Chapter

Can Legality Trump Effectiveness in Today's International Law?

Salvatore Zappalà

in Realizing Utopia

Published in print March 2012 | ISBN: 9780199691661
Published online September 2012 | e-ISBN: 9780191738593 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199691661.003.0009
Can Legality Trump Effectiveness in Today's International Law?

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Traditionally the principle of effectiveness represented a cornerstone of international law. Its role has been twofold. Firstly, it has been based on specific provisions of international law which require factual elements to be taken into account for legal consequences to arise. Secondly, tthe factual dimension has been a broader distinctive trait of the international legal system as a whole. It follows that effectiveness has permeated the structure of international law and influenced it in its entirety by systematically connecting the world of law to its ability to display effects in the world of facts and vice versa. However, the aspiration of international law to impose itself as a legal system and the emergence of universal values which cannot be derogated from have inevitably entailed increasing limitations on effectiveness. There are three case scenarios. There are cases in which facts can produce legal effects as provided for by specific rules of international law, in line with the traditional function of effectiveness. There are areas in which some of the new universal values that have emerged in the international community are of such importance as to bar any effect to factual situations in conflict with them (e.g., no foreign occupation can deprive peoples of their right to self-determination; no ethnic cleansing policy can be condoned; no government can be recognized if it is established on the basis of principles of apartheid and racial discrimination). There are other cases in which the question is more doubtful since conflicting universal values may be at issue — a sort of grey area in which effects can materialize only where certain conditions are met.

Keywords: effectiveness principle; international law; universal values; international community; self-determination

Chapter.  6884 words. 

Subjects: Public International Law

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