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What authority does international law really have for the United States? When and to what extent should the United States participate in the international legal system? This forcefully argued book by legal scholar Jeremy Rabkin provides an insightful new look at this important and much-debated question.
Americans have long asked whether the United States should join forces with institutions such as the International Criminal Court and sign on to agreements like the Kyoto Protocol. Rabkin argues that the value of international agreements in such circumstances must be weighed against the threat they pose to liberties protected by strong national authority and institutions. He maintains that the protection of these liberties could be fatally weakened if we go too far in ceding authority to international institutions that might not be zealous in protecting the rights Americans deem important. Similarly, any cessation of authority might leave Americans far less attached to the resulting hybrid legal system than they now are to laws they can regard as their own.
Law without Nations? traces the traditional American wariness of international law to the basic principles of American thought and the broader traditions of liberal political thought on which the American Founders drew: only a sovereign state can make and enforce law in a reliable way, so only a sovereign state can reliably protect the rights of its citizens. It then contrasts the American experience with that of the European Union, showing the difficulties that can arise from efforts to merge national legal systems with supranational schemes. In practice, international human rights law generates a cloud of rhetoric that does little to secure human rights, and in fact, is at odds with American principles, Rabkin concludes.
A challenging and important contribution to the current debates about the meaning of multilateralism and international law, Law without Nations? will appeal to a broad cross-section of scholars in both the legal and political science arenas.
"[A] learned and closely-argued book. . . . His argument is rich in scholarship, detail and nuance."--Peter Berkowitz, Policy Review
"Rabkin has skillfully and intrepidly outlined the main problems, including the dangerous embrace of 'soft law' and the hobbling of the right of states to self-defense. . . . [T]he present volume should be required reading."--Michla Pomerance, Azure
FOR SOME MONTHS following the terror attacks of September 11, 2001, pundits affirmed that the event had irrevocably changed America and the world. Subsequent events proved that changes in America and changes in the world were far from symmetrical. Perhaps there was not even that much change.
Nations, like individuals, may respond in new ways when confronted with new challenges. But even new responses are shaped by old habits of thought and established patterns of conduct. American political ideals have often differed from those embraced by people in western Europe. Differing responses to the challenge of international terrorism simply highlighted the underlying divergence.
In the immediate aftermath of September 11, "the world"-speaking through the United Nations (UN)-condemned the attacks. But what could the "international community" do to catch the perpetrators or to ensure that such attacks did not recur? The "international community" offered condolences. America then had to summon its own resources to defend itself.
Working with Afghan resistance forces, the United States mounted a counterattack on the Taliban regime in Afghanistan, a principal host for the terror network that perpetrated the September 11 attacks. The Taliban regime wasoverthrown in less than four months. Hundreds of Islamist terrorists were captured and imprisoned. But the United States provided virtually all the outside military force to accomplish this result.
For most Americans, the experience offered a clear lesson: The nation must depend, in the end, on its own exertions for its own security. At home, police warn crime victims not to take the law into their own hands. The world as a whole, however, has no international policing capacity. When attacked, a nation must be able to take the law into its own hands because self-defense is the most basic right.
Most Europeans drew quite different conclusions. In the months after the Afghan war, the United States was scolded by the International Red Cross, by the UN Commissioner for Human Rights, and by many European leaders for refusing to accord prisoner of war status to captured Afghan terrorists. Their view was that even a justified war must be fought under international supervision, on terms acceptable to international authorities.
And on second thought, much of the world doubted that terror attacks could actually justify military responses. In April 2002, after hundreds of Israeli civilians had been killed by terrorist attacks on civilians in Israeli cities, the government of Israel sent troops into towns on the West Bank to seize terrorist leaders and dismantle the terrorist infrastructure. The United Nations issued fierce denunciations of Israeli "aggression" without making any reference to the terrorist attacks which provoked it. European leaders spoke of "massacres" and "war crimes"-on the evident assumption that even a conscript army of a democratic nation was quite capable of committing mass atrocities, unless constrained by international authority. The correct response to terror attacks, Europeans insisted, was to work with international authorities to defuse tensions and satisfy the grievances which provoke people into committing terrorist acts.
A year later, American and British troops invaded Iraq and overthrew the government of Saddam Hussein. The UN Security Council had demanded that Saddam's government demonstrate that it had dismantled all its programs for producing weapons of mass destruction. The same demand had been repeatedly reaffirmed since 1991, when it had been included in the truce terms ending that earlier Gulf War. In the previous war, a UN-authorized, American-led force had liberated Kuwait from Iraqi conquest but left Saddam in power in Iraq itself. By the spring of 2003, there was general agreement on the Security Council that Saddam was still not complying with disarmament obligations imposed in 1991. It was also widely understood that Saddam's government had developed friendly relations with international terror networks.
But the Security Council still would not authorize a second war to enforce its own demands. When the United States and Britain proceeded to war without formal authorization from the Security Council, the war provoked strong condemnation at UN Headquarters and in many capitals around the world. In Europe, the governments of France and Germany remained most adamant in their condemnations. Outside of Britain, European public opinion remained quite disapproving. American opinion generally supported the war.
For critics, the war showed that the United States was a dangerous "rogue nation," claiming the power to attack other countries on its own initiative. For most Americans, it was hard to imagine who else, if not the American government, could decide when and where American military forces would be ordered into action. The United States had, in fact, secured endorsements of the war from some forty countries, many of which offered some degree of direct assistance to the military campaign. To critics, the war remained "unilateral" or in any case "illegitimate" because it was not sanctioned by the United Nations.
For most Americans, it remained strange to think that American defense efforts required authorization from the United Nations. The United States had fought many wars, large and small, since the founding of the United Nations in 1945. It had rarely sought or received UN approval for these efforts. How could the UN limit American defense efforts, when the UN had no troops to provide an alternate means of security? Criticism of American actions presumed, on the contrary, that no country would be safe unless international institutions were acknowledged to be paramount to the impulses of individual states.
Even as the United States was gearing up a bolder defense strategy in the months after September 11, European governments rounded up endorsements for a project which embodied this alternate view. A treaty establishing an International Criminal Court (ICC) had been negotiated in the summer of 1998, but it took some time to get the required sixty ratifications to put the plan into effect. The United States had, from the outset, sought revisions in the design of the project. European governments resisted these pleas and pressed forward with their efforts to see the court set up and running on the original plan. In the spring of 2002, the Bush administration announced its unalterable opposition to the court as now constituted. This stance provoked intense criticism.
The extent of the divergence in underlying attitudes was perfectly reflected in the differing perspectives on this new international project. The court would have jurisdiction to indict American soldiers for "war crimes" and could accuse higher officials of "command responsibility" for such "crimes," even for abuses they had neither ordered nor known about. Ultimately, according to the original plan, the court would also have jurisdiction to indict American leaders for the general crime of "aggression." Was it really to be expected that a government of the United States could submit itself to the judgments of such a court?
Europeans seemed convinced that only arrogance and selfishness could explain American resistance to this project. Why should America set itself above the rest of the world? The fact that China and Russia, India and Pakistan, Japan and South Korea, Israel and Egypt-in fact a majority of UN members-had also held back from the treaty did not receive so much attention. Certainly the recalcitrance of other states did not provoke so much criticism. European critics focused on the American stance: Why was the United States holding itself aloof from a project that aroused such hopes among democratic countries, western countries, peace-loving countries?
A short book by Robert Kagan offered an explanation which gained a good deal of attention in 2003: "Americans are from Mars, Europeans are from Venus." The problem, as Kagan diagnosed it, was that Americans still felt the need to cope with serious threats out in the world, while Europeans imagined that a network of legal institutions could bring peace to the world, as it had to Europe. Such formulas seemed especially astute amidst intensifying debates over the war in Iraq.
But it was, in fact, only the most visible or the most recent round in a dispute that was much older and much deeper. Long before the dispute over Iraq, European governments had complained about American resistance to many other international undertakings. Before the United States provoked European scorn for repudiating the International Criminal Court, for example, it had provoked European resentment for backing away from the Kyoto Protocol on Climate Change. Those with longer memories could recall that the United States had backed away from a number of previous international environmental treaties, human rights conventions, and arbitration agreements. Those with a wider perspective would notice that European states had harnessed themselves to supranational authorities in the European Union (EU), establishing an elaborate treaty structure over their own national constitutions, in ways that would be unthinkable for Americans.
There was already a growing divergence between Europe and America in the 1990s, when everyone dreamed of enduring peace in a world finally released from Cold War tensions. At some level, the divergence reflected differing notions of what peace should mean. Years before September 11, Samuel Huntington had warned of a coming era characterized by "the clash of civilizations." But even Huntington's pessimistic forecast took for granted that western Europe and the United States were part of the same cultural community-what he called "western civilization." But "western civilization" itself has competing strands. In some ways, the debate that emerged after September 11, like the trans-Atlantic disputes gathering momentum before that supposed turning point, reflected very much older divisions.
How can any nation hold to its own law and still have peace with its neighbors? The question has been posed-and answered in quite different ways-ever since the emergence of modern nation-states. It is a question that has shadowed the modern world.
In some ways, indeed, the underlying debate is still older. It goes back to some of the formative thoughts or formative experiences of western civilization. Certainly, the longing for some overarching political structure, encompassing all or many nations, is a very old dream. For many centuries, it was even an achieved reality.
At the height of its power, the Roman Empire seemed to rule the whole of the civilized world. If there were different empires in China or India, they were impossibly remote, scarcely more than legends or rumors. At least within Europe, the boundaries of Rome appeared to be the boundaries of civilization. Within Europe, even barbarians, on the far side of this boundary, were awed by Rome's empire.
Rome was the source of wealth and luxury, of order and law, of political wisdom and saving religion. So the barbarians remained in awe of the empire. They remained in awe of Rome, even as they overran the empire and reduced it to chaos in the last stages of Rome's decline. Even then, after the complete disintegration of the empire, the memory lingered.
In the tenth century, German princes tried, with the blessings of a universal church, to revive the idea of a universal empire. These princes styled themselves rulers of an empire (reich) not only "holy" but "Holy Roman"-and claimed the title of kaiser to appropriate the luster of the ancient caesars. In the fifteenth century, after the Ottoman Turks conquered Constantinople, the last remnant of the Eastern Roman Empire, the rulers of distant Muscovy proclaimed themselves the final heirs of Roman glory-new caesars ("czars"), builders of a "Third Rome," which would be the ultimate and most enduring empire.
Centuries later, a different group of Russian rulers sought to build a new empire, again centered in Moscow, now seeking world dominance not as a "Third Rome" but as masters of a "Third International." By then, Germans were entranced with a new scheme for the German domination of Europe-a successor to the medieval revival of the Roman Empire, a "Third Reich," which would leave architectural monuments as grand and enduring as those left by ancient Rome.
Almost everyone now shudders at the horrors inflicted by these mid-twentieth-century efforts at restoring universal empire. But in their time, these projects inspired great hopes among millions of Europeans. People in France, in Belgium, in the Netherlands, and elsewhere in western Europe greeted the triumph of German arms in 1940 with relief. They hoped for peace. Relinquishing national sovereignty seemed a reasonable price to pay for the promise of peace. Millions of people in conquered countries looked upon continued British resistance as an affront to peace. As late as the summer of 1943, the president of France, chosen by a freely elected parliament, insisted there could still be a general peace in Europe if only Britain were "not led by the fanatical Churchill and the United States by the Jews." There was reason, after all, to think that a triumphant empire could bring peace. While the Roman Empire lasted, it provided security from one end of Europe to the other-and good roads throughout. Medieval Europe, torn by endless feudal conflict and religious squabbles, longed for a revival of the Pax Romana-which it connected with the inner peace to be secured by a universally acknowledged faith.
There was more than a little yearning for peace in this sense, too, in western Europe, in the summer of 1940. Advocates of collaboration envisioned a Europe where harmony would reign between classes as between nations, where selfishness and petty interests would give way to common European structures, so encompassing as to preclude any possibility of future conflict. Europe's new leader voiced the ultimate promise of peace in this first modern effort toward European integration: "When National Socialism has ruled long enough, it will no longer be possible to conceive of a form of life different from our own." The victory of outside powers put a definitive end to this particular dream of assured peace through imposed unity. Millions of Europeans continued to embrace-or turned now to embrace-a rival vision of assured harmony. International socialism had defeated National Socialism in the east. Even in western Europe, hopeful followers assumed that the new faith had harnessed the irresistible tide of History. The underlying appeal was much the same. Communism, too, promised an escape from conflict-only this time, a more comprehensive escape. By eliminating private property, it would eliminate any impulse to distinguish "mine" from "thine" and allow all mankind to embrace a common humanity.
But contrary to the predictions of many European observers in the 1940s, the defeat of the Third Reich did not open the way for the triumph of the Third International in western Europe. Instead, postwar European governments pursued moderate social welfare policies. Prominent advocates spoke of the social welfare state as-inevitably-a "Third Way." This way would avoid the extremes of cutthroat capitalism and of bureaucratic socialism, providing a final synthesis that could be accepted by everyone. To anchor this third way, Europeans began, in the 1950s, to build yet another overarching political structure, which would ensure that states in western Europe, like the classes within them, would no longer be drawn into conflict.
Perhaps there was more than a slight echo of the Pax Romana in this project, too. It was founded in 1957-by an agreement called, in fact, the Treaty of Rome. The Italian prime minister at the time called attention to the "deep significance" attached to the launching of this new European Community "in Rome, this city which ... has been recognized as the cradle of that European civilization which [the treaty] aims to advance ... [and which] will help to make Europeans politically important in the world again." Over the ensuing decades, the Community acquired more and more power and was finally given a new name in 1991, to emphasize that its bonds would be far stronger than those linking, say, "the Atlantic community."
Excerpted from Law without Nations? by Jeremy A. Rabkin Copyright © 2005 by Princeton University Press. Excerpted by permission.
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