The law is an ass

Judges of the International Court of Justice (picture ICJ)

Amid European rejoicing about the restoration of multilateralism to the White House in the recent American presidential election, an interesting corrective is published in the Wall Street Journal. Law professors Jack Goldsmith and Eric Posner examine the European record on adhering to international law and suggest that, contrary to the impression that Europeans often like to give, it is no better than that of the Americans.

They quote examples such as the ECJ’s rejection of the seizure of the assets of Yassin Abdullah Kadi and the al Barakaat International Foundation – fundamental rights were held to be superior to a decision of the UN Security Council – and the fact that the EU still refuses to permit the import of American beef raised using growth hormones, notwithstanding a WTO ruling that it should. The Europeans are in no position to lecture the Americans on fidelity to the law, they argue.

I am not entirely convinced by all their examples – there is no reason why a UN SC resolution should have directly binding effect, and no reason why acts of the Council of Ministers should be permitted to violate fundamental rights simply because they are intended to implement UN SC resolutions – nor do I think their comparison is valid. The Europeans, in the case of Yassin Abdullah Kadi, err on the side of individual rights against authority; the Americans, in the case of Guantanamo Bay, do the opposite.

But the beef case and others still apply. If the law is famously an ass, international law is treated as an ass, too.

The federalist view of international law, like Gandhi’s opinion of western civilisation, is that it would be a good idea. International legal institutions and processes are developing slowly, incompletely and imperfectly. But not only is the efficacy of international law somewhat in doubt, so is its legitimacy. Europeans ask why public opinion over the acceptability of hormones in beef should be overruled by a group of international judges. Who voted for them?

This is, of course, rather like the Eurosceptic argument against the EU, only transferred to another level, but with one crucial difference. Federalists do not wield this argument against the system of international law in order to evade it or to break it, but in order to strengthen it. We are not Euro-nationalists.

Improved legitimacy for international law will not come from wiser judges but from greater public participation in making the laws upon which those judges rule. (Paragraphs 11 to 15 in the Federal Union paper on the Cancún summit explain this in more detail.)

It is precisely the weakness of international law, even at the hands of liberal democracies, let alone dictatorships, that underpins the argument for supranational political institutions instead. What matters is not just what the law says but where the law comes from.

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