Can International Law Survive US "Leadership"?

in Austrian Review of International and European Law Online
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1 A.- M. Slaughter, "Misreading the Record", 82/4 Foreign Affairs 202, at 203 (2003). 2 "Une politique qui a reussi" (E. Giraud, "Le droit positif-ses rapports avec la philosophie et la politique", Hommage d'une generation de juristes au Président Badevant 210, at 234 [1960]).

3 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, 1949 ICJ Rep. 174, at 180. 4 I refer here to the theorie des competences, mainly developed by the French doctrine. See, e.g., J. Basdevant, "R6gles generales du droit de la paix", 58/IV Recueil des cours, 568- 576, 588-618 and 628-637 (1936) and C. Rousseau, Droit international public, t. III, Les competences, Sirey , XVI-635 (1977). 5 See, e.g., R. Aron, The Imperial Republic, the United States and the World, 1945-1973 339 (1974).

6 In his introductory paper, Professor Zemanek is rather generous in accepting that the reason for the armed attack against Iraq "was changed repeatedly". The reason constantly invoked has been the so-called Weapons of Mass Destruction (WMD) possessed by Iraq, a reason which has proved to be erroneous and deliberately so. The other reasons given from time to time by the leaders of the 'Coalition' are additional, complementary, but cannot be seen as the motives for the invasion, let alone as convincing legal justifications. ' See, e.g., Art. 42 of the UN Charter: the Security Council acts to maintain or restore international peace and security through "forces of Members of the United Nations"

8 "Dans les rapports entre le fort et le faible, le droit protege le faible, et la liberti opprime". 9 Cf. the "conditional" or "threatening" ratification of the WTO Agreements—, see A. Pellet, Comments on "Law of Treaties", in M. Byers/G. Nolte, United States Hegemony and the Foundations of International Law 416, at 419 (2003).

10 Arts. 40 and 41 relate to "serious breaches of obligations under peremptory norms of general international law", that is the former "crimes" in Art. 19 of the 1996 Draft. " Kosovo is less debatable in that (i) it was not based on a lie; (ii) its clear purpose was humanitarian; (iii) the NATO action was a collective one.

12 See T. M. Franck, "Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States", 64AJIL 809-837 (1970) and id., "What Happens Now? The United Nations After Iraq", 97 AJIL 607-620 (2003). `3 According to Art. 54, the Chapter of the Draft on Countermeasures "does not prejudice the right of any State, entitled [... ] to invoke the responsibility of another State [even when it is not an injured State and, in particular, in case of "serious breaches"] to take lawful [which excludes recourse to armed force] measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached". 14 In such a case, recourse to Art. 42 (military measures) would, of course, clearly be inappropriate. 's Military and Paramilitary Activities in and againstNicaragua (Nicaragua v. United States), Judgment of 27 June 1986, 1986 ICJ Rep. 103, at 195.

16 Ibid., 110, at 210. 17 case Concerning Oil Platforms (Iran v. USA), Merits, Judgment of 6 November 2003 (not yet published). The Court dismisses the US arguments in favour of its using force against Iran on the ground of "disproportionality" (see., e.g. para. 77), but it seems to reason exclusively in the framework of self-defence (while it should probably have envisaged the "measures necessary to protect the essential security interests" of the US in a wider context; it probably abstained from doing so because of the surprising position taken by the US during the pleadings). `8 Para. 13 of the Separate Opinion. '9 Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Rep. 5, at 164 (1962). 20 UN Doc. A/RES/377 (1950) at para 1.

21 Contrary to the (first) Optional Protocol (Art. 12), the Covenant has no provision on denunciation. zz "No developed nation would allow its legislative policy to be decided upon just by the lawyers. They would be employed to advise and to draft; but the legislative policy would be decided by those who understood the matter the subject of the legislation", Sir R. Jennings, "International Law Reform and Progressive Development", in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern in Honour of His 80th Birthday 325, at 334 (1998); the same holds true at the international level.


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