Introduction
When, on the occasion of the Gulf War (1990-1991), the Soviet Union decided to cooperate with the US within the Security Council (SC), President George Bush said that he shared with Mijail Gorbachov the vision of “a world where the rule of law supplants the rule of the jungle, a world in which nations recognize the shared responsibility for freedom and justice, a world where the strong respect the rights of the weak.”
Twelve years afterwards, this vision has disappeared because the US has assumed an imperial tendency, rightly outlined by professor Zemanek in his introductory essay, above all when the right wing Republicans that already had the control of the Congress (1996) conquered the Presidency through courts (2000). It suffices to read the declaration of principles of the New American Century Project (June 1997) and to take account of its signatories to realize that the Iraq intervention was part of American planned policies shaped by people that constitute the core of the current Administration, even before the S-11 crimes offered the occasion of putting them in practice.
Although before this date the US foreign policy showed signs of unilateralism, afterwards the Bush Administration has decided to impose a New World Order that turns around the American security and that is based on the American military supremacy and its readiness to use force. Diplomacy and international institutions mainly work for intervention and war rather than for peaceful dispute settlement and cooperation. The outcome is profoundly regressive.
Leadership, Hegemony, Empire
Nobody questions that the world needs leadership and that only the US can offer it. However, the George W. Bush Administration does not bet on leadership, but on hegemony; even on the consecration of an Imperial order that denies sovereignty and sovereign equality with all its consequences. We should be “unashamed, unapologetic, uncompromising American constitutional hegemonists”, wrote John Bolton.
Among the symptoms that shows transition to the one (the emptiness or manipulation of norms in force by reason of hegemonic practices) or the other (a New Imperial Order) one can mention the current of opinion that denies that treaties are sources of legal obligations, that consistently rejects their direct effect or that subordinates their direct effect to domestic rules; the exclusion of judicial review of government acts beyond the American territory; the efforts to bring to deadlock the Draft articles on the Responsibility of States for Internationally Wrongful Acts, approved by the ILC; the fact that Congress Acts are put above the UN Charter and the denial that only the UN Charter can legitimate the use of force, with the exception of the right of self-defence; or the affirmation that there is no UN competence to review the US decisions on foreign policy and national security.
The increasing manifestations of legislative and judicial imperialism are also symptomatic: Acts that authorise the use of force abroad to arrest-even to annul if necessary it be-people that are requested by federal justice or that are considered terrorists; the replacement of diplomacy by systematic use of retorsion and (armed) reprisals; the irresistible tendency to replace norms and institutions by non-legal (political) compromises; the invocation of religious freedom to introduce by force a manipulating and reactionary thought etc.
Besides, the US gathers too many noes to multilateral cooperation that their closest European allies have not only supported but sponsored. The US has said no to the Comprehensive Nuclear Test-Ban Treaty, no to the Verification Protocol to The Biological Weapons Convention, no to the Land Mines Convention, no to the Kyoto Protocol; no to the ICC Statute (this is, in addition, a target of their hostile activity) etc. As noted by Zemanek, this may appear to other States as “a manifestation of poor community spirit” with “ominous implications” on the overall process of international law-making and the achievement of the purposes of the regulation.