The history of the relationship between the United States and international law and organization has always been a love-hate one. While historically the U.S. has unquestionably been one of the strongest proponents of the development of international organizations such as the United Nations (Rubenfeld, p.22), it appears that as soon as these organizations start to take a life of their own, especially when they develop more binding international law mechanisms, discontent grows in the United States, criticizing various aspects of the international system. As the world currently moves towards growing multilateralism, especially in a regional context, and as international law seeps slowly but surely into the daily relations between States and even between individuals, the United States is often seen, accurately or not, as the most reluctant player in the global game, maybe also because American critics are the most vocal in their opposition to new trends in international regulatory systems.
[...] But since the end of the Cold War, international law and organization have changed in nature: they are no longer an emanation of the United States but independent, universal concepts that can sometimes challenge American domestic law; since then it is fair to say that they have become un-American. American critics of international law can't help to compare it to their domestic norms, as if it were the supreme standard, which is a symptom of the long-standing feeling of American constitutional exceptionalism. [...]
[...] Constitution is so strong even today, it is because of the historical context in which it has been drafted, and it is very doubtful that transposing the American system to the international level will bring it more democracy and accountability, simply because of the specific constraints of international law and organization. Besides, it is often said that international law imposes the will of other nations on the United States, which is an intolerable interference with its sovereignty (Bolton and Rivkin & Casey). [...]
[...] The traditional conception of a State's prior consent to international law is fading away, and the concept of national sovereignty appears weaker than ever before. In the European Union, both the Court of Justice of the European Communities and the European Court of Human Rights have been able to develop a jurisprudence that, in some instances, created for State Parties obligations that were not specifically stated in treaties. So, judging from the recent development in the international regulatory system, can we say that it is impossible to reconcile it with American constitutionalism, values and interests? [...]
[...] Indeed, there is a structural difference between international law and organization as presently conceived and American constitutionalism: while the first one seeks to promote intangible universal values even without an explicit popular approval, the second “speaks the language of popular sovereignty” (Rubenfeld, p.29). The current international regulatory system draws its legitimacy from the supposed natural essence of the rights that it defends; rights that are considered so self-evident that they need not be the result of a thorough legislative process (especially human rights) (Rubenfeld, pp.24-28). [...]
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