Austrian Review of International And European Law 2003 Austrian Review of International and European Law

Austrian Review of International and European Law 8: 1-2, 2003.Agora: Is the Nature of the International Legal System Changing?. The decisions taken by the United States not to become a

Volume 8

INTERNATIONAL AND EUROPEAN LAW

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Suggested citation: 8 ARIEL (2003)

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Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

ASSISTANT EDITORIAL MANAGER

Ursula Kriebaum

Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

EDITORIAL BOARD

F Cede, Vienna, Austria W Karl, Salzburg, Austria

P Fischer, Vienna, Austria H Neuhold, Vienna, Austria

G Hafner, Vienna, Austria M Nowak, Vienna, Austria

W Hummer, Innsbruck, Austria C Schreuer, Vienna, Austria

K Zemanek, Vienna, Austria

ADVISORY BOARD

W Balekjian, Glasgow, Scotland S C McCaffrey, Sacramento, U.S.A

J Crawford, Cambridge, England A Randelzhofer, Berlin, GermanyP.-M Dupuy, Paris, France W M Reisman, New Haven, U.S.A

T M Franck, New York, U.S.A M Rotter, Linz, Austria

K Ginther, Graz, Austria B Simma, The Hague, the Netherlands

G Handl, New Orleans, U.S.A L Sucharipa-Behrmann, Vienna,

K Herndl, Strasbourg, France Austria

M Koskenniemi, Helsinki, Finland C Tomuschat, Berlin, Germany

H F Köck, Linz/Auhof, Austria H.-J Uibopuu, Salzburg, Austria

F Weiss, Amsterdam, The Netherlands

L Wildhaber, Strasbourg, France

Editor, Austrian Review of International and European Law

c/o Department of International Law

Agora: Is the Nature of the International Legal System Changing?

Gerhard Loibl & Stephan Wittich

Karl Zemanek

Is the Nature of the International Legal System Changing? 3

Sir Franklin Berman

What Does ‘Change’ Mean? International Law vs the International Legal System 11

Michael Bothe

No Need to Panic! Or: plus ça change, plus c’est la même chose 17

Antonio Remiro Brotóns

New Imperial Order or (Hegemonic) International Law? 25

Georg Nolte

The International Legal System: Is its Nature Changing? 81

Mary Ellen O’Connell

Who Helps the Hegemon? 91

Alain Pellet

Anne Peters

The Growth of International Law between Globalization and the Great Power 109

Pemmaraju Sreenivasa Rao

Is the Nature of the International Legal System Changing?—A Response 141

August Reinisch

Does US Hegemony Change the Nature of the International Legal System?—

A Reply to Professor Zemanek 153

W Michael Reisman & Scott Shuchart

Unilateral Action in an Imperfect World Order 163

Hélène Ruiz Fabri

Is the Nature of the International Legal System Changing?—A Reply 179

Francisco Orrego Vicuña

Has the Nature of International Law Changed? Le Plus Ça Change… 221

Rüdiger Wolfrum

Reflections on the Development of International Treaty Law under the

Auspices of the United States Hegemony and Globalization 229

Xue Hanqin

What Has Been Changed of the International Legal System? 235

Articles

Thomas Jaeger

We Hold These Truths to Be Self-evident, perhaps—Side-stepping

the Commonality of ‘Common Principles’ and Fundamental Aims in EU Law 247

Bernd-Roland Killmann

Procurement Activities of International Organizations—An Attempt of a

First Insight in Evolving Legal Principles 277

Austrian Practice in International Law (2001/ 2002)/

Österreichische Praxis zum Internationalen Recht (2001/2002)

Structure 411

Stephan Wittich & Michael Schoiswohl

Part I: Austrian Judicial Decisions Involving Questions of International Law/

Österreichische Judikatur zum internationalen Recht 423

Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann

Part II: Austrian Diplomatic and Parliamentary Practice in International Law/

Österreichische diplomatische und parlamentarische Praxis zum

Hans Rudolf Trüeb, Umweltrecht in der WTO Staatliche Regulierungen im

Kontext des internationalen Handelsrechts (Erich Vranes) 587

Erika de Wet & André Nollkaemper (eds.), Review of the Security Council

by Member States (August Reinisch) 590

Book Notes

Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting

Jurisdiction International and European Legal Perspectives (August Reinisch) 593

Nina H.B Jørgensen, The Responsibility of States for International Crimes

(Gerhard Hafner) 594

Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals

(August Reinisch) 595

Austrian Review of International and European Law 8: 1-2, 2003.

Agora: Is the Nature of the International Legal

System Changing?

Introduction

The developments of international affairs in the last few years have been characterised

by the end of the bipolar focus on the two super powers that have dominated worldpolitics most of the time after 1945 The break-up of the Soviet Union and the changes

in Eastern and Central Europe have influenced global politics fundamentally Thereaction by the Security Council to the invasion of Kuwait by Iraq was a demonstration

of the “new political realities” which pointed to a less contentious and morecooperative system of international relations But these developments have also lead

to a situation which only sees one “superpower” remaining—the United States.Much has been said on the consequences of this state of affairs, the more so as theUnited States have shown strong tendencies to deal with international questionsunilaterally and do not seek the close cooperation with other states or internationalinstitutions The decisions taken by the United States not to become a party to theStatute of the International Criminal Court, the Kyoto Protocol or the OttawaConvention on Land-Based Mines, its intention to resort to pre-emptive interventionunder the guise of self-defence, or its debatable treatment of the prisoners at theGuantànamo naval base—to name but a few examples—have been quoted asillustrations of the “unilateral attitude” of the United States towards internationalaffairs This attitude has been confirmed in the wake of the terrorist attacks of 11September 2001

The invasion in Afghanistan and the overthrow of Saddam Hussein in Iraq withoutauthorisation by the United Nations Security Council to use military force have added

to the debate within both the diplomatic and the academic community on the effects

of the United States position towards international issues for the future of internationalrelations, but also for international law as the foundation of the international system

It is the intention of the agora in this volume of the Austrian Review of International and European Law to debate the consequences for international law of such an

unmistakable “unilateral approach to world affairs” by the United States

For this purpose the editors of the Austrian Review have invited 23 distinguished

authors from various parts of the world to share their views on the validity of the

argument that international law is reaching a new stage in its evolution and that thiswill inevitably lead to changes in the entire international legal system To stimulate

the discussion among the participants, Karl Zemanek presented an essay introducing

the topic and submitting for debate what he regards as the major questions which are

to be addressed by international law as a result of the changed situation in internationalsociety

Austrian Review of International and European Law 8: 3-10, 2003.

Is the Nature of the International Legal

System Changing?

Karl Zemanek*

Two years ago, a Japanese scholar, Yasuaki Onuma published a paper in the Journal

of the History of International Law1 in which he studied the concept of the national legal community as conceived and practiced through the ages and acrosscivilizations He identified two basic concepts which had been followed at varioustimes in history and in different regions of the world: one of them decentralized,regulated by agreements between independent human groups sharing a common worldimage; the other centralized, governed by unilateral rules of a central State or empire

inter-In a footnote of his paper Onuma describes the current situation as follows:

Thus, one could understand, although one may not endorse, why the US tends

to apply unilaterally its domestic laws even outside its territory Since the US istoday’s version of the central power or empire, it is in a sense natural for it tobehave unilaterally, disregarding rules of international law which are based onthe principle of equality The serious problem for the US is that, unlike historicalnorms surrounding the former empires behaving unilaterally, today’s inter-national law is based, not on hierarchical notions, but on the notion of equality

of states Moreover, the US itself values highly the notion of equality in domesticsettings Thus, the hypocritical character of the US behavior often becomesevident, thereby inviting much criticism that hurts its legitimacy and authority.2These remarks suggest that the international system is presently in a period oftransition The traditional body of international law, based on the legal equality ofStates, co-exists with an “imperial” tendency of the US This tendency is apparent inits applying the rules of international law when it suits its interest, but to ignore them

if they appear to restrict its policy preferences One cannot foretell where thisdichotomy will lead to and prophesy is not the purpose of this essay It more modestlyaims at exploring whether areas of international law can be identified which are

* Prof em., University of Vienna

1 Y Onuma, “When was the Law of International Society Born?—An Inquiry of the History

of International Law from an Intercivilizational Perspective”, 2 Journal of the History of

International Law 1-66 (2000).

2 Ibid., at 18, note 38.

already affected by that tendency Given the limited framework of this essay theenquiry must necessarily be selective and cannot cover the whole field of internationallaw But even limited results should permit at least a tentative appraisal of the possibleeffect on the nature of the international legal system should the tendency continue.The US has the strongest and most sophisticated military force in the world,practically the only one that can be deployed anywhere on the globe It has by far themost powerful single economy, with a corresponding influence on world trade Inthe perception of other States these two factors combine to add persuasive weight toany effort undertaken by the US in support of a foreign policy aim As long as such

an effort remains within the boundaries of established international law it is not per

se the concern of this paper But to the extent that the legal exercise of power has an

impact on international law-making and on the working of international organizations,

it is relevant to the development of international law At the same time one has tokeep in mind that sovereign equality, while it is a postulate of the existing internationallegal order, always had to be squared with the factual inequality of States in the realworld

Probing into an alleged “imperial” tendency must therefore look beyond the merefactual exercise of power It must examine whether the State concerned has developed

a rationale justifying its “leading” the world by acting as guardian of self-proclaimedvalues of asserted universal validity; whether that State construes the establishedrules of international law to suit its political aims; whether that State controls thecourse of legal development within the system according to its own interests; andwhether such a State claims to act as supreme arbiter of right and wrong, derived i.a.from the belief in the superiority of its legal order (hence the latter’s extraterritorialapplication), of its human rights standard (hence humanitarian intervention), and ofits socio-economic system (hence the unilateral right to protect it preemptively)

***

One area in which such a tendency has long been observed, albeit in a relativelymoderate form, is the exercise of jurisdiction, in criminal as well as civil matters,over events in foreign countries The considerations underlying the American variant

of the concept of extraterritorial jurisdiction were recorded in the 1987 Restatement

of the Law by the American Law Institute.3 In practice, US authorities use the concepteven more extensively than the Restatement would suggest and with little regard forthe sovereignty of other States.4 Courts tend to assume jurisdiction even when thelink of the case to the US is tenuous or artificial They rely, in particular, on the

3 The American Law Institute, Restatement of the Law Third, Vol I, §§ 401-444 (1987).

4 C J Olmstead, Extraterritorial Application of Laws and Responses Thereto (1984), though dated, gives a good overview For a more recent celebrated case cf A Reinisch, “Widening

effects theory, although in other parts of the world that theory is recognized asapplying only in respect of competition law and certain criminal matters The belief

of US courts in the salutary effect of their exercise of quasi-universal jurisdiction isalso visible in their attitude towards judicial assistance agreements, which they oftenbypass in favour of more direct means of service or discovery abroad

The American practice of extraterritorial jurisdiction, particularly in the form ofindirect enforcement (e.g “blacklisting”), comes close to intervention, forbidden byinternational law, into the domestic jurisdiction of the States whose nationals, whetherindividuals or corporations, are the object of court action Yet it can reasonably beargued that it only comes close

Recently, however, that boundary has been crossed openly On 15 December 2002,

the New York Times reported that the President of the US had approved a list of 25

terrorists whom the CIA may kill without further presidential approval (“death list”),

if they cannot be captured alive without danger to civilians And that the authorizationapplies irrespective of where these individuals may be found—even on foreignterritory It seems that in this instance the claim to quasi-universal jurisdiction forthe purpose of protecting American values and interests has been carried to extremes

***

Another area with a long-standing record of a distinctive American position is the

“inherent” right of self-defence as defined in Article 51 of the UN Charter OscarSchachter wrote in 1989:5

[T]he fact that the Court and international legal scholars considered that defense is governed by positive law has not obliterated an opposing conception

self-of self-defense as an autonomous, nonderogable right that “exists” dently of legal rules That conception, I, believe, continues to influence popularand official attitudes concerning national security

indepen-The same author refers to remarks by former Secretary of State Dean Acheson to theAmerican Society of International Law in 1963 as indicative of the belief in thesubordination of law to power, which Schachter considered to be a second intellectualroot of the proposition that self-defence cannot be governed by law Acheson had infact stated: “The survival of states is not a matter of law”.6

the US Embargo Against Cuba Extraterritorially A Few Public International Law Comments

on the ‘Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996’”, 7 EJIL

545-562 (1996)

5 O Schachter, “Self-Defense and the Rule of Law”, 83 AJIL 259, at 260 (1989).

6 Source ibid., in note 8.

While these views may have reflected no more than a somewhat inflated defensive

strategy, the years of the Cold War gave rise to a more active use of force, particularly

by the two superpowers in what they considered their respective spheres of interest.Random illustrations are Hungary (1956) and the CSSR (1968) for one, the DominicanRepublic (1965) and Grenada (1983) for the other superpower After the end of theCold War the events in Kosovo, which led to NATO’s operation against the FederalRepublic of Yugoslavia (now Serbia and Montenegro), signalled a further wateringdown of the prohibition of the use of force.7 The 19th Century concept of humanitarianintervention was unearthed to provide legitimacy for the use of force even withoutSecurity Council authorization.8 Several arguments were developed in support ofthat position By far the most widely used was that in case of Security Council inaction

in the face of massive violations of human rights, States—individually or tively—were free under alleged customary law to act even militarily to prevent or toend the violations.9

collec-The attack of 11 September 2001 turned the discourse back to the right of defence The US invoked that right and informed the Security Council accordingly.10The novel feature was not only that the attack against which the right to self-defencewas claimed had been carried out by a non-State terrorist organization Also, thetraditional understanding that defensive action is allowed only against an ongoingattack, was converted into a right to eliminate the source of the attack In the particularcase this meant the elimination of the Al-Qaeda and its supporting Taliban regime inAfghanistan.11

self-The fight against international terrorism has since become a primary aim of the USand has led to a new “National Security Strategy” in which the idea of “preemptive

7 See A Buzzi, L’intervention armée de l’OTAN en République Fédérale de Yougoslavie

(2001)

8 For a comprehensive survey of the different schools of thought cf W D Verway,

“Humanitarian Intervention and International Law”, 32 NILR 357-418 (1985).

9 See e.g., F K Abiew, The Evolution of the Doctrine and Practice of Humanitarian Intervention, particularly at 132, 222, 246, and 256 (1999) The opposite position is argued

by P Hilpold, “Humanitarian Intervention: Is There Need for a Legal Reappraisal?”,

12 EJIL 437-467 (2001).

10 In a letter dated 7 October 2001 by the Permanent Representative of the United States to the

United Nations, reprinted in 40 ILM 1281 (2001).

11 For a more detailed analysis see K Zemanek, “Self-Defence Against Terrorism Reflexions

on an Unprecedented Situation”, in F M Marino Menéndez (ed.), El Derecho internacional

en los albores del siglo XXI, Homenage al profesor Juan Manuel Castro-Rial Canosa

695-714 (2002)

intervention” was introduced as a new variant of self-defence.12 This idea dominatesthe attitude of the US towards Iraq, which is suspected of having developed and stored,

or being capable of developing within a short period of time, various weapons of

mass destruction It is difficult to conceive of these weapons as a direct threat to the

territory of the US on the American continent Therefore, it seems more likely thatthe rationale behind any military action to eliminate the possible use of these weapons

is the American belief in its “leadership” role This conclusion finds support in theheading of Section V of the “National Security Strategy” which reads: “Prevent OurEnemies from Threatening Us, Our Allies, and Our Friends with Weapons of MassDestruction” The manner in which the campaign against Iraq was conductedstrengthens the suggestion of imperial strategy Iraq had to be subdued simply becausethe US considered it necessary The reason for doing so, offered by the administration,was changed repeatedly First, it was Iraq’s suspected possession of weapons of massdestruction Later that was changed to the risk that Iraq could make such weaponsavailable to Al-Qaeda Finally, the missionary goal to bring democracy to Iraq wasdeclared the ultimate ground, implying the willingness to intervene in the domesticaffairs of a sovereign state When Iraq was defeated and hostilities ended, obligationsimposed by the Hague Rules on the occupying power were only partly observed Infact, a virtual Anglo-American protectorate was imposed on Iraq and the SecurityCouncil was manoeuvred into condoning it

All this confirms the American determination ultimately to act alone, with little or

no regard for international legal obligations, particularly those under the UN Charter.This determination to act alone also explains the profound and continuing annoyancewith those who did not unquestioningly join the American side in the preparationand execution of the military strike against Iraq An aspiring empire’s conceptionleaves no room for subtleties: the world is divided in friends and foes

***

A more recent example of the willingness of the US to ignore existing internationalobligation that are impediments to policy goals, is the treatment of prisoners taken inAfghanistan No matter how one views the intervention of American forces in thatcountry from a legal perspective, there was clearly an international armed conflict.Hence international humanitarian law applies

Although neither of the two States is a party to the First Additional Protocol, bothare bound by the Third Geneva Convention Relative to the Treatment of Prisoners ofWar of 1949, which was thus applicable Its provisions, especially Articles 5 para

12 The National Security Strategy of the United States of America, September 2002, section V,

15: “To forestall or prevent such hostile acts by our adversaries, the US will, if necessary,act preemptively”

213, 13, 14, and 17 read together leave no doubt that the fighters taken prisoner inAfghanistan, whatever they call themselves or are called by others, have a right to betreated as prisoners of war until a “competent tribunal” has decided otherwise.14 Sofar, no such decision has become known Hence the treatment accorded to thesepersons at Guantanamo naval base does not conform to the obligations which the UShas assumed under the Geneva Convention.

***

In international organizations in which it is a member, the position of the US as thesole remaining superpower is perhaps best described as compelling influence Thatinfluence varies according to the degree of the organization’s dependence onAmerican support for achieving its purpose In some organizations, for instance inthe Bretton Woods institutions, the influence is strong enough to control theorientation of operational activities The United Nations are a special case It would

be a waste of space to repeat what has been written about the veto power of thepermanent members of the Security Council But it is obvious that the ability to blockthe adoption of a decision greatly enhances a State’s influence on its drafting Eventhe threat of non-participation of the most powerful and resourceful member in anoperation acts as a deterrent to its adoption, no matter how urgently it appears in theeyes of other members

The influence which the US can bring to bear on the Security Council to get adesired decision adopted, in other words the extent to which it can use the latter as aninstrument of its own policy, is more difficult to evaluate In the last resort, thisdepends on how “persuasive” the US is in its bilateral contacts with the other members

of the Security Council and with the groups of States with which some of them identify

A recent example illustrates the point At first, the Security Council decreed thatthe report, which Iraq had submitted on its weapons programmes in accordance withSecurity Council Resolution 1441, would not be circulated until it had been analysed

by the weapons inspectors Upon further reflection however, it decided to circulate itimmediately but only among the permanent members The other members were toreceive a censored version later on because the report contained sensitive informationabout the building of nuclear devices which was not to be imparted to non-nuclearStates The reproduction of the full report for the permanent members was entrusted

to the US because, so it was stated, they had the more efficient copying machines For

13 It reads: “Should any doubt arise as to whether persons, having committed a belligerent actand having fallen into the hands of the enemy, belong to any of the categories enumerated inArticle 4, such persons shall enjoy the protection of the present Convention until such time

as their status has been determined by a competent tribunal.”

14 See Zemanek, supra note 11, at 713; and G H Aldrich, “The Taliban, Al-Qaeda and the

Determination of Legal Combatants”, 96 AJIL 891-898 (2002).

that purpose the US was handed the only complete copy of the report available inNew York.

There is no need to restate that in NATO the position of the US is preponderant, ifonly because it provides most of the military infrastructure, particularly in respect oflogistics and intelligence gathering But the US exercises a strong influence even onorganizations to which it does not belong, such as the European Union Because ofits strategic interest in Turkey the US “persuaded” influential EU members—Germany

in particular—to give Turkey the perspective of EU membership The EU’sCopenhagen Summit dutifully adopted this position despite massive reservations in

EU countries

Even decision-making in the framework of the EU’s so-called Common Foreign and Security Policy comes sometime under this influence In the critical weeks before

the Security Council determined how to act against Iraq, the foreign ministers of the

EU member States met as the Council of the Union They adopted a common positionfavouring the peaceful disarming of Iraq through United Nations inspections Yettwo days later fife member States (Denmark, Italy, Portugal, Spain, and the UK) publiclysupported the more bellicose position of the US That this support was expressed innewspaper advertisments rather than conveyed through diplomatic channels wasdoubly humiliating for France and Germany which, as members of the SecurityCouncil, argued at that time against unilateral American military action withoutSecurity Council authorization The incident showed the true worth of the CFSP incase of a severe international crisis It was a rude awakening for an organization withpretensions to become a “global player” in security matters

***

Law-making by international conventions is another area in which the US exercisesconsiderable influence, although this influence is manifested mostly by obstruction.For instance, the US renounced the Kyoto Protocol15 and refuses to accept the RomeStatute of the International Criminal Court.16 Of course, it is perfectly legitimate for aState not to accept new multilateral treaty obligations, even if the frequent exercise

of this option may appear to other States as a manifestation of poor community spirit.But the US, as the most powerful of nations, is a special case Its use of the optionnot to join has ominous implications which do not arise from the abstention of lessimportant States One is the impact that a negative US position has on the overallprocess of international law-making If a proposed regulation requires universal

15 For more information cf D G Victor, The Collapse of the Kyoto Protocol and the Struggle

to Slow Global Warming (2001).

16 Cf A W Rovine, “Memorandum to Congress on the ICC From Current and Past Presidents

of the ASIL”, 95 AJIL 967-969 (2001); and H Duffy, “National Constitutional Compatibility and the International Criminal Court”, 11 Duke J of Comp and Int Law 5-38 (2001).

participation to become effective, or at least the co-operation of the States mostadvanced in the matter to be regulated, the absence of the US is crippling In the case

of the Kyoto Protocol, this means that the purpose of the regulation cannot be achieveddespite the wishes of a large majority of States As a consequence, the process ofimproving international relations by subjecting them progressively to the rule of law

is impaired

Yet that is not all In the case of the Rome Statute of the International CriminalCourt, the US does not confine itself to non-participation but tries to protect itsnationals against possible third-party effects It uses all the leverage at its disposal toinduce parties to the Statute to conclude bilateral agreements with the US which wouldexempt US nationals from the jurisdiction of the Court were they apprehended by theauthorities of those States The purpose of the Statute is thus not only impaired by theabsence of the US but actively undermined by an unwarranted exception It seemsthat the champion of international criminal responsibility for so-called “rogues” putsitself above the law

***

In this brief essay it was possible to look only at a few points But even these warrantthe tentative suggestion that the “imperial” tendency of the US, to which Onumaalluded in his paper, does indeed exist This tendency is, perhaps, most visible inmatters related to the use of force and in extraterritorial actions which one coulddescribe as “the long arm of Uncle Sam” But to varying degrees it also touches uponother areas of international law and its development The intended predominance ismanifest and, in view of the unrivalled power of the US, virtually unimpeded Shouldthe asymmetry of power in the international system persist one must be prepared for

a temporary and possibly extended suspension of certain accepted rules of national law, or at least for their application in a hitherto unfamiliar manner Whetherthis will only lead to the transformation of these rules of international law or to achange in the nature of the system as a whole depends on several factors Theseinclude, above all, the intentions of the US and how prudently it will use its resources

inter-to achieve them—or, as Henry Kissinger has put it,17 its ability of learning todistinguish between what it must do, what it wants to do, and what it can do.Furthermore, the duration of the current situation, and factual developments whichmight have an impact on the asymmetry of power However, for the medium-term,States will be well-advised to face reality in their policy assessments and to acknow-ledge the unique role of the US, instead of persisting in the fantasy of a world orderbased on the equality in law of all members of the international system

May 2003

17 Die Herausforderung Amerikas Weltpolitik im 21 Jahrhundert 349 (2002).

Austrian Review of International and European Law 8: 11-16, 2003.

What Does ‘Change’ Mean? International Law vs.

the International Legal System

Sir Franklin Berman *

I Introduction

It is always wise to give oneself time to stand back from events in order to passjudgement on their significance The shockwaves from the appalling incidents inNew York (& elsewhere) on the 11th of September 2001 reached deeply into theuniversal human consciousness When they, and the reverberations of the world eventsthat came in their train, reached the shores of the lawyers’ domain, there was aninstant reaction too, something like a reflection back of the shock received But thetask of the lawyer is to make mature, considered judgements, not instantaneous ones

And, while the practice of international law very often demands immediate judgements

as a guide to legitimate action, that does not stand in the way of reconsideration andreassessment, when circumstances allow, and significances become clearer.The theme for this Agora asks us to give our view on whether the nature of theinternational legal system is changing By that it means of course changing under thecumulative impact of pressures, both recent and not so recent, pressures which havebeen brought about not just by blind events, but by shifts in the pattern of power inthe world within which we live

II Changes in the Rules vs Changes in the System

Likewise, our views are sought on whether the international legal system is changing.

Not, in other words, on whether international law is changing Naturally, the ruleswhich make up the corpus of international law are changing They are changing allthe time; that is what one would expect It is in fact the mysterious and elusiveprocesses of adaptation and change that give international law much of its fascination,

* Barrister and arbitrator; Visiting Professor of International Law at the University of Oxford;

Judge ad hoc on the International Court of Justice; formerly Legal Adviser to the Foreign

and Commonwealth Office, London

as well as its real-world importance Whether the principles (encapsulated in that

common catch-phrase ‘principles and rules of international law’) are also changing

is a much deeper question altogether For many of us—probably all of us—the

‘principles’ are expected to have an enduring permanence quite different in kindfrom the stability (or otherwise) of particular rules

From there, I think we have to move on to recognize that international law doesnot exist for its own sake, but to serve a purpose The purpose (or in fact the multiplepurposes) are exactly the same as we would recognize to be the goals of good policy-making: the preservation of peace and order; social progress; protection of the rightsand freedoms of the individual; facilitation of legitimate trade and travel; etc., etc.Sometimes, especially at moments of challenge, international lawyers do tend to react

in ways that look to the policy-maker like a defence of ‘international law’ for its ownsake In fact, when that happens, it is usually because what the international lawyer isstanding up for is not particular rules, but the underlying legal principles that animatethem and which (as I suggest above) are intended, for the good of the system, to bemore enduring and permanent than the particular rules valid at any given moment

Of course there is room for honest argument about what is an (evanescent) rule andwhat is a (permanent) principle, but if the purposes of international law and the goals

of good policy-making are broadly the same, that should be a constructive debatenot a damaging one

That brings us directly back, if not to the processes of change, then to the pressuresfor it If international law is a system in a process of continual change and development,then it should not be in the slightest surprising, or shocking, that States bring consciouspressure to bear in order to produce change Indeed, it is pretty hard to see how,without such pressure, change could ever happen! This is something that strong Stateshave always done; the surprise would be if they hadn’t But it is equally somethingthat weak States have always done, if they could It might have been individually, byexploiting, say a geographical position around a key strait or shipping lane It mighthave been on a group basis, as for example the drive by a numerically quite limitednumber of Latin American States for acceptance of 200-mile territorial seas, latertransmuted into 200-mile resource zones; or the attempt by the group of equatorialStates to assert ownership over the geostationary orbit Or it might have been bysheer weight of numbers, as in the strenuous efforts to conjure into being a ‘NewInternational Economic Order’ by majority voting power in the UN General Assembly.But these all fall to be classed as ‘pressures to change international law’ And now

we face the phenomenon de nos jours by which other organized groupings outside

the State system as such, i.e NGOs and pressure groups, mount campaigns withconsiderable skill and resourcefulness, but campaigns to do what? why to changeinternational law

III A Sole Hyperpower?

However, the question for today is changes in the international legal system, a question

we must distinguish carefully from changing existing international law It doesn’tinvolve registering that there are pressures for change, nor identifying who is bringingthe pressures to bear What it involves is how the system reacts There is a tendencyabroad to assume that, simply by virtue of the fact that it is a ‘hyperpower’ (as thephrase goes)—and, so the argument continues, the sole hyperpower—the USA canchange international law just by saying that it wants change, for example byenunciating a new doctrine and declaring that it will conform its future practice tothat doctrine, or by simply acting in ways that conform to its interests or preferencesbut take little account of the interests of others

We can, to be sure, question the hypothesis that the USA is the sole hyperpower Itall depends, of course, on what measure you use and on what groupings you look at.There is certainly a good case for saying that in the fields of trade, finance andeconomics, US power is not predominant at all And we can also question the

hypothesis that, just because a State is a hyperpower, it will always pursue consistent objectives and seek to impose its will by unilateral diktat Neither current nor past

international practice, as we have been able to observe it, bears out either of those

conclusions, even though elements of them can be seen in the behaviour of powerful

States in all epochs

IV The Processes of Change

Our question remains, however, how the international legal system reacts to an attempt

to impose change by the unilateral action of a single powerful State And here wemust be careful not to confuse power with law Nor, as is generally recognised, must

we confuse the basic principle of the legal equality of States with the factualphenomenon of the wide disparities in their actual power However, the fact that aState is powerful is no protection against a finding (if justified) that its behaviour isunlawful That is something we are all quite accustomed to from the Judgments of theInternational Court of Justice And in the trade field, it is something we are becomingaccustomed to from the Decisions of the Dispute Settlement Mechanism of the WorldTrade Organization

So the crucial question remains, How does the international legal system reactwhen faced with attempts—never mind the quarter from which the attempt comes—

to force the pace of change? Has the nature of that reaction changed? Is it nowchanging?

There are, of course, two avenues through which international law is altered: bythe development of customary law, and by treaty-making And we know—again, it is

one of the great fascinations of modern international law—that these two avenuesare not sealed off from one another by a concrete wall, but that they interrelate: treaty-making can play an important role in the formation of custom, and customary law (asthe Vienna Convention of 1969 reminds us) plays a role in the interpretation of treatyobligations.

We must therefore investigate whether the essential nature of either process haschanged, or seems to be changing Is the customary law process essentially the same

as before? Has treaty-making lost its traditional character and acquired legislativecharacteristics?

V The Customary Law Process

The answer to both of those questions seems clearly to be in the negative So far ascustomary law is concerned, there is no sign in the recent case law that the InternationalCourt is altering the basic approach it has taken to the formation of customary rules,

namely that it looks specifically both for State practice and for opinio iuris, and that both the practice and the opinio must be sufficiently widespread and consistent to qualify as general To be sure, there has been much argument over the Court’s assessment of what counts as evidence (both of the general practice and of the opinio),

but that is obviously a different matter Likewise, the Court seems not to have deviatedfrom its established view that resolutions of the UN General Assembly can not inthemselves ‘create’ law, though they do have a valid part to play, according to thecircumstances, in ascertaining the existence of a rule of law And finally, the Court’sinsistence that practice has to include that of States whose interests are speciallyaffected, is more of a protective principle than the opposite

Nor has there been any revolution in the academic literature—to judge, for example,from the Report adopted by the International Law Association in 2000 on the Formation

of Customary Law To the extent that learned commentators may seem to beadvocating a reassessment of the established criteria, they turn out very often to bearguing little more than that the same evidence can serve simultaneously to establish

both practice and opinio iuris.

Therefore, an overall assessment of the customary law process seems to layemphasis on the protection it offers to States who resist the pressure brought to bear

on them by others, rather than on any propensity to open itself to imposition bydominant States

A final remark in this connection might be that neither the drive to have certain

rules accepted as having a higher status (whether as ius cogens or under some other

name), with dramatic effects on their legal consequences, nor the pressure to impose,

as it were, the compulsory nature of certain provisions of international law irrespective

of the normal considerations of State consent, evident chiefly in the field of human

rights and the law of armed conflict, is attributable to the United States It ischaracteristic, rather, of the group of liberal Western democracies, largely in Europe,who tend to be the loudest voices raised in criticism of US hegemonic behaviour Wemust be careful therefore to steer clear of the contradictions inherent in assertingthat whereas individual hegemony is by definition bad, hegemony on a group basismay be acceptable.

VI The Treaty Process

Moving now to the treaty process, the first question must be whether the basis oftreaty obligation has shifted from the express and formal consent of the State Party.The question has only to be posed in order to be dismissed The rules remain thoseset out in Articles 2 and 7-17 of the 1969 Vienna Convention (replicated almostexactly in the 1986 Convention), and there is no sign of their having come underquestioning or attack Though perhaps one ought to pause momentarily at this point

to note that some of the rather peculiar practice that has emerged in recent years over

reservations, notably to human rights treaties, seems to embody a wish to brush aside

the fundamental precept that treaty obligation is based on formal and express consent

At all events that practice, doubtful as it is in its legal foundation, is once again notspearheaded by the United States at all

However, the next phenomenon to remark under this head is the growing propensity

to regard the United States as legally at fault for not having become party to what is

by now a growing list of important multilateral treaties: the Additional Protocols tothe Geneva Conventions, the Law of the Sea Convention, the Kyoto Protocol, theLand Mines Convention, the Statute of the International Criminal Court, and so on

Again, there is something odd about this If it were a political criticism, one could

understand it entirely; it is very unfortunate indeed that the United States has separateditself from the mainstream, including from the common opinion of its traditional allies,

on these important matters, and the fact that it has done so tends (to put the matter nomore strongly than that) to weaken the chances of success of the multilateral regimes

From the policy point of view the position may no doubt be different But, if so, the

conclusion to be drawn from it is the opposite of the one usually drawn Put bluntly,

if the participation of a given State, or group of States, is regarded as having that

degree of importance, then the negotiations must be conducted in such a way as toensure that their outcome meets the essential requirements of those States To demandboth that the majority set the terms, and that the minority has no option but to acceptthem, is to deny an element of the right of self-determination as codified in theInternational Covenants Were the proposition to be put the other way round (thatthe minority, or a single State, set the terms, and that the majority was bound to acceptthem), it would be denounced as hegemonistic behaviour, and quite justifiably so.

The writer’s conclusion is therefore as follows Firstly, the picture is by no means

simple It cannot be correctly described, nor accurately analysed, by any form of

caricature Secondly, the fundamentals of the international legal system are sound.

They provide ample protection for States against the imposition of new rules ordoctrines without their consent Conversely, if they do acquiesce, or even give theirformal consent, whatever the policy reasons may be, it does not lie in their mouth

afterwards to bewail the consequences Thirdly, and perhaps most importantly of all,

to cry wolf (as in the Aesop Fable) operates directly against self-interest (as the Fablewas designed to show) If we face a situation we don’t like by insisting that it betokensunpalatable consequences for the international legal system, all that we do is increasethe likelihood that precisely those unpalatable consequences will follow The better

course is in fact to stick to our fundamentals ever more firmly Fourthly, what is

really to be deplored about present American behaviour in certain fields is not itssupposed capability single-handedly to upset the established system of internationallaw, but the unfortunate aspects of American foreign policy from which it springs:the preference for unilateral solutions over multilateral ones; the tendency to let aperception of the national interest drown out the legitimate interests of others (or atleast to talk as if that were the case); and the downgrading, in relative terms, of legality

as a determinant of foreign policy decisions That said, it is easy to paint the pictureblacker than it really is: these phenomena presently characterize American behaviour

in certain fields only, not in all; Mr Bush spoke out strongly during his recent StateVisit to London about the United States’ commitment to multilateral institutions; and

US public opinion is by no means as monolithically behind muscular unilateralism inforeign policy as our media would have us believe

In other words, there is much to play for; and that is what we should be doing

December 2003

in its hands? Is there, or rather: is there about to develop, a new hegemonic or

“imperial” system of law creation and application?

Imbalances or asymmetries of power do cause difficulties for the internationallaw creation process as there is not enough reciprocity as a driving force for acceptingmutual obligations But they are not a new phenomenon For centuries, internationallaw has dealt with them In the 17th century, there was an imbalance of power betweenthe various States competing on the seas, in particular the Dutch and the British

Despite the overwhelming sea power of Britain, the principle of mare liberum, which

protects the weaker users of the sea, was upheld.1

That history should warn against premature conclusions as to the establishment of

a new hegemonic world order A closer look at the norm creating processes is necessary

in order to ascertain the true impact of the overwhelming power of the United States

in the modern or, to use a more fashionable expression, “post modern” law creationprocesses.2 I would like to specify the basic issues as follows: Has the United States

a specific veto power concerning the development of new international regulations?Can the US achieve modifications of existing international law where this law isperceived by relevant American actors to be contrary to American interests? Or, moregenerally speaking, is there a special, “imperial” role of the US in the law makingprocess, and if so, which?

* Prof em Johann Wolfgang Goethe Universität, Frankfurt/Main, Head of the Research Unit,Peace Research Institute Frankfurt

1 W G Grewe, The Epochs of International Law (transl M Byers) 263 (2000).

2 M Koskenniemi, “Fragmentation of International Law? Postmodern Anxieties”, 15 LJIL

553 (2002)

Austrian Review of International and European Law 8: 17-24, 2003.

So far, the international community has not abandoned its decentralised procedures

of law making based on consensus But on the other hand, power has, and has alwayshad, an impact on consensus building Influence on the decision of others is the veryessence of power

II American Non-Participation—an Effective Veto Power?

Let us first look at American non-participation in international agreements Is thereanything like an American veto power?

There are still a number of human rights treaties to which the United States is not

a party because it does not like those treaties The best known examples are theCovenant on Economic, Social and Cultural Rights and the Convention on the Rights

of the Child That absence of the United States, regrettable as it is, has not preventedthese conventions from constituting flourishing treaty regimes Treaty bodies havebeen established, they work for the implementation of the treaties, and there is nosign that United States absence affects in any way the viability of these treaties

In the field of international humanitarian law, the absence of the United Statesfrom the 1977 Protocols additional to the Geneva Conventions, controversial also inthe United States, presents perhaps a more serious question Which impact does theabsence of the single most important military power have on the functioning of atreaty regime relating to the law of war? It is worth recalling that the United Statestook a very active part in the negotiations and that it and its NATO allies tried tosolve certain perceived problems involved in some of the provisions of Protocol I (inparticular its applicability to the use of nuclear weapons) by way of declarationsmade on the occasion of signature and/or ratification Nevertheless, many NATOcountries were for a long time reluctant to ratify,3 but by now all of them have joinedthe club, except the United States and Turkey But also the United States has recognisedthat most of the provisions of Protocol I reflect customary international law Thus,

US non-ratification does not really affect the interoperability of NATO forces, as far

as their obligations under the laws of war are concerned

True, the application of international humanitarian law has to face difficulties, as

it always has The United States has its share in this crisis by insisting on a claim thatcertain categories of persons, “unlawful combatants”,4 are not entitled to certain

3 Only the Nordic members ratified early (Norway 1981, Denmark 1982), some ratified in themid-eighties (Belgium 1986, Italy 1986, Netherlands 1987, Iceland 1987), some by the end

of the Cold War (Spain, Greece and Luxembourg 1989, Germany 1991), some really late(United Kingdom 1998, France 2001)

4 G Aldrich, “The Taliban, Al Qaeda and the Determination of Illegal Combatants”, 96 AJIL

891 (2002); Y Naqvi, “Doubtful Prisoner of War Status” 84 IRRC 571 (2002); S Oeter,

protections under IHL But this is not related to the absence of the United States fromthe treaty regime of Protocol I The relevant rules are those of customary internationallaw and of the Third Geneva Convention to which the United States is a party Wewill revert to the question of customary law At this point, we must draw the conclusionthat there is no effective US veto power preventing the development of new treatyregimes relating to the law of war.

A really serious problem is the absence of the United States from the Statute of theICC This treaty regime, too, is functioning despite United States absence The Statutehas now next to 100 parties, the Court has been established, a Prosecutor elected Butthe practical relevance and effectiveness of the Court remains to be seen The list ofabsentees other than the United States is important Whether the Court will reallyhave jurisdiction in relation to significant conflict is also an open question In addition,what distinguishes US absence in this case from the preceding one is the activehostility which the US shows in relation to the ICC That has probably slowed downthe ratification by certain States The energy with which the United States pusheslegal devices designed to make sure that US personnel is not affected is remarkable.The instruments of this policy are immunity agreements concluded with the US,sometimes under heavy pressure, by a number of States5 and the resolutions of theSecurity Council exempting, in the case of UN peacekeeping or UN mandated militaryoperations, personnel from States which are not parties to the ICC Statute from thejurisdiction of the Court.6 The legality of both devices is highly questionable TheSecurity Council adopted the first respective resolution after the United States hadvetoed a resolution providing for the prolongation of the UN mandate for Bosnia-Herzegovina—a macabre package deal! The example shows that the development ofinternational law has difficulty to move ahead where the relevant actors in the UnitedStates strongly feel that this is against vital US interest Be it noted, however, that inthe case of the ICC, the United States has three important silent allies: Russia, Chinaand India The attitude of Russia is particularly problematic, as there have been anumber of declarations that it is going to ratify But the real political value of thesepromises becomes more and more doubtful For China and India, the Court constitutes,

at least for the time being, an unacceptable infringement of their sovereignty Be itnoted, on the other hand, that a further prolongation of the Security Council resolutions

in 2004 was not possible as it would not have obtained a sufficient number of votes

in the Security Council At least in this respect, the US did not succeed in imposingits will to reduce an international regime it dislikes

Terrorism and laws of war”, in SFDI (ed.), Les nouvelles menaces contre la paix et la securité internationale 183, at 193 (2004).

5 For an overview see http://www.iccnow.org/documents/USandICC/BIAs.html (21.09.2004).

6 UN Doc S/RES/1422 (2002) and UN Doc S/RES/1487 (2003)

Another spectacular case of United States non-ratification is the Kyoto Protocol.7

The United Nations Framework Convention of Climate Change (UNFCCC), to whichthe United States is a party, does not impose any meaningful obligations to stabilize

or even reduce the emission of greenhouse gases The Kyoto Protocol, implementingthe Framework Convention, does The Clinton administration agreed to it, but therewas never a real chance that it would receive the US Senate’s advice and consentrequired for ratification The Bush administration clearly stated its intention not toratify The United States interest which has so far prompted US absence is a complexmixture of economic considerations (which are highly controversial) and matters ofinternal politics It is considered that the cost of reduction would be too high forcertain industries where numerous jobs were at stake—in regions which are politicallyrelevant, in particular the old industrial centres More generally, it was probably fearedthat the reduction of energy consumption (the best means of reducing greenhousegas emissions) would affect American lifestyle and therefore be politicallyunacceptable for a significant part of the American electorate

When the American decision to remain outside the Protocol became clear, the otherparties decided to go ahead and try without the United States—a solution which wastechnically possible, although it is somewhat doubtful whether this regime can beeffective when a major part of the problem, 36% of the relevant emissions, remainsunregulated This gave a key role to Russia, which accounts for 17% of the emissions.Since a number of years, Russia kept lingering about this decision Without Russianratification, the Kyoto Protocol could not enter into force, as 55% of the relevantemissions constitute the necessary quorum It has finally decided to join, and theProtocol has entered into force—without the United States The threshold countries(China, India, Brazil), for the time being, feel comfortable with their position whichdoes not impose any quantified emission reduction commitments upon them Thepractical impact of the Kyoto Protocol on the problem of global warming remains to

be seen The absence of the United States is not the only problem The Kyoto Protocol,

as it is now, relates to a first reduction period 2008-2012 Negotiations for a nextperiod are being launched, and once more the United States have refused to participate

If the system works efficiently during the first period and if it were possible to makethe major threshold countries join, that US absence might not be the last word.The analysis of American absenteeism would be imbalanced without looking atthe GATT/WTO treaty regime which poses serious problems of American internalpolitics, too, and where, nevertheless, the United States remains an active participanteven though it is not always happy with the actual results of the system In this case,there is an obvious cleavage between the relevant internal political interests in the

7 For an overview see M Bothe, “The United Nations Framework Convention on Climate Change—An Unprecedented Multilevel Regulatory Challenge”, 63 HJIL 239 (2003).

United States: on the one hand, the protectionist interest in sparing American industry

or agricultural production from import competition, on the other hand the interest ingaining access to foreign markets which is difficult to obtain where there is noreciprocity The interest in market access so far appears to be strong enough that theUnited States is willing to live with the procedures established by WTO, althoughthey do not always work in favour of US protective or protectionist interest

To sum up, the problem of the United States refusing to participate in certaininternational treaty regimes is real, but it should not be overstated The world haslearned how to deal with the problem, not always, however, with success

III American “Unilateralism” and the United Nations

The American attitude towards the United Nations is somewhat ambivalent

The United Nations were an important element of Roosevelt’s design for the worldorder after World War II That order owes very much to American efforts As long as

it had a secure majority in the General Assembly, the United States tried to promotethe efficiency of the United Nations by shifting powers from the Security Council,which was blocked by the (at that time mainly Soviet) veto, to the General Assembly.This situation changed with the success of decolonisation The political structure ofthe United Nations changed dramatically The US quite often found itself in theminority, and the American attitude towards the UN became lukewarm to hostile.The end of the East-West conflict once more changed the rules of the game in theUnited Nations in a fundamental way The disappearance of the automatic Soviet/Russian veto made it possible for the United States, for the time being the onlyremaining superpower, to use the United Nations as an instrument, or more precisely

as a legitimizer of US foreign policy The first and successful attempt of doing so wasthe Iraqi invasion in Kuwait The United States sought and obtained from the SecurityCouncil an authorisation to use force (although this was not necessary as a matter oflaw, there being a clear case of collective self-defence) Other attempts were firstunsuccessful, but succeeded at a later stage (Kosovo), still others remained contro-versial (Iraq) In the latter case, the United States opted for using the Security Council

as a legitimizer for its action, but the legal argument that there is indeed a UNauthorization is very weak The fact that the argument was used nevertheless showsthat the United Nations plays a significant, although not decisive role in US decision-making

After 9-11, the attitude of the United States showed a different nuance The UnitedStates did not seek an authorisation by the Security Council to use force It soughtand obtained a general and vague recognition by the Council that there was a situation

of self-defence Apparently, the United States shied away from a mandate which wouldhave given some power to define the scope of the force to be used to the Council

Relying on self-defence seemed to leave more room for unilateral interpretation, andtherefore more freedom of choosing different options to use force.

On the other hand, the United States has become the most frequent user of the veto

in the Security Council Out of 15 vetoes cast between 1990 and 2004, 11 came fromthe United States, and 9 of them related to Palestine In this case, the General Assemblyhas stepped in

Is it necessary or appropriate to change the system of the United Nations in order

to better reflect the exceptional position of the United States? The United States hasalready a privileged position on the basis of the UN Charter as it is: It has the vetopower which it shares, however, with four other States It has the military power toenforce Security Council decisions where it sees fit to do so In addition, it is thesingle most important financial contributor to the UN On the other hand, this structuralprimacy of the United States is balanced by the fact that it does not command anyautomatic majority All this does not mean that there is a need to change the UnitedNations in the sense of allowing even more American political, i.e hegemonic impact.The Iraq case is a telling example: Had the Security Council given in to US pressure

to use force against Iraq in order to terminate its alleged breach of its disarmamentobligations, the UN would be completely discredited as no forbidden weapons havebeen found Now, the blame is only on the US and the UK

IV United States Pressure to Change the Law

Does international law change under the impact of United States pressure? Yes, to acertain extent The United States has been an essential driving force behind amodification of the legal norms governing the international economic system This

is not only reflected in the results of the Uruguay Round of 1995 A major case inpoint is the fundamental change in the law of international telecommunications from

a system of interconnected State or other privileged enterprises to an open market oftelecommunication services Yet, although the United States were the cutting edge ofthis development, it was soon shared by the EC and Japan, and also promoted by thelatter ones.8 It is this combined effort that changed the international order, and it still

is a trilateral effort of regulatory agencies in the field of competition law whichmaintains the standard of free competition on world markets

Today, however, the major issue in this respect is United States pressure to expandthe field of the lawful use of force in international relations This is a goal which hascharacterised United States policies for many years It becomes more visible as the

8 P Malanczuk, “Telecommunications, International Regulation”, in R Bernhardt (ed.), 4

EPIL 791, in particular Add 1999, at 794 (2000).

military/political restraints on the use of force by the superpowers which prevailedduring the Cold War have disappeared When justifying its use of force, the UnitedStates usually relied on a broad concept of self-defence, be it in the form of anintervention to protect US nationals, e.g Grenada, Panama, be it in the form of

“collective” self-defence (Nicaragua), or with a more complex construction in thecase of the destruction of Iranian offshore oil installations in 1987/88 Theseinterpretations of the right of self-defence have remained controversial, and theyhave in two instances been rejected by the International Court of Justice (Nicaragua

v US 1986, Iran v US 2003) After 9-11, the United States again relied on a broadconcept of self-defence in order to justify the “Operation Enduring Freedom”, thistime without encountering any significant contradiction in the rest of the world (atleast as far as political practice is concerned) Under the impact of US positions,there might indeed have been a certain modification of the law of self-defence, namely

in relation to the question whether the use of force by private actors justifies undercertain conditions a right of self-defence against the State from where these actorsare operating It must be emphasised, however, that all these US strategies to justifythe use of force by the US have been characterised by a kind of low key approach,relying on traditional lines of argument relating to self-defence

The US attitude is somewhat different in the debate about the so-called new threatswhich tries to modify the basic character of the right of self-defence That right has

so far been an exception to the prohibition of the use of force limited to the case of anactual armed attack The National Security Strategy of 20029 explains that these threats(essentially: the combined existence of weapons of mass destruction, rogue Statesand organised terrorism) cannot be effectively met if armed response had to waituntil an armed attack had already occurred or was really imminent Thus, the doctrine

of “pre-emptive action” is developed: As the doctrine has it, the use of force should

be (or is?) lawful as a response to such threat even where there is not yet certainty as

to what type of attack is to be expected If this construction of a right of self-defencebecame positive law, this would be the final blow to the prohibition of the use offorce as enshrined in the Charter and in customary law

Contrary to what certain theoretical minds suggest, this has not yet happened, as

witnessed by the official stance of governments, i.e the main actors shaping the opinio iuris which is relevant for the change or preservation of rules or customary

international law The US/British intervention in Iraq is not a precedent for the newconcept of preventive strikes The existence of a threat has played a major role in thepolitical debate preceding this use of force But when it came to the question of legaljustification, both the United States and Great Britain relied on construing the

9 The National Security Strategy of the United States of America (17.9.2002), available at

http://www.whitehouse.gov/nsc/nss.html (21.9.2004)

existence of a Security Council authorisation, namely the resurrection of the oldauthorisation given in November 1990, the alleged breaches of the 1991 armisticebeing revindicated as the ground of this legal reanimation That legal construction,

in the view of this writer, possesses fatal flaws But the very fact that both governmentspreferred it to that of pre-emptive “self-defence” is of legal significance It probably

reflects an opinio iuris that the good old law of self-defence being limited to cases of

an armed attack actually existing or immediately threatening is still valid Thus, it isfair to conclude that certain neo-conservative approaches propagating a hegemonicuse of force by the United States have not made new international law, so far.That being so, it is still necessary that the international community seriouslyaddresses the issue of these new threats These threats are a reality, despite the factthat they have been grossly overstated in the Iraqi case But there is so far no proofwhatsoever that this cannot be done through reliance on the United Nations SecurityCouncil or a cautious development of international law on a traditional, non-discriminatory basis, i.e without special privileges for a hegemon

July 2004

Austrian Review of International and European Law 8: 25-34, 2003.

New Imperial Order or (Hegemonic)

International Law?

Antonio Remiro Brotóns *

I Introduction

When, on the occasion of the Gulf War (1990-1991), the Soviet Union decided to

cooperate with the US within the Security Council (SC), President George Bush said

that he shared with Mijail Gorbachov the vision of “a world where the rule of law

supplants the rule of the jungle, a world in which nations recognize the sharedresponsibility for freedom and justice, a world where the strong respect the rights ofthe weak”.1

Twelve years afterwards, this vision has disappeared because the US has assumed

an imperial tendency, rightly outlined by professor Zemanek in his introductory essay,2

above all when the right wing Republicans that already had the control of the Congress(1996) conquered the Presidency through courts (2000) It suffices to read the

declaration of principles of the New American Century Project (June 1997)3 and totake account of its signatories4 to realize that the Iraq intervention was part ofAmerican planned policies shaped by people that constitute the core of the currentAdministration, even before the S-11 crimes offered the occasion of putting them inpractice

Although before this date the US foreign policy showed signs of unilateralism,afterwards the Bush Administration has decided to impose a New World Order that

turns around the American security and that is based on the American military

* Professor of International Law and International Relations, Universidad Autónoma of Madrid

1 President Bush, Toward a New World Order, US Department of State Dispatch 1, no 3 (17

September 1990), at 91, available at http://dosfan.lib.uic.edu/ERC/briefing/dispatch/1990/html/Dispatchv1no03.html

2 K Zemanek, “Is the Nature of the International Legal System Changing?”, 8 ARIEL 3

(2003)

3 See http://www.newamericancentury.org.

4 Namely, Dick Cheney, current Vice-President of the US, Donald Rumsfeld, US Secretary

of Defense, Paul Wolfowitz, Deputy Secretary of Defense

supremacy and its readiness to use force Diplomacy and international institutionsmainly work for intervention and war rather than for peaceful dispute settlement andcooperation The outcome is profoundly regressive.

II Leadership, Hegemony, Empire

Nobody questions that the world needs leadership and that only the US can offer it.However, the George W Bush Administration does not bet on leadership,5 but onhegemony; even on the consecration of an Imperial order that denies sovereigntyand sovereign equality with all its consequences.6 We should be “unashamed,unapologetic, uncompromising American constitutional hegemonists”, wrote JohnBolton,—who is today Under Secretary of the US Department of State—in a article

that was revealingly entitled Is There Really “Law” in International Affairs?.7 For

fellows like Bolton, IL hampers American policies insofar as it does not accommodate

to their requirements nor allows the imperial order

Among the symptoms that shows transition to the one (the emptiness ormanipulation of norms in force by reason of hegemonic practices) or the other (aNew Imperial Order) one can mention the current of opinion that denies that treatiesare sources of legal obligations, that consistently rejects their direct effect or thatsubordinates their direct effect to domestic rules; the exclusion of judicial review of

government acts beyond the American territory; the efforts to bring to deadlock the Draft articles on the Responsibility of States for Internationally Wrongful Acts,

approved by the ILC; the fact that Congress Acts are put above the UN Charter andthe denial that only the UN Charter can legitimate the use of force, with the exception

of the right of self-defence; or the affirmation that there is no UN competence toreview the US decisions on foreign policy and national security

The increasing manifestations of legislative and judicial imperialism are also

symptomatic: Acts that authorise the use of force abroad to arrest—even to annul if

necessary it be—people that are requested by federal justice or that are consideredterrorists; the replacement of diplomacy by systematic use of retorsion and (armed)reprisals; the irresistible tendency to replace norms and institutions by non-legal

5 Leadership implies to attend to the others’ interests, to sponsor negotiations of compromises

in multilateral fora and to get that the others not only do but desire to do what one wantsthem to do

6 See D V Vagts, “Hegemonic International Law”, 95 AJIL 843-844 (2001).

7 J Bolton, “Is There Really ‘Law’ in International Affairs?”, 10 Transnational Law and Contemporary Problems 1, 48 (2000).

(political) compromises; the invocation of religious freedom to introduce by force amanipulating and reactionary thought etc.

Besides, the US gathers too many noes to multilateral cooperation that their closest European allies have not only supported but sponsored The US has said no to the Comprehensive Nuclear Test-Ban Treaty, no to the Verification Protocol to The Biological Weapons Convention, no to the Land Mines Convention, no to the Kyoto Protocol; no to the ICC Statute (this is, in addition, a target of their hostile activity)

etc As noted by Zemanek, this may appear to other States as “a manifestation of poorcommunity spirit” with “ominous implications” on the overall process of internationallaw-making and the achievement of the purposes of the regulation.8

III The Centrality of Security

Security has always been a core concept in the building of an institutionalized system

of international relations The UN Charter made of it its backbone This security, theCharter’s security, was closely related to peace Both concepts appear together intwenty-nine out of the thirty-two occasions in which they are mentioned in the Charter.This link of security to peace, provides security with a positive energy, accentuatedwhen peace is related to freedom, justice, or development On the other hand, the

Charter’s security was—and it is—a collective security, in spite of the limits imposed

on it by the Council decision-making process

The security that is the core concept of the new order prefers to be termed

“democratic”, “energetic”, “ecological”, “economic” or “demographic”—whichinsists on the perception that we are living a high risk society—to its former link to

peace, justice, freedom or development In addition, it is a positional security: it is

“my” or “our” security—the North’s security, the US and its clients’ security—that

reacts against “their” threat (the South’s threat, the axis of evil one), caused by

terrorism, drug trafficking, irregular immigration waves or the possession of armsthat are only in good hands if they are in our hands

This outline reinforces the return to an individual and groupal self-preservation tothe detriment of the UN Charter The US and their client states are entitled, as it issaid, to protect “their” security, where they think it is endangered, by making recourse

to the means they chose, including recourse to armed force Therefore, blacklisting,

so loved by the American Administration as a means to discredit the others, is not

surprising The goal is to get the others socially and legally excluded so that theybecome the target of the US and their client states use of force without provoking

8 Zemanek, supra note 2, at 9.

negative reactions or scandals The document on the national security strategy of the

US (2002) even makes of the Rogue State a category.9

Nevertheless, in democratic countries, the first victims are individual and collectiverights, public freedoms, judicial guarantees, transparent and plural information,restriction in the use of repressive force

IV Military Supremacy and Readiness to Use Force

The US looks for a supremacy that avoids any kind of competition, prevents policiesagainst it and fights against any tendency of its allies to deviate from it The republican

majority wants less State, even less diplomacy, but an increment in Defense budget.

President Clinton had foreseen these risks when he vetoed the Foreign OperationsAppropriations Bill (H.R 2606), that meant a drastic budget cut to the Department ofState “By denying America a decent investment in diplomacy, this bill suggests weshould meet threats to our security with our military might alone ”.10

There is a propensity to use military power within what Marcelo G Kohen has

denominated a culture of force.11 As it had happened in Kosovo and Afghanistan, inIraq the US disdained the UN Charter and the competences of the SC under Ch VII.However, in contrast with what happened in Kosovo (where one could claim ahumanitarian intervention) or Afghanistan (reaction against terror), the reasons tointervene in Iraq (possession of weapons of mass destruction, terrorism networks)

have been perceived as a pretext to remove a hostile regime and replace it by a friendly one (shall we call it democratic?) that allows Washington to deploy its military power

to control energetic resources and to intimidate those that in the agitated Middle Eastneighbourhood react against Washington’s dictates

The mentioned document on US national security strategy (2002) widens the notion

of self-defence so as to accommodate, it says, the concept of imminent threat to thecapabilities and objectives of today’s adversaries, in the first place terrorists and theStates that shelter them.12 “Our best defense is a good offense”, argues President

9 The National Security Strategy of the US of America, September 2002, at 13-14, available at

http://www.whitehouse.gov/nsc

10 Available at http://www.usembassy-israel.org.il/publish/peace/archives/1999/october/me1018e html

11 M G Kohen, “Manifeste pour le droit international du XXIe siècle”, in L Boisson de

Chazournes/V Gowlland-Debbas (eds.), The International System in Quest of Equity and Universality Liber Amicorum Georges Abi-Saab, 123, 130-131 (2001).

12 “The National Security Strategy”, supra note 9, at 15.

Bush.13 It must be said that however flexible, the concept of self-defence cannotinclude, as it is claimed, situations in which a presumed enemy’s bad intention isassimilated into a specific, precise and aggressive decision The fight against terrorismleads to pre-emptive action which finally becomes applicable to any threats to what

the American Administration considers its vital interests Furthermore, pre-emptive

action becomes applicable to any hegemonic or imperial plan The fact that defence has not been invoked to invade Iraq, allows us to suggest that even for theBush Administration the doctrine of the “pre-emptive intervention” is susceptible ofbeing the axis of an Imperial Order or a new Hegemonic IL; it cannot be the expression

self-of the IL in force, which is based on the principles self-of the UN Charter

V The Instrumentalisation of the United Nations and Other

International Organisations

The hostility of republican fundamentalists to the UN and in particular to the SC isdeeply visceral Thus, until the SC has opposed to the disproportionate BushAdministration projects concerning Iraq, the US has managed to use the Council as

an instrument of its policies, moderating its objectives, reducing the tone and beingpersistent Given the position of the United States, the Council can only aim, if it is

not left aside, to drive or moderate the American policies by legalising them The

Council should not act arbitrarily, but there are no ways within the UN system tochallenge the conformity of its resolutions with the Charter

These years, we have witnessed the SC disposition to assume American policies

or, if needed, to look away from them The Council has renounced to its centralitywith regard to the institutional recourse to the use of force; it has left in the hands ofmember States peace enforcing operations, either ignoring them or simply formallyauthorising them; at the request of the United States, the Council has assumed(normative, judicial) tasks that the UN Charter reserves for State relations or grants

on other organs (General Assembly, ICJ); it has given to its permanent Membersevery kind of licences even that of being both judge and party to the settlement ofdisputes with third parties; it has fuelled arbitrariness by applying different measures

to situations that are materially similar, particularly with regard to Israel; the Councilhas lacked willingness and energy to get its resolutions complied with when a party

has a patron (Western Sahara); finally, it has exercised roughly the competences

granted on it by the Rome Statute (Article 16) when it has requested the Court not tocommence or proceed with investigation or prosecution against nationals of Statesthat are not parties to the Statute of the Court that participate in peace keeping

13 Ibid., at 6.

operations authorised by the Council (Resolution 1422-2002 and 1487-2003).14

The US acts on its own when the United Nations “fail”, when it finds obstacleswithin organisations that it controls or simply when so require its interests and

“singular responsibilities”.15 Occasionally, it builds ad hoc coalitions, and it satisfies

its logistic and intelligence needs by exercising its influence and direct pressure onStates that can supply them; it takes for granted that organs like the SC or the UNSecretary General will accommodate to facts, by making pragmatism to prevail overthe half-heartedly defense of their prerogatives

Subsequently, the US has not hesitated to sit on the Security Council both to broadenmeasures involving the use of force that help to develop its policies, with theconsequence that third countries are forced to apply them, and to endorse agreementsreached outside the Council, for instance those reached in Kumanovo (for Kosovo)

or in Bonn (for Afghanistan), including the deployment of international forces The

same has happened in Iraq with the adoption of resolution 1483 (2003) that assumes

the Authority set up by the occupying States; or even more, resolution 1511 (2003)

which authorises a multinational force under unified command (the US)

VI The Aggression Against Iraq

Colin Powell, US Secretary of State, warned two weeks before the Iraq aggressionthat “The US will invade Iraq with a coalition of like-minded nations with or withoutthe UN authorisation” President Bush had previously received the Congressauthorisation; consequently it had satisfied the legal requirements that may causeconcern to him

It had been a Bush administration policy to discredit in advance the fruits of aninspection that resolution 1441 (2002) had rightly toughened and to exert intolerablepressure on the chairmen of the UNMOVIC and IAEA and on the members of the SC.With arrogant manners, President Bush required from the Council “determination”

to act He called upon it to assume “its responsibilities” while warning at the sametime that “time comes to an end” It seems that Council’s relevance was linked to itswillingness to give cover to US policies—as the Council had previously done.Zemanek is right when he claims that the manner in which the campaign against Iraqwas conducted strengthens the suggestion of an imperial strategy Iraq was subdued

14 Res 1497 (2003) goes further It authorises a multinational force in Liberia and decides(para 7) that current or former officials or personnel from a contributing State which is notparty to the Rome Statute “shall be subject to the exclusive jurisdiction of that contributingState” unless “such exclusive jurisdiction has been waived by that contributing State”

15 “The National Security Strategy”, supra note 9, at 25 and 31.