The flood of refugees into Europe–which will likely end badly–shows once again the inability of European institutions to handle a crisis. The source of the problem is the abolition of border controls without the creation of a pan-European homeland security agency and other institutions for allocating resources and sharing burdens. Europeans wanted the convenience of a borderless continent without the risks to national sovereignty that would have resulted from the creation of an agency with coercive powers. The problem parallels the debt crisis, a result of the abolition of currency borders without the creation of a pan-European fiscal and banking authority. European integration, once seen as a juggernaut and a model for the world, has been in crisis since 2009. I have more on this in Slate.
But the question I want to ask here is what does this chain of crises mean for international law. Back in 2000, law professor Peter Spiro wrote a piece in Foreign Affairs criticizing a tiny gaggle of American international law academics who expressed doubts about what Spiro saw as the inevitable triumph of international legal norms. These “New Sovereigntists” hold thee positions:
The first impugns the content of the emerging international legal order as vague and illegitimately intrusive on domestic affairs. The second condemns the international lawmaking process as unaccountable and its results as unenforceable. Finally, New Sovereigntism assumes that the United States can opt out of international regimes as a matter of power, legal right, and constitutional duty.
While these New Sovereigntists were writing about the United States, not Europe, Europeans might be forgiven for regretting that they never took them seriously. Intrusion on domestic affairs? That’s what Eastern European countries think about refugee policy and the Southern countries about austerity. Unaccountable and unenforceable? That would include laws that were supposed to stop countries from accumulating too much debt and from allowing migrants to travel outside the country of arrival. The happiest countries are those which opted out of the eurozone, and the UK must be feeling pretty pleased that it’s not in the Schengen area. Sovereignty might have slumbered for a few post-Cold War years, but it is returning with a vengeance.