April 16, 2007
Throughout 2006, allegations of U.S. involvement in “renditions” of suspected terrorists from Europe to prisons in Afghanistan and elsewher­e reverberated around European capitals. Charges that the United States had established secret prisons in some European countries raised the temperature even further. The European Parliament and the Council of Europe initiated investi­gations, while some European leaders called for the United States to close its detention facility in Guantanamo, describing the facility as contrary to international law. The controversy over Guantanamo and U.S. treatment of “enemy combatants” is only the latest example of transatlantic differences over international legal matters.
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In recent years, the U.S. refusal to join a number of high-profile multilateral legal agreements has been seen by many in Europe as evidence that the United States is moving away from the international legal system. In response, U.S. officials and analysts have criticized European governments for supporting multilateral treaties that they see as neither effective nor enforceable. This divide should not be viewed as another transatlantic disagreement that can be blamed on the policies of the Bush administration — disagreements over the ICC and the de-mining convention surfaced during the Clinton administration and reflect widely held views within the U.S. legal establishment. Nor should it be seen simply as a European preference for multilateralism and a U.S. commitment to unilateralism. In some cases, transatlantic disagreements over international legal issues represent differing opinions over whether a specific law — from the Geneva Conventions to a trade agreement — is being properly implemented. But on a more fundamental level, many of these transatlantic differences reflect a very real divergence in approach toward the international legal system, based on different conceptions in the United States and Europe about the role of international law and its future evolution.

These different views on the future of international law are demonstrated by the transatlantic disagreement over the International Criminal Court (ICC). A growing number of European policymakers and analysts see law as a way to resolve international problems not just between states, but also within them, such as the failure of the rule of law in some societies. But the United States — which has certainly not rejected international law — is cautious about how a permanent international court might affect its interests as a superpower with global responsibilities and interests. Many Europeans are comfortable ceding significant decision-making powers to an international organization with the potential to extend its responsibilities beyond the original mandate. But many in the U.S. legal community remain concerned that this goes beyond the consent given by democratically elected governments and worry about how the ICC might interpret its own powers in some unforeseen future circumstance.

The continuation of this transatlantic divide could pose a serious challenge to the strength and credibility of the international legal order. International law already faces a new and difficult environment at the beginning of the 21st century. Developed to maintain order between sovereign states, that legal system must now cope with a world in which sovereignty is under challenge. If it is to remain relevant, international law must evolve so that it can respond effectively to the threats of this new century. In particular, global terrorism and the proliferation of weapons of mass destruction — along with the potential combination of these two in the form of terrorist possession of WMD — pose perhaps the most significant threats to state security today. Determining how international law should respond to these threats will be largely the responsibility of the United States and Europe. There is now an urgent need for the United States and the European Union (and its member states) to find a new consensus on the future of the international legal system. Without that consensus, a vacuum will emerge. Other major states, such as China or Russia, are unlikely to fill that void in a way that the United States or Europe would see as beneficial.

The United States and the European Union should demonstrate their commitment to the future of international law and the strength of international jurisprudence affecting their citizens by:
  • Issuing a joint declaration committed to building a new consensus on the international legal system; This declaration should be reinforced by a new transatlantic dialogue on key topics, including: accountability and transparency in international organizations; pre-emptive action; the role and mandate of international tribunals; and the treatment of enemy combatants
  • Working together to complete an effective process of UN reform
  • Launching a program of extensive legal assistance to bolster the rule of law around the world
  • Working together to reduce discord between states party to the International Criminal Court, and those that have not joined by reaching agreement on “crimes of aggression” and “opt-outs” for non-state parties
  • The United States should demonstrate its willingnss to work with the international legal system by ratifying a major multilateral treaty consistent with its interests, such as the UN Convention on the Law of the Sea

In the lead up to the review conference for the International Criminal Court in 2009 the U.S. and European governments should take the following steps:

  • The United States and the EU should apply considerable energy and resources to improving the legal systems of countries around the world. An independent and fair judiciary within an effective legal system will reduce the need for the ICC, and contribute enormously to better governance
  • The United States should review its own legal system for compatibility with the requirements established by the ICC. The more compatible the U.S. system is to the criteria laid out by the ICC the less likely anyone will be able to argue that a U.S. citizen should be brought before that court
  • The more extreme positions and rhetoric on both sides of the Atlantic should be toned down
  • Instead of seeking immunity for its citizens through Article 98 accords, the U.S. administration should pursue bilateral agreements in which it promises to exercise its own jurisdiction in the cases that might otherwise fall within the ICC’s jurisdiction
  • Finally, the U.S. government should, in appropriate cases, provide assistance to the ICC in the form of technical expertise and evidence, as it does with the UN tribunals. This will give the United States more access to the procedures of the ICC, and may encourage its development in directions more compatible with U.S. practice

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