Jack Goldsmith and Eric Posner in WSJ on Europe and International Law

by Kenneth Anderson

Jack Goldsmith and Eric Posner have an interesting op-ed in today’s Wall Street Journal (November 25, 2008), “Does Europe Believe in International Law?”  I believe it is behind the subscriber wall, but it offers a series of instances in which, in effect, Europe says one thing and does another. 

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.

I myself think this is descriptively about right, although I have a feeling that Mary-Ellen, for example, among our recent OJ contributors, would not agree with the basic contention.  However, I was particularly interested in the observation that:

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.

In part, of course, the devotion to European treaty integration is about devotion to those treaties.  And a great deal of European academic writing in favor of international law is to urge that the world follow the path of the European Union – ramp up the model of European integration to something much, much larger.  Point being that even some part of European academic devotion to international law is actually devotion to the model of the EU.  Look through the international part and see the call for the EU writ global. 

 But another way to understand the contrast between America and Europe in this regard – adjunct to, not in contradiction with – is that the United States has always been about consent of the governed, popular sovereignty, the people are sovereign.  In Europe, as one German professor friend once remarked to me, the issue – following the disasters of forms of populism in the twentieth century – is not ‘consent of the governed’, as in the United States, but, as he said, the ‘consent of God’ and the consent of the people, well, only insofar as they are correct in their political judgments, but never as such.  A constitutional order – including its relationship to international law, sovereignty in relation to international law - for Europe and Europeans, at least European elites, was a matter of it being conveyed from the top down, not the bottom up.  The United States remains, in that sense, Lincoln’s America, sovereignty defined as “a political community, without a political superior,” precisely because it is predicated on the consent of the governed.

(Update:  Let me add a bit of fuel on the fire … see this brand new article, Sabrina Safrin, “The Un-exceptionalism of US Exceptionalism,” 41 Vanderbilt Int’l LJ 1307 (November 2008).  Here is the abstract:

This Article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. It puts U.S. exceptionalism in perspective by identifying European exceptionalism as well as noting developing country exceptionalism, pointing to the exceptional rules sought by the European Union and by developing countries in numerous international agreements and institutions. It argues that most nations seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries’ unwillingness to accommodate their needs as unfair. Requests for special treatment even exhibit a pattern.
This Article concludes by suggesting that the present emphasis on U.S. legal exceptionalism is overstated at best, misguided and even dangerous at worst. Furthermore, having shown that most nations seek exceptional legal accommodation, or double standards, in certain situations, it identifies some parameters for future work on the proper place for exceptionalism in international law.
http://opiniojuris.org/2008/11/25/jack-goldsmith-and-eric-posner-in-wsj-on-europe-and-international-law/

6 Responses

  1. I dare say Europe believes in international law a lot more than Eric Posner and Jack Goldsmith do.

    And since the only thing this Obama supporter has been trying to do the last seven years is uphold the laws of the United States in a situation where our own government was bent on subverting those laws for the purpose of committing crimes we once executed Nazis for committing, let me add:

    Goldsmith and Posner don’t appear to believe in the laws of the United States any more than they believe in IHL or the US Constitution.

  2. I have not read the op-ed but from the excerpt I think it is quite strange that they refer to the Kadi case. Because actually quite to the contrary that case shows that ECJ upholds IL – and especially human rights. And it actually did not say that the SC resolutions was invalid. It chose to talk about IL as little as possible exactly because it wanted to avoid an explicit conclusion that the SC resolution violates human rights (part of international law). The judgment in effect upheld international law (human rights) and disregarded SC resolution that violates it. 

  3. Jan is totally correct that Posner & Goldschmidt are misrepresenting the Kadi case.  Over on the International Economic Law and Policy Blog, Simon Lester has a post about the selection bias in the WTO cases they discuss.

    I find the comment that sovereignty in Europe is not predicated on the consent of the governed, but on the consent of God, rather far-fetched. Maybe your German Professor friend needs to be updated about the French Revolution.

  4. Annabel … good question, and I did ask at the time.  He was unenthusiastic and he was distinctly unenthusiastic when I told him that whenever I heard a French crowd sing the Marseillaise, it suddenly made me want to jump up and sing and be French too. But he also thought that the ‘sovereignty of the people’ thing was precisely what the EU existed to defang, on account of the dismal experience of 20th century popular nationalism in Europe and that Americans, not having lived through it, had a naive attachment to nationalism which they called ‘patriotism’ – and an attachment, he said, that was shared in Europe really only by the French, on account of their nostalgia for the Revolution, but their atavism would eventually attenuate in the EU.  Interesting conversation, back in 2000.

  5. The ECSC was definitely created to take the sting out of the dangerous mix of populism/patriotism/nationalism when it came to the battle over strategic resources and industries.  However, populism, patriotism or nationalism are not the same as the idea of sovereignty of the people.   You can have sovereignty of the people without all of these, even though the two states that are commonly seen as the birthplace of this sovereignty of the people are also commonly seen as very patriotic.  That doesn’t mean though that you can’t have one without the other.

  6. What about this focus on compliance with international law? I would rather say that the Europe still speaks the language of international law and tries to justify its positions with it. The US on the other hand seems to be beyond this: “We’re an empire now, and when we act we create our own reality….” Europe clearly does not share this attitude with the US and it is for this reason that the fact that international law is sometimes violated by Europe as well seems to be a lot less significant than Goldsmith and Posner would like to have us think. The violations of the US under the Bush regime are of a  different nature.

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