After Austerlitz: The International System in the Age of Rampant American Unilateralism

in Austrian Review of International and European Law Online
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I The remark was supposedly made on September 7, 1812, just before his army disintegrated in the rigors of the Moscow winter. It referred to Napoleon's brilliant victory over the Austrians and Russians in 1805, which had forced the Emperor Francis I of Austria to sue for peace. 2 The quote is from Ozymandias by Percy Bysshe Shelly (1792-1822). 3 Emperor Alexander III of Macedonia who conquered the lands of the Persians and extended his sway all the way to India (356-323 B.C.). 4 Emperor Tiberius Claudius Nero Germanicus, who, as Roman Emperor, succeeded in subjugating territories as far away as Armenia, Mauritania and Britain (10 B.C.-54 A.D.).

5 In the words of President George W. Bush: "Our military must [...] dissuade future military competition [...]. Our forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equalling, the power of the United States." National Security Strategy, The White House, September 17, 2002, at 29-30 (in Part IX, Transform America's National Security Institutions to Meet the Challenges and Opportunities of the Twenty-First Century), available at http://www.whitehouse.gov/nsc/ nss.pdf (21.9.2004).

6 J. Rawls, A Theory of Justice (1971).

7 K. Phillips, "How Wealth Defines Power", 14 The American Prospect A8, at A9 (May 2003).

8 See T. M. Franck, Recourse to Force, State Action Against Threats andArmedAttacks 1-52 (2002). 9 The Peloponnesian War, in The Complete Writings of Thucydides (Crawley, transl.) 331 (1934).

10 see Franck, supra note 8, chapters 4-10. " Duc de la Rochefoucauld, Maxims 218 (1678). ' "Bush has Legal Authority to Use Force in Iraq", Address by W. H. Taft IV, State Department Legal Adviser, to National Association of Attorneys General, 20 March 2003. See also Statement by the UK Attorney General, Lord Goldsmith, in answer to a parliamentary question, 18 March 2003, House of Lords, available at http://www.fco.gov.uk (21.9.2004). '3 I have tried to examine the case presented by Britain and the US at the UN and elsewhere to the effect that their action was authorized by Security Council Resolutions 678, 687 and 1441. These contentions simply do not withstand strict scrutiny of these resolutions, which simply envisage action against Iraq in event of its non-compliance with the requisites therein enumerated. It cannot be presumed that the resolutions, in the absence of any indication in the text, intended to transfer to individual members of the Organization the Security Council's Charter-given power to determine whether its orders have been carried out by the state to which they are addressed and, in the event of non-compliance, what ought to be done about it. See T. M. Franck, "What Happens Now? The United Nations After Iraq", 97 AJIL 8 (2003).

" Legal Consequences for States of the Continuing Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, at 22, para. 22. is See Franck, supra note 8, at 135-73. 16 Available at http://www.africa-union.org (21.9.2004). " A.-M. Slaughter, "A Chance to Reshape the UN", The Washington Post, 13 April 2003, B.07..

18 Ibid.

19 For a fuller discussion of these "humanitarian interventions" see Franck, supra note 8, at 155-173. 20 UN Doc. S/RES/1441 (2002), preamble and para. 2. 21 Ibid., paras. 12, 13. zz Ibid., para. 14. 23 Statement by the Attorney General, Lord Goldsmith, in answer to a parliamentary question, Tuesday, 18 March 2003 (House of Lords), supra note 12. 24 See Slaughter, supra note 17.

25 National Security Strategy, The White House, September 17, 2002, available at http:// www.whitehouse.gov/nsc/nss.pdf (21.9.2004). zb Ibid., at 15 (in Part V, Prevent Our Enemies from Threatening Us, Our Allies, and Our Friends with Weapons of Mass Destruction).

27 letter from Daniel Webster to Lord Ashburton (6 August 1842), quoted in J. Bassett Moore, A Digest of International Law, vol. 2, 412 (1906). 28 see National Security Strategy, supra note 25, at 6 (in Part III, Strengthen Alliances to Defeat Global Terrorism and Work to Prevent Attacks Against Us and Our Friends). z9 Even while asserting its own right of preemptive self-defense, the United States has properly hesitated to recognize any other country's claim to engage in forced disarmament or preemptive self-defense in the name of homeland security. See M. E. O'Connell, The Myth of Preemptive Self-Defense 3 (2002). 30 H. Hongju Koh, "On American Exceptionalism", 55 Stanford Law Review 1479, at 1500 (2003).

31 Ibid., at 1501. 3z M. J. Glennon, "Why the Security Council Failed", 82 Foreign Affairs 16, 34. (issue 3/ 2003). 33 There are currently 21,000 other troops in Iraq: 11,000 from the UK Token forces have also been sent by Albania, Azerbaijan, the Czech Republic, Denmark, Estonia, Georgia, Hungary, Italy, Latvia, Lithuania, Macedonia, the Netherlands, Norway, Poland, Romania, Slovakia, Spain and Ukraine. See The New York Times, 14 August 2003, at Al.

3° J. S. Nye, Jr., The Paradox of American Power: Why The World's Only Superpower Can't 't Go It Alone 9 (2002).

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