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Valparaiso Univ. Law School

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Wednesday, November 26, 2008

More from the Wall Street Journal on How International Law Sucks

I have already provided a brief comment on the Wall Street Journal's campaign to blame international human rights law for the sudden rise in piracy off the coast of Somalia. But the Journal's interest in international law goes beyond piracy. Tuesday's paper also included this opinion piece by Jack Goldsmith and Eric Posner, "Does Europe Believe in International Law?" You may already be familiar with the works of Goldsmith and Posner on international law, such as "A Theory of Customary International Law," in which they attempt to demolish all hitherto existing understandings of customary international law, "Moral and Legal Rhetoric in International Relations: A Rational Choice Perspective," in which they argue that "moral and legal rhetoric in international relations is the result of strategic incentives, not of the desire to comply with morality or law," and The Limits of International Law, in which they argue that states comply with their international obligations only when it is convenient for them to do so.

In their new opinion piece, Goldsmith and Posner confront the United States' reputation as an international scofflaw by contending that Europe is no better than the U.S. when it comes to compliance with international legal obligations. " Like the Bush administration," they write, "Europeans obey international law when it advances their interests and discard it when it does not."

This is clearly point II in the brief on behalf of the United States. The Legal Advisor to the U.S. Department of State, John Bellinger, is off arguing to anyone who will listen that the United States takes its international obligations very seriously. When the U.S. is accused of non-compliance, Bellinger says, those accusations are usually the product of a good faith disagreement about the nature of those obligations rather than a willful breach.

For example, consider these excerpts from his June 6, 2007 lecture at The Hague:

The United States does believe that international law matters. We help develop it, rely on it, abide by it, and - contrary to some impressions - it has an important role in our nation's Constitution and domestic law. . . .

In the course of the evening, a few themes should emerge. One is that a reliance on sound bites and short-hand can give the deeply misleading impression that we are not committed to international law. A second is, in fact, deeply ironic: that the very seriousness with which we approach international law is sometimes mischaracterized as obstructionism or worse. A third is that some of the most vehement attacks of our behavior - although couched as legal criticism - are in fact differences on policy. A fourth and related theme is that our critics often assert the law as they wish it were, rather than as it actually exists today. This leads to claims that we violate international law - when we have simply not reached the result or interpretation that these critics prefer.

So Goldsmith and Posner argue in the alternative. In case the court rejects Bellinger's defense of the United States as a good faith participant in international legal regimes, Goldsmith and Posner argue that the United States' disregard for its international obligations is no worse than that of those highfalutin' Europeans.

The difficulty with their arguments, however, is that the examples they cite of European violations of international law are not generally viewed as anything of the sort. They name European participation in NATO's humanitarian intervention in Kosovo and in the International Criminal Court as not only violations of international law but as violations of the U.N. Charter. Unfortunately, these instances are simply additional examples of how the U.S. sees international law as requiring one thing and the vast majority of other states see it as requiring something completely different, just as Mr. Bellinger said.

Which brings me back to a theme I have addressed in previous posts, e.g. here and here. Jack Goldsmith was briefly the director of the Office of Legal Counsel, the President's chief source of legal advice within the DoJ. If the President's advisor suggests that the U.S. has no real international legal obligations, only political ones, it undermines any remaining confidence that the United States' potential treaty partners might have in its willingness to uphold a bargain.

[Jeremy Telman]

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