American Non-Participation – An Effective Veto Power?

American Non-Participation – An Effective Veto Power?

Introduction

The basic issue raised by Karl Zemanek's introductory article is this: Do we have to change the rules of international law because there is now, contrary to the situation which existed before, a one and only player which concentrates overwhelming power in its hands? Is there, or rather: is there about to develop, a new hegemonic or "imperial" system of law creation and application?

Imbalances or asymmetries of power do cause difficulties for the international law creation process as there is not enough reciprocity as a driving force for accepting mutual obligations. But they are not a new phenomenon. For centuries, international law has dealt with them. In the 17th century, there was an imbalance of power between the various States competing on the seas, in particular the Dutch and the British. Despite the overwhelming sea power of Britain, the principle of mare liberum, which protects the weaker users of the sea, was upheld.

That history should warn against premature conclusions as to the establishment of a new hegemonic world order. A closer look at the norm creating processes is necessary in order to ascertain the true impact of the overwhelming power of the United States in the modern or, to use a more fashionable expression, "post modern" law creation processes. I would like to specify the basic issues as follows: Has the United States a specific veto power concerning the development of new international regulations? Can the US achieve modifications of existing international law where this law is perceived by relevant American actors to be contrary to American interests? Or, more generally speaking, is there a special, "imperial" role of the US in the law making process, and if so, which?

So far, the international community has not abandoned its decentralised procedures of law making based on consensus. But on the other hand, power has, and has always had, an impact on consensus building. Influence on the decision of others is the very essence of power.

American Non-Participation-an Effective Veto Power?

Let us first look at American non-participation in international agreements. Is there anything like an American veto power?

There are still a number of human rights treaties to which the United States is not a party because it does not like those treaties. The best known examples are the Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. That absence of the United States, regrettable as it is, has not prevented these conventions from constituting flourishing treaty regimes. Treaty bodies have been established, they work for the implementation of the treaties, and there is no sign that United States absence affects in any way the viability of these treaties.

In the field of international humanitarian law, the absence of the United States from the 1977 Protocols additional to the Geneva Conventions, controversial also in the United States, presents perhaps a more serious question. Which impact does the absence of the single most important military power have on the functioning of a treaty regime relating to the law of war? It is worth recalling that the United States took a very active part in the negotiations and that it and its NATO allies tried to solve certain perceived problems involved in some of the provisions of Protocol I (in particular its applicability to the use of nuclear weapons) by way of declarations made on the occasion of signature and/or ratification. Nevertheless, many NATO countries were for a long time reluctant to ratify, but by now all of them have joined the club, except the United States and Turkey. But also the United States has recognised that most of the provisions of Protocol I reflect customary international law. Thus, US non-ratification does not really affect the interoperability of NATO forces, as far as their obligations under the laws of war are concerned.

True, the application of international humanitarian law has to face difficulties, as it always has. The United States has its share in this crisis by insisting on a claim that certain categories of persons, "unlawful combatants", are not entitled to certain protections under IHL. But this is not related to the absence of the United States from the treaty regime of Protocol I. The relevant rules are those of customary international law and of the Third Geneva Convention to which the United States is a party. We will revert to the question of customary law. At this point, we must draw the conclusion that there is no effective US veto power preventing the development of new treaty regimes relating to the law of war.

A really serious problem is the absence of the United States from the Statute of the ICC. This treaty regime, too, is functioning despite United States absence. The Statute has now next to 100 parties, the Court has been established, a Prosecutor elected. But the practical relevance and effectiveness of the Court remains to be seen. The list of absentees other than the United States is important. Whether the Court will really have jurisdiction in relation to significant conflict is also an open question. In addition, what distinguishes US absence in this case from the preceding one is the active hostility which the US shows in relation to the ICC. That has probably slowed down the ratification by certain States. The energy with which the United States pushes legal devices designed to make sure that US personnel is not affected is remarkable. The instruments of this policy are immunity agreements concluded with the US, sometimes under heavy pressure, by a number of States and the resolutions of the Security Council exempting, in the case of UN peacekeeping or UN mandated military operations, personnel from States which are not parties to the ICC Statute from the jurisdiction of the Court. The legality of both devices is highly questionable. The Security Council adopted the first respective resolution after the United States had vetoed a resolution providing for the prolongation of the UN mandate for Bosnia- Herzegovina-a macabre package deal! The example shows that the development of international law has difficulty to move ahead where the relevant actors in the United States strongly feel that this is against vital US interest. Be it noted, however, that in the case of the ICC, the United States has three important silent allies: Russia, China and India. The attitude of Russia is particularly problematic, as there have been a number of declarations that it is going to ratify. But the real political value of these promises becomes more and more doubtful. For China and India, the Court constitutes, at least for the time being, an unacceptable infringement of their sovereignty. Be it noted, on the other hand, that a further prolongation of the Security Council resolutions in 2004 was not possible as it would not have obtained a sufficient number of votes in the Security Council. At least in this respect, the US did not succeed in imposing its will to reduce an international regime it dislikes.

Another spectacular case of United States non-ratification is the Kyoto Protocol. The United Nations Framework Convention of Climate Change (UNFCCC), to which the United States is a party, does not impose any meaningful obligations to stabilize or even reduce the emission of greenhouse gases. The Kyoto Protocol, implementing the Framework Convention, does. The Clinton administration agreed to it, but there was never a real chance that it would receive the US Senate's advice and consent required for ratification. The Bush administration clearly stated its intention not to ratify. The United States interest which has so far prompted US absence is a complex mixture of economic considerations (which are highly controversial) and matters of internal politics. It is considered that the cost of reduction would be too high for certain industries where numerous jobs were at stake-in regions which are politically relevant, in particular the old industrial centres. More generally, it was probably feared that the reduction of energy consumption (the best means of reducing greenhouse gas emissions) would affect American lifestyle and therefore be politically unacceptable for a significant part of the American electorate.

When the American decision to remain outside the Protocol became clear, the other parties decided to go ahead and try without the United States-a solution which was technically possible, although it is somewhat doubtful whether this regime can be effective when a major part of the problem, 36% of the relevant emissions, remains unregulated. This gave a key role to Russia, which accounts for 17% of the emissions. Since a number of years, Russia kept lingering about this decision. Without Russian ratification, the Kyoto Protocol could not enter into force, as 55% of the relevant emissions constitute the necessary quorum. It has finally decided to join, and the Protocol has entered into force-without the United States. The threshold countries (China, India, Brazil), for the time being, feel comfortable with their position which does not impose any quantified emission reduction commitments upon them. The practical impact of the Kyoto Protocol on the problem of global warming remains to be seen. The absence of the United States is not the only problem. The Kyoto Protocol, as it is now, relates to a first reduction period 2008-2012. Negotiations for a next period are being launched, and once more the United States have refused to participate. If the system works efficiently during the first period and if it were possible to make the major threshold countries join, that US absence might not be the last word.

The analysis of American absenteeism would be imbalanced without looking at the GATT/WTO treaty regime which poses serious problems of American internal politics, too, and where, nevertheless, the United States remains an active participant even though it is not always happy with the actual results of the system. In this case, there is an obvious cleavage between the relevant internal political interests in the

United States: on the one hand, the protectionist interest in sparing American industry or agricultural production from import competition, on the other hand the interest in gaining access to foreign markets which is difficult to obtain where there is no reciprocity. The interest in market access so far appears to be strong enough that the United States is willing to live with the procedures established by WTO, although they do not always work in favour of US protective or protectionist interest.

To sum up, the problem of the United States refusing to participate in certain international treaty regimes is real, but it should not be overstated. The world has learned how to deal with the problem, not always, however, with success.