Karsten D. Voigt, Coordinator of German-American Cooperation, speaks to the Aspen Institute Conference,
"Relaunching the Transatlantic Partnership, Common Goals and Shared Values", held October 2-4, 2003, in Rome

Since the Iraq debate, the question of international law - particularly the dividing line between the right of states to self-defense and the United Nations' monopoly on the use of force - has been one of the top items on the transatlantic agenda. If we look at the terminology of our topic and enter the terms "international law" and "coalition of the willing" into the most popular search engine Google, "international law" produces around 1.4 million cross-references; the relatively new term "coalition of the willing" comes up with about 800,000 hits. This says something about its popularity and topicality.

We are witnessing new and more dangerous forms of international terrorism, and not just since September 11, 2001. Weapons of mass destruction in the hands of violent dictators pose a threat to international security. At the same time, the collapse of state structures, together with the emergence of new violent non-state players, are jeopardizing world peace. The disintegration of national structures has been increasingly in evidence since the 1990s, for example in Somalia, Bosnia and the Congo. The new threats to world peace, as well as the terrible reality of war crimes in national and international conflicts mean that we must reform our security strategies and instruments. The international community must also be prepared to examine whether existing interpretations of the law and instruments are suited to tackling new problems and conflicts.

From the Peace of Westphalia to the 20 th century, "international law" was regarded as the rules governing the coexistence among sovereign states. Traditionally, national sovereignty is subject to limitations only to the extent that states consider these limitations to be of use to their national interests and have agreed to them, for instance in the form of treaty obligations.

The two World Wars brought home to us that the superordinate interests of the international community and respect for fundamental human rights - and not merely the national interests of individual states - had to take precedence. In Europe, the European Union allowed us to replace the wars of the past with today's rule of law. Developments in Europe after 1945 showed that real power and endeavors to uphold the rule of law are not mutually exclusive. Although the European model cannot necessarily be adopted by other regions in the world, this positive experience of what can be achieved without military means influences our strategy and aims. It has also had an impact on our expectations of the US. International legal norms were therefore strengthened in the period following World War II, mainly on the initiative of the US. The common interest is at the heart of this process. Since then, the question has also been raised as to how the common interest can be realized in the face of national sovereignty. The term "common interest" appears in the Preamble of the United Nations Charter. It states that "The peoples of the United Nations are determined that armed force shall not be used, save in the common interest".

In principle, no state can be forced to enter into new international obligations against its will. Without doubt, however, there are also international rules which apply to all subjects of international law: binding law, or ius cogens, which is part of customary international law. It applies regardless of whether or not an individual state has agreed to it and embodies the core of irrevocable legal rules, basic norms and fundamental convictions which are vital to the common interest of the international community. These include, amongst others, the prohibition of force laid down in the fourth paragraph of Article 2 of the United Nations Charter, the right to live, the prohibition of torture and humiliating treatment, many rules of international humanitarian law, the prohibitions of genocide and slavery, as well as the right of nations to self-determination.

These rules provide international-law responses to some of the new challenges without, however, resolving the real problem of maintaining a balance between law and power. Although the principle of state sovereignty enshrined in the first paragraph of Article 2 of the United Nations Charter continues to be the basis of all international relations, the privilege of national sovereignty must not be misused against the international community. In concrete terms, this means that when it comes to human rights, for example, national sovereignty cannot be used as an excuse for not respecting them. What, however, happens when the fundamental prin­ciples of international law are violated? How do we react when these principles are repeatedly disregarded?

The prohibition of force laid down in the fourth paragraph of Article 2 of the United Nations Charter and the instruments created for this purpose in Chapter VII of the Charter (that is to say, recommendations, peaceful and military sanctions by the Security Council) form the legal framework for Germany's responses to the international threats foreseeable at present, particularly in the sphere of terrorism. Given Germany's history and the decades-long influences of the post-war period, respect for the principles of international law is not only a legal but also a political and moral precept for German politicians today, regardless of which party they support. For Germany, moreover, multilateralism is an essential principle due to our history, geostrategic location and interests. That is the difference between Germany and the US, for whom multilateralism is an important, and hopefully a preferred form of international action, but not the only one.

How has the international community dealt with the complex violations of international law recently? Traditionally, Chapter VII of the United Nations Charter has been regarded as applying to cases of the use of force between states. However, Article 39 of the Charter refers - quite generally - to a "threat to the peace". This vague choice of words can be used to further develop international law. The Security Council thought so too. That is why, in response to the new threats, it also applied Chapter VII of the Charter to cases in which force was used between non-state players. By adopting Resolutions 1368 and 1373 on September 12 and 28, 2001, the Security Council extended international law so that now acts of international ter­rorism are also threats to the peace as defined by the Charter.

However, there is a danger that the further development of international law will lead to different interpretations. We will therefore have to decide how the physical dimension of the new form of non-state threats to the peace should be defined, when it begins and when the threat ends.

We can find further approaches to fighting terrorism in established international law - in international criminal law, as well as in other areas of the United Nations framework, including those outside the Security Council. The 12 United Nations conventions dealing with various aspects of international terrorism are proof of this. The UN Anti-Terrorist Convention, the International Convention of January 10, 2000 for the Suppression of the Financing of Terrorism also covers the preparation of terrorist acts and makes financing such acts a punishable offence. In the case of Afghanistan, the Security Council decided that UN member states are obliged to freeze any assets of terrorist origin.

The risk of the proliferation of weapons of mass destruction presents international law with new challenges, for it cannot be tackled with the current interpretations of international law alone. Consensus should therefore be reached on the further development of international law in this field. The strengthening of existing non-proliferation systems should be to the fore here. What we need is not an end to arms control policy but, rather, its further development. It is particularly important that violations of multilateral non-proliferation norms are identified quickly in order to take appropriate action. At the same time, the reasons why states purchase weapons of mass destruction must be redressed. If other options are unsuccessful, then the use of coercive measures cannot be ruled out - as long as they are taken in accordance with the United Nations Charter.

Attempts to undermine the tried and tested canon of rules contained in the UN Charter and of established practices of states by introducing a further-reaching right to preventive self-defense meet with widespread criticism in Germany. This applies in particular to the debate about a right to "preventive self-defense", which some are calling for in the US. "Rules to break the rules" would also erode international law. The overwhelming majority of the international community, including Germany, is therefore opposed to the creation of a gray area between the absolute prohibition of force and the permissible use of force. It would be left to states to draw the dividing line, something which would be very difficult to verify. States such as the US which have the power to act outside the established international legal rules without having to fear sanctions, would lose respect and influence if they were to fail to gain legitimi­zation of their actions under international law. If the US were to claim the right to encroach upon the sovereign rights of other states without the express approval of the United Nations by threatening to use force or by actually using force, while at the same time emphasizing the inviolability of its own sovereignty in relation to international norms, procedures and institu­tions, this would be increasingly criticized as a double standard and an abuse of its powerful position.

Ultimately, even the most powerful states in the world, including the US, cannot resolve future conflicts by taking preventive action alone. We must therefore sit down together at an early stage to consider transatlantic strategies within the framework of international law and of the United Nations Charter.

Falling back on a system of coalitions of the willing with compliant partners to resolve future conflicts holds risks. Firstly, in contrast to strategic partnerships, coalitions of the willing do not allow states to plan and pursue a long term preventive policy. Rather, they merely allow them to react to problems once partners have been found. Although coalitions of the willing are not in direct contravention of the NATO Treaty when they do not concern Article V obli­gations, they do not conform to the strategic partnership between NATO partners. If NATO is only used as a "toolbox" for coalitions of the willing, this would inevitably lead to the erosion of its very substance.

Furthermore, we must ensure that the "coalitions of the willing" principle does not also take root outside the transatlantic context. Just imagine - and I say this quite unpolemically - what would happen if this principle were to become widely accepted: how would we react if India were to decide one day to take action against Pakistan in a coalition with, for example, Afghanistan, as well as other states? We should also remember that a coalition of the willing very often provokes a counter-reaction from the "unwilling". But those who criticize this ganging up against a country should, at the same time, take a self-critical look at what they may have contributed to such a situation.

Despite carefully thought-out instruments, the United Nations has the notorious reputation of being a toothless tiger. It is often accused of being too weak and of not doing enough to over­rule national interests. This accusation ignores the fact that the United Nations can only be as strong as its 191 member states will allow. In particular, the United Nations needs the support of its most powerful and wealthiest member, the US. The United Nations can only take action if it has a genuine mandate to act from the international community. We should come together to discuss how we can strengthen the effectiveness of the United Nations and, in particular, the Security Council, by implementing reforms.

The Security Council, which makes the decisions provided for in Chapter VII of the United Nations Charter, must, however, have the greatest possible credibility in order to be globally effective. If the number of its permanent and non-permanent members were to be increased, it could become more representative. Interesting ideas, such as an obligation to state the reasons for the use of the right of veto, are being discussed. Innovative approaches to reform the veto should also be considered. Let me emphasize once more that without the support of the most powerful states in the world, especially the US, the United Nations cannot ultimately be effective.

The current international system is dominated by a host of players, with the United States playing a predominant role. The United States will remain indispensable when it comes to tackling major challenges. The combination of its military, economic and cultural strength puts the US in a particularly strong position. I regard this as a positive factor. However, it should use its power constructively to help further develop international law. It would be regrettable if in certain situations it were to define its unique role and power outside the norms and pro­cedures of international law. Regardless of its strength, the United States cannot master the major challenges on its own. The American political scientist and former leading official in the Pentagon, Joseph Nye, accurately describes this as "The Paradox of American Power", that is to say the combination of an exceptionally powerful position and the necessity to co­operate with others, primarily Europeans. Internationally, acceptance of America's predomi­nant role can only be guaranteed on a long term basis if the US respects international law and institutions. The more the US is receptive to the arguments and influence of its transatlantic allies, the easier it will be for America's strategic partners in Europe to accept the predominant role of the US as a self-confident democracy.

Despite all the differences of opinion on individual issues, transatlantic relations will maintain their overriding importance. First of all, Europeans and Americans, granted from different positions, are dependent on one another. Secondly, we share the values of democratic and open societies based on the rule of law. And we do so in a much greater measure than is the case between other regions. This is still true even though we have made different decisions on some key issues: for example the International Criminal Court and Kyoto, to name just two.

The strategic dialogue at transatlantic level must reflect the changed international situa­tion following the collapse of the old bloc structure and September 11: Europe is no longer the scene of the greatest global conflict. It is less dependent on the US in resolving crises in Europe, but it could become more important in future as the natural ally of the US in re­solving regional problems outside Europe or in tackling global problems. The most important lesson to be learned from the Iraq crisis for us Europeans and for the transatlantic partnership is that we will be internationally effective and more influential if we join forces. Our common task is to strike a balance between actual power and the ideals of international law through reform of the system of the United Nations and NATO, as well as cooperation between the US and the United Nations, NATO and the European Union, to help create greater stability and democracy throughout the world.

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