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Published online by Cambridge University Press: 17 January 2008
Nato enlargement and related processes belong to subject matters in which law has a highly sensitive political content and its implementation is greatly dependent on the political environment. It is asserted that in such areas law is subordinate to political considerations or even that such matters may be outside the domain of international law and lawyers altogether.
1. International Institute for Strategic Studies, Strategic Survey 1997/97 (London, 1997), p. 112.Google Scholar
2. Idem, p.113.
3. The Economist, 12 07 1997, p.21.Google Scholar
4. July 1997 opinion polls in Russia show that only 5 percent of the respondents think that if Poland, Hungary and the Czech Republic join NATO Russia's security would improve, 34 percent believe that it would worsen, while 34 percent thought that it would remain the same (The Economist, 2 08. 1997, p.28).Google Scholar
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6. idem, p.60.
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8. Idem, p.60.
9. Idem, p.61.
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16. It is not correct to say that such agreements are not binding. The fact that they are not legally binding does not mean that they do not create any rights and obligations for the parties. It would be a contradiction in terms to say that an agreement is not binding. As Virally has observed, op. cit. supra n.13, at p.221Google Scholar, “un engagement qui ne lierait pas serait une notion contradictoire, une absurdité”. Aust op. cit. supra n.12, at p.807, has shown that “even if an instrument is not itself binding in international law, that does not make it impossible for legal rights and obligations to be derived from it” (e.g. using procedures such as estoppel).Google Scholar
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18. However, here one cannot be too categorical. The domestic judicial applicability of legally non-binding international documents depends on a concrete legal system. E.g. the Constitutional Court of Russia has on several occasions referred to UNGA resolutions and OSCE documents. However, as Oleg Tiunov, a judge of the Court, writes, “these documents are used only as the subsidiary means of interpretation of international and domestic law because resolutions of the UNGA and documents of the CSCE are not legally binding”: “On the Use of Decisions of the Constitutional Court of the Russian Federation in the Teaching of International Law” (1997) 1 Russian Juridical Journal 106.Google Scholar But sometimes such an application of legally non-binding Acts by the Constitutional Court is more than just an interpretation of law in the light of these Acts. The Court has used detailed clauses of legally non-binding instruments in cases when law, either domestic or international, has contained only general principles (see idem, pp.106–108).
There are quite a few authors in Russia who believe that Acts like OSCE documents and the Founding Act, though not treaties strictly speaking, are nevertheless legally binding. So Gennady Ignatenko writes of CSCE Acts as “sources of international law”: International Law (1995), p.98. Yuri Reshetov believes that the NATO–Russian Founding Act is “not simply a declaration of intentions; it is a binding international legal agreement”: “The Legal Character of the Paris Act”, Nezavissimaya Gazeta, 26 June 1997.Google Scholar
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20. (1975) 73 Dept of State Bull. 613.Google Scholar It is interesting to note that, as Aust has observed. Israel seems to treat many informal instruments as international agreements: op. cit supra n.12, at p.796. Different interpretations not only of the content but also of the legal character of political documents are not excluded.Google Scholar
21. Virally, op. cit. supra n.13, at p.236.Google Scholar
22. Idem, p.254.
23. Idem, p.236.
24. Giddens, A., The Consequences of Modernity (1990) pp.38, 40.Google Scholar
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26. Gabcikovo-Nagymaros Project (Hungary/Slovakia). 25 Sept. 1997. para. 134.
27. Idem, para. 136.
28. Van Dijk, P.. “The Final Act of Helsinki—Basis for a Pan-European System” (1980) XI Neths.Y.B.I.L. 115.Google Scholar
29. idem, p.120.
30. The Council had its first meeting in New York in autumn 1997: International Herald Tribune, 8 10 1997. p.8.Google Scholar
31. See Higgins, R., Problems and Process: International Law and How We Use It (1994), pp.1–2.Google Scholar
