US pressure to change the law

Does international law change under the impact of US pressure? Yes, up to a point. The United States has been a fundamental promoter of the modification of the legal norms that govern the international economic system. This is not only reflected in the results of the 1995 Uruguay Round. An important example is the fundamental change in international telecommunications law from a system of interconnected state-owned companies or other privileged companies to an open market for telecommunications services. However, although the United States was at the forefront of this development, it was soon shared by the EC and Japan, and also promoted by the latter. It is this combined effort that changed the international order, and it is still a trilateral effort by regulatory agencies in the field of competition law that upholds the standard of free competition in world markets.

Today, however, the main problem in this regard is the pressure from the United States to expand the field of the legitimate use of force in international relations. This is a goal that has characterized US policies for many years. It becomes more visible as the military/political restrictions on the use of force by the superpowers that prevailed during the Cold War disappear. In justifying its use of force, the United States generally relied on a broad concept of self-defense, whether in the form of an intervention to protect US citizens, eg, Grenada, Panama, or in the form of “collective” self-defense . defense (Nicaragua), or with a more complex construction in the case of the destruction of Iranian offshore oil installations in 1987/88. These interpretations of the right to self-defense remain controversial and have been rejected in two instances by the International Court of Justice (Nicaragua v. USA 1986, Iran v. USA 2003). After 9/11, the United States again relied on a broad concept of self-defense to justify “Operation Enduring Freedom,” this time without encountering any significant contradiction in the rest of the world (at least as far as political practice is concerned). . worries). Under the impact of the US positions, there could in fact have been some modification of the law of self-defense, namely in relation to the question of whether the use of force by private actors justifies under certain conditions a right of legitimate defense against the State. from where these actors operate. It must be emphasized, however, that all of these US strategies to justify US use of force have been characterized by a sort of low-profile approach, drawing on traditional lines of argument related to self defense

Something different is the attitude of the US in the debate on the so-called new threats that try to modify the basic nature of the right to self-defense. That right has so far been an exception to the prohibition on the use of force limited to the case of an actual armed attack. The 2002 National Security Strategy explains that these threats (essentially: the combined existence of weapons of mass destruction, rogue states, and organized terrorism) cannot be dealt with effectively if the armed response has to wait until an attack has already occurred. armed attack is actually imminent. Thus, the doctrine of “preventive action” is developed: As the doctrine states, the use of force must be (or is it?) lawful as a response to such a threat even when it is still not certain what type of the attack is to be expected. If this construction of a right of legitimate defense were to become positive law, it would be the final blow to the prohibition of the use of force enshrined in the Charter and in customary law.

Contrary to what certain theoretical minds suggest, this has not yet happened, as evidenced by the official position of governments, that is, the main actors that shape the opinio juris that is relevant to the change or preservation of norms or the customary international law. The US/British intervention in Iraq is not a precedent for the new concept of pre-emptive strikes. The existence of a threat has played an important role in the political debate that preceded this use of force. But when it came to the question of legal justification, both the United States and Great Britain relied on interpreting the existence of a Security Council authorization, namely the revival of the old authorization granted in November 1990, vindicating the alleged violations of the 1991 armistice. as the basis for this legal revival. This legal construction, in the opinion of this writer, has fatal flaws. But the very fact that both governments preferred it to preventive “legitimate defense” has legal significance. It probably reflects an opinio juris that the good old law of self-defense that is limited to cases of actually existing armed attack or immediate threat is still valid. Therefore, it is fair to conclude that certain neoconservative approaches that propagate a hegemonic use of force by the United States have not created a new international law, so far.

This being the case, it is still necessary for the international community to seriously address the issue of these new threats. These threats are a reality, even though they have been greatly exaggerated in the Iraqi case. But so far there is no evidence that this cannot be done by relying on the UN Security Council or a cautious development of international law on a traditional, non-discriminatory basis, that is, without special privileges for a hegemonic power.