Vive la Différence?: The EU, the US, Russia, and Competing Conceptions of International Law

Vive la Différence?: The EU, the US, Russia, and Competing Conceptions of International Law

The recent G-8 summit has highlighted some of the policy differences among the US, Russia, and the states of the EU. Robert Kagan has written about certain disparities in US and European views in a much-quoted essay and subsequent book that spawned the bon mot that “Americans are from Mars and Europeans from Venus.” But beyond missile shields and climate change, each of these three powers (I’ll consider the EU in the aggregate, for the moment) have significant divergences in how they approach international law in particular. From topics ranging from the content of human rights law and the relation of international law to domestic law to the doctrine of sovereign equality and the recognition of states, there are important disparities not only in the diplomatic practices of these countries but in their conceptions of the content and application of international law.

I have been reading and writing about some of these differences and have posted new essay that is part of my ongoing project looking at law and hegemony in Eurasia. Written for the recent symposium organized by the Yale Journal of International Law on the “’New’ New Haven School”, my piece focuses on Eurasia as a geographic space where multiple conceptions of public order, including those of the United States, the European Union, Russia, and Islamic fundamentalism, overlap, interact, and at times compete, especially in the unstable arc of states bordering Russia.

After an initial section discussing some relevant ideas from New Haven School jurisprudence, I propose the concepts of systemic borderlands (states that are the geopolitical crossroads between two or more normative orders) and of normative friction (the process by which competing conceptions of public order interact in these borderland states) as means of describing normative interactions in a multipolar world. I then consider examples of systemic borderlands and normative friction in Eurasia and, in particular, the recent disputes over the accession of East European states to the EU and NATO and similar conflicts concerning states in the Black Sea and Caspian Sea regions.

I end by returning to the opening jurisprudential questions and discuss ways in which the New Haven School can build on some of its own original insights in light of changes in international politics.

Any thoughts or comments are welcome.

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Matthew Gross
Matthew Gross

SSRN finally deigned to mail me the paper in question. It seems there’s quite a delay in their system.

I must say, I find Prof Borgen’s essay to be a more detailed and instructive look at the issue than Mr. Kagan’s. In particular, the mention of the Russian sphere of influence and the discussion of feeling out normative boundaries added an additional, useful dimension to the discussion.

My only complaint is that Professor Borgen’s writting style is rather dense, and tends to make for slow reading, although I suppose the difference in venue between the two articles can explain that.

“Ironically, although the New Haven School had punctured the balloon of international law’s false normative universalism”

Even after reading the preceding pages, it takes me several seconds to parse “false normative universalism.”

Benjamin Davis
Benjamin Davis

My first reaction is that the paper of Kagan is pure politics and that a discussion of international law that speaks in terms of pure political posturing by states does not really speak to international law. It is a similar problem between what I have termed faith-based international law that is really politics as practiced most recently by the United States and what might be called reality based international law. That states posit dubious interpretations of international law does not mean there is false normative universalism – it just means that states are using the language of law in the hope that it will lead to acceptance or acquiescence in their interpretations. That seems to be a very different thing.