Anti-formalism v. traditionalism as a new challenge to international law

Abstract

There have been significant qualitative and quantitative changes in international law in the last quarter of the twentieth century. International law has become an effective tool to protect and promote the interests of different players. Law enforcement practice has been at the forefront of international law. From the side of practitioners there is a request for a more dynamic international legal system. In response to this, scholars are pushing for the abandonment of traditionalism and formalism of international law, they emphasize the need to take into account non-legal factors in the interpretation of international treaties, and substantiate interdisciplinary approaches to the study and application of international law. Proponents of such approaches proceed from the premise that there is no fundamental basis in international law and that it is not a self-sufficient legal system. The key target for advocates of anti-formalism in international law are the rules of treaty interpretation enshrined in Articles 31-33 of the Vienna Convention on the Law of Treaties of 1969. It is impossible to agree with all this. Of course, the law should reflect the changes in public relations in order to be able to regulate them. This, however, does not imply that international law should blindly adapt to the practice and, inter alia, assimilate with neighbouring disciplines. The realities of international law functioning indicate that the latter has certain autonomy from the will of states. At the same time, given the immanent conflict of interests, it is necessary to maintain control over the system of international law, to pay due attention to procedural and legal approaches. Formalized and impartial legal procedures are largely capable of ensuring the effectiveness of international law. In the context of increasing conflict of interests between states, the only practicable way to ensure stability and predictability of international treaties, as well as the actual implementation of the principles of pacta sunt servanda and the sovereign equality of states, are universally recognized rules of treaty interpretation under Articles 31-33 of the Vienna Convention. The strength of international law lies, inter alia, in its formality, neutrality, objectivity and freedom from any ideology.