The State of International Law Today

Today, international law seems to be in a paradoxical state. On the one hand there are signs of a loss of its authority, and perhaps even signs of its disintegration, as the US ambiguously either violates some of its rules or puts forward politico-legal justifications by which important rules would lose their capacity to make behaviour foreseeable. Some political rhetoric even goes further. On the other hand there is an increasing amount of international treaty-making and legislation taking place which suggests that the building of an international legal order is in full blossom. There are two alternative models which may serve to interpret this state of affairs (1.). They can be applied to different areas of international law, such as treaty-making (2.), jurisdiction, (3.), and human rights (4.). Two Models A first model would see the paradox as confirmation that international law is indeed changing towards a hierarchical system with the US in a position of unaccountability at the top: International law develops as far as the others bind themselves or let themselves be subjected to exercises of political power by the US which is itself much freer from legal constraints. This model can be called instrumental, as international law is seen to be relegated to an instrumental role, that is the role of stabilising the rule of the governing actor who himself remains relatively unconstrained. Treaty-Making Recent treaty-making exemplifies this paradox: The US has been reluctant to participate in major recent law-making treaties. The best-known examples are the Statute of the International Criminal Court, the Kyoto Protocol, the Landmines Convention, the Comprehensive Test Ban Treaty and the Biological Weapons Verification Protocol. It is too simple to say that every state has a right not to participate in a treaty, just as it is too easy to say that a leading state has a moral obligation to participate in international law-making. The more appropriate approach for our purposes is to ask whether such treaties are likely to become law only for the second-rate rest of the world, serving the unbound imperial power to preserve stability, or whether a “compliance pull” (Franck) on the reluctant super-power will emanate from them. It is possible that a working International Criminal Court, for example, will mobilise moral sensibilities demanding equal justice for all, sensibilities which are particularly embedded in Western societies. An environmentally free-riding US should be difficult but not impossible to persuade. Human Rights Human rights are currently under particular pressure from the US. Since the attacks of 11 September 2001, security concerns are being given a higher priority at the expense of the rights to life, liberty, property, privacy and others. “Guantanamo” has become a symbol of the US effort to free itself from certain international humanitarian and human rights law constraints in its “war against terrorism”. It is important to note, however, that such pressures on international law have little, if anything, to do with the contemplated “changing nature of the international legal system” from a more egalitarian to a more hierarchical legal order. Human rights are already the result of a certain loss of the egalitarian character of international law. They are primarily directed against the exercise of hierarchical exercises of authority

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