JURI 4640:
International Law I
The International Legal Process

"Our law, your law"
The Economist

Treaties and global law are often a cheaper way to shape the world than military power

It is a country founded on the rule of law, as a better alternative to the rule of mad King George. In the past half century, it has been instrumental in spreading the principles of that law around the world, through the Nuremberg and Tokyo trials, the UN Charter, dozens of conventions and treaties and, most recently, the ad hoc war-crimes tribunals set up in The Hague for Yugoslavia and Arusha for Rwanda. International commerce increasingly uses American law and even its courts to govern deals, and America's Justice Department (like the European Commission) applies its antitrust powers well beyond its own borders. Since the 1940s, moreover, America has helped to establish and then use big multilateral institutions with collectively set rules the International Monetary Fund, the World Bank, the General Agreement on Tariffs and Trade, and GATT's successor, the World Trade Organisation to regulate trade and stabilise international finance.

This has long been thought of as a cost-effective way to make the world more to America's liking to export American norms and to make the world easier for Americans (and everyone else) to trade in, travel in and fight wars in. That, indeed, is what critics of America have often argued in the past, most recently during anti-globalisation rallies in Seattle and Washington, DC, in 2000 and 2001: that these multilateral institutions are America's secret empire, through which its government and mega-corporations control the world. Like it or loathe it, the effort continues: even since September 11th the United States has led multilateral efforts to make rules against money-laundering binding on all countries, and has approved of the trial in The Hague of Slobodan Milosevic, once the Serbian dictator.

But this approach is under challenge or at least in doubt. America under both Bill Clinton and George Bush has shunned a new international criminal court, the treaty for which has been ratified by 70 other countries, and the Bush administration has pulled out of efforts to agree on a verification protocol for the Biological Weapons Convention. It also rejected the 1997 Kyoto Protocol on climate change, though it was really just belatedly confirming a pre-emptive rejection by the Senate that was made in July 1997. Perhaps most alarming, however, has been its recent disregard for the Geneva conventions on prisoners of war in determining the legal status of people it has captured in Afghanistan and taken to Guantanamo Bay for questioning.

Why the challenge to the multilateral approach? There is an ideological answer and a practical one which in turn explains why the ideological answer is now carrying such force. Start, then, with the practical one: terrorism and the menace of weapons of mass destruction. During the late 1980s and 1990s, the Bush (elder) and Clinton administrations tried to treat terrorism as a law-enforcement issue. Terrorists would be pursued and brought to justice, proving the awesome determination of American law. Thus, once two Libyans had been accused of planting the bomb that destroyed Pan Am flight 103 over Lockerbie in 1988, killing 270 people, the response was not military action against Libya but a trial under Scottish law in a court in the Netherlands. That approach was seen by many as slow, weak and not necessarily even just.

The scale of the outrage on September 11th made it inevitable that this would be seen as an act of war rather than mere criminality, and that the response would prove the awesome determination of the American armed forces. Moreover, even before September 11th, there was a strong view in the Bush administration that the treaties and conventions governing the proliferation of weapons of mass destruction had failed. If you needed proof of that, look at Iraq. That view became even more prominent after al-Qaeda's attacks. These norms of good behaviour had to be enforced with the threat of military power and even, if necessary, the use of it. Treaties, after all, are not legal documents but political ones; they register commitments made by governments but threaten no sanctions if those commitments are broken or abrogated, apart from disapproval. On this view, the punishment has to be meted out by the American sheriff.

That, however, does not make treaties a waste of paper. The NPT probably has discouraged some countries from trying to develop nuclear weapons, by helping them gain confidence that their neighbours are not doing so, either. What anti-treaty Americans dislike most and this is nothing new is when a proposed treaty threatens to restrain America itself from doing something it might like to do. This is the issue with the Comprehensive Test Ban Treaty, which was rejected by the Senate in 1999. President Bush says he will not re-submit the bill for ratification. The concern is that the treaty will prevent America from testing new nuclear devices in future and therefore prevent it from keeping its arsenal up to date.

Yet for the country with already by far the world's largest and most advanced such arsenal, the restraint imposed by such a treaty is pretty theoretical; and if, in future, another country were found to be developing and testing more advanced weapons that threatened America's lead, it could always then withdraw from the pact. Instead, in order to retain its full autonomy, America has in effect undermined a treaty that promised to help restrain the spread of nuclear weapons which it surely wants.

Still, that is the ideological answer: that treaties and other quasi-legal arrangements restrain the autonomy of the United States undesirably. This is buttressed by the argument that efforts to implement such treaties as if they were laws, through international courts and the like, are unconstitutional, illegal and politically dangerous, for the only legitimate laws and judicial systems are those rooted in and held accountable by national constitutions and parliaments.

Transnational structures, such as the international criminal court, have judges chosen by political horse-trading, so that their judgments are likely to be politically distorted, it is said. This may seem a bit rich from a country where the latest presidential election was decided by a Supreme Court whose members were selected by politicians and voted on political lines, yet that actually makes the point: law can never be wholly apolitical, so to be considered legitimate it must be rooted in a democratic system that citizens also consider legitimate.

A question of costs and benefits

War has given these arguments new force. But this is, in truth, a debate as old as the United States itself. Can the executive branch make international commitments that are binding on the legislative branch and on successors? The early answer, repeated many times since, was no: powers that the constitution assigns to Congress cannot be given away to others, except by constitutional amendment or by Congress's own say-so; and even when Congress ratifies a treaty, it can continually override its operations by, for example, refusing to provide any money. That principle was established in 1795 with the Jay treaty, concerning debts to Britain. And it lay behind the long wrangle over America's UN dues during the past decade.

The United States can be autonomous. But is it in its interests to be? As America's engagement with the rest of the world has increased during its more than two centuries of existence, especially in trade and finance but also in war, so the question has become steadily less simple to answer....

Trade offers one of the best examples of the complex balance between costs and benefits in this area. America does well out of freer trade with other countries, which is in turn facilitated by international agreements about barriers to trade. That is why it masterminded the General Agreement on Tariffs and Trade in 1947. But Congress then rejected a more powerful version, the International Trade Organisation (ITO), which would have had the power to settle disputes and enforce agreed-upon rules. For half a century the GATT relied on voluntary settlement procedures, until America and others finally agreed to set up a body with the teeth originally envisaged for the ITO: the World Trade Organisation.

That body has, so far, been accepted by Congress, albeit with plenty of grumbling about the associated infringement of sovereignty....

Exceptionalism for the powerful

The same trade-offs arise when human rights, military autonomy and environmental rules are involved, but successive administrations and Congresses have been less willing to make them. On the face of it, it is a paradox: America has promoted worldwide standards for human rights, military behaviour and even environmental protection, and has reinforced them through foreign aid, economic sanctions, moral suasion and even military intervention; yet Congress has often balked at ratifying the treaties codifying such standards, taking years to do it, demanding reservations on the treaties that nullify much of their domestic effect, or even rejecting them altogether.... Even the convention against genocide took almost 40 years before it was ratified.

To that could be added the recent rejections of the Kyoto Protocol and of the CTBT, as well as the Bush administration's decision not to submit the Rome treaty for the international criminal court for ratification three international negotiations in which the executive branch took a full part. Kyoto and the international court have, in effect, become the two most powerful witnesses deployed in the anti-Americans' case, especially in Europe: look, the critics are able to say, the United States is in favour of pollution and against justice.

Why the apparent hypocrisy, or at least stand-offishness? "Exceptionalism" is often offered as the answer the American ideology, laid down in the early constitutional documents, of being both separate and different. But ... there is a simpler explanation: that America is a superpower and so can get away with it; combined with the fact that it is stably democratic, ideologically conservative and politically decentralised. The superpower argument is not just about raw power, though that is part of it. In the case of the international court it is also about global exposure. The American armed forces are more active around the world than any other, and America feels the need to do more pragmatic, realpolitik deals with dodgy regimes than any other country. It is therefore understandably keen to avoid international conventions being used as a weapon against its own soldiers, or to name it as an accomplice to somebody else's sins....

The political arguments are, in essence, that a strong democracy resents having its hands tied by international agreements, for doing so limits the rights of domestic voters and institutions to set their own rules. America has, for instance, consistently fought to have socio-economic rights (such as trade unions and social welfare) excluded from international agreements, and differs from many countries (though not Japan) over the death penalty. Even if a Washington elite favoured concessions over such things, many American states would oppose them.

This fierce resistance is unlikely to change, especially under a Republican administration. The trade-off involved acceptance of increased human-rights protections domestically and of potential punishments for American soldiers in international courts, in return for the spread of these legal norms to more countries and the punishment of more international criminals does not appeal to a wide enough constituency. It is especially unlikely to at a time when the country is exerting its military power more strenuously, which makes it feel stronger and at the same time highlights the possible vulnerability of its soldiers to global courts.

It will be a pity, though, if at least a moderated form of this trade-off cannot eventually be made by America for the international criminal court. Military power is a necessary part of international policing. But it is also a costly way to do it, and international courts can usefully supplement such actions as well as reduce their cost. The rules governing the international criminal court contain plenty of safeguards against the court's misuse as an anti-American weapon, including a power for the UN Security Council to suspend misconceived cases. These courts depend on political agreements, and on assistance from governments, just as Slobodan Milosevic's war-crimes trial in The Hague depended both on American finance and on evidence collected by American officials and NATO forces. Despite the obvious risks of military action, its costs and benefits can readily be measured in the short term. But the benefits of court actions and moral suasion cannot; they must be experienced, over the long term, as an experiment. Military action and the court are not direct alternatives, but they could supplement each other. However, America's shunning of the international criminal court, if it is maintained, will make the experiment much less effective and informative. It will be even harder to know whether it could have played a useful role in meeting American goals....

When it needs others to help get things done, [the United States] values diplomacy. Yet when others are wanting it to do things, the superpower can shrug its shoulders....

Power and Weakness
By Robert Kagan

Originally published in the June/July edition of Policy Review

It is time to stop pretending that Europeans and Americans share a common view of the world, or even that they occupy the same world. On the all-important question of power - the efficacy of power, the morality of power, the desirability of power - American and European perspectives are diverging. Europe is turning away from power, or to put it a little differently, it is moving beyond power into a self-contained world of laws and rules and transnational negotiation and cooperation. It is entering a post-historical paradise of peace and relative prosperity, the realization of Kant's "Perpetual Peace." The United States, meanwhile, remains mired in history, exercising power in the anarchic Hobbesian world where international laws and rules are unreliable and where true security and the defense and promotion of a liberal order still depend on the possession and use of military might. That is why on major strategic and international questions today, Americans are from Mars and Europeans are from Venus: They agree on little and understand one another less and less. And this state of affairs is not transitory - the product of one American election or one catastrophic event. The reasons for the transatlantic divide are deep, long in development, and likely to endure. When it comes to setting national priorities, determining threats, defining challenges, and fashioning and implementing foreign and defense policies, the United States and Europe have parted ways.

It is easier to see the contrast as an American living in Europe. Europeans are more conscious of the growing differences, perhaps because they fear them more. European intellectuals are nearly unanimous in the conviction that Americans and Europeans no longer share a common "strategic culture." The European caricature at its most extreme depicts an America dominated by a "culture of death," its warlike temperament the natural product of a violent society where every man has a gun and the death penalty reigns. But even those who do not make this crude link agree there are profound differences in the way the United States and Europe conduct foreign policy.

The United States, they argue, resorts to force more quickly and, compared with Europe, is less patient with diplomacy. Americans generally see the world divided between good and evil, between friends and enemies, while Europeans see a more complex picture. When confronting real or potential adversaries, Americans generally favor policies of coercion rather than persuasion, emphasizing punitive sanctions over inducements to better behavior, the stick over the carrot. Americans tend to seek finality in international affairs: They want problems solved, threats eliminated. And, of course, Americans increasingly tend toward unilateralism in international affairs. They are less inclined to act through international institutions such as the United Nations, less inclined to work cooperatively with other nations to pursue common goals, more skeptical about international law, and more willing to operate outside its strictures when they deem it necessary, or even merely useful.[Note 1]

Europeans insist they approach problems with greater nuance and sophistication. They try to influence others through subtlety and indirection. They are more tolerant of failure, more patient when solutions don't come quickly. They generally favor peaceful responses to problems, preferring negotiation, diplomacy, and persuasion to coercion. They are quicker to appeal to international law, international conventions, and international opinion to adjudicate disputes. They try to use commercial and economic ties to bind nations together. They often emphasize process over result, believing that ultimately process can become substance.

This European dual portrait is a caricature, of course, with its share of exaggerations and oversimplifications. One cannot generalize about Europeans: Britons may have a more "American" view of power than many of their fellow Europeans on the continent. And there are differing perspectives within nations on both sides of the Atlantic. In the U.S., Democrats often seem more "European" than Republicans; Secretary of State Colin Powell may appear more "European" than Secretary of Defense Donald Rumsfeld. Many Americans, especially among the intellectual elite, are as uncomfortable with the "hard" quality of American foreign policy as any European; and some Europeans value power as much as any American.

Nevertheless, the caricatures do capture an essential truth: The United States and Europe are fundamentally different today. Powell and Rumsfeld have more in common than do Powell and Hubert Vedrine or even Jack Straw. When it comes to the use of force, mainstream American Democrats have more in common with Republicans than they do with most European Socialists and Social Democrats. During the 1990s even American liberals were more willing to resort to force and were more Manichean in their perception of the world than most of their European counterparts. The Clinton administration bombed Iraq, as well as Afghanistan and Sudan. European governments, it is safe to say, would not have done so. Whether they would have bombed even Belgrade in 1999, had the U.S. not forced their hand, is an interesting question.[Note 2]

What is the source of these differing strategic perspectives? The question has received too little attention in recent years, either because foreign policy intellectuals and policymakers on both sides of the Atlantic have denied the existence of a genuine difference or because those who have pointed to the difference, especially in Europe, have been more interested in assailing the United States than in understanding why the United States acts as it does -or, for that matter, why Europe acts as it does. It is past time to move beyond the denial and the insults and to face the problem head-on.

Despite what many Europeans and some Americans believe, these differences in strategic culture do not spring naturally from the national characters of Americans and Europeans. After all, what Europeans now consider their more peaceful strategic culture is, historically speaking, quite new. It represents an evolution away from the very different strategic culture that dominated Europe for hundreds of years and at least until World War I. The European governments - and peoples - who enthusiastically launched themselves into that continental war believed in machtpolitik. While the roots of the present European worldview, like the roots of the European Union itself, can be traced back to the Enlightenment, Europe's great-power politics for the past 300 years did not follow the visionary designs of the philosophes and the physiocrats.

As for the United States, there is nothing timeless about the present heavy reliance on force as a tool of international relations, nor about the tilt toward unilateralism and away from a devotion to international law. Americans are children of the Enlightenment, too, and in the early years of the republic were more faithful apostles of its creed. America's eighteenth- and early nineteenth-century statesmen sounded much like the European statesmen of today, extolling the virtues of commerce as the soothing balm of international strife and appealing to international law and international opinion over brute force. The young United States wielded power against weaker peoples on the North American continent, but when it came to dealing with the European giants, it claimed to abjure power and assailed as atavistic the power politics of the eighteenth- and nineteenth-century European empires.

Two centuries later, Americans and Europeans have traded places - and perspectives. Partly this is because in those 200 years, but especially in recent decades, the power equation has shifted dramatically: When the United States was weak, it practiced the strategies of indirection, the strategies of weakness; now that the United States is powerful, it behaves as powerful nations do. When the European great powers were strong, they believed in strength and martial glory. Now, they see the world through the eyes of weaker powers. These very different points of view, weak versus strong, have naturally produced differing strategic judgments, differing assessments of threats and of the proper means of addressing threats, and even differing calculations of interest. But this is only part of the answer. For along with these natural consequences of the transatlantic power gap, there has also opened a broad ideological gap. Europe, because of its unique historical experience of the past half-century - culminating in the past decade with the creation of the European Union - has developed a set of ideals and principles regarding the utility and morality of power different from the ideals and principles of Americans, who have not shared that experience. If the strategic chasm between the United States and Europe appears greater than ever today, and grows still wider at a worrying pace, it is because these material and ideological differences reinforce one another. The divisive trend they together produce may be impossible to reverse.

* * * *

The psychology of power and weakness

Today's transatlantic problem, in short, is not a George Bush problem. It is a power problem. American military strength has produced a propensity to use that strength. Europe's military weakness has produced a perfectly understandable aversion to the exercise of military power. Indeed, it has produced a powerful European interest in inhabiting a world where strength doesn't matter, where international law and international institutions predominate, where unilateral action by powerful nations is forbidden, where all nations regardless of their strength have equal rights and are equally protected by commonly agreed-upon international rules of behavior. Europeans have a deep interest in devaluing and eventually eradicating the brutal laws of an anarchic, Hobbesian world where power is the ultimate determinant of national security and success.

This is no reproach. It is what weaker powers have wanted from time immemorial. It was what Americans wanted in the eighteenth and early nineteenth centuries, when the brutality of a European system of power politics run by the global giants of France, Britain, and Russia left Americans constantly vulnerable to imperial thrashing. It was what the other small powers of Europe wanted in those years, too, only to be sneered at by Bourbon kings and other powerful monarchs, who spoke instead of raison d'etat. The great proponent of international law on the high seas in the eighteenth century was the United States; the great opponent was Britain's navy, the "Mistress of the Seas." In an anarchic world, small powers always fear they will be victims. Great powers, on the other hand, often fear rules that may constrain them more than they fear the anarchy in which their power brings security and prosperity.

This natural and historic disagreement between the stronger and the weaker manifests itself in today's transatlantic dispute over the question of unilateralism. Europeans generally believe their objection to American unilateralism is proof of their greater commitment to certain ideals concerning world order. They are less willing to acknowledge that their hostility to unilateralism is also self-interested. Europeans fear American unilateralism. They fear it perpetuates a Hobbesian world in which they may become increasingly vulnerable. The United States may be a relatively benign hegemon, but insofar as its actions delay the arrival of a world order more conducive to the safety of weaker powers, it is objectively dangerous.

This is one reason why in recent years a principal objective of European foreign policy has become, as one European observer puts it, the "multilateralising" of the United States. It is not that Europeans are teaming up against the American hegemon, .... by creating a countervailing power. After all, Europeans are not increasing their power. Their tactics, like their goal, are the tactics of the weak. They hope to constrain American power without wielding power themselves. In what may be the ultimate feat of subtlety and indirection, they want to control the behemoth by appealing to its conscience. It is a sound strategy, as far as it goes. The United States is a behemoth with a conscience. It is not Louis XIV's France or George III's England. Americans do not argue, even to themselves, that their actions may be justified by raison d'etat. Americans have never accepted the principles of Europe's old order, never embraced the Machiavellian perspective. The United States is a liberal, progressive society through and through, and to the extent that Americans believe in power, they believe it must be a means of advancing the principles of a liberal civilization and a liberal world order. Americans even share Europe's aspirations for a more orderly world system based not on power but on rules - after all, they were striving for such a world when Europeans were still extolling the laws of machtpolitik.

But while these common ideals and aspirations shape foreign policies on both sides of the Atlantic, they cannot completely negate the very different perspectives from which Europeans and Americans view the world and the role of power in international affairs. Europeans oppose unilateralism in part because they have no capacity for unilateralism. Polls consistently show that Americans support multilateral action in principle - they even support acting under the rubric of the United Nations - but the fact remains that the United States can act unilaterally, and has done so many times with reasonable success. For Europeans, the appeal to multilateralism and international law has a real practical payoff and little cost. For Americans, who stand to lose at least some freedom of action, support for universal rules of behavior really is a matter of idealism.

Even when Americans and Europeans can agree on the kind of world order they would strive to build, however, they increasingly disagree about what constitutes a threat to that international endeavor. Indeed, Europeans and Americans differ most these days in their evaluation of what constitutes a tolerable versus an intolerable threat. This, too, is consistent with the disparity of power.

* * * *

A[n] explanation of Europe's greater tolerance for threats is, once again, Europe's relative weakness. Tolerance is also very much a realistic response in that Europe, precisely because it is weak, actually faces fewer threats than the far more powerful United States. The psychology of weakness is easy enough to understand. A man armed only with a knife may decide that a bear prowling the forest is a tolerable danger, inasmuch as the alternative - hunting the bear armed only with a knife - is actually riskier than lying low and hoping the bear never attacks. The same man armed with a rifle, however, will likely make a different calculation of what constitutes a tolerable risk. Why should he risk being mauled to death if he doesn't need to? This perfectly normal human psychology is helping to drive a wedge between the United States and Europe today. Europeans have concluded, reasonably enough, that the threat posed by Saddam Hussein is more tolerable for them than the risk of removing him. But Americans, being stronger, have reasonably enough developed a lower threshold of tolerance for Saddam and his weapons of mass destruction, especially after September 11. Europeans like to say that Americans are obsessed with fixing problems, but it is generally true that those with a greater capacity to fix problems are more likely to try to fix them than those who have no such capability. Americans can imagine successfully invading Iraq and toppling Saddam, and therefore more than 70 percent of Americans apparently favor such action. Europeans, not surprisingly, find the prospect both unimaginable and frightening.

* * * *

[The] contention - that Europe has moved beyond the old system of power politics and discovered a new system for preserving peace in international relations - is widely shared across Europe. As senior British diplomat Robert Cooper recently wrote in the Observer (April 7, 2002), Europe today lives in a "postmodern system" that does not rest on a balance of power but on "the rejection of force" and on "self-enforced rules of behavior." In the "postmodern world," writes Cooper, "raison d'etat and the amorality of Machiavelli's theories of statecraft . . . have been replaced by a moral consciousness" in international affairs.

American realists might scoff at this idealism. George F. Kennan assumed only his na‹ve fellow Americans succumbed to such "Wilsonian" legalistic and moralistic fancies, not those war-tested, historically minded European Machiavels. But, really, why shouldn't Europeans be idealistic about international affairs, at least as they are conducted in Europe's "postmodern system"? Within the confines of Europe, the age-old laws of international relations have been repealed. Europeans have stepped out of the Hobbesian world of anarchy into the Kantian world of perpetual peace. European life during the more than five decades since the end of World War II has been shaped not by the brutal laws of power politics but by the unfolding of a geopolitical fantasy, a miracle of world-historical importance: The German lion has laid down with the French lamb. The conflict that ravaged Europe ever since the violent birth of Germany in the nineteenth century has been put to rest.

The means by which this miracle has been achieved have understandably acquired something of a sacred mystique for Europeans, especially since the end of the Cold War. Diplomacy, negotiations, patience, the forging of economic ties, political engagement, the use of inducements rather than sanctions, the taking of small steps and tempering ambitions for success - these were the tools of Franco-German rapprochement and hence the tools that made European integration possible. Integration was not to be based on military deterrence or the balance of power. Quite the contrary. The miracle came from the rejection of military power and of its utility as an instrument of international affairs - at least within the confines of Europe. During the Cold War, few Europeans doubted the need for military power to deter the Soviet Union. But within Europe the rules were different.

Collective security was provided from without, meanwhile, by the deus ex machina of the United States operating through the military structures of NATO. Within this wall of security, Europeans pursued their new order, freed from the brutal laws and even the mentality of power politics....

* * * *

In thinking about the divergence of their own views and Europeans', Americans must not lose sight of the main point: The new Europe is indeed a blessed miracle and a reason for enormous celebration - on both sides of the Atlantic. For Europeans, it is the realization of a long and improbable dream: a continent free from nationalist strife and blood feuds, from military competition and arms races. War between the major European powers is almost unimaginable. After centuries of misery, not only for Europeans but also for those pulled into their conflicts - as Americans were twice in the past century - the new Europe really has emerged as a paradise. It is something to be cherished and guarded, not least by Americans, who have shed blood on Europe's soil and would shed more should the new Europe ever fail.

* * * *

Europe's evolution to its present state occurred under the mantle of the U.S. security guarantee and could not have occurred without it. Not only did the United States for almost half a century supply a shield against such external threats as the Soviet Union and such internal threats as may have been posed by ethnic conflict in places like the Balkans. More important, the United States was the key to the solution of the German problem and perhaps still is. Germany's Fischer, in the Humboldt University speech, noted two "historic decisions" that made the new Europe possible: "the USA's decision to stay in Europe" and "France's and Germany's commitment to the principle of integration, beginning with economic links." But of course the latter could never have occurred without the former. France's willingness to risk the reintegration of Germany into Europe - and France was, to say the least, highly dubious - depended on the promise of continued American involvement in Europe as a guarantee against any resurgence of German militarism. Nor were postwar Germans unaware that their own future in Europe depended on the calming presence of the American military.

The United States, in short, solved the Kantian paradox for the Europeans. Kant had argued that the only solution to the immoral horrors of the Hobbesian world was the creation of a world government. But he also feared that the "state of universal peace" made possible by world government would be an even greater threat to human freedom than the Hobbesian international order, inasmuch as such a government, with its monopoly of power, would become "the most horrible despotism."[Note 11] How nations could achieve perpetual peace without destroying human freedom was a problem Kant could not solve. But for Europe the problem was solved by the United States. By providing security from outside, the United States has rendered it unnecessary for Europe's supranational government to provide it. Europeans did not need power to achieve peace and they do not need power to preserve it.

The current situation abounds in ironies. Europe's rejection of power politics, its devaluing of military force as a tool of international relations, have depended on the presence of American military forces on European soil. Europe's new Kantian order could flourish only under the umbrella of American power exercised according to the rules of the old Hobbesian order. American power made it possible for Europeans to believe that power was no longer important. And now, in the final irony, the fact that United States military power has solved the European problem, especially the "German problem," allows Europeans today to believe that American military power, and the "strategic culture" that has created and sustained it, are outmoded and dangerous.

Most Europeans do not see the great paradox: that their passage into post-history has depended on the United States not making the same passage. Because Europe has neither the will nor the ability to guard its own paradise and keep it from being overrun, spiritually as well as physically, by a world that has yet to accept the rule of "moral consciousness," it has become dependent on America's willingness to use its military might to deter or defeat those around the world who still believe in power politics.

Some Europeans do understand the conundrum. Some Britons, not surprisingly, understand it best. Thus Robert Cooper writes of the need to address the hard truth that although "within the postmodern world [i.e., the Europe of today], there are no security threats in the traditional sense," nevertheless, throughout the rest of the world - what Cooper calls the "modern and pre-modern zones" - threats abound. If the postmodern world does not protect itself, it can be destroyed. But how does Europe protect itself without discarding the very ideals and principles that undergird its pacific system?

"The challenge to the postmodern world," Cooper argues, "is to get used to the idea of double standards." Among themselves, Europeans may "operate on the basis of laws and open cooperative security." But when dealing with the world outside Europe, "we need to revert to the rougher methods of an earlier era - force, preemptive attack, deception, whatever is necessary." This is Cooper's principle for safeguarding society: "Among ourselves, we keep the law but when we are operating in the jungle, we must also use the laws of the jungle."

Cooper's argument is directed at Europe, and it is appropriately coupled with a call for Europeans to cease neglecting their defenses, "both physical and psychological." But what Cooper really describes is not Europe's future but America's present. For it is the United States that has had the difficult task of navigating between these two worlds, trying to abide by, defend, and further the laws of advanced civilized society while simultaneously employing military force against those who refuse to abide by those rules. The United States is already operating according to Cooper's double standard, and for the very reasons he suggests. American leaders, too, believe that global security and a liberal order - as well as Europe's "postmodern" paradise - cannot long survive unless the United States does use its power in the dangerous, Hobbesian world that still flourishes outside Europe.

What this means is that although the United States has played the critical role in bringing Europe into this Kantian paradise, and still plays a key role in making that paradise possible, it cannot enter this paradise itself. It mans the walls but cannot walk through the gate. The United States, with all its vast power, remains stuck in history, left to deal with the Saddams and the ayatollahs, the Kim Jong Ils and the Jiang Zemins, leaving the happy benefits to others.

An acceptable division?

Is this situation tolerable for the United States? In many ways, it is. Contrary to what many believe, the United States can shoulder the burden of maintaining global security without much help from Europe. The United States spends a little over 3 percent of its gdp on defense today. Were Americans to increase that to 4 percent - meaning a defense budget in excess of $500 billion per year - it would still represent a smaller percentage of national wealth than Americans spent on defense throughout most of the past half-century. Even Paul Kennedy, who invented the term "imperial overstretch" in the late 1980s (when the United States was spending around 7 percent of its GDP on defense), believes the United States can sustain its current military spending levels and its current global dominance far into the future. Can the United States handle the rest of the world without much help from Europe? The answer is that it already does. The United States has maintained strategic stability in Asia with no help from Europe. In the Gulf War, European help was token; so it has been more recently in Afghanistan, where Europeans are once again "doing the dishes"; and so it would be in an invasion of Iraq to unseat Saddam. Europe has had little to offer the United States in strategic military terms since the end of the Cold War - except, of course, that most valuable of strategic assets, a Europe at peace.

The United States can manage, therefore, at least in material terms. Nor can one argue that the American people are unwilling to shoulder this global burden, since they have done so for a decade already. After September 11, they seem willing to continue doing so for a long time to come. Americans apparently feel no resentment at not being able to enter a "postmodern" utopia. There is no evidence most Americans desire to. Partly because they are so powerful, they take pride in their nation's military power and their nation's special role in the world.

Americans have no experience that would lead them to embrace fully the ideals and principles that now animate Europe. Indeed, Americans derive their understanding of the world from a very different set of experiences. In the first half of the twentieth century, Americans had a flirtation with a certain kind of internationalist idealism. Wilson's "war to end all wars" was followed a decade later by an American secretary of state putting his signature to a treaty outlawing war. fdr in the 1930s put his faith in non-aggression pacts and asked merely that Hitler promise not to attack a list of countries Roosevelt presented to him. But then came Munich and Pearl Harbor, and then, after a fleeting moment of renewed idealism, the plunge into the Cold War. The "lesson of Munich" came to dominate American strategic thought, and although it was supplanted for a time by the "lesson of Vietnam," today it remains the dominant paradigm. While a small segment of the American elite still yearns for "global governance" and eschews military force, Americans from Madeleine Albright to Donald Rumsfeld, from Brent Scowcroft to Anthony Lake, still remember Munich, figuratively if not literally. And for younger generations of Americans who do not remember Munich or Pearl Harbor, there is now September 11. After September 11, even many American globalizers demand blood.

Americans are idealists, but they have no experience of promoting ideals successfully without power. Certainly, they have no experience of successful supranational governance; little to make them place their faith in international law and international institutions, much as they might wish to; and even less to let them travel, with the Europeans, beyond power. Americans, as good children of the Enlightenment, still believe in the perfectibility of man, and they retain hope for the perfectibility of the world. But they remain realists in the limited sense that they still believe in the necessity of power in a world that remains far from perfection. Such law as there may be to regulate international behavior, they believe, exists because a power like the United States defends it by force of arms. In other words, just as Europeans claim, Americans can still sometimes see themselves in heroic terms - as Gary Cooper at high noon. They will defend the townspeople, whether the townspeople want them to or not.

The problem lies neither in American will or capability, then, but precisely in the inherent moral tension of the current international situation. As is so often the case in human affairs, the real question is one of intangibles - of fears, passions, and beliefs. The problem is that the United States must sometimes play by the rules of a Hobbesian world, even though in doing so it violates European norms. It must refuse to abide by certain international conventions that may constrain its ability to fight effectively in Robert Cooper's jungle. It must support arms control, but not always for itself. It must live by a double standard. And it must sometimes act unilaterally, not out of a passion for unilateralism but, given a weak Europe that has moved beyond power, because the United States has no choice but to act unilaterally.

Few Europeans admit, as Cooper does implicitly, that such American behavior may redound to the greater benefit of the civilized world, that American power, even employed under a double standard, may be the best means of advancing human progress - and perhaps the only means. Instead, many Europeans today have come to consider the United States itself to be the outlaw, a rogue colossus. Europeans have complained about President Bush's "unilateralism," but they are coming to the deeper realization that the problem is not Bush or any American president. It is systemic. And it is incurable.

* * * *

Americans are powerful enough that they need not fear Europeans, even when bearing gifts. Rather than viewing the United States as a Gulliver tied down by Lilliputian threads, American leaders should realize that they are hardly constrained at all, that Europe is not really capable of constraining the United States. If the United States could move past the anxiety engendered by this inaccurate sense of constraint, it could begin to show more understanding for the sensibilities of others, a little generosity of spirit. It could pay its respects to multilateralism and the rule of law and try to build some international political capital for those moments when multilateralism is impossible and unilateral action unavoidable. It could, in short, take more care to show what the founders called a "decent respect for the opinion of mankind."

These are small steps, and they will not address the deep problems that beset the transatlantic relationship today. But, after all, it is more than a clich‚ that the United States and Europe share a set of common Western beliefs. Their aspirations for humanity are much the same, even if their vast disparity of power has now put them in very different places. Perhaps it is not too na‹vely optimistic to believe that a little common understanding could still go a long way.

Notes

1 One representative French observer describes "a U.S. mindset" that "tends to emphasize military, technical and unilateral solutions to international problems, possibly at the expense of co-operative and political ones." See Gilles Andreani, "The Disarray of U.S. Non-Proliferation Policy," Survival (Winter 1999-2000).

2 The case of Bosnia in the early 1990s stands out as an instance where some Europeans, chiefly British Prime Minister Tony Blair, were at times more forceful in advocating military action than first the Bush and then the Clinton administration. (Blair was also an early advocate of using air power and even ground troops in the Kosovo crisis.) And Europeans had forces on the ground in Bosnia when the United States did not, although in a un peacekeeping role that proved ineffective when challenged.

4 Steven Everts, "Unilateral America, Lightweight Europe?: Managing Divergence in Transatlantic Foreign Policy," Centre for European Reform working paper (February 2001).

7 The common American argument that European policy toward Iraq and Iran is dictated by financial considerations is only partly right. Are Europeans greedier than Americans? Do American corporations not influence American policy in Asia and Latin America, as well as in the Middle East? The difference is that American strategic judgments sometimes conflict with and override financial interests. For the reasons suggested in this essay, that conflict is much less common for Europeans.

11 See Thomas L. Pangle and Peter J. Ahrensdorf, Justice Among Nations: On the Moral Basis of Power and Peace (University Press of Kansas, 1999), 200-201.