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The UN’s highest court ruled in 2010 that Kosovo’s declaration of independence from Serbia did not break international law. President Hisashi Owada of the International Court of Justice said international law contains no ”prohibition on declarations of independence” and therefore Kosovo’s declaration ”did not violate general international law.” Kosovo’s statehood had been recognized by all of the United States and most of the States of the EU.

Critically, the court’s ruling is nonbinding.  Hence China and Russia are under no obligation to recognize it, though as both states are members of the UN one might suppose that the UN’s ruling is binding on them as members of the UN. What sanctions, one might surmise, could the UN issue against its members that do not recognize the rulings of its court? Short of cancelling their memberships, what could the UN assess that it could enforce?  Perhaps the UN could effectively withhold their voting privilege in the UN while maintaining their membership (and fees).  I contend that such “teeth” is necessary if the UN is to be an honest broker concerning questions of declarations of independence such that war is obviated. In The Least Dangerous Branch, Alexander Bickel argues that the judiciary is the least dangerous branch because it does not have control of the purse or an army.  A court whose rulings are nonbinding is to render it nearly impotent—nearly because just being a court carries with it some legitimacy and thus influence. Even so, as an improvement on the alternative (i.e., war), the UN’s court needs something more binding. To tout an absolutist theory of sovereignty of the nation-state as an obstacle to recognizing the UN court as binding would be enervate a possible improvement of mankind with respect to conflict in international relations.  Particularly in an age in which mass  human destructiveness is possible, we can ill-afford a Bodinean theory of sovereignty. In spite of the dangers in continuing the status quo in international conflict resolution, we advance at a snail’s pace—particularly as compared to technological development. I contend that it is high time for political development in international relations. Yet for this to occur it seems that human nature itself—particularly, its intractability—would have to be overcome, which might render the original problem moot.  Even so, it is worth a try. We may be closer than we think to being able to give the UN’s highest court a bindingness sufficient to reduce the likelihood of war appreciably.

Source: http://www.nytimes.com/aponline/2010/07/22/world/europe/AP-EU-World-Court-Kosovo.html?_r=1

Barak Obama announced after he left the UN global climate conference at Copenhagen in 2009 that five major nations—the United States, China, India, Brazil and South Africa—had together forged a climate deal. He called it “an unprecedented breakthrough” but acknowledgedoted that the agreement was merely a political statement and not a legally binding treaty and might not need ratification by the entire conference.  Essentially, it was merely a statement of the five countries’ respective goals, as if someone had announced, “I want to lose ten pounds.”   The political statement did not meet even the modest expectations that leaders set for this meeting, notably by failing to set a 2010 goal for reaching a binding international treaty to seal the provisions of the accord.  Nor does the plan firmly commit the industrialized nations or the developing nations to firm targets for midterm or long-term greenhouse gas emissions reductions.

This is not stopping the spin that the conference was a success. Obama, for example, said, “For the first time in history, all major economies have come together to accept their responsibility to take action to confront the threat of climate change.” To be sure, the accord does provide a system for monitoring and reporting progress toward those national pollution-reduction goals, a compromise on an issue over which China bargained hard, and it calls for hundreds of billions of dollars to flow from wealthy nations to those countries most vulnerable to a changing climate.  That is, the political statement is not a binding treaty, but the document does lay out a framework for verification of emissions commitments by developing countries and for establishing a “high-level panel” to assess financial contributions by rich nations to help poor countries adapt to climate change and limit their emissions. Lastly, it sets a goal of limiting the global temperature rise to 2 degrees Celsius above preindustrial levels by 2050, implying deep cuts in climate-altering emissions over the next four decades.

However, in a news conference, Barak Obama said the accord was only a tentative start down a long road. The accord sets no goal for concluding a binding international treaty, which leaves the implementation of its provisions uncertain. In other words, any developing country can opt in or out of the monitored pot of money, and China may well still view the monitoring aspect as voluntary—meaning to be determined by the Chinese Government what can be examined.  The Chinese had been intransigent on the matter of verification by non-Chinese.  Citing national sovereignty, the Chinese had claimed that the rest of the world should take Chinese law as being a sufficient basis for verification.  This, I submit, is an extremely odd proposition—that people extrinsic to China should rely on Chinese law when the legitimacy of such law stops at the country’s borders.  The statement is telling because it demonstrates how antiquated the Bodinian notion of absolute national sovereignty is in the modern world.  The interdependence occasioned not only by global warming, but also nuclear proliferation and an increasingly global financial system, makes an insistance on the absoluteness of national sovereignty an extremely dangerous proposition.   The fecklessness of the Chinese approach to “verification” and the resulting diluted “political statement” (rather than a treaty) coming out of the conference suggest that we urgently need to thwart the historical insistance from our global vocabulary and institutions. 

The immediate implication is that the veto in the UN Security Council is no longer legitimate.  Further on, the binding nature of international law backed up by international governance structures that do not include vetos needs to be developed and applied to the domains determined to be rightfully global.  Countries still insisting on the absoluteness of their national sovereignties, such as China on pollution-controls and the US on international criminal law, would have to bend or be boycotted by the rest of the world.   In other words, international relations and economic exchanges ought to be dependent on being subject to a governance structure beyond the nation-state.  If China is left as the only country insisting that nothing can supervene Chinese law, then no one in the world should have anything to do with that country.   In contrast, those subject to a governance structure that supervenes in particular enumerated powers (with sufficient safeguards against their encroachment…given the history of the US) should be able to enjoy benefits beyond the binding nature of such powers, such as privileged positions in trade and visas.   I would argue that governments that insist that their law is insurmountable deserve to be marginalized by the rest of the world.  I write this as an American knowing that the US may well be marginalized under this scenerio unless there is some movement on international criminal law (i.e., being subject to the International Criminal Court, which in turn would be given the ability to go into any country and extract defendants).  

The technological development during the twentieth century means that political development is necessary in the twenty-first century.  We are so used to viewing change in terms of technology that we are perhaps unaccustomed to the sort of change that should ensue in order to obviate the new dangers from the technology.   In other words, we need to shift gears in terms of the domains wherein change is expected or thought to occur.   In some respects, we are still in the dark ages, and being in the dark when the planet could come to an equilibrium unsuitable for human habitation—whether via carbon or radioactivity—represents a level of danger that ought to move us to action against the default of national sovereignty.  In some respects, we are so primitive; we tend not to see this because we identify change and development with technology.

Source: http://www.nytimes.com/2009/12/19/science/earth/19climate.html?_r=1&hp

I think one difference between the E.U. and U.S. is that specific EU institutions have presidents, whereas the US has just one overall.  There is the President of the European Council and the President of the European Parliament, and the President of the EU Commission. Each institution has a president presiding over it. Well, actually, the US Senate has a President (who is the VP of the U.S. Government). The President of the U.S. Senate is largely ceremonial, though he can break a tie. I do think that the term president is used differently as applied to the EU and US…which makes it interesting to study!

In terms of comparing the US and EU more specifically, I would say that Van Rompuy’s office—President of the European Council—is equivalent to the President of the U.S. Senate (though only roughly equivalent). The European Council is still intergovernmental because the state governments themselves sit on it, whereas since the 17th amendment wherein US Senators are popularly elected (rather than appointed by State legislatures) the US Senate has been less intergovernmental (though the Senate represents polities rather than the voters, and each polity has equal suffrage as per international law).  Even today, the U.S. Senate is technically an international body along the lines of international law because polities rather than individuals are represented (i.e., members). This was very much in the minds of the founders when the Senate was created. However, the election of the Senators by the people of the States makes the Senators accountable not to their state governments, but to the people of their state, and there is a difference with respect to the interests of the state governments in the U.S. federal system.  Specifically, the citizens may not want to protect the interests of their respective state governments, whereas the state officials would want to do so.

I hope the European Council stays intergovernmental, as the E.U.’s state governments should be directly involved in EU governance for the European federalism to remain viable…as per the theory at least.  In fact, just yesterday I told a friend that the E.U. is a stronger federal system than is the U.S.  The latter is heavily biased toward consolidation, which creates pressures because of the inherent diversity that exists when a polity is made out of large republics.