The question of this agora is whether the nature of the international legal system is changing due to the hegemony of the United States. An answer must begin by clarifying what we mean by “change.” Ideally, a legal system can change through evolution or revolution.
Revolution?
A good number of authors claim that the general reluctance of the United States to abide by international law, its selective approach to international norms, and its policy of active obstruction with respect to specific legal regimes constitute a fundamental challenge to the current legal order that runs the risk to be destroyed or annihilated. In terms of legal theory, these observations more or less explicitly contain the argument that a genuine revolution in international law is taking place.
The last American revolutionary act was, from this point of view, the arrogance of a special American privilege of preemptive self-defense, the selective disregard of the prohibition of the use of force, and the corresponding assertion that war is merely political by others. media. In this perspective, the war of aggression was not illegal, but extralegal, justified by greater legitimacy, in short, a “just war.” It marks the beginning of a completely new and asymmetric international legal order.
What does that involve? Revolution means legal discontinuity. It means destroying the old international legal order and establishing a new order whose legality cannot be measured by the standards of the old. In Kelsen’s terms, a revolution is a change from the basic norm (Grundnorm). If the old ground rule were: “states should behave as they have habitually behaved”, the new ground rule would be: “states should behave as it is in the interests of the United States.”
However, the theory that we are in the midst of a revolution in the international legal order is not entirely convincing. The absence of a genuine revolution can be demonstrated, first of all, with regard to the events in Iraq. The American justification for the Iraq war was twofold. On several occasions, the United States asserted greater legitimacy and denied the need for a UN mandate for the use of military force. This attitude, by the way, is not new to the Iraq crisis, but it had already been affirmed by the Clinton administration: “We act in concert with the international community whenever possible, but let us not hesitate to act unilaterally when necessary. “.
However, this claim for unilateral action does not incorporate either explicitly or by necessary implication a willingness to ignore or violate the law. Unilateralism is not a crime under international law. And even breaking the law in one or more specific cases does not necessarily amount to denying the validity of the norm in question or the validity of the entire system.
Furthermore, the United States has never officially declared the existing prohibition on the use of force to be out of date or irrelevant. It has not asked for a different international law. Instead, he fought for a long time during the Iraq crisis for a Security Council mandate. When it did not obtain authorization, the United States argued, in its official letter to the UN Security Council, that the military actions were authorized under existing Council resolutions, particularly resolutions 678 (1990) and 687 (1991). relating to the Gulf War. 1991. In addition, the US relied on the state’s inherent right to self-defense, which it claimed to “adapt” through its doctrine of prevention. Both justifications are legally untenable, but they are made within the legal order.
Lawyer constructs of this type may amount to abusing the law as a mere fig leaf to cover actions motivated by a perceived (perhaps erroneous) reason of status. Such a fig-leaf function of law can undermine its normative power. However, in light of our initial question of whether a revolution is taking place, it is important to realize that the American argument in no way implies a revolutionary claim.
Second, when it comes to US maneuvers regarding the Kyoto Protocol, the Landmine Convention, or the ICC, it is of course significant that the United States abstains from important multilateral constitutional treaties that are milestones in the evolution of the post-1989 politics. global order. Therefore, the US excludes itself from important parts of the international system. This strategy results in uneven legalization of international relations: other states are bound by bold new rules, but not the US However, slowing down progress is not a violation of international law. Despite tiers-mondiste’s theories about the general duty to cooperate in the international arena, and despite the current increase in traites-lois, which seem somewhat hostile to the notion of freedom of contract, a general legal duty to cooperate or contract it doesn’t (yet) exist. Thus, American isolationism does not violate or revolutionize international law.
Third, although the conditions of US aid oblige dependent states to comply, this policy is not prohibited by current legal regulations. Beneficiaries do not have a legal right to receive help. Consequently, the American conditions do not constitute an intervention in internal affairs and the sanction of withdrawal of benefits does not infringe per se (without specific agreements or legitimate expectations) any legally valid position. Overall, it appears that US unilateralism and even deviations from international law have yet to establish a “new” international legal order.
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