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

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.