Law professors Goldsmith and Posner have an excellent and very relevant op-ed in today’s Wall Street Journal on Europe’s sentiments toward international law. Goldsmith and Posner argue, as they do in their book The Limitations of International Law, that international law is predominantly based on state interests. This is as much the case in Europe as anywhere else. The only difference is that Europeans often like to portray themselves as adhering to international law whereas previous and current US administrations have made no attempts to hide their scepticism toward certain international legal regimes. Goldsmith and Posner argue that issues like extraordinary rendition, ban on meats containing growth hormones, import bans on GMO induced products and the area of climate change (where some EU states will fail in their Kyoto obligations) clearly indicate that European countries equally disregard international standards when it is in their interest to do so. Why then do many Europeans call for and expect a more “European-like” approach to international law and relations by recent president-elect Obama? Goldsmith and Posner argue that one reason is historical – Europeans have traditionally favoured international consensus. This is probably correct as the economic prosperity witnessed across Europe today is to a great extent rooted in international and regional integration. However, it would suit European leaders if they would come clean and admit to their “pick and choose” approach to international law. At the same time, it appears unrealistic, if not outright hypocritical, to hope for greater US involvement in international law under President Obama if some European countries continue to pursue national interests.
It appears that their article is overly superficial and simplistic, even though it raises some valid points in general context. It is more the clear which state has so far refused to ratify some core UN and regional human rights treaties (CRC for example) or relevant protocol to those treaties or the Rome statute. In other words, let us first clarify normative fundamentals and leave discussion about hypocracy for later.
I wouldn’t necessarily agree that the article is superficial and/or simplistic. There are a wide variety of different reasons that can be put forward in support of ratification and/or non-ratification of different international treaty instruments. We all know of the arguments that have been put forward by the US with regard to the ICC-Statute. But let’s not deduce from that whether or not States in general are willing to get involved in international law and what reasons lie behind them doing so. The fundamental premise that Posner/Goldsmith put forward, namely that international law is based on state interests, is one that is worth considering. And Europeans should certainly not be afraid of acknowledging that from time to time our contribution (or lack thereof) in the development of international law can be interpreted as being driven by our immediate interest.
Surely international law is driven by interests like any other human activity. What is disputed, is to employ populistic examples of alleged European practice towards international law to potray oneself as no worse than your neigbour. Additionally, it is nothing new to say that interests shape international law or that Americans and Europeans approches have more in common. It has been in this way since Berlin conference in 1884-85.
I don’t see how the examples are populist. And supposing they were, how is that a problem? Further, European involvement in, for instance, extraordinary rendition is well-documented and thus amounts to more than mere allegations.