Austrian Review of International And European Law 2003 Austrian Review of International and European Law

AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW


AUSTRIAN REVIEW OF INTERNATIONAL AND EUROPEAN LAW

Volume 8


AUSTRIAN REVIEW OF
INTERNATIONAL AND EUROPEAN LAW
Volume 8, 2003
Editor-in-Chief

Gerhard Loibl
Executive Editor

Stephan Wittich

MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON


Published with support from the Federal Ministry for Education, Science and Culture, Vienna, Austria.

A CIP Catalogue record for this book is available from the Library of Congress
Suggested citation: 8 ARIEL (2003)
Manuscripts, editorial communications and book reviews as well as books for review are
welcomed and may be sent to:
Editor, Austrian Review of International and European Law
c/o Department of International Law
University of Vienna

Universitätstraße 2
A-1090 Vienna, Austria

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ISBN 90-04-14454-4
© 2005 Koninklijke Brill NV, Leiden, The Netherlands

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AUSTRIAN REVIEW OF INTERNATIONAL AND
EUROPEAN LAW
EDITOR-IN-CHIEF
Gerhard Loibl
Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

EXECUTIVE EDITOR
Stephan Wittich
Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

ASSISTANT EDITORIAL MANAGER
Ursula Kriebaum
Institut für Völkerrecht und Internationale Beziehungen, Vienna, Austria

EDITORIAL BOARD

F. Cede, Vienna, Austria
P. Fischer, Vienna, Austria
G. Hafner, Vienna, Austria
W. Hummer, Innsbruck, Austria

W. Karl, Salzburg, Austria
H. Neuhold, Vienna, Austria
M. Nowak, Vienna, Austria
C. Schreuer, Vienna, Austria
K. Zemanek, Vienna, Austria

ADVISORY BOARD
W. Balekjian, Glasgow, Scotland
J. Crawford, Cambridge, England
P.-M. Dupuy, Paris, France
T. M. Franck, New York, U.S.A.
K. Ginther, Graz, Austria
G. Handl, New Orleans, U.S.A.
K. Herndl, Strasbourg, France
M. Koskenniemi, Helsinki, Finland
H. F. Köck, Linz/Auhof, Austria

S. C. McCaffrey, Sacramento, U.S.A.
A. Randelzhofer, Berlin, Germany
W. M. Reisman, New Haven, U.S.A.
M. Rotter, Linz, Austria
B. Simma, The Hague, the Netherlands
L. Sucharipa-Behrmann, Vienna,
Austria
C. Tomuschat, Berlin, Germany

H.-J. Uibopuu, Salzburg, Austria
F. Weiss, Amsterdam, The Netherlands
L. Wildhaber, Strasbourg, France


Manuscripts, editorial communications and book reviews as well as books for review
are welcomed and may be sent to:

Editor, Austrian Review of International and European Law
c/o Department of International Law
University of Vienna
Universitätstraße 2
A-1090 Vienna, Austria

/>

i

Contents

Agora: Is the Nature of the International Legal System Changing?
Gerhard Loibl & Stephan Wittich
Introduction ........................................................................................................................... 1

Karl Zemanek
Is the Nature of the International Legal System Changing? ............................................... 3

Sir Franklin Berman
What Does ‘Change’ Mean? International Law vs. the International Legal System ....... 11

Michael Bothe
No Need to Panic! Or: plus ça change, plus c’est la même chose ...................................... 17

Antonio Remiro Brotóns
New Imperial Order or (Hegemonic) International Law? ................................................ 25

Thomas M. Franck
After Austerlitz: The International System in the Age of Rampant
American Unilateralism ...................................................................................................... 35

Andrea Gattini
Two Faces of Hegemony ..................................................................................................... 49

Martti Koskenniemi
The Empire(s) of International Law: System Change and Legal Transformation ........... 61

Vaughan Lowe
Is the Nature of the International Legal System Changing?—A Response ....................... 69

Donald McRae
United States Unilateralism: Cause or Symptom? A Brief Response to
Professor Zemanek ............................................................................................................. 75


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Austrian Review of International and European Law

Georg Nolte
The International Legal System: Is its Nature Changing? ................................................ 81

Mary Ellen O’Connell
Who Helps the Hegemon? ................................................................................................... 91

Alain Pellet
Can International Law Survive US “Leadership”? ......................................................... 101

Anne Peters
The Growth of International Law between Globalization and the Great Power ............ 109

Pemmaraju Sreenivasa Rao
Is the Nature of the International Legal System Changing?—A Response ..................... 141

August Reinisch
Does US Hegemony Change the Nature of the International Legal System?—
A Reply to Professor Zemanek ......................................................................................... 153

W. Michael Reisman & Scott Shuchart
Unilateral Action in an Imperfect World Order .............................................................. 163

Hélène Ruiz Fabri
Is the Nature of the International Legal System Changing?—A Reply .......................... 179

Eric Suy
Is the International Legal Order in Jeopardy? ................................................................ 187

Christian Tomuschat
A New World Order Dominated by a Hegemon? ............................................................ 197

Bakhtiyar Tuzmukhamedov

Keeping Pace with the Times? .......................................................................................... 205

László Valki
Merely the Notion of Self-Defence is Changing ................................................................ 211


ix

Francisco Orrego Vicuña
Has the Nature of International Law Changed? Le Plus Ça Change… ......................... 221

Rüdiger Wolfrum
Reflections on the Development of International Treaty Law under the
Auspices of the United States Hegemony and Globalization ............................................ 229

Xue Hanqin
What Has Been Changed of the International Legal System? ......................................... 235

Articles
Thomas Jaeger
We Hold These Truths to Be Self-evident, perhaps—Side-stepping
the Commonality of ‘Common Principles’ and Fundamental Aims in EU Law .............. 247

Bernd-Roland Killmann
Procurement Activities of International Organizations—An Attempt of a
First Insight in Evolving Legal Principles ........................................................................ 277

Current Developments
Emanuelle Cerf
Legal Reforms in Bosnia and Herzegovina versus Good Common Sense ....................... 303

Stephan Wittich
Recent Austrian Cases on Questions of Jurisdictional Immunities .................................. 309

Documentation
Michael Schoiswohl
Austrian Measure for Victims of National Socialism ....................................................... 325


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Austrian Review of International and European Law

Austrian Practice in International Law (2001/ 2002)/
Österreichische Praxis zum Internationalen Recht (2001/2002)
Structure ............................................................................................................................ 411

Stephan Wittich & Michael Schoiswohl
Part I: Austrian Judicial Decisions Involving Questions of International Law/
Österreichische Judikatur zum internationalen Recht ..................................................... 423

Christina Binder, Isabelle Buffard, Gerhard Hafner & Katrin Hagemann
Part II: Austrian Diplomatic and Parliamentary Practice in International Law/
Österreichische diplomatische und parlamentarische Praxis zum
internationalen Recht ........................................................................................................ 503

Book Reviews
William E. Butler, Russian Law (Ulrike Köhler) .................................................................. 569
Andreas O’Shea, Amnesty for Crime in International Law and Practice
(Michael Schoiswohl) ......................................................................................................... 571

Hans Rudolf Trüeb, Umweltrecht in der WTO. Staatliche Regulierungen im
Kontext des internationalen Handelsrechts (Erich Vranes) ................................................. 587
Erika de Wet & André Nollkaemper (eds.), Review of the Security Council
by Member States (August Reinisch) .................................................................................. 590

Book Notes
Patrick Capps/Malcolm Evans & Stratos Konstantinidis (eds.), Asserting
Jurisdiction. International and European Legal Perspectives (August Reinisch) ................. 593
Nina H.B. Jørgensen, The Responsibility of States for International Crimes
(Gerhard Hafner) ................................................................................................................ 594
Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals
(August Reinisch) ............................................................................................................... 595


Agora: Is the Nature of the International Legal System Changing?

1

Agora: Is the Nature of the International Legal
System Changing?

Introduction
The developments of international affairs in the last few years have been characterised
by the end of the bipolar focus on the two super powers that have dominated world
politics most of the time after 1945. The break-up of the Soviet Union and the changes
in Eastern and Central Europe have influenced global politics fundamentally. The
reaction by the Security Council to the invasion of Kuwait by Iraq was a demonstration
of the “new political realities” which pointed to a less contentious and more
cooperative system of international relations. But these developments have also lead
to a situation which only sees one “superpower” remaining—the United States.

Much has been said on the consequences of this state of affairs, the more so as the
United States have shown strong tendencies to deal with international questions
unilaterally and do not seek the close cooperation with other states or international
institutions. The decisions taken by the United States not to become a party to the
Statute of the International Criminal Court, the Kyoto Protocol or the Ottawa
Convention on Land-Based Mines, its intention to resort to pre-emptive intervention
under the guise of self-defence, or its debatable treatment of the prisoners at the
Guantànamo naval base—to name but a few examples—have been quoted as
illustrations of the “unilateral attitude” of the United States towards international
affairs. This attitude has been confirmed in the wake of the terrorist attacks of 11
September 2001.
The invasion in Afghanistan and the overthrow of Saddam Hussein in Iraq without
authorisation by the United Nations Security Council to use military force have added
to the debate within both the diplomatic and the academic community on the effects
of the United States position towards international issues for the future of international
relations, but also for international law as the foundation of the international system.
It is the intention of the agora in this volume of the Austrian Review of International
and European Law to debate the consequences for international law of such an
unmistakable “unilateral approach to world affairs” by the United States.
For this purpose the editors of the Austrian Review have invited 23 distinguished
authors from various parts of the world to share their views on the validity of the

Austrian Review of International and European Law 8: 1-2, 2003.
©2005 Koninklijke Brill NV. Printed in the Netherlands.


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Austrian Review of International and European Law

argument that international law is reaching a new stage in its evolution and that this
will inevitably lead to changes in the entire international legal system. To stimulate
the discussion among the participants, Karl Zemanek presented an essay introducing
the topic and submitting for debate what he regards as the major questions which are
to be addressed by international law as a result of the changed situation in international
society.
January 2004
Gerhard Loibl
Editor-in-chief
Stephan Wittich
Executive editor


Is the Nature of the International Legal System Changing?

3

Is the Nature of the International Legal
System Changing?
Karl Zemanek*

Two years ago, a Japanese scholar, Yasuaki Onuma published a paper in the Journal
of the History of International Law1 in which he studied the concept of the international legal community as conceived and practiced through the ages and across
civilizations. He identified two basic concepts which had been followed at various
times in history and in different regions of the world: one of them decentralized,
regulated by agreements between independent human groups sharing a common world
image; the other centralized, governed by unilateral rules of a central State or empire.
In a footnote of his paper Onuma describes the current situation as follows:
Thus, one could understand, although one may not endorse, why the US tends
to apply unilaterally its domestic laws even outside its territory. Since the US is

today’s version of the central power or empire, it is in a sense natural for it to
behave unilaterally, disregarding rules of international law which are based on
the principle of equality. The serious problem for the US is that, unlike historical
norms surrounding the former empires behaving unilaterally, today’s international law is based, not on hierarchical notions, but on the notion of equality
of states. Moreover, the US itself values highly the notion of equality in domestic
settings. Thus, the hypocritical character of the US behavior often becomes
evident, thereby inviting much criticism that hurts its legitimacy and authority.2

These remarks suggest that the international system is presently in a period of
transition. The traditional body of international law, based on the legal equality of
States, co-exists with an “imperial” tendency of the US. This tendency is apparent in
its applying the rules of international law when it suits its interest, but to ignore them
if they appear to restrict its policy preferences. One cannot foretell where this
dichotomy will lead to and prophesy is not the purpose of this essay. It more modestly
aims at exploring whether areas of international law can be identified which are

* Prof. em., University of Vienna.
1

Y. Onuma, “When was the Law of International Society Born?—An Inquiry of the History
of International Law from an Intercivilizational Perspective”, 2 Journal of the History of
International Law 1-66 (2000).

2

Ibid., at 18, note 38.

Austrian Review of International and European Law 8: 3-10, 2003.
©2005 Koninklijke Brill NV. Printed in the Netherlands.

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Austrian Review of International and European Law

already affected by that tendency. Given the limited framework of this essay the
enquiry must necessarily be selective and cannot cover the whole field of international
law. But even limited results should permit at least a tentative appraisal of the possible
effect on the nature of the international legal system should the tendency continue.
The US has the strongest and most sophisticated military force in the world,
practically the only one that can be deployed anywhere on the globe. It has by far the
most powerful single economy, with a corresponding influence on world trade. In
the perception of other States these two factors combine to add persuasive weight to
any effort undertaken by the US in support of a foreign policy aim. As long as such
an effort remains within the boundaries of established international law it is not per
se the concern of this paper. But to the extent that the legal exercise of power has an
impact on international law-making and on the working of international organizations,
it is relevant to the development of international law. At the same time one has to
keep in mind that sovereign equality, while it is a postulate of the existing international
legal order, always had to be squared with the factual inequality of States in the real
world.
Probing into an alleged “imperial” tendency must therefore look beyond the mere
factual exercise of power. It must examine whether the State concerned has developed
a rationale justifying its “leading” the world by acting as guardian of self-proclaimed
values of asserted universal validity; whether that State construes the established
rules of international law to suit its political aims; whether that State controls the
course of legal development within the system according to its own interests; and
whether such a State claims to act as supreme arbiter of right and wrong, derived i.a.
from the belief in the superiority of its legal order (hence the latter’s extraterritorial
application), of its human rights standard (hence humanitarian intervention), and of

its socio-economic system (hence the unilateral right to protect it preemptively).
***
One area in which such a tendency has long been observed, albeit in a relatively
moderate form, is the exercise of jurisdiction, in criminal as well as civil matters,
over events in foreign countries. The considerations underlying the American variant
of the concept of extraterritorial jurisdiction were recorded in the 1987 Restatement
of the Law by the American Law Institute.3 In practice, US authorities use the concept
even more extensively than the Restatement would suggest and with little regard for
the sovereignty of other States.4 Courts tend to assume jurisdiction even when the
link of the case to the US is tenuous or artificial. They rely, in particular, on the

3

The American Law Institute, Restatement of the Law Third, Vol. I, §§ 401-444 (1987).

4

C. J. Olmstead, Extraterritorial Application of Laws and Responses Thereto (1984), though
dated, gives a good overview. For a more recent celebrated case cf. A. Reinisch, “Widening


Is the Nature of the International Legal System Changing?

5

effects theory, although in other parts of the world that theory is recognized as
applying only in respect of competition law and certain criminal matters. The belief
of US courts in the salutary effect of their exercise of quasi-universal jurisdiction is
also visible in their attitude towards judicial assistance agreements, which they often
bypass in favour of more direct means of service or discovery abroad.

The American practice of extraterritorial jurisdiction, particularly in the form of
indirect enforcement (e.g. “blacklisting”), comes close to intervention, forbidden by
international law, into the domestic jurisdiction of the States whose nationals, whether
individuals or corporations, are the object of court action. Yet it can reasonably be
argued that it only comes close.
Recently, however, that boundary has been crossed openly. On 15 December 2002,
the New York Times reported that the President of the US had approved a list of 25
terrorists whom the CIA may kill without further presidential approval (“death list”),
if they cannot be captured alive without danger to civilians. And that the authorization
applies irrespective of where these individuals may be found—even on foreign
territory. It seems that in this instance the claim to quasi-universal jurisdiction for
the purpose of protecting American values and interests has been carried to extremes.
***
Another area with a long-standing record of a distinctive American position is the
“inherent” right of self-defence as defined in Article 51 of the UN Charter. Oscar
Schachter wrote in 1989:5
[T]he fact that the Court and international legal scholars considered that selfdefense is governed by positive law has not obliterated an opposing conception
of self-defense as an autonomous, nonderogable right that “exists” independently of legal rules. That conception, I, believe, continues to influence popular
and official attitudes concerning national security.

The same author refers to remarks by former Secretary of State Dean Acheson to the
American Society of International Law in 1963 as indicative of the belief in the
subordination of law to power, which Schachter considered to be a second intellectual
root of the proposition that self-defence cannot be governed by law. Acheson had in
fact stated: “The survival of states is not a matter of law”.6

the US Embargo Against Cuba Extraterritorially. A Few Public International Law Comments
on the ‘Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996’”, 7 EJIL 545562 (1996).
5

O. Schachter, “Self-Defense and the Rule of Law”, 83 AJIL 259, at 260 (1989).

6

Source ibid., in note 8.


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Austrian Review of International and European Law

While these views may have reflected no more than a somewhat inflated defensive
strategy, the years of the Cold War gave rise to a more active use of force, particularly
by the two superpowers in what they considered their respective spheres of interest.
Random illustrations are Hungary (1956) and the CSSR (1968) for one, the Dominican
Republic (1965) and Grenada (1983) for the other superpower. After the end of the
Cold War the events in Kosovo, which led to NATO’s operation against the Federal
Republic of Yugoslavia (now Serbia and Montenegro), signalled a further watering
down of the prohibition of the use of force.7 The 19th Century concept of humanitarian
intervention was unearthed to provide legitimacy for the use of force even without
Security Council authorization.8 Several arguments were developed in support of
that position. By far the most widely used was that in case of Security Council inaction
in the face of massive violations of human rights, States—individually or collectively—were free under alleged customary law to act even militarily to prevent or to
end the violations.9
The attack of 11 September 2001 turned the discourse back to the right of selfdefence. The US invoked that right and informed the Security Council accordingly.10
The novel feature was not only that the attack against which the right to self-defence
was claimed had been carried out by a non-State terrorist organization. Also, the
traditional understanding that defensive action is allowed only against an ongoing
attack, was converted into a right to eliminate the source of the attack. In the particular
case this meant the elimination of the Al-Qaeda and its supporting Taliban regime in

Afghanistan.11
The fight against international terrorism has since become a primary aim of the US
and has led to a new “National Security Strategy” in which the idea of “preemptive

7

See A. Buzzi, L’intervention armée de l’OTAN en République Fédérale de Yougoslavie
(2001).

8

For a comprehensive survey of the different schools of thought cf. W. D. Verway,
“Humanitarian Intervention and International Law”, 32 NILR 357-418 (1985).

9

See e.g., F. K. Abiew, The Evolution of the Doctrine and Practice of Humanitarian
Intervention, particularly at 132, 222, 246, and 256 (1999). The opposite position is argued
by P. Hilpold, “Humanitarian Intervention: Is There Need for a Legal Reappraisal?”,
12 EJIL 437-467 (2001).

10

In a letter dated 7 October 2001 by the Permanent Representative of the United States to the
United Nations, reprinted in 40 ILM 1281 (2001).

11

For a more detailed analysis see K. Zemanek, “Self-Defence Against Terrorism. Reflexions
on an Unprecedented Situation”, in F. M. Marino Menéndez (ed.), El Derecho internacional

en los albores del siglo XXI, Homenage al profesor Juan Manuel Castro-Rial Canosa 695714 (2002).


Is the Nature of the International Legal System Changing?

7

intervention” was introduced as a new variant of self-defence.12 This idea dominates
the attitude of the US towards Iraq, which is suspected of having developed and stored,
or being capable of developing within a short period of time, various weapons of
mass destruction. It is difficult to conceive of these weapons as a direct threat to the
territory of the US on the American continent. Therefore, it seems more likely that
the rationale behind any military action to eliminate the possible use of these weapons
is the American belief in its “leadership” role. This conclusion finds support in the
heading of Section V of the “National Security Strategy” which reads: “Prevent Our
Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass
Destruction”. The manner in which the campaign against Iraq was conducted
strengthens the suggestion of imperial strategy. Iraq had to be subdued simply because
the US considered it necessary. The reason for doing so, offered by the administration,
was changed repeatedly. First, it was Iraq’s suspected possession of weapons of mass
destruction. Later that was changed to the risk that Iraq could make such weapons
available to Al-Qaeda. Finally, the missionary goal to bring democracy to Iraq was
declared the ultimate ground, implying the willingness to intervene in the domestic
affairs of a sovereign state. When Iraq was defeated and hostilities ended, obligations
imposed by the Hague Rules on the occupying power were only partly observed. In
fact, a virtual Anglo-American protectorate was imposed on Iraq and the Security
Council was manoeuvred into condoning it.
All this confirms the American determination ultimately to act alone, with little or
no regard for international legal obligations, particularly those under the UN Charter.
This determination to act alone also explains the profound and continuing annoyance

with those who did not unquestioningly join the American side in the preparation
and execution of the military strike against Iraq. An aspiring empire’s conception
leaves no room for subtleties: the world is divided in friends and foes.
***
A more recent example of the willingness of the US to ignore existing international
obligation that are impediments to policy goals, is the treatment of prisoners taken in
Afghanistan. No matter how one views the intervention of American forces in that
country from a legal perspective, there was clearly an international armed conflict.
Hence international humanitarian law applies.
Although neither of the two States is a party to the First Additional Protocol, both
are bound by the Third Geneva Convention Relative to the Treatment of Prisoners of
War of 1949, which was thus applicable. Its provisions, especially Articles 5 para.

12

The National Security Strategy of the United States of America, September 2002, section V,
15: “To forestall or prevent such hostile acts by our adversaries, the US will, if necessary,
act preemptively”.


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Austrian Review of International and European Law

213, 13, 14, and 17 read together leave no doubt that the fighters taken prisoner in
Afghanistan, whatever they call themselves or are called by others, have a right to be
treated as prisoners of war until a “competent tribunal” has decided otherwise.14 So
far, no such decision has become known. Hence the treatment accorded to these
persons at Guantanamo naval base does not conform to the obligations which the US
has assumed under the Geneva Convention.

***
In international organizations in which it is a member, the position of the US as the
sole remaining superpower is perhaps best described as compelling influence. That
influence varies according to the degree of the organization’s dependence on
American support for achieving its purpose. In some organizations, for instance in
the Bretton Woods institutions, the influence is strong enough to control the
orientation of operational activities. The United Nations are a special case. It would
be a waste of space to repeat what has been written about the veto power of the
permanent members of the Security Council. But it is obvious that the ability to block
the adoption of a decision greatly enhances a State’s influence on its drafting. Even
the threat of non-participation of the most powerful and resourceful member in an
operation acts as a deterrent to its adoption, no matter how urgently it appears in the
eyes of other members.
The influence which the US can bring to bear on the Security Council to get a
desired decision adopted, in other words the extent to which it can use the latter as an
instrument of its own policy, is more difficult to evaluate. In the last resort, this
depends on how “persuasive” the US is in its bilateral contacts with the other members
of the Security Council and with the groups of States with which some of them identify.
A recent example illustrates the point. At first, the Security Council decreed that
the report, which Iraq had submitted on its weapons programmes in accordance with
Security Council Resolution 1441, would not be circulated until it had been analysed
by the weapons inspectors. Upon further reflection however, it decided to circulate it
immediately but only among the permanent members. The other members were to
receive a censored version later on because the report contained sensitive information
about the building of nuclear devices which was not to be imparted to non-nuclear
States. The reproduction of the full report for the permanent members was entrusted
to the US because, so it was stated, they had the more efficient copying machines. For
13

It reads: “Should any doubt arise as to whether persons, having committed a belligerent act

and having fallen into the hands of the enemy, belong to any of the categories enumerated in
Article 4, such persons shall enjoy the protection of the present Convention until such time
as their status has been determined by a competent tribunal.”

14

See Zemanek, supra note 11, at 713; and G. H. Aldrich, “The Taliban, Al-Qaeda and the
Determination of Legal Combatants”, 96 AJIL 891-898 (2002).


Is the Nature of the International Legal System Changing?

9

that purpose the US was handed the only complete copy of the report available in
New York.
There is no need to restate that in NATO the position of the US is preponderant, if
only because it provides most of the military infrastructure, particularly in respect of
logistics and intelligence gathering. But the US exercises a strong influence even on
organizations to which it does not belong, such as the European Union. Because of
its strategic interest in Turkey the US “persuaded” influential EU members—Germany
in particular—to give Turkey the perspective of EU membership. The EU’s
Copenhagen Summit dutifully adopted this position despite massive reservations in
EU countries.
Even decision-making in the framework of the EU’s so-called Common Foreign
and Security Policy comes sometime under this influence. In the critical weeks before
the Security Council determined how to act against Iraq, the foreign ministers of the
EU member States met as the Council of the Union. They adopted a common position
favouring the peaceful disarming of Iraq through United Nations inspections. Yet
two days later fife member States (Denmark, Italy, Portugal, Spain, and the UK) publicly

supported the more bellicose position of the US. That this support was expressed in
newspaper advertisments rather than conveyed through diplomatic channels was
doubly humiliating for France and Germany which, as members of the Security
Council, argued at that time against unilateral American military action without
Security Council authorization. The incident showed the true worth of the CFSP in
case of a severe international crisis. It was a rude awakening for an organization with
pretensions to become a “global player” in security matters.
***
Law-making by international conventions is another area in which the US exercises
considerable influence, although this influence is manifested mostly by obstruction.
For instance, the US renounced the Kyoto Protocol15 and refuses to accept the Rome
Statute of the International Criminal Court.16 Of course, it is perfectly legitimate for a
State not to accept new multilateral treaty obligations, even if the frequent exercise
of this option may appear to other States as a manifestation of poor community spirit.
But the US, as the most powerful of nations, is a special case. Its use of the option
not to join has ominous implications which do not arise from the abstention of less
important States. One is the impact that a negative US position has on the overall
process of international law-making. If a proposed regulation requires universal
15

For more information cf. D. G. Victor, The Collapse of the Kyoto Protocol and the Struggle
to Slow Global Warming (2001).

16

Cf. A. W. Rovine, “Memorandum to Congress on the ICC From Current and Past Presidents
of the ASIL”, 95 AJIL 967-969 (2001); and H. Duffy, “National Constitutional Compatibility
and the International Criminal Court”, 11 Duke J of Comp. and Int. Law 5-38 (2001).

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Austrian Review of International and European Law

participation to become effective, or at least the co-operation of the States most
advanced in the matter to be regulated, the absence of the US is crippling. In the case
of the Kyoto Protocol, this means that the purpose of the regulation cannot be achieved
despite the wishes of a large majority of States. As a consequence, the process of
improving international relations by subjecting them progressively to the rule of law
is impaired.
Yet that is not all. In the case of the Rome Statute of the International Criminal
Court, the US does not confine itself to non-participation but tries to protect its
nationals against possible third-party effects. It uses all the leverage at its disposal to
induce parties to the Statute to conclude bilateral agreements with the US which would
exempt US nationals from the jurisdiction of the Court were they apprehended by the
authorities of those States. The purpose of the Statute is thus not only impaired by the
absence of the US but actively undermined by an unwarranted exception. It seems
that the champion of international criminal responsibility for so-called “rogues” puts
itself above the law.
***
In this brief essay it was possible to look only at a few points. But even these warrant
the tentative suggestion that the “imperial” tendency of the US, to which Onuma
alluded in his paper, does indeed exist. This tendency is, perhaps, most visible in
matters related to the use of force and in extraterritorial actions which one could
describe as “the long arm of Uncle Sam”. But to varying degrees it also touches upon
other areas of international law and its development. The intended predominance is
manifest and, in view of the unrivalled power of the US, virtually unimpeded. Should
the asymmetry of power in the international system persist one must be prepared for
a temporary and possibly extended suspension of certain accepted rules of international law, or at least for their application in a hitherto unfamiliar manner. Whether
this will only lead to the transformation of these rules of international law or to a

change in the nature of the system as a whole depends on several factors. These
include, above all, the intentions of the US and how prudently it will use its resources
to achieve them—or, as Henry Kissinger has put it,17 its ability of learning to
distinguish between what it must do, what it wants to do, and what it can do.
Furthermore, the duration of the current situation, and factual developments which
might have an impact on the asymmetry of power. However, for the medium-term,
States will be well-advised to face reality in their policy assessments and to acknowledge the unique role of the US, instead of persisting in the fantasy of a world order
based on the equality in law of all members of the international system.
May 2003

17

Die Herausforderung Amerikas. Weltpolitik im 21. Jahrhundert 349 (2002).


What Does ‘Change’ Mean? International Law vs. the International Legal System

11

What Does ‘Change’ Mean? International Law vs.
the International Legal System
Sir Franklin Berman*

I.

Introduction

It is always wise to give oneself time to stand back from events in order to pass
judgement on their significance. The shockwaves from the appalling incidents in
New York (& elsewhere) on the 11th of September 2001 reached deeply into the

universal human consciousness. When they, and the reverberations of the world events
that came in their train, reached the shores of the lawyers’ domain, there was an
instant reaction too, something like a reflection back of the shock received. But the
task of the lawyer is to make mature, considered judgements, not instantaneous ones.
And, while the practice of international law very often demands immediate judgements
as a guide to legitimate action, that does not stand in the way of reconsideration and
reassessment, when circumstances allow, and significances become clearer.
The theme for this Agora asks us to give our view on whether the nature of the
international legal system is changing. By that it means of course changing under the
cumulative impact of pressures, both recent and not so recent, pressures which have
been brought about not just by blind events, but by shifts in the pattern of power in
the world within which we live.

II. Changes in the Rules vs. Changes in the System
Likewise, our views are sought on whether the international legal system is changing.
Not, in other words, on whether international law is changing. Naturally, the rules
which make up the corpus of international law are changing. They are changing all
the time; that is what one would expect. It is in fact the mysterious and elusive
processes of adaptation and change that give international law much of its fascination,

*

Barrister and arbitrator; Visiting Professor of International Law at the University of Oxford;
Judge ad hoc on the International Court of Justice; formerly Legal Adviser to the Foreign
and Commonwealth Office, London.

Austrian Review of International and European Law 8: 11-16, 2003.
©2005 Koninklijke Brill NV. Printed in the Netherlands.

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Austrian Review of International and European Law

as well as its real-world importance. Whether the principles (encapsulated in that
common catch-phrase ‘principles and rules of international law’) are also changing
is a much deeper question altogether. For many of us—probably all of us—the
‘principles’ are expected to have an enduring permanence quite different in kind
from the stability (or otherwise) of particular rules.
From there, I think we have to move on to recognize that international law does
not exist for its own sake, but to serve a purpose. The purpose (or in fact the multiple
purposes) are exactly the same as we would recognize to be the goals of good policymaking: the preservation of peace and order; social progress; protection of the rights
and freedoms of the individual; facilitation of legitimate trade and travel; etc., etc.
Sometimes, especially at moments of challenge, international lawyers do tend to react
in ways that look to the policy-maker like a defence of ‘international law’ for its own
sake. In fact, when that happens, it is usually because what the international lawyer is
standing up for is not particular rules, but the underlying legal principles that animate
them and which (as I suggest above) are intended, for the good of the system, to be
more enduring and permanent than the particular rules valid at any given moment.
Of course there is room for honest argument about what is an (evanescent) rule and
what is a (permanent) principle, but if the purposes of international law and the goals
of good policy-making are broadly the same, that should be a constructive debate
not a damaging one.
That brings us directly back, if not to the processes of change, then to the pressures
for it. If international law is a system in a process of continual change and development,
then it should not be in the slightest surprising, or shocking, that States bring conscious
pressure to bear in order to produce change. Indeed, it is pretty hard to see how,
without such pressure, change could ever happen! This is something that strong States
have always done; the surprise would be if they hadn’t. But it is equally something
that weak States have always done, if they could. It might have been individually, by

exploiting, say a geographical position around a key strait or shipping lane. It might
have been on a group basis, as for example the drive by a numerically quite limited
number of Latin American States for acceptance of 200-mile territorial seas, later
transmuted into 200-mile resource zones; or the attempt by the group of equatorial
States to assert ownership over the geostationary orbit. Or it might have been by
sheer weight of numbers, as in the strenuous efforts to conjure into being a ‘New
International Economic Order’ by majority voting power in the UN General Assembly.
But these all fall to be classed as ‘pressures to change international law’. And now
we face the phenomenon de nos jours by which other organized groupings outside
the State system as such, i.e. NGOs and pressure groups, mount campaigns with
considerable skill and resourcefulness, but campaigns to do what? why to change
international law.


What Does ‘Change’ Mean? International Law vs. the International Legal System

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III. A Sole Hyperpower?
However, the question for today is changes in the international legal system, a question
we must distinguish carefully from changing existing international law. It doesn’t
involve registering that there are pressures for change, nor identifying who is bringing
the pressures to bear. What it involves is how the system reacts. There is a tendency
abroad to assume that, simply by virtue of the fact that it is a ‘hyperpower’ (as the
phrase goes)—and, so the argument continues, the sole hyperpower—the USA can
change international law just by saying that it wants change, for example by
enunciating a new doctrine and declaring that it will conform its future practice to
that doctrine, or by simply acting in ways that conform to its interests or preferences
but take little account of the interests of others.
We can, to be sure, question the hypothesis that the USA is the sole hyperpower. It

all depends, of course, on what measure you use and on what groupings you look at.
There is certainly a good case for saying that in the fields of trade, finance and
economics, US power is not predominant at all. And we can also question the
hypothesis that, just because a State is a hyperpower, it will always pursue consistent
objectives and seek to impose its will by unilateral diktat. Neither current nor past
international practice, as we have been able to observe it, bears out either of those
conclusions, even though elements of them can be seen in the behaviour of powerful
States in all epochs.

IV. The Processes of Change
Our question remains, however, how the international legal system reacts to an attempt
to impose change by the unilateral action of a single powerful State. And here we
must be careful not to confuse power with law. Nor, as is generally recognised, must
we confuse the basic principle of the legal equality of States with the factual
phenomenon of the wide disparities in their actual power. However, the fact that a
State is powerful is no protection against a finding (if justified) that its behaviour is
unlawful. That is something we are all quite accustomed to from the Judgments of the
International Court of Justice. And in the trade field, it is something we are becoming
accustomed to from the Decisions of the Dispute Settlement Mechanism of the World
Trade Organization.
So the crucial question remains, How does the international legal system react
when faced with attempts—never mind the quarter from which the attempt comes—
to force the pace of change? Has the nature of that reaction changed? Is it now
changing?
There are, of course, two avenues through which international law is altered: by
the development of customary law, and by treaty-making. And we know—again, it is


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Austrian Review of International and European Law

one of the great fascinations of modern international law—that these two avenues
are not sealed off from one another by a concrete wall, but that they interrelate: treatymaking can play an important role in the formation of custom, and customary law (as
the Vienna Convention of 1969 reminds us) plays a role in the interpretation of treaty
obligations.
We must therefore investigate whether the essential nature of either process has
changed, or seems to be changing. Is the customary law process essentially the same
as before? Has treaty-making lost its traditional character and acquired legislative
characteristics?

V. The Customary Law Process
The answer to both of those questions seems clearly to be in the negative. So far as
customary law is concerned, there is no sign in the recent case law that the International
Court is altering the basic approach it has taken to the formation of customary rules,
namely that it looks specifically both for State practice and for opinio iuris, and that
both the practice and the opinio must be sufficiently widespread and consistent to
qualify as general. To be sure, there has been much argument over the Court’s
assessment of what counts as evidence (both of the general practice and of the opinio),
but that is obviously a different matter. Likewise, the Court seems not to have deviated
from its established view that resolutions of the UN General Assembly can not in
themselves ‘create’ law, though they do have a valid part to play, according to the
circumstances, in ascertaining the existence of a rule of law. And finally, the Court’s
insistence that practice has to include that of States whose interests are specially
affected, is more of a protective principle than the opposite.
Nor has there been any revolution in the academic literature—to judge, for example,
from the Report adopted by the International Law Association in 2000 on the Formation
of Customary Law. To the extent that learned commentators may seem to be
advocating a reassessment of the established criteria, they turn out very often to be
arguing little more than that the same evidence can serve simultaneously to establish

both practice and opinio iuris.
Therefore, an overall assessment of the customary law process seems to lay
emphasis on the protection it offers to States who resist the pressure brought to bear
on them by others, rather than on any propensity to open itself to imposition by
dominant States.
A final remark in this connection might be that neither the drive to have certain
rules accepted as having a higher status (whether as ius cogens or under some other
name), with dramatic effects on their legal consequences, nor the pressure to impose,
as it were, the compulsory nature of certain provisions of international law irrespective
of the normal considerations of State consent, evident chiefly in the field of human


What Does ‘Change’ Mean? International Law vs. the International Legal System

15

rights and the law of armed conflict, is attributable to the United States. It is
characteristic, rather, of the group of liberal Western democracies, largely in Europe,
who tend to be the loudest voices raised in criticism of US hegemonic behaviour. We
must be careful therefore to steer clear of the contradictions inherent in asserting
that whereas individual hegemony is by definition bad, hegemony on a group basis
may be acceptable.

VI. The Treaty Process
Moving now to the treaty process, the first question must be whether the basis of
treaty obligation has shifted from the express and formal consent of the State Party.
The question has only to be posed in order to be dismissed. The rules remain those
set out in Articles 2 and 7-17 of the 1969 Vienna Convention (replicated almost
exactly in the 1986 Convention), and there is no sign of their having come under
questioning or attack. Though perhaps one ought to pause momentarily at this point

to note that some of the rather peculiar practice that has emerged in recent years over
reservations, notably to human rights treaties, seems to embody a wish to brush aside
the fundamental precept that treaty obligation is based on formal and express consent.
At all events that practice, doubtful as it is in its legal foundation, is once again not
spearheaded by the United States at all.
However, the next phenomenon to remark under this head is the growing propensity
to regard the United States as legally at fault for not having become party to what is
by now a growing list of important multilateral treaties: the Additional Protocols to
the Geneva Conventions, the Law of the Sea Convention, the Kyoto Protocol, the
Land Mines Convention, the Statute of the International Criminal Court, and so on.
Again, there is something odd about this. If it were a political criticism, one could
understand it entirely; it is very unfortunate indeed that the United States has separated
itself from the mainstream, including from the common opinion of its traditional allies,
on these important matters, and the fact that it has done so tends (to put the matter no
more strongly than that) to weaken the chances of success of the multilateral regimes
in question.
On the legal front, however, the position is surely plain. A State has the right to
decide whether it will or will not give its consent to be bound by a treaty. That is part
of its sovereign rights, and is therefore indefeasible. It is, after all, nothing more than
the corollary of the proposition that treaty obligation is based on consent. It really
does beggar the imagination, therefore, to see how the exercise of that right is, in any
legal sense, reprehensible.
From the policy point of view the position may no doubt be different. But, if so, the
conclusion to be drawn from it is the opposite of the one usually drawn. Put bluntly,
if the participation of a given State, or group of States, is regarded as having that