Professor Zemanek’s wonderful introductory paper to the prevailing Agora virtually offers a list of the most severe breaches of international law dedicated with the aid of the USA at some point of the previous Generallaw of years. They are numerous; they improve severe issues; but they are genuinely violations and no honest independent thoughts can see them in any other case. By themselves, breaches of legal policies do now not suggest that the ones regulations or, certainly, global law itself do no longer exist any more inside the criminal sphere. On the opposite it may be sustained that regulation violations “monitor” the existence and content material of the violated policies, if handiest thru the disapproval they entail; “in any legal device, global or home, breaking the regulation does not make the law disappear”. Now, that is lamentably not the give up of the query.
If one accepts that regulation is however a “a hit coverage” or, to position it in “Marxian” terms, a “superstructure” as a result of a balance of powers among the actors in international family members, then, repeated breaches by the “dominant” actor can not however bring about dramatic changes inside the regulation itself. This is not to say that “would possibly is proper”, however that, in the end, might deeply impacts the evolution of law, which, unluckily, may improve Professor Zemanek’s conclusion that States (as well as scholars) might be “nicely-counseled to stand fact… And to renowned the specific role of the United States, instead of persisting within the fable of a global order based at the equality in law of all contributors of the global gadget”.
Therefore, the question is: have we already reached the momentum when the world criminal order based at the “Westphalian” view that all States are juridically identical isn’t any greater tenable? And, if the answer is “no” or “no longer yet”-which, I assume, is the case-is it well worth seeking to keep it? To which quantity? And how?
A first factor have to be made but: the sovereign equality of States is not and has in no way been, an “absolute” idea. “Sovereignty” best way that States don’t have any “superior electricity” over them; however, contrary to what takes place inside the domestic legal sphere, they do meet with competing powers-consequently the fundamental concept of “same sovereignty” or “sovereign equality”. As a consequence, States own “the totality of worldwide rights and duties recognized by global regulation”-that is all rights and obligations (i) compatible with the same rights and responsibilities recognized to all different States and (ii) which may be primarily based on a prison “name” (in particular territoriality or nationality)