The fundamental question raised in Karl Semanek’s introductory article is: should we change the norms of international law, because now, unlike the situation that existed before, there is only one subject who can take the crushing power of concentrates into their own hands? Is there, or rather, is there a new hegemonic or “imperial” system to create and enforce the law?
The imbalance or asymmetry of power made it difficult for the process of establishing international law because reciprocity was lacking as a driving force for mutual commitment. But this is not a new phenomenon. International law has dealt with them for centuries. In the 17th century, there was an imbalance of power between different nations competing at sea, especially between the Dutch and the British. Despite Britain’s overwhelming naval power, the mare liberum principle was respected, protecting the weakest users of the sea.
This story should warn against premature conclusions about the creation of a new world hegemonic order. Further study of rule-making processes is necessary to determine the true impact of the overwhelming power of the United States on modern processes or, if more fashionable, the “postmodern” legislative processes are used. I would like to clarify the main questions as follows: does the United States have a special veto power to develop new international rules? Can the United States amend existing international law if the relevant American actors consider them contrary to American interests? Or, more generally, does the United States have a special “imperial” role in the legislative process, and if so, what?
So far, the international community has not abandoned its decentralized, consensual legislative procedures. But on the other hand, the government has always influenced the search for consensus. Influence on the decisions of others is the essence of power.
America’s non-participation is an effective veto?
Let’s first consider the non-participation of the United States in international agreements. Is there an American veto?
There are still a number of human rights treaties that the United States is not a party to because it does not like these treaties. The most well-known examples are the Convention on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. This absence of the United States, regrettably, has not prevented these treaties from forming successful treaty regimes. The treaty bodies had been set up to work on the implementation of treaties, and there was no indication that the absence of the United States had any impact on the viability of those treaties.
In the area of international humanitarian law, the absence of the 1977 Geneva Conventions’ Additional Protocols in the United States, which is also controversial in the United States, may be more serious. What impact does the lack of substantial military force have on the functioning of the treaty regime with regard to the law of war? It should be recalled that the United States was very active in the negotiations and that it and its NATO allies sought to address some of the issues related to certain provisions of Protocol I (in particular, However, many Allies have long hesitated about ratification, but now all are members of the club except the United States and Turkey.
It is true that the application of international humanitarian law, as always, is fraught with difficulties. The United States played its part in the crisis by stating that certain categories of people, “illegal combatants”, are not entitled to certain protections under IHL. But this has nothing to do with the absence of a Treaty Regime protocol in the United States of Protocol I. Relevant norms – the norms of customary international law and the Third Geneva Convention, of which the United States is a party. Let’s go back to the common law issue.
The absence of the United States in the ICC Statute is indeed a serious problem. This usual regime also works despite the absence of the United States. The statute now has more than 100 parts, the Court was created, a prosecutor was elected. But the practical significance and effectiveness of the Court remains to be seen. The list of absentees, except the United States, is important. Whether the Court would indeed have jurisdiction over a material conflict was also an open question.
Moreover, what distinguishes the absence of the United States from the previous ones in this case is the active hostility that the United States shows to the ICC. This has probably delayed ratification by some States. The energy with which the United States uses legitimate means to ensure that American labor will not be harmed is remarkable. The instruments of this policy are the immunity agreements concluded with the United States, sometimes under great pressure, by a number of States and Security Council resolutions, which, in the case of UN peacekeeping operations or UN-sanctioned military operations, are not. parties to the ICC Statute that fall under the jurisdiction of the Court.
The legality of the two devices is highly questionable. The Security Council adopted the first resolution after the United States vetoed a resolution extending the UN mandate for Bosnia and Herzegovina – a grim package! This example shows that the development of international law is difficult to move forward when the relevant actors in the United States firmly believe that this is contrary to the vital interests of the United States. However, it should be noted that in the case of the ICC, the United States has three main silent allies: Russia, China and India. Russia’s position is particularly problematic because it ratifies a number of declarations. But the true political value of these promises is becoming increasingly questionable. For China and India, the Court constitutes, at least for the time being, an unacceptable violation of their sovereignty. On the other hand, it should be noted that further extension of Security Council resolutions in 2004 would not have been possible because it would not have received enough votes in the Security Council.