I have argued both empirically and normatively that the international legal system is not and should not relinquish its two fundamental principles, namely the non-use of force and the equality of states. I venture a general evaluation and conclude that democracy, globalization and the constitutionalization of international law basically prevent the installation of a stable and legalized hegemony.

The first anti-hegemonic factor is democracy. We have seen that the most impressive element of American global power is its military superiority over all other nations. However, under current conditions, this superiority can no longer be fully exploited as in earlier times. One reason is the danger of regional atomic contamination with an unpredictable global effect. Also, military conflicts are too expensive. Even the United States cannot afford simultaneous military action in various parts of the world (eg, Iraq, Afghanistan, and North Korea), even though its National Security (Preventive) Strategy would require such parallel action. Aside from the predictable reluctance on the part of a responsible parliament, the political and psychological infrastructure of a liberal democracy is genuinely anti-hegemonic. It is not easy to reach a political consensus on leadership abroad, which is sometimes costly. Polls actually show that most Americans prefer the United States to solve international problems together with other countries. In particular, the lives of soldiers can only be sacrificed to a limited extent on foreign battlefields, if this must be justified to the electorate. This is why the recent conflicts were guided by a “no death strategy” on the US side.

In the contemporary world that is highly complex and in which people have some notion of their inalienable rights, an order based solely on coercion and the use of force is unstable. A regime can only last if it is accepted as legitimate. The post-war scenario in Iraq illustrates this perception. There is no glimpse of peace and security, not to mention a democratic transformation, among other things because military intervention and occupation are not accepted as legitimate by a large part of the population. What is true for a domestic order also applies to the global order. No state can rule the world on the basis of its military and technological leadership alone, if this domination is not accepted. An eventual general acceptance of US leadership appears to be conditional on a redefinition of US national interests to include at least some global values.

Second, globalization works against the legalization of hegemony. Globalization is understood here as the emergence of global networks of interdependence not only in the economic sector, but also in politics, law and even the cultural sector. Therefore, globalization is both an extralegal factor and a product of the law. The most important causes of globalization are the increase in scientific knowledge about interdependence and the consequent change in consciousness, the communications revolution, the availability of cheap means of transporting both goods and people, and the liberalization of trade. Due to these technical as well as ideological factors, many current political issues are inherently global today. “Global” means that they cannot be tackled with any chance of success by any single state or even by “ad hoc coalitions of the willing” (in which the US would likely bear the main burden). Problems such as terrorism and drugs, climate change, migration, financial stability or infectious diseases can only reasonably be addressed through institutionalized global cooperation. The existing network of global links precludes hegemony. The era of globalization is post-hegemonic.

The general condition of complex interdependencies has created the “Paradox of American Power,” as Joseph S. Nye has called his recent book. “The paradox of American power at the end of this millennium is that it is too big to be challenged by any other state, but not big enough to solve problems like global terrorism and nuclear proliferation.” In Nye’s analysis, globalization is the main reason “why the world’s only superpower can’t do it alone.” US officials, of course, realize this: Recently, the US State Department’s Legal Counsel brought to the attention of the National Association of Attorneys General in Washington the “fundamental changes we are seeing in the landscape That is, of course, the fact that our legal work at all levels of government is being influenced by international law and activities.”

An illustration of the paradox of American power is the controversy surrounding the ICC. Despite fierce opposition from the United States, the Court was installed. This was the result of the cooperation of a sufficient number of like-minded less powerful states. Because the US was not powerful enough to prevent the ICC from arising, it could only opt out. In the position of an outsider, the remaining US policy options are basically negative: the US tries to undermine the Court (see part II above), but cannot offer any constructive alternative. The state has deprived itself of the opportunity to exercise superior power within the legal regime. This means giving up international law as a useful and increasingly indispensable political instrument.

The third development that excludes legal hegemony is the “legalization of international relations” and the constitutionalization of international law. In general, the relevance of international law as a factor in global politics is growing. Norms, rules, standards of conduct count more than ever. They function as a factor of legitimacy, as an institutionalized framework that governs the expectations and calculations of statesmen, and as a means of resolving conflicts. They influence public opinion and play an important role in the fight for transnational approval. Revealingly, the European public debate on the Iraq war was largely a debate on its international legality.

The “legalization” of international politics is not a mere quantitative phenomenon. Within the law we are witnessing a qualitative evolution, which is commonly called the constitutionalization of international law. The idea of ​​constitutionalization presupposes that the international community is a legal community governed by rules and principles, not (only) by power. The most fundamental norms represent global constitutional law. This conception implies, in general terms, that the traditional guiding principle of the international legal order, namely state sovereignty, is gradually being supplemented, if not replaced, by the guiding principle of the rule of law. That paradigm shift is, on the one hand, an academic artifact. However, it is not a mere deduction from an illusion, but induced by multiple developments in international law. Among them is the emergence of more “objective” regimes (more like laws, less like treaties), in which the principle of consent is eroded (weakening of the persistent objector rule, third-party effects of treaties, majority voting within of the treaty bodies). A typical formal feature of constitutional law is present with the recognition of hierarchy within international law. “Super norms”, such as jus cogens and erga omnes obligations, take precedence over ordinary international law. Multilateral agreements (“World Order Treaties”) reflect a commitment to widely accepted basic values, such as free trade or sustainable development. The legalization of these securities has given rise to a new category of regulations called public interest regulations. Regarding the concept of statehood and the recognition of states, the principle of effectiveness is marginalized and standards of legitimacy are established (in terms of human rights and even democracy). These developments do not lead to a world constitution, but can be described as the emergence of various fragmentary constitutions that transcend the increasingly porous boundaries between domestic and international law and between public and private law.

To cut a long story short: the international legal order is, of course, changing. Contemporary international law and politics are characterized by two antagonistic tendencies: a pull toward hegemony and a pull toward global constitutionalism. It seems likely that the trend to broaden, deepen and constitutionalize the international legal order will prevail.