José E. Alvarez1
In the wake of the United States' invasion of Iraq in March 2003, the future of transatlantic relations has become a hot topic. Some are predicting that the next "clash of civilizations" will be between Europe and the United States while others, more sanguinely, contend that the political and economic fundamentals of the transatlantic relationship remain strong. 2 I am content to leave these grander debates to non-lawyers capable of addressing them. The argument here is more focused on the emerging divergences in legal culture between Europe and the United States, particularly with respect to public international law and its institutions. My contention is that the perceived "unilateralism" of the U.S., which is the source of considerable transatlantic friction, has a legal dimension: European international lawyers take multilateralism more seriously than do many of their U.S. counterparts.
History suggests that it is possible for countries that differ sharply with respect to legal traditions to share compatible or similar values. For decades, Europe and the United States have been staunch political allies despite distinct civil law and common law systems. Nations that have shared a fairly unified vision of what they were for (democratic values, human rights, ever-freer markets), as well as what they were against (totalitarian regimes, governmental violations of human dignity, economies driven by government directive), have long differed, for example, on how to define the nationality of their respective corporations or whether they would rely on juries to try criminal cases.
Transatlantic differences in national legal culture have sometimes had an impact on foreign affairs. The nations that regularly voted as a unit in global forums like the United Nations and united for common defense in NATO have nonetheless engaged in cordial but real competition when it comes to exporting their respective visions of the rule of law to newly decolonized states. Repeatedly, efforts to export law and legal institutions have floundered precisely because of real differences in legal culture between Europe and the United States reflected in the heritage of former colonies. John Kennedy's idealistic Alliance for Progress eventually found that its attempts to export U.S. law and