity is constituted by environmental protection. It is signif-
icant that the Charter itself does not yet mention the word “environment”.
Even many years after the coming into force of the Charter, one had to go

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
316 Tomuschat

back to an arbitral award of 1938 in the US-Canadian Trail Smelter case to

identify the determinative principles of good neighborhood in environmen-
tal matters. Only in 1972 did the UN make a great effort in identifying its
own position by calling an international conference, which adopted the
“Stockholm Declaration on the Human Environment”. Unfortunately, the
outcome of this conference was marred by the absence of the socialist States
that protested against the refusal to invite representatives from the German
Democratic Republic (GDR), although this circumstance did not negatively
affect the substance of the Declaration. This first step brought into motion a
whole flurry of activities. Environmental protection became one of the key
issues during the negotiations on the UN Convention on the Law of the Sea
and was given an appropriate place within the Convention. Generally, it was
recognized that it did not suffice to state lofty principles but that procedural
mechanisms were essential in ensuring the success of a conventional instru-
ment. The UN Commission for Europe adopted in 1998 the Aarhus Con-
vention, which confers on individuals and private associations the right to
initiate proceedings for the protection of the environment. Karl-Peter
Sommermann has told us about the experiences with this truly progressive
experiment which shifts responsibility for implementation partly away from
States, permitting access to relevant information, guaranteeing public partic-
ipation in environmental decision-making and providing even for access to
justice. His result seems to be clear: by conferring on private non-state ac-
tors some responsibility, the objective of maintaining the quality of the en-
vironment can be better ensured. The principle now seems to be firmly es-
tablished: recognizing the citizen as guardian of environmental integrity en-
hances the effectivity of any relevant environmental standards.
In the field of human rights, lawyers have also set their confidence on ju-
dicial methods of enforcement, being fully aware of the fact that judicial
proceedings alone do not suffice to secure real enjoyment of human rights.
With the Strasbourg Court of Human Rights, we encounter today the most
successful experiment with this method of supervision and enforcement.
The tremendous achievements of the Strasbourg jurisprudence are well
known; it is also well known, on the other hand, that systemic deficiencies
in the domestic mechanisms remain an open wound for many years until
this very date. Four States regularly reach new negative records regarding
new cases arriving and non-compliance with judgments rendered: Russia,
Turkey, Ukraine – and also Italy, a country of rich legal traditions dating
back two thousand years but seemingly unable, in our time, to meet the
needs of its people for order and justice. Since this European misery is no
mystery for anyone, Armin von Bogdandy has been requested to give an

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
 Effectiveness and Legitimacy in International Law 317

account of the effectiveness of the judgments of the Inter-American Court

of Human Rights. He provided us with a brilliant analysis of that jurispru-
dence which cannot compete with the performance demonstrated by the
Strasbourg Court, measured in quantitative terms. While the Strasbourg
Court has to deal with roughly 50,000 cases per year, the Inter-American
Court has rendered, from the inception of its activity in 1987 to 2016, no
more than 330 judgments. Must this modest balance sheet be deemed to
amount to an open failure? Not necessarily. On the one hand, it should be
taken into account that any application must first go to the Inter-American
Commission, which proceeds to a first examination of the case, following
the model that was in practice in Strasbourg until 1997. Many of the appli-
cations are dealt with by a report of the Commission, and only few cases are
referred to the Court in San José, e.g. not more than 12 in 2015. Second, if
the judgments rendered in San José were recognized as guiding parameters
for the entire practice in all States parties, the low number of judgments
could be discarded as pure formalism. What distinguishes the San José
Court in particular is its tendency to establish, in the operative part of its
judgments, a long list of orders that must execute in order to make good the
injury caused. To what extent are these orders complied with? In Spanish,
the appropriate term is: cumplimiento. Armin von Bogdandy has provided
us with information that answers some part of our queries. Obviously,
however, it is extremely difficult to penetrate the darkness that surrounds
the implementation processes, which are controlled only by the Court itself,
not by a political organ – a major weakness of the system.
Is punishment of the perpetrators of international crimes the panacea
which permits to stabilize the international system by the deterrent effect
which the existence of mechanisms of international criminal justice may
produce? It needs not be stressed that the Nuremberg trial came about as a
thunder stroke in 1945. In terms of classical international law, it was un-
thinkable to put on trial the leaders of a defeated nation. The atrocities
committed by the Nazi regime swept away the defense of sovereign im-
munity for the perpetrators. After a project for the generalization of the
Nuremberg model had been buried in 1957, a second effort by the Interna-
tional Law Commission commenced in 1983 dragged on slowly for many
years with any great expectations of success. All of a sudden, as a conse-
quence of the cruel war in the former Yugoslavia, the project gained speed,
and the Security Council established one after the other the International
Criminal Tribunal for the former Yugoslavia in 1993 and the International
Criminal Tribunal for Rwanda in 1994. The logical consequence of these
developments was the relaunch of the efforts to establish an international

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
318 Tomuschat

judicial body with world-wide jurisdiction, which materialized in 1998 with

the adoption of the Rome Statute of the International Criminal Court. Is
this a success story? The two judicial bodies established by the Security
Council acted diligently with great success for many years, as we were told
by Carsten Stahn. However, some recent judgments have thrown a shadow
of doubt over the International Criminal Tribunal for the former Yugoslavia
(ICTY). Have they compromised the idea of establishing international
criminal courts at world level? On the other hand, the International Crimi-
nal Court (ICC) has encountered many logistical difficulties. Its output
might be characterized as ridiculous, considering the amounts of money
necessitated for its operation. Do we have to acknowledge our deception –
or is the modest balance sheet rather a call for a new start with ameliorated
methods? The question seems to be open. Obviously, the panacea has not
been found. The Nuremberg trial remains an unreachable signpost, it seems.
Combating impunity is an imperative – but the system cannot avoid being
assessed in terms of performance and costs.
The question remains whether we can place our trust, in the traditional
field of classical inter-State relations, on judicial remedies. The balance sheet
provided by Pierre d’Argent does not look too positive. In any event, the
euphoria of former decades when the slogan “world peace through law”
was widely shared has evaporated. We have to acknowledge that the strict
consensual system under Art. 36 of the Statute of the ICJ still prevents dis-
putes in which the major powers of the world are involved from being
submitted to the ICJ. This state of affairs is not likely to change fundamen-
tally in the near future. None of the three most powerful actors – China,
Russia, and the United States – has any interest in being assessed by the
judges of the ICJ concerning its operations. They all attach great im-
portance to having one seat on the ICJ although disliking the Court. How-
ever, by associating themselves with the work of the ICJ through their par-
ticipation in the composition of the Court, they confirm the legitimacy of
the Court as the main judicial organ of the international community. It is
worrying, though, that in some instances States have reneged on their obli-
gation to respect, and comply with, a judgment rendered against them. Two
years ago, Italy’s Constitutional Court stated authoritatively that the Italian
authorities are by virtue of the Italian Constitution debarred from taking
the measures required for the implementation of a judgment rendered by
the ICJ, and China has openly declared by anticipation that in the South
China Sea case it will not heed the judgment of an arbitral tribunal set up
under the provisions of the UN Law of the Sea Convention. Such an-

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
 Effectiveness and Legitimacy in International Law 319

nouncements destroy the elements of trust on which the international legal

order is founded.
Given that international law has to a great extent invaded the spaces for-
merly regulated by rules of national origin, the question arises whether the
principle of State consent still constitutes a sufficient source of legitimacy
for rules and regulations that directly affect the legal position of the indi-
vidual citizen. Regarding the “classical” topics of international law, that
question lacked any great relevance. Issues of diplomatic or consular inter-
course lie outside the personal sphere of interest of the individual. Now that
the everyday life of the individual comes under the grip of international law,
the question must be re-examined. Do we have to provide for citizens’ par-
ticipation in all matters that at the national level would require regulations
adopted by democratically elected representatives? Does the democratic
principle demand more popular participation in decision-making in particu-
lar with regard to bodies empowered to issue acts of secondary legislation?
It appears to be much too easy to discredit such instruments derived from
conferred powers as lacking requisite democratic legitimacy. Inevitably, if
and when large international organizations are established, especially at
world level, the democratic rights of the individual citizens shrink in size
and importance. Even the most sophisticated mechanisms cannot defy that
inherent logic. Only appropriate procedures of accountability can remedy
that democratic vacuum. In any event, one should not hastily deny the legit-
imacy of a formal declaration of consent expressed by a government in full
awareness of the relevancy of its pledge. It would seem that the defenders of
democratic purity are chasing a ghost which can never be captured. Alain
Pellet has rightly pointed out that consent is a valid device suited to stabilize
international relations. It is at the national level that mechanisms must be
found to ensure that governments do not overturn the democratic rights of
their citizens. In international fora, considerations of trust and reliability
must take the upper hand.
Very few concrete inferences can be drawn from our common effort of
analysis for practical purposes. Yet one major conclusion emerges. Two core
elements of international law can be identified, the complex of rules inti-
mately connected to the principle of sovereign equality like primarily the
ban on the use of force, and the complex of rules building a protective
shield around the dignity of the human person. These two sets of rules may
be characterized as the contemporary constitution of the international
community. On the other hand, some consequences from the occupation of
large sectors of ordinary societal activity by rules of international origin are
“incontournable”, as we would have to say in French. Here, regarding in-

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
320 Tomuschat

ternational treaties the time-honored rule “pacta sunt servanda” with its few
accommodations appears much too rigid. The democratic principle de-
mands that societies be empowered to shape their own fate according to the
prevailing circumstances. As a scholar from this Institute has recently
shown, revisability of the law is an indispensable ingredient of the demo-
cratic principle – as far as “ordinary” transactions are concerned. This can
and should be left to the law-making bodies themselves. Governmental offi-
cials are neither blind nor deaf but it is certainly not futile to bring to their
attention the necessity of disposing of mechanisms of adjustment and mod-
ernization for keeping the law in correspondence with the needs of the
democratic sovereign, the population.

ZaöRV 77 (2017)

http://www.zaoerv.de
© 2017, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht