The USA had remained as a state in the outer area prior to the 19th century after announcing its independence from the UK in 1776. Although the USA became the military great power having a strong military power in the 19th century, it was only a domin...
The USA had remained as a state in the outer area prior to the 19th century after announcing its independence from the UK in 1776. Although the USA became the military great power having a strong military power in the 19th century, it was only a dominant nation representing the Latin America till the early stage of the 20th century. Thereafter, in the 20th century, the USA encountered the World War I and II, moving from the dominant nation in the Latin America, and becoming the worldwide supreme nation. Consequently, it is impossible to talk about the contemporary international law, which covers the time after the World War II, without the USA.
If so, it is necessary to review whether the USA has a positive effect on the contemporary international law. The USA, which maintains an overwhelming supremacy in the present international society, causes significant conflicts and tensions in the international society. In particular, executing the War Against Terrorism after the terror occurred as of September 11, the USA actively represents a diplomatic line such as 'unilateralism.' Several scholars point out that such unilateralism diplomatic policy has consequently caused many issues on international law.
The unilateralism mentioned in this paper is the one to ignore the existing conference mechanism or international norm to maximize the self-interest, try to generate a new international norm for the direction that the applicable nation wants, or try to transform the detail of the existing international norm. Such an action means a form to break the framework of multilateralism and bilateralism.
The USA had historically stuck to the diplomatic policy of unilateralism as a way to stubborn isolationism and refused to join the Covenant of the League of Nations after the World War I. The USA, which became the super power after the World War II, executed an active military intervention against other country and expressed the principle of unilateralism rather than a multilateral cooperation for its own interest. After the end of the cold war with the collapse of the Berlin Wall, some scholars argued that the USA had shown a tendency to avoid the value of international law and the multilateral treaty. The Clinton administration unilaterally dealt with the Kosovo conflict and Yugoslavian civil war and executed a unilateral trade policy. The recent Bush administration refused, in a realistic view, a restriction of the USA by the international norm.
The USA has historically taken the double-sided standpoint regarding the international law. Asserting the importance on human rights, the USA has not joined almost any human rights convention. In many cases, ratifying the agreement, it attached significant reservations. In terms of the environmental law area, the USA has taken a passive standpoint regarding the order of international law unlike in the past and essentially denied a legal restriction in terms of arms control. On the other hand, the US unilateralism based on the realism shows a strong color of economic protectionism. As a result, the US passive practice regarding the human rights area, environmental law and arms control shows a totally different aspect in economic restriction like trade, intellectual property right, investment, and taxation and crime control, taking the active position. The USA has led the principle of international free trade and actively executed a broader treaty on mutual legal protection.
In particular, while the USA wants the international law to be strongly executed in other countries in respect of the execution of international law, it wants the international law to be executed in a weaker way for itself. Although the USA contributed to building a strong forced measure in many areas of international law in 1990s, it refused to take the forced measure in a field other than the investment area. In addition, the USA made the efforts to give the order of international law a more flexibility and break the order of international law by executing a bilateral treaty rather than a multilateral treaty.
In case of the Rome Statute in the International Criminal Court(ICC), Kyoto Protocol, and Ottawa Agreements, the USA refused to ratify the related treaty and expressed the unilateralism. For the Nuclear Non-Proliferation Treaty, the USA wanted to gain the profit by inserting the differentiated right and obligation in the Treaty. Moreover, the USA has attached a wide reservation for the International Covenant on Civil and Political Rights(ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination(CERD), etc. Regarding the International Criminal Tribunal for the Former Yugoslavia(ICTY) and the International Criminal Tribunal for Rwanda(ICTR), the USA has taken the position of unilateralism in a form of legislation not applicable to itself. Further, the USA has enacted the unofficial domestic law.
Like this, the reason why the USA continue asserting the diplomatic line of unilateralism is that the unilateralism has the effect of national interest, promptness, and cost reduction. The USA has refused to become a party to the Rome Statute of the ICC to protect its national interest, strongly supporting the rule of international trade and the principle to protect the foreign investment. In addition, the USA has taken the unilateral action in case the related effect could be reduced or a prompt action could not be made with a multilateral approach like the War against Terrorism. It has shown the standpoint of unilateralism when it could not be confident that to join a multilateral cooperation could bring a greater effect than its cost in case of the United Nations Framework Convention on Climate Change.
Such US unilateralism acts as a positive factor in the aspect of national interest, promptness, and cost reduction. However, the US unilateralism not only weakens the binding power of the norm in international law but also brings a worsening inequality with other nation. In case of the arms control, the US unilateralism has blocked the Comprehensive Nuclear-Test-Ban Treaty(CTBT), weakening the Chemical Weapons Convention(CWC), and rejecting the protocol of the Biological Weapons Convention(BWC). By withdrawing the signature of the Kyoto Protocol, it has caused a diplomatic deadlock in international relations. Moreover, the US attitude toward the refusal to ratify the Rome Statute of the ICC and several human rights agreements has caused an issue of inequality between nations.
Even if the US unilateralism is a form occurred due to a limitation in multilateral structure, the international law can guarantee the status of USA in the international society in a stable manner. The US unilateralism not only accompanies the great difficulties in terms of legality in international law, international law and sovereignty, relation with international organization and allies but also causes distrust and opposition from the powerful countries including the Europe. Thus, the USA can effectively overcome the limitation in multilateral structure in a direction to expand the existing international law system rather than to continuously take a unilateral measure without a cooperation in international society.