Reflections on Transatlantic Approaches to International Law
2007; Oxford University Press; Volume: 17; Issue: 2 Linguagem: Inglês
ISSN
1053-6736
Autores Tópico(s)European Criminal Justice and Data Protection
ResumoOPENING When Curt Bradley * asked me to speak at his new center, I accepted with pleasure. Curt was a wise counselor at the State Department, and I am delighted that he is now directing a center that is focused on teaching and research in the areas in which my lawyers and I work daily. INTRODUCTION Today, I would like to take advantage of the fact that I am in the company of students and scholars to reflect on some of my experiences over the past year--to put what I have seen and heard into perspective. For the past twelve months, on behalf of the Secretary of State, I have been engaged in an intensive dialog with our European partners on some of the most contentious and misunderstood issues of the day: namely, our counterterrorism laws and policies, especially those relating to the detention, questioning, and transfer of members of al Qaida and the Taliban. Those discussions have not always been easy, but I believe we have made headway in explaining to our European partners our laws and policies, including recent legal developments, such as the new Department of Defense detention and interrogation policies. When I began this dialog a year ago, I felt that our disagreements did not reflect a growing transatlantic divide. I continue to believe that, and still think many of our so-called are rooted in misunderstanding, but I also believe that we do have different approaches on some issues. George Bernard Shaw famously said that the United States and England are two countries divided by a common language. There are times when observers could be forgiven for wondering whether the United States and Europe are two cultures divided by a common system of (international) law. Reading the headlines, one would think that we have profoundly different, perhaps even irreconcilable, visions of international law and international legal order. But how do you square this with our longstanding--and shared--traditions of rule of law and respect for law? Or the network of treaties, institutions, and regimes that bind us and through which we work and cooperate successfully on a daily basis? Or the fact that the international legal framework that exists today was one the United States--with its European allies--was instrumental in creating? The plain fact is that we have more in common than not. But this is sometimes forgotten, and our are distorted or magnified in ways that prevent, rather than promote, mutual understanding. Why? A somewhat glib explanation might be that this is the narcissism of minor differences at work. The term--coined by Freud--describes the phenomenon of fundamentally similar peoples who seize upon their minor differences, exaggerating them to the point of caricature or conflict. There may be some truth there, but if you look at the issues that have been the most divisive, they are primarily in the high-stakes, emotionally fraught field of combating transnational terrorism. Thus, in the larger scheme they may be minor differences, but they are not on minor issues. What troubles me deeply, however, about the discussion of transatlantic is the conclusion that is sometimes drawn: that the United States, unlike its European partners, does not take international law seriously. This is patently wrong--and dangerous. Having is normal and natural, but turning them into something they are not--a cartoonish picture of the United States as an international actor that cares only about power, not law--erodes trust and impedes dialog. Because this issue is so important, I want to take a moment to address it, before offering some thoughts on the nature and source of transatlantic and misunderstandings. Then I will discuss in greater detail a few areas in which such have surfaced. I. THE UNITED STATES IS SERIOUS ABOUT INTERNATIONAL LAW The U.S. Government believes that international law matters. …
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