Today, international law seems to be in a paradoxical state. On the one hand there are signs of a loss of its authority, and perhaps even signs of its disintegration, as the US ambiguously either violates some of its rules or puts forward politico-legal justifications by which important rules would lose their capacity to make behaviour foreseeable. Some political rhetoric even goes further. On the other hand there is an increasing amount of international treaty-making and legislation taking place which suggests that the building of an international legal order is in full blossom. There are two alternative models which may serve to interpret this state of affairs (1.). They can be applied to different areas of international law, such as treaty-making (2.), jurisdiction, (3.), and human rights (4.).
A first model would see the paradox as confirmation that international law is indeed changing towards a hierarchical system with the US in a position of unaccountability at the top: International law develops as far as the others bind themselves or let themselves be subjected to exercises of political power by the US which is itself much freer from legal constraints. This model can be called instrumental, as international law is seen to be relegated to an instrumental role, that is the role of stabilising the rule of the governing actor who himself remains relatively unconstrained.
A second model would interpret the paradox in a more dialectical fashion: The flourishing of international law among the rest of the world may also be a first counterreaction to US unilateralist tendencies. While the web of international obligations may at first sight leave the US unconstrained and even help it to stabilise a world order which is under its control, this web also creates a subtle form of counterweight by which it becomes more difficult for the US to influence others. They have tied themselves together as Ulysses tied himself to the mast as a precaution against the seductive power of the sirens.
Recent treaty-making exemplifies this paradox: The US has been reluctant to participate in major recent law-making treaties. The best-known examples are the Statute of the International Criminal Court, the Kyoto Protocol, the Landmines Convention, the Comprehensive Test Ban Treaty and the Biological Weapons Verification Protocol. It is too simple to say that every state has a right not to participate in a treaty, just as it is too easy to say that a leading state has a moral obligation to participate in international law-making. The more appropriate approach for our purposes is to ask whether such treaties are likely to become law only for the second-rate rest of the world, serving the unbound imperial power to preserve stability, or whether a “compliance pull” (Franck) on the reluctant super-power will emanate from them. It is possible that a working International Criminal Court, for example, will mobilise moral sensibilities demanding equal justice for all, sensibilities which are particularly embedded in Western societies. An environmentally free-riding US should be difficult but not impossible to persuade.
Issues of jurisdiction are also important indicators for the general development of international law. The US has long been the champion in extensions of jurisdiction. Some of these extensions may have been substantially fed by characteristic forms of American self-confidence and self-righteousness. On the other hand, it cannot be denied that certain extensions of jurisdiction have been occasioned by objective factors which raise an issue for all legal systems in a time of globalisation. Here again, we are probably in a period of trial and error. When the US was the champion of extending its jurisdiction, other states and entities, such as the EU, partly followed suit which in turn led to a more ambiguous position of the formerly avant garde US. Today, the US is the main actor resisting the exercise of universal jurisdiction with respect to international crimes. It is another question whether this means that the US is only resisting the exercise of jurisdiction by others while at the same time pursuing its own extensions of jurisdiction. There may be political tendencies to that effect, but the important question is whether self-contradictory tendencies would be sustainable as state policy. This is to be doubted.
Human rights are currently under particular pressure from the US. Since the attacks of 11 September 2001, security concerns are being given a higher priority at the expense of the rights to life, liberty, property, privacy and others. “Guantanamo” has become a symbol of the US effort to free itself from certain international humanitarian and human rights law constraints in its “war against terrorism”. It is important to note, however, that such pressures on international law have little, if anything, to do with the contemplated “changing nature of the international legal system” from a more egalitarian to a more hierarchical legal order. Human rights are already the result of a certain loss of the egalitarian character of international law. They are primarily directed against the exercise of hierarchical exercises of authority. And there is nothing wrong, in principle, in reassessing the relative weight given to security concerns as opposed to privacy interests in the light of new developments. It should not be surprising, and it is legitimate, that the US is today a champion of security concerns. It is the shared responsibility of the US and all others to ensure that these security concerns are not exaggerated and that they remain appropriately balanced.
It would be significant, however, if the US claimed to be free from international human rights constraints (as opposed to domestic constitutional rights constraints) and at the same time insisted that other states remain bound by them. Although instances of such a “the king can do no wrong” attitude can be found, a doublestandard attitude is unlikely to be seriously adopted, or likely to attain more than occasional international or US domestic support. The interest of the US to use certain means which it wants to deny to others can only be satisfied by assertions that the situations are different. Due to its powers to characterise and to define situations, the US can achieve certain successes in efforts at distinguishing, particularly if it does not subject itself to formal international supervision procedures. There are, on the other hand, certain inherent limits to such powers. Human rights issues mostly concern individual cases, the circumstances of which can be independently verified and made subject to public discussion. Therefore, the accusation of hypocritical behaviour can be easily substantiated, with all the political inconveniences that this may entail. This is different, for instance, with respect to the assertion that a particular state should be treated as an international pariah because of its (suspected) harbouring of terrorists and/or developing of weapons of mass destruction.