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Reflections on the Development of International Treaty Law

Karl Zemanek points out that the “international system is presently in a period of transition” and refers to the fact, amongst others, that there is a dichotomy between the principle of legal equality of states and the “imperial” policy pursued by the United States. As to the reference to the transitional nature of international law it has to be pointed out that international law never was static and has been and will be in a permanent process of development. This is a mere reflection of its nature and its objective. However, a new factor has to be taken into consideration namely the hegemonic power of the United States at the moment.

The following brief contribution will touch upon only on one of the several factors which are considered at the moment, namely the development of international treaty law under the auspices of the hegemonic power of the US and globalization.

It has frequently been pointed out by numerous authors that the US has refrained from acceding to several international agreements. It has renounced the Kyoto Protocol and it has withdrawn the signature of the Rome Statute of the International Criminal Court. Further recent examples of international agreements the US has refused to join are the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (2000), the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) and an Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2002). In the late 1980s and 1990s the United States has ratified several important international human rights agreements, such as the Convention against Genocide, the Convention Against Torture, the International Covenant on Civil and Political Rights and the Convention on the Elimination of all Forms of Racial Discrimination. It has not ratified yet, though, the two Additional Protocols to the

Four Geneva Conventions and the International Covenant on Economic Social and Cultural Rights. In acceding to international human rights treaties, such as the Covenant on Civil and Political Rights the United States has appended a multiplicity of reservations purporting to establish that the treaties did not apply directly on the national level, required no change in United States law and left the United States free to disregard international interpretations to the contrary. As far as the Rome Statute is concerned the United States has undertaken every effort to ensure that the jurisdiction of the International Criminal Court would not extend to United States citizens. This attitude of the United States towards international agreements has been referred to as American exceptionalism or as an indication of American unilateralism and has been related to its hegemonic position or policy.

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