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The Proper Role of the US

All the preceding observations, which have exposed many of the failures of the US, should not be misunderstood to mean that the world does not need the US. On the contrary, the international community does need the support and cooperation of the most powerful State in implementing its fundamental rules. Many States confine themselves to lamenting about dangerous developments in international society without bothering to take any initiatives to cure the ills identified by them. The international community is dependent on States which are sufficiently conscious to concern themselves with general issues and sufficiently powerful to look beyond their boundaries and eventually to initiate appropriate international actions. But a true hegemon, who is recognized as such, must assume responsibilities towards the international community and cannot pursue primarily selfish interests. In that regard, the US is to praise for its zeal in attempting to prevent the spreading of nuclear weapons in accordance with the terms of the Non-Proliferation Treaty of 1 July 1968. Both the US and the world at large will benefit if any further expansion of the group of nuclear States can be blocked. Less impressive is the leadership of the US in combating the spread of biological weapons: at a review conference in Geneva in November 2002, it defeated the adoption of a verification protocol providing for inspection of sites where biological weapons could be produced. This is again an example which shows that US interests do not necessarily coincide with the interests of the international community.

The US does indeed have a leading role which the international community accepts. The proper place for it to play that role is the Security Council, where it can and must cooperate with other nations. The international community is prepared to grant it a preponderant position, provided that some checks and balances exist as they govern, in particular, the procedure of the Security Council. On the other hand, it cannot commit itself to the whims and fancies of a Congress that pays little heed to the international obligations of the US. Unfortunately, not even the judicial branch of the US system of government has earned for itself more credibility. In Alvarez Machain, the highest judicial body departed grossly from self-evident requirements of international law, and for almos two years now American judges have denied to the prisoners at the US base of Guantanamo the most elementary guarantees of fair trial as they are enshrined in the International Covenant on Civil and Political Rights, thereby even reneging on their own constitutional tradition.

An American libertarian and statesman wrote to a correspondent in the summer of 1816: “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times”.

That new rules need to be established and old rules ought to be amended in their letter or meaning, or erased altogether, is not subject to doubt. What bothers Karl Zemanek, if my perception of his worries is correct, is a mode of changing rules unilaterally and by stretching them to a breaking point and beyond. Emerging new rules are confusing-partly because they are not clearly defined and may be changed by a “Big Boy on the Block” at his will and occasionally unbeknownst to others, and partly because he can claim at own convenience that “the course of this nation does not depend on the decisions of others”.

What may disturb an international legal academic, is that this policy finds support in writings by some of his own breed. What might encourage him, is that there are quite a few who are opposed to it or who are in constructive doubt.

A “period of transition” of international system identified by Karl Zemanek, may otherwise be described as a post-Cold-War world order. Like any post-war period it abounds in gaps left by global, regional, or national security arrangements of the bi­polar world now defunct. Before those gaps are patched they will be viewed as windows of opportunity by a variety of actors, both non-state entities and sovereigns, ranging from nationalistic insurgent groupings to international terrorist networks to states striving to seize regional or global vantage grounds, or, in other words, to fish in troubled waters.

What Karl Zemanek’s analysis seems to omit is the permissive attitude of others to earlier symptoms of “arrogance of power”. For example, one might argue that the UN Security Council Resolution 678 of 29 November 1990, which authorized the use of “all necessary means” to subdue Iraq, eroded the Council’s powers and pro­cedures. In preceding resolutions the Council stopped an inch short of calling Iraq “aggressor”, which it may, and ought to have done. In Resolution 678 the Council went farther than delegating authority to a coalition of the willing, rather it almost unconditionally relinquished its own authority. It gave sanction to the use of violent force, notwithstanding an abstention of one of its permanent members.

The air campaign against Yugoslavia and “humanitarian intervention” in Kosovo, conducted with support or modest participation of those who currently oppose the grounds for, and the manner of the US invasion of Iraq, is another example.

Or consider a more recent case. The restrictions on the use of the UN Charter have been loosened by a reference to the “inherent right of individual or collective self-defence” in the final paragraph of the preamble to the Security Council Resolution 1368 of 12 September 2001, without an explicit link to an “armed attack” as required by the letter of the Charter.

The “unique role of the United States” which according to Karl Zemanek is leading to, and could define either superficial alterations or profound transformation of international system, does not always enjoy legitimacy under current postulates of international law, shared by many, or to which most at least pay lip service. However overwhelming capabilities that sole superpower may possess, they alone are unlikely to ensure legitimacy of however benevolent intentions it might have, and that will require not only consent of others, but concert of multiple actors. A resurrection of bipolarity is rather unlikely, at least in the foreseeable perspective, nor would it seem to be expedient. Multipolarity, on the other hand, will not be established by a binding resolution of the Security Council: it would have to emanate from a new global balance of powers and influences. As to the legal dimension, a Russian author might have had a point when he suggested that “international law prospectively would have to become inter-civilizational, reflecting interaction and confrontation of ideas of various religions, ideologies, juridical systems, values, and would strive for their synthesis”.

Looking over the horizon is not the capacity that this author may boast of. However, there are definitely more immediate areas of concern where existing legal regimes need reinforcement, or where less formal mechanisms might benefit from enhanced verification and enforcement, or where emerging arrangements could acquire credibility by addition of a legal component.

Few would doubt that the nuclear non-proliferation regime is crisis. The Treaty on Non-Proliferation of Nuclear Weapons could not prevent the appearance of states that have a proven nuclear-weapon capacity (India and Pakistan) or whose nuclear capability is almost beyond reasonable doubt (Israel) or close to being such (North Korea). The non-proliferation ‘success story’ of South Africa, which destroyed its own weapons, should probably be taken with a grain of salt because the know-how and its human custodians are still there.

Let me leave to political scientists to deal with a riddle of whether there is less stability in South Asia now that both major regional rivals have nuclear weapons, or whether there would be more stability in the Middle East with Israel being a confirmed non-nuclear state. Consider this: can NPT and IAEA effectively deal with further proliferation? Are universal prescriptions of the global regime applicable to regional maladies? Could NPT regime be strengthened by more stringent enforcement and preventive mechanisms? And if further proliferation is inevitable, wouldn’t it make sense to develop an enforceable code of nuclear conduct based on the experience of nuclear veterans?

Missile Technology Control Regime remains a legally non-binding arrangement. Making it binding, verifiable and enforceable could be a way of dealing with proliferation of ballistic missiles.

A recent Proliferation Security Initiative that envisages maritime and aerial inter­diction of weapons shipments, as it stands now, may well run against established rules of the law of the sea, including those codified in the respective UN Convention of 1982. While the Initiative’s goals may be shared by many, cooperatively accommodating it with international law would add credibility to it.

Exploring those avenues of constructive engagement could well be an exercise in wishful-and futile-thinking, and ultimately Karl Zemanek may be right in his sobering advice not to persist “in the fantasy of a world based on the equality in law of all members of the international system”. However, even the most consistent advocates of a radical change of the international legal system have to admit that “American hegemony will not last forever”.

In that same letter written in the summer of 1816 Thomas Jefferson cautioned his compatriots against seeking “through blood and violence rash and ruinous inno­vations” to laws and constitutions, which, “had they been referred to the peaceful

deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms”.

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