European Weakness, Anti-Americanism, and International Law
by Hilaire de Sauveterre (Feb.2007)
A European Idea
The road from Delft to the Hague is picturesquely described by Robert Louis Stevenson in his rarely-read novel Catriona, as “just five miles of a fine avenue shaded with trees, a canal on the one hand, on the other excellent pastures of cattle.” In four-hundred years, the epicenter of public international law* has shifted no further than those five miles, from the birthplace of legal wunderkind Huig de Groot in 1583 to the current seat of the International Court of Justice. It is thus no exaggeration to say that international law, despite its recent entrenchment in America’s law schools, is a distinctly European phenomenon.
From the precedent-setting trials of Nazi war criminals at Nuremberg, to the World Trade Organization’s headquarters in Geneva, to the new International Criminal Court in the Hague (not far from the International Court of Justice), the institutions that symbolize international law are either literally or spiritually European. Even the United Nations has always been an awkward guest in this country, perched on the bank of the East River as though refusing to set one more foot than necessary on American soil.
That Europeans should be the most vocal proponents of international law is unsurprising.; Europeans are particularly comfortable with the transnational impulse which drives international law because it is so similar to the mindset behind that other grand European political project, the European Union. Indeed, the history of the European Union goes a long way towards explaining the very different levels of enthusiasm for international law in Europe and America.
From its inception as the European Coal and Steel Community in 1951 in the wake of the Second World War, the European Union has embodied a desire to subordinate national interest, and German expansionism in particular, in the interest of continental peace. Concomitant with the integration of national law and policy has been an aggressive program of European demilitarization. This agenda has been so successful that few European countries today are equipped to fight prolonged or far-flung engagements. The resulting weakness is both material and psychological: even if they were provided the firepower to undertake a major military campaign, it is doubtful that many European nations would have the heart or stomach for it. Indeed, it is almost axiomatic among European elites that unilateral military action, whatsoever its justification, is morally and legally wrong.
In hindsight, the well-intentioned desire to remove the military option from European affairs succeeded too well. The projection of force has become so anathematized that some European nations no longer posses the will to act aggressively even when aggression is demanded. This weakness poses problems for Europe, but it is an even bigger challenge for the United States. In the absence of European military power, America must shoulder the bulk of the expense and cost in lives of engagements around the world while still maintaining an army in Europe to protect that continent.
European weakness also poses a more direct threat to the United States. Envy often transforms an object of admiration into an object of scorn, for it is easier to believe that a trait one does not possess is undesirable than to live with the knowledge of one’s own inadequacy. So it is that European resentment of American strength has bred contempt for an American foreign policy premised on strength. The European cognoscenti have persuaded themselves that, because Europe cannot match American might, American might is ipso facto illegitimate. This is necessarily a simplification, but it describes a very real and underestimated phenomenon.
In this vein, it is important to note that European hatred – and hatred is, if anything, too mild a term – of American military power is unrelated to America’s actual use of its power. Yoking principled righteousness and opportunism, America’s critics attack simultaneously from the high and low moral ground. America is vilipended as hors de loi for its invasion of Iraq yet castigated for its failure to invade the Sudan to prevent genocide there. And the same French diplomats who accuse America of insufferable arrogance blithely defied real world opinion themselves when they tested nuclear bombs in French Polynesia and sunk a Greenpeace vessel that dared protest their actions. Finally, the same nations that label American intervention in Iraq a violation of international law because it lacked the imprimatur of the United Nations Security Counsel did not consider the same flaw an impediment to NATO’s bombing of Serbia in the 1990s. It is thus not merely the manner in which America exercises its power that incites European anger, but the very fact of American strength in the face of European impotence. The only constant is that whatever America does is wrong.
What is International Law?
When America is accused of violating international law, the charge is taken seriously by most Americans. Lawbreaking sounds serious and, in everyday experience, usually is. But that is because most people understand what is meant by “the law,” whereas very few people understand what is encompassed by “international law.”
International law is a nebulous concept – so much so that one suspects its imprecision is cultivated to permit its proponents the greatest possible wriggle-room. It is broadly defined as the rules that govern relationships between sovereign nations, but that definition is too general to be useful. In practice, its sources are legion and its slippery contours impossible to limn with precision.
Least controversially, it includes treaties between and among sovereign nations. Common examples are the Geneva Conventions, the United Nations Framework Convention on Climate Change and its implementing treaty, the Kyoto Protocol, and the Nuclear Non-Proliferation Treaty. Even treaties, however, are controversial under international law. In the United States, for example, a ratified treaty exists on the same plane as federal statutes and a subsequent federal statute can abrogate or alter a treaty either expressly or, more rarely, impliedly. This contrasts with the practice in most European countries, where a treaty is typically superior to national laws.
More controversially, international law embraces the idea of “customary international law,” which looks to the actual practice of a majority of nations for rules of conduct. As defined by Amnesty International, “[c]ustomary international law results from a general and consistent practice of states followed out of a sense of legal obligation, so much so that it becomes custom. As such, it is not necessary for a country to sign a treaty for customary international law to apply.” It is easy to see why this might be a problem. In practical terms, customary international law purports to be able to bind the United States to norms established by other nations to which the United States has never consented.
Finally – and most controversially, though probably least known among non-international lawyers – international law looks to the “judicial decisions and the teachings of the most highly qualified publicists of the various nations” to determine its content. This language, which comes from Article 38 of the Statute of the International Court of Justice, requires some exegesis. By “the teachings of the most highly qualified publicists of the various nations,” the International Court of Justice means the writings and opinions of international legal scholars and organizations, including interest groups like Human Rights Watch, the Red Cross, and Amnesty International. This principle is particularly damaging to the United States, given the stridently Leftist and anti-American agendas of most international law professors and non-governmental organizations. William F. Buckley, Jr. is supposed to have quipped that he would rather be governed by the first 2,000 names in the Boston phone book than by the 2,000 members of the Harvard faculty. International law sees Buckley’s fear and raises it, subjecting us to the rule of not only Harvard professors but those from Cambridge, Leiden, Freiburg, Bologna, and Coimbra as well.
With so many potentially contradictory sources of law, there would be confusion even if everyone could agree on what the text of each treaty, decision, and commentary meant; without such agreement the result is impossibly chaotic. To take just one example, a layman might think the prohibition against genocide is reasonably clear. Everyone can agree on genocide at its extreme**: the German holocaust of 1938-1945 was unambiguously genocidal. The recent murder of half a million Tutsis by Hutu tribesmen in Rwanda was also genocidal. Similar prolonged and focused massacres, including in Cambodia under the Khmer Rouge, are also certainly genocidal. Beyond these and similar examples, however, political doublespeak intrudes. The United States, for example, has repeatedly described the ongoing murder and starvation in Darfur as genocide, but the United Nations has demurred, in part due to the obligations genocide imposes upon that body. Whether a given series of massacres is “genocide” under international law now seems to depend more on diplomatic considerations than on any firm principle of international law.
Disagreements about the substance, and inconsistency in the practice, of international law justifies American skepticism. There is no end of nations and international organizations that dearly love to see the United States humbled, even symbolically. The international Left openly advocates curbing American power through institutions such as the new International Criminal Court and has become increasingly vocal in its criticisms of American military, economic, environmental, and cultural activities, which it frames as legal rather than merely diplomatic objections. Such are the thousand threads of international law spun endlessly to bind Gulliver.
Is International Law “Law”?
It may seem petty to quibble with the use of the word “law” in arguments over the proper role of international “law” but the objection is necessary to expose the terminological shell-game practiced by international legal commentators. Advocates of international law benefit from the deference accorded the traditional “rule of law” without having to explain why the radical reality of “international law” deserves the same deference. Because this connotative transposition obscures differences that advocates have an interest in keeping obscure, it is the duty of international law’s critics to challenge it.
Despite the historical malleability of the term “law” – a fact often cited by international lawyers to justify their use of the term – in civilized countries the word carries connotations which elevate it to a term of approbation. Chief among these is the belief that the “law” must be respected because it is legitimately promulgated.
In most democracies the “law” is a written code compiled by elected representatives of the people. This may be supplemented by other sources of law, including the common law promulgated by judges who are either elected directly or appointed by elected representatives. Finally, the law may derive from the agreement of a majority or a super-majority to adhere to a prior enunciation of positive law, such as the U.S. Constitution. In each of these cases, the sine qua non of the law is the consent of the governed. Secondary but vital are the notions of participation (through democratic assent to the laws), consistency (the law is neutrally applied), and transparency (the law is largely predictable and easily accessible to those under its jurisdiction).
International law eschews each of these norms. While nations can be said to assent to treaties on behalf of their populations (ignoring that most regimes are but nominal representatives of their people), international law often purports to bind countries that have not assented to any treaty. The International Criminal Court, for example, was initially constituted to exercise universal jurisdiction so long as sixty countries submitted to its jurisdiction. This sweeping provision was dropped only after uncharacteristically vigorous opposition by the United States. And the very nature of customary international law – that the practices of a majority of countries or even the advocacy positions of non-governmental organizations can establish inviolable, universally binding norms – is expressly corrosive of national sovereignty. Because of customary international law, Amnesty International can assert that “[t]he execution of those with mental illness or ‘the insane’ is clearly prohibited by international law” and condemn American “illegality” in this respect without having to cite anything that an American would recognize as an actual “law.”
Unlike domestic “law”, much international “law” is ad hoc and opaque. The decisions of the International Court of Justice and other international tribunals are often politically motivated and unhindered by the careful argument or the accretive precedent that discipline Anglo-American jurisprudence. Moreover, because most of the world is not governed by regimes familiar with the rule of law, international law is frequently harnessed to deeply antidemocratic agendas and used to bully a minority of civilized nations. So it is that vocal Middle Eastern countries, who have yet to enfranchise half their populations and violently persecute non-Islamic proselytizing, can invoke the imprimatur of “international law” in their hysterical condemnation of Israel, the only functioning democracy in the Middle East and one which is home to a robustly free press and more than a million Arab citizens.
Unlike the Western rule of law, international “law” does not require the consent or participation of the people it claims to govern, is inconsistently applied – often by unlawful nations against lawful ones – and lacks transparency both in its promulgation and its application. It is also opportunistic, largely unenforceable in practice, and thus certainly not what we in the West would consider “law.”
But if international law isn’t law, what is it?
International law is diplomacy simpliciter. Like war, it “is merely the continuation of policy by other means.” Indeed, in spirit and practice, international law has more in common with war than with domestic law: it is wielded to obtain advantages inconceivable on the battlefield and is constrained not by neutral principle, as law is, but only by the vicissitudes national fervor. For this reason, it is high time the United States stopped treating international law as worthy of the same respect as its own laws and recognized international legal controversies as the battles by proxy they are.
The United States has long operated out of its depth when it comes to international diplomacy, where experienced players practice a realpolitik that sits uneasily in the earnest American breast. America stumbles dutifully from diplomatic blunder to blunder while nations unembarrassed by the naked pursuit of national ambition tie its shoelaces with protocols and conventions and then howl – either in derision when America falls flat on its face or in protest when she stoops to disentangle herself.
Too much international law is shaped by nations compensating for their recklessly self-imposed military impotence. It is also often driven by naked anti-Americanism.
In Europe, anti-Americanism is the sickly issue of weakness impregnated with envy. Raised in lassitude and educated in sophistry, it cannot stand erect or countenance too much reality. It cringes before a manly show of force and heckles its target from behind the skirts of parochial indignation. Incapable of imposing its will directly, anti-Americanism wages a guerilla war through international law, sowing mischief abroad and discord in America.
In light of this, Americans should ask: What claim do advocates of international law have on we who still believe in national sovereignty and champion the autonomy of the nation state over transnational organizations? According to Samuel Johnson, it was “said by Fontenelle, that if twenty philosophers shall resolutely deny that the presence of the sun makes the day, he will not despair but whole nations may adopt the opinion.” So it should be with international law. Americans must not despair that twenty or even twenty-thousand law professors declare that right is wrong, that permission is prohibition, or that deterrence is aggression, though whole nations adopt the opinion. Instead of accepting the fiction that international “law” deserves the same respect as domestic laws on the say so of advocates temperamentally inclined to oppose her, America should trust her own judgment, align herself with likeminded allies, and damn those too blinded by anti-Americanism to see better.
Hilaire de Sauveterre is a lawyer in Washington, D.C.
* Public international law concerns the relationships between sovereign nations and is distinct from “private international law,” which is concerned with determining the correct forum and legal regime for resolving international disputes. I use the term “international law” to refer only to the former idea, both for the sake of brevity and because such usage comports with common parlance.
** But see Iran, Islamic Republic of.
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