Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW The foundations of international law have been shaped by successive hege- monicpowersthroughouthistory.Thisbookexamineswhetherthecurrent predominance of the United States is leading to foundational change in the international legal system. A range of leading scholars in inter- national law and international relations consider six foundational areas that could be undergoing change, including international community, sovereign equality, the law governing the use of force, and compliance. The authors demonstrate that the effects of US predominance on the founda- tions of international law are real, but also intensely complex. This com- plexity is due, in part, to a multitude of actors exercising influential roles. And it is also due to the continued vitality and remaining functionality of the international legal system itself. This system limits the influence of individual States, while stretching and bending in response to the changing geopolitics of our time. Michael Byers is Associate Professor of Law at Duke University. His recent publications include Custom,PowerandthePowerofRules(1999) and (as editor) The Role of Law in International Politics (2000). Georg Nolte is Professor of Law at the University of Gottingen.¨ His recent publications include Eingreifen auf Einladung (Intervention upon Invitation) (1999) and Beleidigungsschutz in der Freiheitlichen Demokratie (Defamation Law in Democratic States) (1992). © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW Edited by MICHAEL BYERS GEORG NOLTE © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information published by the press syndicate of the university of cambridge The Pitt Building, Trumpington Street, Cambridge CB2 1RP, United Kingdom cambridge university press The Edinburgh Building, Cambridge, CB2 2RU, UK 40 West 20th Street, New York, NY 10011-4211, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia Ruiz de Alarcon´ 13, 28014 Madrid, Spain Dock House, The Waterfront, Cape Town 8001, South Africa http://www.cambridge.org C Cambridge University Press 2003 This book is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2003 Reprinted 2004 Printed in the United Kingdom at the University Press, Cambridge Typeface Adobe Minion 10.5/13.5 pt System LATEX2ε [tb] A catalogue record for this bookis available from the British Library ISBN 0 521 81949 0 hardback © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information CONTENTS List of contributors page viii Preface xv Introduction: the complexities of foundational change 1 michael byers part i International community 1 The international community, international law, and the United States: three in one, two against one, or one and the same? 25 edward kwakwa 2 The influence of the United States on the concept of the “International Community” 57 andreas paulus 3 Comments on chapters 1 and 2 91 martti koskenniemi, steven ratner, and volker rittberger part ii Sovereign equality 4 Sovereign equality – “the Wimbledon sails on” 117 michel cosnard v © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information vi contents 5 More equal than the rest? Hierarchy, equality and US predominance in international law 135 nico krisch 6 Comments on chapters 4 and 5 176 pierre-marie dupuy, matthias herdegen, and gregoryh.fox part iii Useofforce 7 The use of force by the United States after the end of the Cold War, and its impact on international law 197 marcelo g. kohen 8 Bending the law, breaking it, or developing it? The United States and the humanitarian use of force in the post–Cold War era 232 brad r. roth 9 Comments on chapters 7 and 8 264 thomas franck, jochen abr. frowein, and daniel thurer¨ part iv Customary international law 10 Powerful but unpersuasive? The role of the United States in the evolution of customary international law 287 stephen toope 11 Hegemonic custom? 317 achilles skordas 12 Comments on chapters 10 and 11 348 rainer hofmann, andrew hurrell, and rudiger¨ wolfrum part v Lawoftreaties 13 The effects of US predominance on the elaboration of treaty regimes and on the evolution of the law of treaties 363 pierre klein © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information contents vii 14 US reservations to human rights treaties: all for one and none for all? 392 catherine redgwell 15 Comments on chapters 13 and 14 416 jost delbruck,¨ alain pellet, and bruno simma part vi Compliance 16 The impact on international law of US noncompliance 427 shirley v. scott 17 Compliance: multilateral achievements and predominant powers 456 peter-tobias stoll 18 Comments on chapters 16 and 17 477 vaughan lowe, david m. malone, and christian tomuschat Conclusion 491 georg nolte Index 515 © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information CONTRIBUTORS Michael Byers is Associate Professor of Law at Duke University. He is the author of Custom, Power and the Power of Rules (Cambridge University Press, 1999), editor of The Role of Law in International Politics (Oxford University Press, 2000) and translator of Wilhelm Grewe, The Epochs of International Law (Walter de Gruyter, 2000). He is a regular contributor to the London Review of Books. MichelCosnard is Professor of International Law at the University of Maine (Le Mans, France). He is the author of La soumission des ´etats aux tribunaux internes: facealath´ ` eorie des immunit´esdes ´etats (Pedone, 1996) and a contri- butor to Denis Alland (ed.), Droit international public (Presses universitaires de France, 2000). Jost Delbruck¨ is Professor Emeritus and former director of the Walther- Schucking-InstituteofInternationalLaw,Kiel,Germany,aswellasProfessor¨ of Law at Indiana University School of Law–Bloomington. He is coeditor of the German Yearbookof International Law andoftheIndiana Journal of Global Legal Studies. Pierre-Marie Dupuy is Professor of Public International Law at the Uni- versity of Paris (Pantheon-Assas)´ and at the European University Institute in Florence. He is the author of more than sixty articles and a number of books, including Droit international public (6th edn.) (Precis´ Dalloz, 2002). He has served as Counsel and Advocate in thirteen cases before the International Court of Justice and, in 2000, delivered the general course on public international law at the Hague Academy of International Law. Gregory Fox is Visiting Professor at Wayne State University Law School. He is the co-editor (with Brad Roth) of Democratic Governance and Inter- national Law (Cambridge University Press, 2000), as well as the author of numerous articles. He has held fellowships at the Schell Center for viii © Cambridge University Press www.cambridge.org Cambridge University Press 0521819490 - United States Hegemony and the Foundations of International Law Edited by Michael Byers and Georg Nolte Frontmatter More information list of contributors ix International Human Rights at Yale Law School and the Max Planck In- stitute for Comparative Public Law and Public International Law. He has also been legal counsel to the State of Eritrea and counsel in several human rights cases in US courts. Thomas M. Franck is Murry and Ida Becker Professor of Law Emeritus at New York University School of Law. His most recent work is Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press, 2002). Professor Franck is past president of the American Society of International Law and a former Editor-in-Chief of the American Journal of International Law. He has also acted as legal advisor or coun- sel to many governments, and currently serves as a judge ad hoc at the International Court of Justice. Jochen Abr. Frowein is Director Emeritus of the Max Planck Institute for Comparative Public Law and Public International Law in Heidelberg, and Professor emeritus of Constitutional and Public International Law at the University of Heidelberg. He served as Vice-President of the German Research Foundation in 1977–1980, Vice-President of the European Com- mission on Human Rights in 1981–1993, and Vice-President of the Max Planck Society in 1999–2002. Matthias Herdegen is Professor of Public Law and Director of the Institute for International Law at