European attitudes toward international law.

By Jack Goldsmith and me, here.

Tony Tutins (mail):
Is it a custom?

Ay, marry, is't,
But to my mind, though I am native here
And to the manner born, it is a custom
More honor'd in the breach than the observance
11.25.2008 11:38am
Thorley Winston (mail) (www):
Thank you for posting the article, I've long suspected that the idea that Bush administration was somehow unique compared to either past US administrations or that of foreign governments in its attitudes towards international law to be little more than propaganda from its enemies. National governments follow international law when it suits what they perceive as their nation's interests and either disregard or seek to evade it when it doesn't.
11.25.2008 12:37pm
Thanks for posting that link. Outstanding article and, for the most part, right on the money.

No country will subordinate their constitution to the UN and none should. Especially true of ours (and yes, of course I am prejudiced in favor of ours).

On the other part of the topic, who is it that is a hypocrite? Those who say they are going to defy so-called international law and doing so or those who offer lip service to it and defy it? Europe has absolutely no room to talk.
11.25.2008 12:46pm
Ryan Waxx (mail):
But talk they do. Boy, do they.
11.25.2008 1:34pm
Is America the only country where a substantial minority of the population (and now, perhaps a majority of elected officials) call for foreign policies that openly undermine their own country? Posner and Goldsmith have an interesting article, but I wonder if, in Europe, even the left-wing parties want to subordinate their countries to the international system.
11.25.2008 1:41pm
Don Miller (mail) (www):
If you asked the Europeans, I believe they would say that conflicts between the UN Charter and the European Union Constitution are conflicts in International Law itself.

Because after all, isn't the European Union Constitution just a treaty between Nations and therefore International Law by definition.

What else are they supposed to do when International Law itself is in conflict, but try and resolve it the best they can.

Not that I would buy that argument for a minute, but it would be easy to rationalize it that way.
11.25.2008 1:51pm
Assistant Village Idiot (mail) (www):
I liked the line, "In fact, Europe's commitment to international law is largely rhetorical." You could fill in so many other things in the "international law" slot: carbon reduction, NATO defense, world hunger...

They clearly place considerable value on saying the right thing.
11.25.2008 2:55pm
Don Miller - part of the reason I don't buy that argument is that any conflict seems to be resolved (if I remember correctly) by the supremacy provision of the UN Charter, which I believe was in existence before the EU Constitution...
11.25.2008 2:56pm
Siskiyou (mail):
For those of us who do not practice or otherwise function in the area of international law the phrase is a contradiction in terms. For the rest, a minority, it stands for a way of making a living, not to be denied for an obvious reason. Certainly, one looks to the text, to use the word in a broad sense, of international law to predict the outcome of an act or transaction, but that practice, useful as it is, does not mean that international law is binding on nations. Sovereignty is inextricably associated with national power. Obedience by nations to international law is voluntary. Nevertheless, obedience is often to wise course. Yes, I know the US Constitution has a bit to say on the subject, but ask yourselves how things actually work and who makes and enforces those "laws".
11.25.2008 2:58pm
TJIC (www):
If you asked the Europeans, I believe they would say that conflicts between the UN Charter and the European Union Constitution are conflicts in International Law itself.

Because after all, isn't the European Union Constitution just a treaty between Nations and therefore International Law by definition.


Sounds right to me - just like the US Constitution between the states.

Speaking of which, I again ask why it is that we have one UN seat while the Europeans have multiple.

If federal unions of states are themselves states, then the US and the EU should each have one UN seat.

If federal unions of states are not themselves states, then the EU should have 27 seats, and the US should have 50.
11.25.2008 3:26pm
Michael B (mail):
"... Europe's commitment to international law is largely rhetorical."

A vast understatement. Europe's commitment to Afghanistan has largely been rhetorical. England and Denmark have been exceptions, perhaps one or two others, but in the main that's largely been the case.

German and Iranian relations reflects but one case in point, e.g., Joschka Fischer's Speech at the Opening of the Iranian Embassy in Berlin. The U.S. continues to have a sanction regimen against Iran, while Germany supplies Iran with more than 12% of its imports with France, China and Italy also do substantial business with Iran's mullahs (the others consist of other M.E. countries, China and Asia, Russia, but Germany is a major technological partner with Iran). This, despite the fact Iran would likely be susceptible to sanctions due to its long term dependence upon Europe and a lack of local know-how in some critical sectors.

Iow, what "undermines" in the short run, economically and politically, can prove to be a boon in the long run. That's why the U.S. provides the greater part of the world's stability since WWII and the Cold War.

11.25.2008 3:29pm
Thorley Winston (mail) (www):
Speaking of which, I again ask why it is that we have one UN seat while the Europeans have multiple.

If federal unions of states are themselves states, then the US and the EU should each have one UN seat.

If federal unions of states are not themselves states, then the EU should have 27 seats, and the US should have 50.

Insofar as membership in the United Nations is worthwhile (let's assume for the sake of argument it is), what's important is having a vote on the Security Council and not whether you have one vote or 27 or 50 in the General Assembly. The most important issues get decided amongst the members of the SC where anyone of them can scuttle a proposal and almost nothing important relies on a majority vote of GA where it isn't a forgone conclusion.

Also, I think it's better for the United States to speak with one voice on foreign policy rather than having 50 separate voices and potential conflicts where different States side with different countries on different issues. So long as the members of the EU each have a different voice in the UN and several difference voices in the SC, it pits the interests of each EU member-nation against each other and is one more thing that prevents them from ever being an actual united political entity and a serious challenge to the United States.
11.25.2008 5:19pm
martinned (mail) (www):
Sorry, but the evidence offered in this article can in no way support the conclusion. I agree that Kadi was wrongly decided, but it very much makes sense if you view the EU as something akin to a state. In no state that I know of does international law trump national constitutional guarantees. (Cf. US Const. supremacy clause.)

Kosovo, the second case mentioned in the article, is better viewed as the beginning of a new rule of international law. In the last few years, people have been talking about it as R2P, Responsibility to Protect. Even though it is not yet clear what this principle will look like, and even though it violates the letter of the UN Charter, there is ever more evidence of a rule of international law that considers certain interventions legitimate in case of genocide and other crimes of the government against its own people.

Third example: Where does it say in the UN Charter that the Security Council should have the power to halt or delay ICC trials? The Statute of Rome is a separate treaty, which connects in certain ways with the UN Charter. The fact that the Charter says that it is supreme over all other international agreements does not mean that the Security Council should have power over the ICC any more than it has power over the WTO. (Can the Security Council halt or delay a proceeding in a WTO Dispute Settlement?)

I'm not sure what is so fundamental about the International Covenant on Civil and Political Rights. Over here, the only human rights treaty that really matters is the European Convention on Human Rights, which is obeyed to the letter. The latter, unlike the former, comes with its own highly legitimate court which decides how the Convention applies to a given case.

Less than robust commitment to the ICC: How is it a lack of respect for international law to seek a Security Council resolution under article 16 of the Rome Statute in a situation where that is considered appropriate?

And don't even get me started about the WTO. That organisation is politicised up to the hilt by design. Instead of having an actual court of some sort, it has a Dispute Settlement Mechanism. The WTO is so political that even the European courts consider it a purely international agreement that is unable to give direct rights to citizens, despite the fact that on its face it seems not unreasonable for a citizen to sue a state party for non-compliance. (The case is Van Parys, and concerns the banana story mentioned in the article.)

So yes, European countries do not always carry out their treaty obligations. They argue with the US over bananas in the WTO context, they let the US kidnap people in violation of ECHR guarantees and they fail to reach their Kyoto targets. But how does any of that amount to a diagnosis of "all talk, no action"? European countries, including the UK, continue to have a strong commitment to international law, not just with words, but also with the Treaties they sign, even if some of them are honoured more in the breaking. (After all, the same goes for most speed limits...)
11.26.2008 9:10am
Curt Fischer:

French Foreign Minister Dominique de Villepin in 2002: "Any action aiming for regime change would contradict the rules of international law and open the door to things getting out of hand."

Maybe he meant, "Too bad for International Law, I guess, but hey, that US Constitution has its Supremacy Clause, so I guess Bush is in the clear to do what he wants in's a bummer, but I guess it shows we should probably change international law so that it is consistent with all of the sovereign national laws of various nations to which it is subject."

But I doubt it. Under any reasonable reading, he is trying to impugn the US for (planning on) violating International Law. The point I took away from Posner's editorial is that Europeans sometimes reject similar arguments made against their states, and that this behavior is inconsistent.
11.26.2008 9:57am
martinned (mail) (www):
@Curt Fischer: There's no question that the action in Kosovo violated international law as it stood at the time. The UN charter provides a closed system for use of force between states: It is forbidden (art. 2(4)), except in cases of self-defence (art. 51) or in case of a security council authorisation (art. 42). That is it. The question that is being discussed since the Kosovo precedent is whether that system is adequate. Many commentators feel that there should be a third exception: intervention in case of massive crimes by a government against its own citizens. The problem with such a rule is that it opens the door to all sorts of sham excuses by totalitarian states (Russia?) looking to intervene in neighbouring countries. In other words, the rule is too vague. That is one of the reasons why it has been suggested that some sort of consensus in the international community (though by definition short of a consensus among the permanent members of the security council) should be necessary as well.

Anyway, no such argument was made to justify the war in Iraq. WMDs don't equate self-defence ("immanent unlawful attack"), regime change doesn't equate massive crimes against the population, at least to my knowledge the Kosovo precedent has never been invoked, so how exactly was De Villepin wrong? And since when is Tu Quoque a legal defence? Only in contract law is my breach an excuse for yours.
11.26.2008 10:24am

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