Wednesday, November 26, 2008
It's a good question. And, according to Jack Goldsmith and Eric Posner, writing in yesterday's Wall Street Journal, the answer is interesting:
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.Indeed.
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.
The problem here, in my opinion, is that some people still see "international law" as a concept strongly analogous with the laws they know: enacted by their legislature, enforced by their police, and accountable to the people via elected officials.
But in the international arena, there is no such thing, because there is no World Government. All we have are international treaties, signed by some countries and neglected by others. Those who enact those treaties, and those who fail to follow them, are not accountable to anyone... and they cannot be enforced, except through war.
More succinctly, as General Charles de Gaulle once said: "Treaties are like flowers and young girls. They last as long as they last."
And in keeping with the former French President's attitude, the Europeans seem quite amenable to ignoring international agreements when it suits their purposes:
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....in other words, the Europeans are just as capable of "cowboy diplomacy" (in the words of a common sneering accusation against the Bush Administration) as the United States is. The difference would appear to be that the United States doesn't pretend to take International Law seriously... whereas the Europeans do.
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.
(Say, wasn't it the United States that was roundly criticized in 2003 for going to war in Iraq, on the grounds that there was no U.N. approval... even though the American President had asked for, and gotten, a unanimous U.N. Security Council Resolution ordering Iraq to disarm or "face the consequences"? Times certainly have changed.)
Perhaps one day we'll have a World Government, with elected representatives and a cohesive legal system and checks-and-balances to keep powers separate. But pretending won't make it so... and, to paraphrase Abraham Lincoln, calling the U.N. a World Government doesn't make it one.
(hat tip: Instapundit)