The Future of International Law: Ending the U.S.-Europe Divide
By Anne–Marie Slaughter

International law is fast becoming a prime site of superpower conflict. Consider current events. The United States is threatening to cut off military aid to states that do not sign bilateral agreements immunizing U.S. soldiers on their soil from the jurisdiction of the International Criminal Court (ICC). In retaliation, the EU is warning prospective EU members, which includes countries from Turkey to Turkmenistan, not to sign such agreements if they wish to preserve their candidacy. The clear message? You cannot be a friend of the United States if you support the ICC; you cannot be a member of the EU if you do not.

And the ICC is only a symbol, albeit the most prominent one, of a growing series of disputes over international law issues. The litany is now well rehearsed: the Landmines Treaty, the Kyoto Protocol, the Chemical Weapons Treaty, the ABM Treaty, and, looming, a potential attack on Iraq. Although the subjects differ, the underlying divide is the same. The EU is historically, culturally, and now politically conditioned to act multilaterally, through a variety of international legal instruments that codify cooperation in return for limitations on sovereignty. The U.S. does not regard multilateralism as an end in itself, but weighs the costs of constraints on sovereignty versus the benefits of acting alone, or in shifting, flexible coalitions with like-minded countries, and increasingly comes down on the side of going it alone. Deeper still, of course, is the issue of relative capabilities. The United States can accomplish much of what it wants to accomplish, or at least thinks it can, through unilateral action. The EU, by contrast, is a composite actor. It only exists as an entity greater than the sum of its parts through a tissue of treaties and agreements binding those parts ever closer to one another.

Further, as Andrew Moravcsik has argued, the EU is a civilian superpower, wielding civilian power in contrast to the U.S.’s military power ¹. Economically, the two giants are comparable. But in security matters, they have different capabilities and hence different strategies. Rebuilding the rule of law domestically is what the EU typically sets out to do, first through peacekeepers and then through countless consultants, teachers, and trainers, descending in a phalanx to help rebuild and reform domestic institutions of governance. The United States, by contrast, sends in soldiers and stealth bombers. Not pretty, but sometimes necessary, when only force will do. Neither Slobodan Milosevic nor the Taliban, in the end, were willing to give up without a fight.

Ideally, of course, military action and civilian reconstruction should go hand in hand. And they often do. In the Balkans – Bosnia and now Kosovo – this has been the basic division of labor between the U.S. and the EU. The underlying political, economic, and social problems seem to remain as intractable as ever, but the result is at least a peace that is fragile, but holding. The massacres and mass deportations have stopped. Inevitably, however, as the next conflict appears on the horizon, the military and civilian strategies seem more like alternatives than complements, dividing both publics and policymakers.

The Impact of September 11

But what of September 11? And the future of international law? Paradoxically, or perhaps predictably, once the shock and resulting solidarity from the actual attack wore off, the U.S. response to September 11 has in many ways heightened the conflict with the EU and many other nations. The Bush Administration sees the U.S. as fighting for its life, literally. A comparable terrorist attack with a weapon of mass destruction could threaten the U.S. government’s ability to protect its people and its economic, political, and physical infrastructure. And unlike any foreign war since 1812, it is being fought on U.S. soil.

With such fundamental security issues at stake, legal rules, both domestic and international, are often laid aside – in every nation. Indeed, domestic U.S. international lawyers are facing a parallel with the early 1950s. The hopes of world order under law nourished in San Francisco in 1945 produced, within a remarkably short span, the United Nations itself, the IMF, the World Bank, the GATT, the Genocide Convention, the 1949 Geneva Conventions, and the Universal Declaration of Human Rights. But then came the Cold War, with frightening new threats and the sudden creation and rapid expansion of the national security apparatus within government and the military-industrial complex without. International lawyers suddenly found themselves on the sidelines, either spinning visions of world government or trying to reinvent their discipline to make it consistent with the demands of the new foreign policy realism emanating from Washington.

The Europeans, on the other hand, to the extent that they see themselves fighting a war at all, are much less sure what they are fighting for. Many European governments have been fighting terrorism at home for decades; they are less inclined to worry about apocalyptic visions. Many European commentators, in addition, seem to see al-Qaeda’s jihad as at least a partial comeuppance for America’s rogue unilateralism, as if September 11 might have been averted by a favorable U.S. vote on the ICC. And to the extent that they see radical Islamic militancy as an attack on deeper U.S., European, and indeed universal values, they are even more outraged by the perceived U.S. willingness to depart from those values in its treatment of detainees in Guantanamo and its disregard for traditional civil liberties in pursuing terrorist suspects within the U.S. itself.

At the same time, however, although much less noticed, September 11 dramatically heightened the stakes of any conflict between the U.S. and the EU. It was an attack on fundamental values, values that the U.S. and the Europeans share and fought three wars – two hot and one cold – to defend. It was an attack on liberalism in all its forms – cultural, political, and economic. Variations along the spectrum from social democracy to free market capitalism, as important as they may be to Americans and Europeans, pale here. Surely the plotters in Hamburg were just as alienated by Hamburg as they would have been by New York.

It was also an attack on the idea of the distinction between civilian and soldier – a tremendously important distinction, as hard as it may sometimes seem to draw. Thomas Friedman has argued that one of the things at stake in the horrific current round of the Israeli-Palestinian conflict is whether suicide bombing can succeed as a political strategy of liberation. "This threatens all civilization, he writes, "because if suicide bombing is allowed to work in Israel, then, like hijacking and airplane bombing, it will be copied and will eventually lead to a bomber strapped with a nuclear device threatening entire nations."² We must once again fight to decouple the legitimacy of the means adopted from the ends pursued.

International Law for the 21st Century

As in 1945, or perhaps in 1943 with the adoption of the Atlantic Declaration spelling out the goals of the war, the EU and the U.S. should be working with all like-minded nations to strengthen existing international rules and institutions and to develop new ones to address new threats. That should be the future of international law. How do we get there?

We get there by appreciating the many ways in which international law itself has changed and by being much more flexible about how it develops in the future. When I say "we" here, I intend to address my fellow international lawyers, but also all the policymakers and commentators in Europe and the United States who have a fixed idea about what international law is and what it demands. In particular, we must recognize and internalize three striking and critically important changes. International law has a different and greater impact than in the past; it affects a much wider range of actors; and traditional treaty and customary law, along with traditional inter-governmental institutions, are now operating in parallel with a growing body of transgovernmental law and transgovernmental networks of national officials.

First, international law matters much more than in the past. It has always "mattered" to international lawyers, of course, and to diplomats and other sophisticated veterans of international negotiations. But it is beginning to matter in the same way we might say domestic law "matters." It is beginning to matter to individual and corporate actors. First came the transformation of the Treaty of Rome from an inter-state agreement to set of rules enforceable by individuals through national courts throughout the European Community. Then came the evolution of the GATT into the WTO, with automatically binding panel decisions that determine whether a state is violating international trading rules, generally through the subsidy of some corporation or other, and whether other states can retaliate. These decisions apply to states and are binding on states, but individual corporate actors are closely involved in and directly affected by the litigation. And in North America, investors who feel mistreated by the Canadian, U.S., or Mexican federal or state governments can sue those governments directly before an international arbitral tribunal.

On the criminal side, Slobodan Milosevic is actually in the dock in the Hague for war crimes, crimes against humanity, and genocide; many other Serbian, Croatian, and even Bosnian generals and other military officers are looking over their shoulder, fearing apprehension by NATO troops or even their own governments. A leading Rwandan architect of the genocide against the Tutsis pleaded guilty before the International Criminal Tribunal for Rwanda in Kigali. The UN and NATO have also pioneered a variety of "mixed tribunals," mixing national and international judges, in countries including Cambodia, East Timor, and Kosovo. Finally, a permanent international criminal court has been established by treaty; it secured the necessary 60 ratifications in under five years and will have jurisdiction over a wide array of suspects accused of grave breaches of human rights if their own national courts do not try them first.

Regulation of the economy and deprivation of liberty for crimes committed against public order: these are two core powers that a polity reluctantly cedes to a sovereign in a mythical social contract. They are powers traditionally wielded only by national governments, but today, in certain limited areas, they have been delegated to genuine supranational authorities. These authorities have direct or nearly direct relationships with individual social actors, and through those actors, with national government institutions. In the EU, for instance, national courts must refer cases involving questions of European law brought by individual or corporate plaintiffs to the European Court of Justice. In the NAFTA, an individual plaintiff or a government defendant dissatisfied with an arbitral judgment can contest that judgment in national courts. And, as noted above, under the ICC, the jurisdiction of the international tribunal will only be triggered if the prosecutor and a panel of international judges determine that national authorities have been "unable or unwilling" to prosecute a suspected perpetrator of war crimes, crimes against humanity, or genocide.

Second, as these examples suggest, international law matters to a much wider range of actors. The traditional definition of public international law is the body of rules that regulates inter-state relations in the international system. No longer. The post-Cold War era witnessed the mushrooming of non-state actors in international life, from multinational financial institutions and corporations, who had been there for decades but who became the primary players in a rapidly emerging global economy, to non-governmental organizations of every description. Human rights activists, environmentalists, labor organizers, and civic associations of every description took advantage of the Internet and cheap travel to develop global networks. So did criminals. The result was the rising phenomenon of "global civil society," beloved of academic globalizers. Many of these actors begin playing an independent role in traditional inter-governmental organizations, such as the NGO Forum that must now accompany most formal UN conferences, once limited to government representatives. Others took their place alongside national government officials, international officials and scientists and experts of every description in "global policy networks," touted by the UN Secretary General himself. ³

Third, "inter-national" law, for which read "inter-governmental" law, is increasingly joined by "transgovernmental" law – rules, codes of conduct, and cooperative agreements reached not by states but by parts of states – courts, regulatory agencies, and even legislators. The traditional actor in the international system was the unitary state; today instead we are often witnessing the disaggregated state – disaggregated into its component government institutions. Networks of government officials increasingly exchange information and coordinate activity to combat global crime and address common problems on a global scale. They do not make "law," per se: they have no formal standing in the international system and cannot conclude binding agreements. But they adopt codes of best practices, conclude "memoranda of understanding," and legitimate various national rules and principles over other national rules and principles. The result is technically "soft law," but it is a critical and under-appreciated element of global governance.

Consider the examples simply in the wake of September 11. The Bush Administration immediately set about assembling an "ad hoc coalition" of states to aid in the war on terrorism. Public attention focused on military cooperation, but the networks of financial regulators working to identify and freeze terrorist assets, of law enforcement officials sharing vital information on terrorist suspects, and of intelligence operatives working to preempt the next attack have been equally important. Indeed, the leading expert in the "new security" of borders and container bombs insists that the domestic agencies responsible for customs, food safety, and regulation of all kinds must extend their reach abroad, through reorganization and much closer cooperation with their foreign counterparts.⁴ Networked threats required a networked response.

Beyond national security, networks of finance ministers and central bankers have been critical players in responding to national and regional financial crises. The G-8 is as much a network of finance ministers as of heads of state; it is the finance ministers who take key decisions on how to respond to calls for debt relief for the most highly indebted countries, and announce policy responses to financial crises. Since 1999, diverse national authorities responsible for financial stability have met regularly through the Financial Stability Forum. And networks of national officials are also working to improve environmental policy across borders. Within NAFTA, national environmental agencies have created an environmental enforcement network. Globally, the EPA and its Dutch equivalent have founded the International Network for Environmental Compliance and Enforcement, which offers technical assistance to environmental agencies around the world and holds conferences for environmental regulators to learn and exchange information.

Nor are regulators the only ones networking. National judges are exchanging decisions with one another through the Internet, conferences, and judicial organizations. Constitutional judges increasingly cite one another’s decisions on issues from free speech to privacy rights. Bankruptcy judges in different countries negotiate mini-treaties to resolve complicated international cases; judges in transnational commercial disputes have begun to see themselves as part of a global judicial system. National judges are also interacting directly with their supranational counterparts on trade and human rights issues.

Even legislators, the most naturally parochial government officials due to their direct ties to territorially rooted constituents, are reaching across borders. International parliamentary organizations have been traditionally well meaning but ineffective. But today national parliamentarians are meeting to adopt and publicize common positions on the death penalty, human rights and environmental issues. They support one another in legislative initiatives and offer training programs and technical assistance. They are also developing important professional norms to help socialize new legislators around the world.

What do all these networks do? They expand regulatory reach, allowing national government officials to keep up with corporations, civic organizations, and criminals. They build trust and foster relationships among their participants that then create incentives to establish a good reputation and avoid a bad one. These are the conditions essential for long-term cooperation. They exchange regular information about their own activities and develop databases of best practices, or, in the judicial case, different approaches to common legal issues. They offer technical assistance and professional socialization to members from less developed nations – whether regulators, judges, or legislators. And they are the backbone of a global governance infrastructure that depends far more on national officials than their international or even supranational counterparts.

The U.S. and the EU: Working Together to Build a New World Order

Ironically, although the EU is best known, certainly in the U.S., for its supranational elements, such as the European Court of Justice, the European Commission, and the European Parliament, the EU has actually pioneered governance by government network. The Council of Ministers, which retains primary legislative authority in the EU system, is a rotating council of different national ministers depending on the issue area involved: transport, agriculture, environment, finance, etc. The implementation of EU directives depends entirely on national regulators of various kinds; they have developed networks to exchange information and coordinate their activity in critical ways. National judges also meet with one another and read each other’s decisions, most recently in the antitrust area, not only to respond to the ECJ’s decisions but also, periodically, to assert the limits of ECJ power.

In the international arena, however, it is the U.S. that has tended to push for a transgovernmental networking approach rather than a traditional international organization, much less one with new supranational powers. Many Europeans, for instance, have argued that the WTO should have the power to regulate international competition policy; the U.S. far prefers networks of national competition officials. The U.S. has also worked with Mexico and Canada to establish formal networks of environmental and labor officials through the NAFTA. In a sense, the U.S. follows the internal EU model, although often unknowingly, as a blueprint for international organization far beyond the EU.

The door is thus wide open for Europeans and Americans to sidestep many of the conflicts that have arisen around a number of more traditional treaties and institutions, and to work together in elaborating a shared vision of how to cooperate globally but implement nationally. The EU is deeply engaged in this debate internally; it lies at the heart of many of the debates over a European Constitution, enlargement, and EU institutional reform. In this regard, domestic political opposition rallying around a perceived EU "democracy deficit" parallels widespread objections among American voters to the perceived threat of surrendering vital democratic rights to self-government to faceless international bureaucrats. Much of this opposition is hype, but as noted above, the emergence of genuine supranational institutions does mean the potential surrender of actual sovereignty in some areas.

The place to start is the construction of a global criminal justice system. Already, the law enforcement dimension of the "war on terrorism" depends not on the much ballyhooed but as yet non-existent military tribunals, but on national courts – in the U.S., Germany, Pakistan, Egypt, Spain, Singapore, and elsewhere. And on the networks of prosecutors, police investigators, intelligence operatives, financial regulators, customs officials, and other national government officials that will be necessary to apprehend individual terrorists, cut off their funding, and build a sufficient case against them to bring them to justice. Ideally, over the longer term, it would be desirable to give an international tribunal jurisdiction over some of the gravest terrorist cases, both for symbolic reasons and to help develop some uniform universal substantive rules defining and prohibiting terrorist acts. To the extent that the war on terrorism does also have an active military phase from time to time, military tribunals of some sort may be necessary within the actual theater of military operation. But the core of this system will be national courts and other national officials – ideally working together in a wide variety of ways. Recall the coordinated activity of various national prosecutors and judges in Spain, France, Switzerland, and England in the Pinochet case.

Nor will this global criminal justice system be limited to combating terrorism. Moises Naim has pointed out that terrorism is a crime committed by global networks of criminals – characteristics shared by money laundering; arms trading; trafficking in women, children, and immigrants; drug trafficking; and intellectual piracy.⁵ These are global crimes; they must be investigated and prosecuted globally. International conventions defining these crimes and committing nations to their eradication will certainly help, but the actual law and infrastructure used to fight them will be national.

In sum, the future of the international legal system after September 11 depends in large part on whether and how the U.S. and the EU can work together in facing a range of new security threats. If the U.S. can recognize that international law does have a crucial role to play and the EU can recognize that many traditional international rules and institutions must now be modernized, they have a tremendous opportunity to work together to strengthen the global legal order. How such an order will evolve is anyone’s guess. But it will be transgovernmental as much as intergovernmental, whether still through informal ad hoc coalitions or through more formalized transgovernmental networks. These networks will be driven by the necessity of tackling transnational criminal networks, regulating transnational corporate networks, and responding to the concerns of transnational civic networks. The war on terrorism is only the beginning.

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² ThomasL. Friedman, "Suicidal Lies," New York Times, March 21, 2002.

³ "We the Peoples: The Role of the United Nations in the 21st Century," Report of the United Nations Secretary General to the Millenium Summit, April 2000. [http://www.un.org/millennium/sg/report/index.html]

⁴ Stephen E. Flynn, "The Unguarded Homeland," in James E.Hoge, Jr, and Gideon Rose, How Did This Happen? Terrorism and the New War (Public Affairs, 2001)

⁵ Moises Naim, "Al-Qaeda, the NGO," Foreign Policy, March/April 2002 [http://www.foreignpolicy.com/issue_marapr_2002/missing_links_129.html]