Since the end of the cold war, international relations have undergone profound changes and often faced with great challenges. The anticipation of a time of peace, as envisaged at the dawn of the new era, unfortunately did not come true as subsequent events of regional conflicts and internal wars persistently proved that the maintenance of world peace and security remains the top priority for international community. In addressing security issues, such as serious internal and regional conflicts, grave and massive violation of human rights, and terrorism, the constant resort to force has been seriously debated and questioned as powerful States and State groups are more inclined to restore “order” and “peace” by force than maintaining international actions within the traditional limits.
Never before, however, has the existing world order, particularly its legal institution for the maintenance of international peace and security, experienced such a crisis as rendered by the Iraq war, where the United States launched military operations against Iraq without the authorization of the Security Council and overthrew its government by force, overtly in defiance of the UN Charter and fundamental principles of international law.
Disappointed and divided over the US actions, the international community is more than ever deeply concerned with the impact of US foreign policy, particularly its new national security strategy-the “preemptive intervention”-, on the future legal order, and on the future of the multilateral system of the United Nations. Undoubtedly, the international legal system is undergoing change, but doubtful is the nature of this change. Professor Karl Zemanek’s essay has rightly placed the issue in focus.
It is interesting that Zemanek began his inquiry with the two basic concepts concluded by the Japanese scholar, Yasuaki Onuma in his study on the history of international law from an inter-civilization perspective. In Onuma’s view as summarized in the Zemanek’s essay, throughout history, international community, at various times and in different regions, is either decentralized, regulated by agreements between independent human groups sharing a common world image, or centralized, governed by unilateral rules of a central empire. Based on that proposition, Zemanek wonders whether the current “imperial” tendency of the United States may indicate a beginning of transition of the international legal system from an equal and decentralized state towards a more centralized “empire”. The areas that are identified as having already been affected by the tendency are fairly wide, some of which are of recent developments, (e.g. US positions on climate change and the International Criminal Court) and some are actually consistent practice of the US, (for instance, extraterritorial jurisdiction and judicial assistance).
The American attitude towards international law in foreign relations as “Do what we say but not as we do” is notorious, which has often been criticized even by its own scholars and public. To study the impact of the American legal practice in international relations, the present discussion will start with the very basic issue presented by Onuma, namely, “What is international law?” Its purpose, of course, is not to delve into the historic forms and structure of international communities, as the origin of international law is not the interest of the current discussion, but to re-emphasize what has influenced and shaped the law of nations as we know it today and why, so that we would be in a better position to appreciate what have been changed and what are affecting the legal order tomorrow.