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Historically the Insistence of a Powerful State

Historically the insistence of a powerful State not to adhere to international agreements which do not meet its interests is completely unremarkable. Nevertheless, it would be too easy to argue that it rests within the discretion of each single state to ratify or not to ratify international agreements. Although it would be equally unsustainable to argue that the United States is under an obligation to accede to international commitments if and when the respective international agreements have found the approval of a representative majority of the community of states or that there is an obligation of the United States to consider its adherence by taking into account not only its national interests but also the ones of those states willing to commit themselves. Certainly the United States should refrain from undermining the commitments undertaken by other states. It is for this reason that its actions by concluding bilateral agreements against the International Criminal Court are hardly defendable. However, it would be incorrect to argue that the United States is generally unwilling to accept international commitments or to honor them. In respect of the latter aspect it is a misconception to equal the ratification of an international human rights agreement with a genuine undertaking to effectively implement international human rights standards. It is a frequent phenomenon, well known to human rights treaty bodies, that states argue by having ratified a particular international human rights agreement to have done everything necessary. This policy is indirectly endorsed by interest groups which advocate additional human rights agreements without considering whether a more effective implementation of existing instruments would be more appropriate. How little counting the number of ratification concerning the real protection of human rights means becomes evident by considering the membership to the Convention on the Elimination of the Discrimination against Women and the status of women in some of its member states. It is a truism that not the ratification of an international human rights treaty proves the commitment to human rights standards but its effective implementation and the faithful report thereon. A quick ratification of international human rights agreements do not necessarily prove a respective commitment but may rather be an indication to the contrary.

Nevertheless, it is necessary to fathom why the United States increasingly refrains from becoming a party to international agreements and what that means for the development of international law. What makes the situation a particular one is that an increasing number of international agreements have a normative function and, thus, are a surrogate of international legislation. Considering the attitude of the United States it seems as if it is particularly reluctant to commit itself to multilateral interna­tional agreements which are meant to form part of the international normative order that is such part of international law which serves the interest of the international community of states rather the ones of two states or of a particular group. All inter­national human rights agreements, international environmental agreements are meant to protect goods considered by the international community worth protecting, such as climate, the ozone layer and biodiversity to name just the ones which belong beyond dispute to this category and arms control as well as disarmament agreements or agreements on humanitarian law may be qualified as being part of such an international normative order. The international agreements the United States has recently decided not to accede to belong to this very category whereas the United States continues to conclude bilateral agreements or agreements having a more limited scope. Nevertheless, many of these international agreements enter or have entered into force although without the United States, such as the two Additional Protocols to the Geneva Convention, the Convention on the Law of the Sea or the International Covenant on Economic, Social and Cultural Rights. Thus a corpus of norms is in the process of being developed to which the majority of States is committed but not the United States. This one may assume will result in the development of a two track international law one including the United States the other not.

However, the situation is even more complex. Even in cases the United States is not formally committed to a particular international agreement this does not mean that it does not consider the respective rules as binding. For example, many-certainly not all-of the rules enshrined in the First Additional Protocol to the Geneva Conventions are considered by the United States as being part of customary inter­national law. The same is true in respect of the Convention on the Law of the Sea, except for its Part XI on deep seabed mining. By protesting against unjustified claims by coastal states the United States has done more to preserve the delicate balance of the Convention on the Law of the Sea than other states. Nevertheless, the international legal order is in the process of developing as two tracks, one with the formal commitment of the United States the other without. To close the gap or to prevent it from widening is one of the challenges international law faces at the moment.

But what is the reason for the reluctance of the United States to enter into commitments as far as the international normative order is concerned? This American exceptionalism may be the result of an incoherence of interests compared to the ones of the majority of states. If this is the case, it is necessary to reconsider the international negotiation process from the point of view whether it is well designed to accommodate the interests introduced into that process. One has to fathom in each single case why the United States could not have been accommodated either directly or be developing a respective package deal which induced the United States to adhere. In this context one should equally consider whether the United States has formulated its interests clearly and whether the majority wanted to achieve a certain result by referring to its numerical strength. International negotiations although producing legal norms- cannot procedurally be equaled with a national norm making process. International agreements are still considered by national governments and national legislatures whether they offer enough incentives which justify a formal commitment. It may, however, be that the decision not to ratify an international agreement is a result of a reassessment of the government or of a different opinion of the national legislative body. In the latter case this points towards a structural deficit in the respective state organization concerning the conduct of international relations.

To sum up on this point. The hegemonic position of the United States makes it necessary that its position is to be taken into account in treaty negotiations if the effective implementation of that given treaty depends on the participation of the United States. As far as international human rights agreements are concerned that may not always be the case. It is different, though, in respect of agreements on the protection of the international environment. For example, the failing commitment of the United States to the Kyoto Protocol severely curtails the effectiveness of this instrument whereas the reluctance of the United States to ratify the Convention on the Rights of the Child is of less direct significance for the global protection of children’s rights. The pragmatic approach advocated here merely reflects realities and should not only be seen under the auspices of the hegemony the United States is exercising. The present state of international relations rules out the developments of international rules on particular issues without making sure that those states who have to carry the main burden of the commitment will be willing to accept them. For example, it would have been unrealistic to adopt a treaty on outer space without the United States and the USSR or an international agreement on the protection of the tropical rain forests against the will of the respective states.

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