Based on the record, it has no grounds to criticize the U.S.
By JACK GOLDSMITH and ERIC POSNER
Many of President-elect Barack Obama’s supporters hope he will scrap the Bush administration’s skeptical attitude toward international law and take a more European approach. This is presumably to bring us in line with what these supporters regard as more enlightened practices abroad.
In fact, Europe’s commitment to international law is largely rhetorical. Like the Bush administration, Europeans obey international law when it advances their interests and discard it when it does not.
Consider the case of Yassin Abdullah Kadi and the al Barakaat International Foundation. A United Nations Security Council resolution has ordered nations to freeze the assets of Mr. Kadi, a resident of Saudi Arabia, and the foundation, and to take other sanctions against those suspected of financing al Qaeda and related organizations.
On Sept. 3, the European Court of Justice ruled that the Security Council resolution was invalid. The duty to comply with the U.N. Charter, it declared, “cannot have the effect of prejudicing [regional] constitutional principles.” In doing so, the ECJ followed its advocate general’s argument that “international law can permeate [the European Community] legal order only under the conditions set by the constitutional principles of the Community.”
In other words, European countries must disregard the U.N. Charter — the most fundamental treaty in our modern international legal system — when it conflicts with European constitutional order.
This is the third time in a decade that Europe has defied the U.N. Charter. In 1999, for example, European nations participated in NATO’s bombing of Kosovo without Security Council authorization. There was much hand-wringing in Europe at the time, but in the end other concerns trumped legal niceties. Similarly, when nations led by Europe created the International Criminal Court (ICC), they purported to limit the Security Council’s power to delay or halt ICC trials, also in disregard of the U.N. Charter, which states that Charter obligations trump the requirements of any other treaty.
It is not just the U.N. Charter that European nations and institutions brush aside when convenient. The most fundamental human-rights treaty is the International Covenant on Civil and Political Rights. European governments, like the U.S. government, have declined to give effect to provisions of that treaty with which they disagree on matters ranging from immigration to hate speech, emergency powers, criminal procedure and more. European courts, too, have ignored provisions and interpretations of this treaty that deviate from European law.
Europeans have also shown a less than robust commitment to the ICC. Earlier this fall, the world witnessed the strange spectacle of the U.S., long an ICC skeptic, successfully resisting a British- and French-led attempt to corral the U.N. Security Council into delaying ICC indictments of the perpetrators of atrocities in Darfur.
Europe also has violated international trade laws when public sentiment gets riled up — for example, in resisting importation of genetically modified foods, or beef from cattle raised with growth hormones. European countries defied adverse World Trade Organization (WTO) rulings in both cases.
European countries have violated WTO law by granting trade preferences to certain banana-exporting nations with which they have strategic relationships; they’ve also reportedly cooperated with the U.S. in extraordinary renditions of terrorist suspects (sending suspects to other countries), a practice that many believe violates international law. Climate change? With every passing year, it has become increasingly clear that many European countries will violate their obligations to reduce greenhouse gas emissions under the Kyoto protocol.
There is a simple explanation for all this. Europeans hold their values and interests dear, just as Americans do, and will not subordinate them to the requirements of international law. When a conflict arises, international law must yield.
International law has long suffered this fate, and not just at the hands of dictatorships. In liberal democratic societies where leaders are constitutionally beholden to constituents — and thus compelled to serve their changing interests — international law gives way to domestic politics.
Why, then, do so many people believe the U.S. and Europe have different attitudes toward international law? Partially this is because American politicians frequently express their skepticism about international law, while European politicians loudly proclaim its central role in their value systems, even when they are defying it. This difference, in turn, is grounded in differing historical experiences.
America sees itself as an exceptional nation, not bound by the rules that bind others. On the other hand, the enormously successful, decades-long process of treaty-based European integration has led Europeans to identify peace and prosperity with a commitment to international law. What is overlooked is that the treaties that established the European Union created institutions that jealously guard the interests of Europeans when these interests conflict with an international law that reflects global aspirations.
European nations today are like the American states agreeing to form a federal union in the 18th century, or the German states forming a German union in the 19th. Their devotion to their union is real. Their devotion to international law — even the U.N. Charter — is less pronounced.
Specific treaties that have served their purposes are honored, and it may be that the success of particular regional treaties endows treaty-making with special glamour. But international law as such has no special importance. Here, as in other settings, Americans and Europeans have more in common than meets the eye.
Mr. Goldsmith teaches at Harvard Law School. Mr. Posner teaches at the University of Chicago Law School. They are the authors of “The Limits of International Law” (Oxford University Press, 2006).
