Showing papers in "Chicago Journal of International Law in 2000"

The Law of Peoples

Abstract: The Law of Peoples John Rawls Harvard 1999 John Rawls, the great political philosopher, has turned his reflections to questions of international justice, much as his philosophical ancestor Kant did toward the end of his career. Indeed, Kant's conception of a "pacific federation" of states in Perpetual Peace is Rawls's acknowledged model for the "realistic utopia" sketched in The Law of Peoples, which expands upon his 1993 essay by the same title (without, however, revising its basic argument). Despite differing philosophical constraints and geopolitical conditions, both Kant and Rawls aim to develop an ideal normative framework for international law that accommodates a measure of realism and rejects the idea of a world-state. Unfortunately, in its uncritical acceptance of so-called "decent hierarchical societies" even at the level of ideal theory, the normative claim of Rawls's Law of Peoples is undermined. This philosophical appeasement, meant to secure perpetual peace in our time through a moderately demanding Law of Peoples that liberal and "decent" hierarchical societies alike can endorse, departs fundamentally from Kant's cosmopolitanism. For Kant, the "First Definitive Article of a Perpetual Peace-as opposed to a temporary interruption of hostilities-is that each member state of the foedus pacif cum must have a republican form of government, which is partly founded upon "the principle of legal equality for everyone (as citizens)." By contrast, Rawls weakens his ideal of international justice to buy the assent of hierarchical societies, which by definition lack equality among citizens, at the price of sacrificing a theoretical basis for justifying reforms of the practices and institutions of these hierarchical societies above a minimal level of decency. Rawls's complex argument begins by extending the original position, in which principles of justice for the basic structure of society are chosen under epistemic constraints that ensure fairness, from a single liberal society to what he calls the Society of Liberal Peoples. In a second step, though still within ideal theory, he argues that the substantive principles comprising the Law of Peoples are also acceptable to decent hierarchical societies, which possess decent consultation hierarchies and common good conceptions of justice. Despite being inegalitarian, decent hierarchical societies do respect basic human rights, allow some dissent, and at least consult with representatives of groups whose members are denied full citizenship rights. …

Should We Take Global Governance Seriously

Abstract: Should We Take Global Governance Seriously? John R. Bolton* I. INTRODUCTION Even the apparently simple act of entitling a conference "Trends in Global Governance: Do They Threaten American Sovereignty? is likely to expose the vast disparities which exist between two quite different factions within the United States. One party, small but highly educated, voluble and tireless, knows instinctively (and often emotionally) what global governance is and why it is desirable. Consisting of academics (largely, but nor exclusively, law and international relations professors) and media professionals; members of self-styled human rights, environmental and humanitarian groups; ratified circles within the "permanent government," and at present even in the White House; and a diverse collection of people generally uneasy with the dominance of capitalism as an economic philosophy and individualism as a political philosophy, these "Globalists" find allies all around the world. Their agenda is unambiguously statist, but typically on a worldwide rather than a national level. The other faction, consisting silently of virtually everyone else in the United States, has no clue whatever that "global governance" is even an issue worth discussing, since, among other things, it has formed no part of any political campaign in recent memory. This large party cannot define global governance, does not think about it, and-when it is explained-typically rejects it unhesitatingly. Although overwhelmingly predominant numerically, these Americans (who are comfortable with individualism and capitalism) are little recognized abroad, lost from view beneath the prolific production of academic papers, endless international conferences, and international media appearances of the diverse and often contradictory views of those whose primary urge, if not their ultimate objective, enrolls them in the party of global governance. Accordingly, when the "Americanists" speak out, foreigners often assume that they are simply the knee-jerk voice of reaction, the great unlettered and unwashed, whom the cultured and educated Globalists simply have not yet gotten under proper control. Europeans in particular will instantly recognize the disjunction between elite and mass political opinions that has characterized their societies for almost their entire democratic experience, and they will empathize, needless to say, with their elite, Globalist counterparts. In both the Globalist and Americanist parties, for purposes of this analysis, we are considering attitudes and opinions about people in their public capacities, issues of politics and government. Although "globalism" as a buzz word can be made to cover almost anything, we are less concerned here with what people do in their private capacities, in the fields of business and commerce, religion and culture. Certainly, there are significant areas of overlap, but we are assessing "global governance," which we can perhaps all agree has a narrower scope than the more often invoked "globalization." By this point, some readers will doubtless have cried out that the categories of Globalists and Americanists are oversimplified, and they are of course correct, to an extent. Analytically, however, this philosophical divide is real, and marks an important fault line in the United States that is duplicated in few other countries (the United Kingdom being a notable exception). It is certainly true that the party of "Americanists" has generally not taken "global governance' seriously as a phenomenon, has ignored or derided its huge body of academic and polemical literature, and has allowed "Globalist" theories and organizations to develop with little or no scrutiny, debate or opposition. My thesis, as a convinced Americanist, is that these happy days are over. Like it or not, the Globalists have seized more readily the opportunities provided by the end of the Cold War to advance their agenda, building on an iceberg-like mass produced by years of writing, conference-going, resolution-passing and networking. …

Building Global Democracy

Abstract: Building Global Democracy Anne-Marie Slaughter* John Bolton cannot make up his own mind as to whether "we should take global governance seriously." On the one hand, he argues that we must. "The costs to the United States-reduced constitutional autonomy, impaired popular sovereignty, reduction of our international power, and limitations on our domestic and foreign policy solutions-are far too great, and the current understanding of these costs far too limited to be acceptable."1 On the other hand, in the discussion following the presentation of his paper at the conference hosted by the American Enterprise Institute, he repeatedly disparaged the power and effectiveness of international institutions. He claimed that the United Nations "can be an effective tool of American foreign policy from time to time,"2 but that the United Nations ("UN") Charter "has been violated so consistently, so often, by so many of its members, that [I wonder] how much of it is really left."5 Similarly, he noted that the United States had "withdrawn from the mandatory jurisdiction of the International Court of Justice ("ICJ") and what role does that have to play in the world? The ICJ is a joke and our nonparticipation in it doesn't pose any material problems for us in the conduct of our affairs." Bolton cannot have it both ways. Many contend that power politics continue to prevail in the international system, in which case great powers like the United States will use international institutions to further their own ends when they find it convenient and disregard them when they do not.5 Others argue that the system is evolving toward a genuine global rule of law, in which international law and institutions meaningfully constrain state choice.6 But to maintain both positions at once suggests that Bolton's primary aim is to polemicize and provoke, with little regard for the facts. The debate between these two positions is as old as international law itself. It is far too broad and fundamental to engage in the space of these brief remarks. I will focus instead on one of Bolton's more specific claims: the implications of global governance for global, or at least national, democracy. Here he makes an important point, one that international lawyers cannot afford to ignore. Yet although I agree with his diagnosis of what is at least a potential problem, I disagree sharply with his prescribed solution. Instead of disengaging from international institutions, the United States must work within them more equitably and effectively. Bolton's insistence on protecting a narrow and outdated conception of sovereignty will only undermine US power and ability to pursue its interests, including the advancement of its most fundamental values. At the same time, however, the United States should take the lead in designing a new generation of international institutions and redesigning old ones to ensure that they include multiple mechanisms for ensuring popular participation. To date, efforts to encourage such participation have focused on ensuring access and input from non-governmental organizations ("NGOs"). But NGOs, although important and often powerful actors, do not necessarily represent the world's peoples. Governments do, particularly elected representatives sitting in national legislatures. Yet in designing the institutions of global governance, these men and women are all too often left out. Although space constraints preclude offering a detailed proposal in this regard, I conclude by offering a suggestion for how the UN could develop a mechanism for hosting networks of national legislators. I. PRESERVING AMERICAN POWER AND GLOBAL LEADERSHIP For the sake of argument in this brief commentary, I accept Bolton's dichotomy between Americanists and Globalists, although not his description of the motives and members of each camp. And I accept his proposition concerning a potential democracy deficit to the extent that Globalists, in the way that he defines them, are building a new generation of international institutions without directly engaging the representatives of the people worldwide. …

Speaking Law to Power: Popular Sovereignty, Human Rights, and the New International Order

Abstract: ARTICLES Hegemony is a concept of political power. It speaks to a global order structured by asymmetries of power. Modern law, in contrast, begins with an idea of equality among subjects. For domestic law, this is an equality among individuals; for international law, it is an equality among states. Legal outcomes are determined by identifying claims of right, not by measuring assertions of power. In the domestic order, we understand law by contrasting it with politics; we speak of the courts as the nonpolitical branch of government. Similarly, international institutions with legal responsibilities distinguish themselves from political decision-makers. The Security Council may provide for a great power veto, but there is no similar reflection of political power within the International Court of Justice.1 Just for this reason, appeals to international law have been one of the tools available to weaker states in their battles with more powerful states.2 Conversely, powerful states have been wary of adjudicatory mechanisms for settling disputes.3 Both internationally and domestically, political power operates at the origins of law-for example, within legislatures or treaty negotiations. But, for both, the move from political disagreement to legal resolution represents a shift of norms from inequality to equality. Once the legal rules are set, outcomes should not depend on the relative power of the disputants. To identify the operation of political power within an institution of law is to discover a "defect," a site at which reform must be pursued if the values of law are to be maintained.4 Of course, we would be wrong to think that because law follows politics, law always has the last word. A state may have the power to ignore a legal decision it does not like. It may be able to boycott legal proceedings or shift the institutional locus at which a dispute is resolved from an adjudicatory setting to one of negotiation. One of the ways in which the international order differs from the domestic order is in the much diminished range of its adjudicatory mechanisms and, conversely, the greater range for the deployment of power even in the face of legal claims. When we compare the international to the domestic order, the balance between power and law tilts dramatically in favor of power-meaning the capacity to advance state ends independently of the norms and procedures of law. Many contemporary observers, however, believe that this situation is rapidly changing, as international law gains normative strength and institutional presence. This opposition of power and law-and the trade-off between them-offers too simple a view of the relationship between these concepts. This is not just because a great power may often find it in its interests to support the international legal order.5 That is no doubt true, but it still assumes that power and law can be measured against each other, i.e., on a single scale of state interests. The situation we confront, however, challenges the idea that any such scale exists. Today, we face the unique situation that the world's hegemon, the United States, understands itself as a nation under law. It understands its political power to be linked to its commitment to an internal, constitutional order of law. The traditional opposition of power to law has been transformed into a complex opposition between constitutional law and international law. This double character of law's rule-- constitutional and international-creates the deep puzzle of the relationship of the United States to the emerging global order of law. At stake is the relation of the constitutional conception of popular sovereignty to the international law concept of human rights. My ambition in this essay is not to resolve the puzzle of this relationship, but only to secure a perspective from which to better understand the troubled relationship between the United States and international law. Law does not simply impose an order on a field of activity; rather, it is constitutive of a way in which experience is organized, through the meanings that we perceive in events. …

The Charade of US Ratification of International Human Rights Treaties

Abstract: It is sadly academic to ask whether international human rights law should trump US domestic law. That is because, on the few occasions when the US government has ratified a human rights treaty, it has done so in a way designed to preclude the treaty from having any domestic effect. Washington pretends to join the international human rights system, but it refuses to permit this system to improve the rights of US citizens. This approach reflects an attitude toward international human rights law of fear and arrogance-fear that international standards might constrain the unfettered latitude of the global superpower, and arrogance in the conviction that the United States, with its long and proud history of domestic rights protections, has nothing to learn on this subject from the rest of the world. As other governments increasingly see through this short-sighted view of international human rights law, it weakens America's voice as a principled defender of human rights around the world and diminishes America's moral influence and stature. The US government's approach to the ratification of international human rights treaties is unique. Once the government signs a treaty, the pact is sent to Justice Department lawyers who comb through it looking for any requirement that in their view might be more protective of US citizens' rights than pre-existing US law. In each case, a reservation, declaration, or understanding is drafted to negate the additional rights protection. These qualifications are then submitted to the Senate as part of the ratification package.1 For example, Article 6(5) of the International Covenant on Civil and Political Rights ("ICCPR") prohibits the imposition of the death penalty "for crimes committed by persons below eighteen years of age."2 To preserve the power to execute such juvenile offenders, the US government insisted on a reservation effectively negating this provision.3 In taking this extraordinary step, the United States ensured its place with the mere handful of governments worldwide that persist in the barbaric practice of executing offenders who were children when they committed their crimes-such paragons of human rights virtue as Iran, Nigeria, Pakistan, Saudi Arabia and Yemen.4 Indeed, this US reservation was particularly egregious because it concerned a right-the right to life-from which the ICCPR precludes derogation.5 Similarly, the US government entered a reservation limiting the conduct prohibited by the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"). The problem, from the government's perspective, was that Article 16 of the convention precludes not only "cruel and unusual punishments"-the prohibition contained in the Eighth Amendment of the US Constitution-but also "degrading treatment." To avoid any possibility of this provision being interpreted to impose a higher official standard of conduct, the US government adopted a reservation stating that the Torture Convention prohibits no more than the "cruel and unusual punishment" provision of the US Constitution.6 After this exercise of stripping human rights treaties of any protections that might add to US law, the government takes out a sort of insurance policy against the possibility that the Justice Department lawyers might have made a mistake. To ensure that some new hidden right is not lurking in parts of the treaty for which no reservation, declaration or understanding was entered, the US government, first declares that the treaty is "not self-executing"7 meaning that it has no force of law without so-called implementing legislation. This step is not necessarily objectionable in itself, since it ensures that new rights are endorsed by both houses of Congress through the traditional legislative process, rather than through the unicameral ratification process, which requires the consent of only the Senate. But then, the government announces that implementing legislation is unnecessary because, according to the Justice Department lawyers, all the rights for which reservations, declarations or understandings were not registered are already protected by US law. …

The State and Economic Globalization: Any Implications for International Law?

Abstract: States today confront a new geography of power.' The associated changes in the condition of the state are often described as an overall decline in the state's significance, especially the decline in its regulatory capacities. Economic globalization, for one, has brought with it strong pressures for the deregulation of a broad range of markets, economic sectors and national borders, and for the privatization of public sector firms and operations. But in my reading of the evidence, this new geography of power confronting states entails a far more differentiated process than notions of an overall decline in the significance of the state suggest. And it entails a more transformative process of the state than is indicated by the notion of a simple loss of power. These transformations inside the state and in the state's positioning are partial and incipient but strategic. As a political economist rather than a legal scholar, I would think that these new conditions carry consequences for the role and content of international law. The effort in this brief essay is to map some of the elements for a new conceptual landscape through which we can detect these conditions and consequences. I will focus primarily on conditions that are likely to affect the scope, exclusivity, and normative power of international law and the organizational architecture for its implementation. But I will not focus on the question of international law per se; I leave that to the experts on the subject. Some of the scholarship on international law has begun to address these issues on its own terms and in its own language. The work of legal scholars as diverse as Aman,2 Cassel,3 or Perritt4 comes to mind here, and this is just focusing on legal scholarship concerned specifically with economic globalization and international law, as distinct from legal scholarship concerned exclusively with international laws or with globalization in domains such as the environment and human rights. I. THE CHANGING WORK OF STATES The structural foundations for my argument lie in the current forms of economic globalization. Economic globalization, in my conception, has emerged as a key dynamic in the formation of a transnational system of power which lies in good part outside the formal interstate system; one instance of this is the relocation of national public governance functions to transnational private arenas. But I argue that the system also lies, to a far higher degree than is usually recognized, inside particular components of national states. This second feature can be recognized in the work done by legislatures, courts, and various agencies in the executive, to produce the mechanisms necessary to accommodate the rights of global capital in what are still national territories under the exclusive control of their states For me then, economic globalization does not have to do only with crossing geographic borders, as is captured in measures of international investment and trade. We are seeing a repositioning of the state in a broader field of power and a reconfiguring of the work of states. This broader field of power is partly constituted through the formation of a new private institutional order linked to the global economy, but also through the growing importance of a variety of other institutional orders, from the new roles of the international network of Nongovernmental Organizations ("NGOs") to the international human rights regime.7 As for the work of states, raison d'etat-the substantive rationality of the state-has experienced many incarnations over the centuries. Each of these transformations has led to significant consequences. We cannot take raison d'etat for granted: we need to specify its characteristics in the current phase and at least consider the possibility that it might be constituted differently from what it was in an earlier period, for instance the period up to the 1980s when the global economic system had not yet been implemented on its current scale. …

Should International Human Rights Law Trump US Domestic Law

Abstract: I. INTRODUCTION Consider the following claims raised in US courts under the International Covenant of Civil and Political Rights ("ICCPR")1, a treaty ratified by the United States: * Nevada sentenced Michael Domingues to death for murdering two people when he was sixteen years old. Domingues argued that his sentence, though valid under the Eighth Amendment, should nonetheless be set aside because it violated Article 6(5) of the ICCPR.2 Article 6(5) prohibits capital punishment for crimes committed under the age of eighteen. * Lawrence and Beverly Newman sued state officials involved in proceedings related to the Newmans' adoption of two children. The Newmans argued that Article 2(3)(a) of the ICCPR overrode otherwise-applicable state and federal immunities.3 In Article 2(3)(a), each signatory nation promises to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." * Several unlicensed radio operators have challenged Federal Communications Commission ("FCC") licensing requirements under Article 19(2) of the ICCPR.4 Article 19(2) provides that "[e]veryone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds ... through any other media of his choice." * Several plaintiffs in Washington state have argued that the Washington Persistent Offender Accountability Act, otherwise valid under state and federal law, violates Article 10(3) of the ICCPR.5 Section 10(3) provides that "(t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation." * An organizer of educational trips argued that federal restrictions on travel to Cuba violated Article 12(3) of the ICCPR, which requires travel restrictions to be "necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others."6 * Fleming Ralk alleged that Georgia officials violated Article 10(1) of the ICCPR when they denied him, as a prisoner awaiting trial, access to adequate reading materials, clothing, and medical attention.7 Article 10(1) provides that "[a]fl persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." * Rene Benitez was extradited to the United States for crimes committed against US officials in Colombia. Benitez had already been convicted and incarcerated for the crime in Colombia. He alleged that his subsequent prosecution in the United States, though consistent with US law, violated Article 14(7) of the ICCPR.8 Article 14(7) provides that "[n]o one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." In all these cases, the party invoking the ICCPR claims that (a) the treaty provides broader individual rights protection than domestic law and (b) the treaty rights should apply in the domestic realm to invalidate governmental action that is otherwise valid under state and federal law. These claims have an initial plausibility. Article VI of the US Constitution makes treaties the supreme law of the land that, if self-executing, bind the President and supersede prior inconsistent state and federal law. And the broad language of the ICCPR provides colorable support for the claims on the merits. Nonetheless, US courts reject these claims under the ICCPR, usually without consideration of their merits. The main reason they do so is that the President and Senate have attached conditions to US ratification that preclude the ICCPR from being a source of domestic law. The United States has attached similar conditions to the other modern human rights treaties it has ratified-the Genocide Convention, the Torture Convention, and the Race Convention. …

The Use of Armed Force Against Terrorism: American Hegemony or Impotence?

Abstract: Let our actions today send this message loud and clear: There are no expendable American targets; there will be no sanctuary for terrorists; we will defend our people, our interests and our values; we will help people of all faiths in all parts of the world who want to live free of fear and violence; we will persist and we will prevail. President William J. Clinton1 Ironically, while the rest of the world is greatly concerned and annoyed about American military hegemony,2 some Americans believe U.S. military force is impotent in its fight against international terrorism.3 It seems as though America's benevolent role as the world's sole superpower should serve as a stabilizing force for international peace and security and a deterrent to terrorists. Instead, its formidable military dominance has antagonized other states and has made America the world's sole super-target of terrorists. In 1997, for example, Americans were the targets of over one-third of all international terrorist attacks.4 The United States defines terrorism as "premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents," usually intended to influence an audience, and international terrorism as "terrorism involving citizens or the territory of more than one country. ,5 Defined as such, international terrorism is a criminal act committed by non-state actors-and the appropriate response of a victim state to defend against such terrorism is law enforcement. All non-state actors, however, operate within the sovereign territory of at least one state, and when a territorial state is unwilling or unable to cooperate in the suppression of international terrorism, or when it is covertly supporting international terrorism, then the law enforcement option fails. Furthermore, some states openly engage in, or support acts of violence that fall within the U.S. definition of international terrorism,6 and when a state attacks another state by resorting to or supporting international terrorism, an appropriate response of the victim state may be the use of armed force. Accordingly, international legal authority for a state to respond to acts of international terrorism is actor-dependent. If it is known that a non-state actor has committed an act of terrorism against the United States, then American law enforcement has the right to apprehend and prosecute the terrorist. However, when the location of a terrorist or a terrorist base camp is known and the territorial state refuses to cooperate with American law enforcement, the law enforcement response is completely ineffective in defending Americans and American interests abroad. In contrast, if it is known that a state actor has committed or supported an act of international terrorism, then American national security organizations have the lead in responding to the use of armed force by another state. Depending upon the severity of the terrorist attack and other circumstances, such a response may range from a diplomatic protest to seeking Security Council condemnation to the use of armed force in self-defense. In practice, however, the identity of the actor and a determination of state-sponsorship can be very difficult to establish. This Article briefly outlines the legal regimes which principally govern U.S. responses to international terrorism when it is established that the terrorist is either a non-state or state actor, and it explores international legal authorities' use of armed force against non-state actors when law enforcement options fail to protect Americans and American interests abroad. No state, including the United States, should take a heavy-handed approach toward the use of armed force under any circumstances. All states, however, must be able to exercise their inherent right under international law to defend themselves against all actors-non-state and state alike. Effective deterrence demands that terrorists do not have safe havens and that terrorists must fear that they ultimately will pay a price for their criminal mayhem. …

Power and Constraint

Abstract: John Bolton raises two distinct sets of questions about global governance: the first involves the creation of supranational authority structures; the second, the penetration of the American domestic political process, especially by transnational non-governmental organizations ("TNGOs"). Neither of these involves international legal sovereignty, the right of the United States, or any state, to freely enter into agreements with other states. Both do involve issues associated with the nature and autonomy of domestic authority structures, the ability of political actors to determine the kinds of political institutions within which they will function, and the decisions that emerge from these institutions. The rule that one state should not interfere in the internal affairs of another, first articulated by the international jurist Emer de Vattel at the end of the 18th century, has become one of the defining norms of sovereignty. It is, however, a norm that has been frequently violated, sometimes as a result of coercion, for example the Soviet Union's invasion of Czechoslovakia in 1968 and the American occupation of Panama in 1989, and sometimes as a result of voluntary agreements, such as the 1957 Treaty of Rome and subsequent accords that have created the European Union. Moreover, some political structures are inherently more open to official or unofficial external influence either because there are multiple avenues of access, as is the case with the United States, or because they are weakly institutionalized, as is the case in several African countries. Although domestic autonomy is a widely recognized rule it might, or might not, serve the interests of a specific state. John Bolton worries that the permeability of the American political process may be a threat to the United States. I suggest instead that, given the inordinate international power of the United States, the ability of external actors, including TNGOs, to involve themselves in American decision-making may make it easier to accomplish American objectives by reducing the temptation to balance against, rather than cooperate with, the United States. Some international agreements, especially those that create supranational authority structures such as the International Criminal Court ("ICC"), are antithetical to American national interests, but others, such as the World Trade Organization ("WTO"), particularly with its mandatory dispute settlement mechanism, are beneficial. To secure mutually beneficial contractual agreements the United States might have to limit its own discretion, including in some instances accepting legalized dispute settlement mechanisms, to reassure others that it will not arbitrarily use its extraordinary power and renege, de facto if not de jure, on treaty arrangements. Where mutual benefits are not contingent on the behavior of other states the United States ought to reject any moves toward global governance. The activities of TNGOs, including their ability to operate within states and at the international level, may be beneficial because they facilitate agreements between the United States and other countries. The United States is so powerful that in many instances foreign actors would be anxious about concluding any treaties with the United States unless they were confident that they would have access to the domestic policy-making process, including both information and the ability to lobby. While I am sympathetic to many of the concerns raised by John Bolton's paper and some of the other contributions to this project, they present a picture of a weak and vulnerable polity under siege from the international community, a description that might better be applied to the likes of Liechtenstein or perhaps Costa Rica. In the present environment nothing could be further from the truth. The United States strides the globe like a colossus. Its power is unprecedented. Never in the last several hundred years has a state had such dominance over such a wide range of resources-- economic, technological, monetary, and ideational. …

Sovereignty and Multilateralism

Abstract: I. THE NEW SOVEREIGNTY1 The recent surge of interest in sovereignty, exemplified by this symposium, reflects the empirical reality of 21st century international relations. There are more multilateral agreements and more multilateral institutions addressing more areas of policy than ever before. While debates over the extent to which the current era is truly the high-water mark for interdependence exist,2 it is the degree and nature of the linkages between previously domestic policy and international law and institutions that are noteworthy, and that have sparked, across the political spectrum, concern with global governance and its implications for sovereignty. As Stephen Krasner's excellent new book makes clear, sovereignty has always been a plastic norm in practice. As a concept it is used in varying ways and to denote different things.3 The motivating question behind most thoughtful discussions of the impact of global governance on United States sovereignty is not whether institutions such as the World Trade Organization ("WTO") somehow have seized US decisionmaking powers.4 This notion of sovereignty-sovereignty as formal control-is not seriously in doubt. The important question is instead a subtler one: whether the development and expansion of multilateral institutions are systematically altering our customary modes of domestic law and politics. Put differently, the question is: have we delegated away a significant part of our capacity for, and manner of, selfgovernment in the process of international cooperation? In his article5 in this symposium, John McGinnis turns this question on its head. The true threat to sovereignty, he argues, is precisely our customary modes of law and politics. Contemporary American politics, which McGinnis understands through the lens of public choice theory, is naked interest-group politics. Interest groups compete to use the state as a vehicle for rent-seeking and for imposing their normative visions, and attendant policies, on the majority. In this the few and well-organized benefit at the expense of the many. (The reverse presumption, as many have noted, of Footnote 4 of Carolene Products.)6 Rent-seeking by discrete interest-groups was aided by the advent of the New Deal and the rise of the 20th century bureaucratic regulatory state. McGinnis argues it is now further extended and reinforced by the expansion of international law and institutions. Rather than global governance per se, it is the tyranny of faction and the pervasiveness of rent-seeking and redistribution-often in the form of economic protectionism-which is in fact the major threat to our sovereignty. Against this threat the WTO and its norm of non-discrimination acts as an exemplary bulwark. Echoing Tum-lir,7 Hudec,8 and others, McGinnis argues that, far from threatening sovereignty, multilateral free trade agreements act to protect sovereignty properly understood. The WTO polices and checks rent-seeking policies at the domestic level, vindicating the (often unexpressed) will of the majority. McGinnis' particular contribution to this line of thought is to link the rentseeking/sovereignty argument to contemporary concerns about the growing ambit of international law. He argues that other multilateral efforts, such as environmental or human rights agreements, lack the democracy-enhancing qualities that free trade agreements such as the WTO possess. Indeed, most forms of multilateralism are highly suspect because they have the opposite qualities-they enhance not democracy but the power of the state and therefore of special interests. They represent and promote the extension of that power to the global level. As a result, he suggests, the proper conservative view of multilateralism should be discriminating, not dismissive. Trade multilateralism should be favored and other types of multilateralism disfavored, and this preference mix is not simply reflexive but principled. I want to commend McGinnis for making this argument, which, though deeply flawed in my view, is also engaging on many levels. …

Conservative Idealism and International Institutions

Abstract: Like many Anglo-American conservatives, Jeremy Rabkin believes that the European Union ("EU") presents "a serious challenge to American policy aims and American political ideals."1 This argument is timely, for the defense of "American sovereignty" seems to resonate in current US political debates. Uncompromising opposition to any surrender of US sovereignty to international organizations is increasingly widespread these days, particularly on the right wing of the US political spectrum. The question whether US foreign policy should be unilateral or multilateral is emerging as a salient electoral issue. Many critics of international organizations are deeply troubled, moreover, by what they know of EU politics, which they view as presumptively undemocratic and suspiciously concerned about social issues. Since writings by Euroskeptic British Tories wield a powerful and disproportionate influence on conservative opinion about Europe in the United States, it is fitting that William Cash, a Conservative Member of Parliament, head of the Euroskeptical "European Foundation," and a leading public critic of the current terms of British EU membership, joins this symposium.2 Their arguments-a common position that I shall term "conservative idealism"-are worth exploring in detail because they are typical of much contemporary Anglo-American thinking about the EU. Rabkin makes explicit the threat that many conservatives perceive to be emanating from Brussels. It is two-fold: strong supranational institutions in the public sector and plentiful non-governmental organizations ("NGOs") in the private sector. In the public sector, the member governments of the EU tend to support strong international institutions. As Rabkin puts it: "National governments that submit to a European Court and a European Commission find it easy to contemplate international counterparts that can give direction to other states, without the fuss and bother of parliamentary ratification." European governments, he maintains, tend to favor autonomous secretariats, independent dispute resolution bodies, and uniform international rules without reservations or exceptions. In the private sector, EU governments promote the participation of NGOs in global governance. In Rabkin's words: "The EU is also a great patron of NGOs for reasons that are closely related to its own structure ... the EU Commission (as well as the European Parliament) have sought to build European-wide constituencies for European policy."3 Rabkin offers three examples: dispute settlement in the World Trade Organization ("WTO"); strong environmental and labor protection; and the International Criminal Court ("ICC"). In each case most EU member governments favor more institutionalized international cooperation, while the United States is somewhat more hesitantostensibly due to pressure from international officials and their clients among the NGOs. Rabkin views this combination of supranational bureaucracy and transnational mobilization, purportedly sponsored by the EU, as nothing less than "a systematic program of eroding or reconfiguring national sovereignty." In the international system today, this program presents the United States with a "clear ideological alternative." Rabkin warns: "A world more in accord with EU designs will be a world in which national sovereignty has less and less meaning." The issue is clear. "Is that the kind of world Americans want to inhabit?"4 Rabkin asks. His answer is no. The EU's program "is likely to have less appeal for Americans who care about American independence."5 The precise basis for Rabkin's concern about US sovereignty and independence remains vague-a point to which I shall return-but it appears to have something to do with two characteristics of the EU: the perceived lack of democratic control on Brussels bureaucrats who help manage the institution, and the tendency of the EU to regulate social issues, such as environmental protection, human rights, and labor standards. …

Judging War Crimes

Abstract: I SOME BACKGROUND In November 1999, after twenty years as a judge on the United States Court of Appeals for the District of Columbia Circuit, I began serving as a judge on the International Criminal Tribunal for the Former Yugoslavia ("ICTY") The ICTY was established under a United Nations Security Council Resolution in 1993; its jurisdiction is limited to grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, crimes against humanity, and genocide It also has temporal and geographic limitations; these crimes must have been committed in the territory of the former Yugoslavia on or after January 1, 1991 Practically, that jurisdiction covers any of the four categories of international crimes committed between 1991-95 among the various Bosnian, Croatian, Serbian, or Yugoslav armies or paramilitary units, as well as the more recent violence in Kosovo The ICTY has fourteen judges elected for four-year terms by a majority of the UN General Assembly from a list of candidates generated in the Security Council; no more than one judge can come from a single country The current judges come from the United States, France, Italy, Great Britain, Australia, Jamaica, China, Morocco, Egypt, Guyana, Portugal, Zambia, Malaysia, and Colombia The Statute of the ICTY provides for the imposition of prison sentences on convicted war criminals but no death penalty The formal working languages of the ICTY are French and English, although typically trials also involve a Serbo-Croat dialect since that is the native language of most witnesses and defendants and many defense lawyers The three courtrooms are high-tech, allowing for simultaneous video and audio translation among the different languages The court is organized into three Trial Chambers of three judges each and an Appellate Chamber of five judges The Appellate Chamber also hears appeals from a separate similar Tribunal, the International Criminal Tribunal for Rwanda ("ICTR"), which tries crimes committed in Rwanda emanating from its genocidal episode in 1994 The same Prosecutor investigates and prosecutes crimes before both the Yugoslav and Rwandan tribunals The ICTY is housed in a grim, high security, converted insurance building in the commercial section of The Hague The building has no adornments; judges have their own offices, sparsely furnished, a secretary down the hall and one legal assistant (federal judges enjoy, by contrast, considerably more spacious quarters including a bathroom, at least one secretary within calling distance and two to four law clerks) There is a senior legal assistant assigned to each of the four ICTY Chambers Since the ICTY has no police force of its own, it must depend on other countries or international peace-keeping forces to deliver the suspects it indicts As a result, in the ICTY's first three years, 1993-96, no trials were held since it had no suspects in custody (the Tribunal does not conduct trials in absentia) It did, however, indict over ninety defendants for war crimes Despite a disappointing lack of cooperation in apprehending indictees from the governments of Yugoslavia, Croatia, and the Republika Srpska, the number of suspects in physical detention at The Hague has escalated in the last several years Some indicted persons have surrendered voluntarily; some have been captured and handed over by supporters of the ICTY such as Austria and Germany; and some have been apprehended by UN peacekeeping forces A few have even been extradited from Croatia and Bosnia As a result, as of February, 2000, thirty-four accused were in the ICTY's detention unit on the outskirts of The Hague, and thirty had been publicly indicted but were not yet in physical custody Thirteen accused were at the appeal stage, one had finished trial and was awaiting judgment and sentencing Two were on trial, while twenty were in pre-trial proceedings The ICTY is now a very busy court; indeed, its chief operational problem is bringing detained defendants to trial within a reasonable time …

International Law and International Relations: Together, Apart, Together?

Abstract: In 1982, I edited a volume on international regimes, a term that was just coming into wider usage in the field of international relations and which had some currency in international law.1 Most of the contributions to the volume, which dealt with a number of specific areas such as trade and finance, as well some more general theoretical explorations of the concept of regimes, were written by political scientists. The conference that preceded the publication of the volume, however, was attended by international lawyers and economists, as well as political scientists. For me, the conference illuminated a distinction that I had not fully appreciated between social scientists, the economists, and political scientists, on the one hand, and international lawyers on the other. The lawyers actually knew something, knew a great deal, about the specific character of international regimes, such as the rules of the General Agreement on Trade and Tariffs ("GATT"). The economists knew hardly anything at all. The discussions at the meeting, however, were dominated by the economists and political scientists. Now, perhaps this was simply because the lawyers were wise enough to realize that Palm Springs in the winter was better appreciated without spending an excessive amount of time ruminating about a concept as abstract as international regimes. It was evident enough that the political scientists did not have any real understanding about how the term should actually be understood! My own conclusion, however, was that the lawyers approached the issue of regimes in a fundamentally different way. The political scientists and economists were interested in formulating propositions that could be empirically tested. To some extent, they also shared a common explanatory, as well as methodological, frame. Whatever the international lawyers were doing, and I for one was not sure, was different. The study of international law and international relations has not always been so sharply distinguished. Until the 1970s and even later, international law would have been part of the curriculum of almost all international relations programs. In 1947, some of the founding members of the editorial board of the journal International Organization, the venue where issues that are of concern to public international lawyers would most frequently be addressed in the international relations literature, were international lawyers who also taught in political science departments or international relations programs. The break came because of changes in the study of international relations, rather than in the study of international law. Following political science more generally, international relations scholars became more self-consciously social scientific. Since the 1970s, the study of international relations has been driven by a set of theoretical frameworks that have generated more specific research programs or theories.3 Realism, which existed as a general frame of reference and even a set of normative prescriptions long before the 1970s, has been the most prominent of these approaches. Its most acclaimed post-war exponent, Hans Morgenthau, was a refugee from Nazi Germany appalled by what he saw as the consequences of ignoring the distribution of power as the basic determinant of outcomes in the international environment. Morgenthau, like his contemporaries, was more of an essayist than someone who tried to systematically associate explicit propositions with empirical evidence. While Morgenthau emphasized the importance of the distribution of power among states, he also pointed to human nature as a basic cause of conflict, and distinguished between states following status quo and imperialist policies.4 It was not evident what weight Morgenthau gave to the nature of human beings, the domestic characteristics of states, or the international distribution of power. In 1979, Kenneth Waltz published Theory of International Politics,5 in which he made a clear distinction between systemic and domestic, or what he called reductionist, arguments. …

Is EU Policy Eroding the Sovereignty of Non-Member States?

Abstract: Is EU Policy Eroding the Sovereignty of Non-Member States? Jeremy Rabkin* Ten years ago, the collapse of the Soviet Empire seemed to leave the United States as the last remaining superpower. But the United States is not quite alone. In some respects, the European Union ("EU") now has the resources of a very great power, with an aggregate GNP that is larger-by about 25 percent-than that of the United States. From the outset, some advocates of European integration have seen it as a way of giving Europe greater weight in international affairs, enough, perhaps, to counter the power of the United States. And now, with an expanded and more integrated European Union, the dissolution of the Soviet Union has made Western Europe less dependent on security cooperation with the United States. Today, the European Union does act as a single diplomatic unit in important international forums. In these negotiations, its size and wealth do make it an equal bargaining partner with the United States and a far larger factor than most other states. Americans need to consider whether this new force in international affairs is not, in some ways, a serious challenge to American policy aims and American political ideals. In the long run, the most important tensions between Europe and the United States may not derive from differing policies toward Russia, or China, or the Middle East. The most important issues may arise over something that is fundamental to the European Union's own structure and legitimacy-namely, its systematic program of eroding or reconfiguring national sovereignty. This EU posture has many practical ramifications for US policy. But it also presents a clear ideological alternative. A world more in accord with EU designs will be a world in which national sovereignty has less and less meaning. Is that the kind of world Americans want to inhabit? Some hints of what that world might look like are already apparent in EU-- sponsored proposals regarding international criminal justice, international environmental regulation, and international trade regulation. After a brief look at the distinctive features of EU politics, we look at the way developments in each of these fields have come to reflect the peculiar policy penchants of EU-style governance. I. SUPRANATIONAL STATE OR MEGAPHONE FOR LEADING STATES? Today's European Union is a curious hybrid. Its Member States have their own military forces, exchange ambassadors with other nations, and negotiate treaties on their own. In important respects, they are independent or sovereign states. Accordingly, each augmentation of the EU's authority has been accomplished by a new treaty-essentially, an international treaty-among the Member States. Yet these treaties have built up a remarkable degree of supranational authority over the signatory states. Member States submit to rules and regulations drawn up by the European Commission in Brussels and enforced by the European Court of Justice ("ECJ") in Luxembourg. The ECJ even claims (and exercises) the authority to invalidate enactments of national parliaments if they conflict with European law, in a process the ECJ itself describes as developing "constitutional norms" for Europe. The European Union now claims that citizens of the Member States are citizens of the European Union. EU citizens already have common passports and most of them will soon have a common currency. In many respects, therefore, the European Union looks more like a rudimentary federal superstate than an international organization. Yet in contrast with other developed states, the European Union has only limited and indirect forms of democratic control. The European Parliament is directly elected but has little real authority. It has, in principle, certain veto powers but it can neither initiate legislation nor alter the budget nor even choose the European Union commissioners who are responsible for policy planning and detailed administration. …

Benign Hegemony? Kosovo and Article 2(4) of the U. N. Charter

Abstract: INTRODUCTION 1. UN Charter Art II (1945),59 Star 1031, Treaty Set No 993 (1945). The 1999 U.S.-led, NATO-assisted air strike against Yugoslavia has been extolled by some as leading to the creation of a new rule of international law permitting nations to undertake forceful humanitarian intervention where the Security Council cannot act. This view posits the United States as a benevolent hegemon militarily intervening in certain circumstances in defense of such universal values as the protection of human rights. This article challenges that view. NATO's Kosovo intervention does not represent a benign hegemon introducing a new rule of international law. Rather, the United States, freed from Cold War competition with a rival superpower, is both less restrained by the Charter's norms and more compelled to rely on different rationales to justify military action. Particularly in light of the Afghanistan, Sudan, and Iraq military interventions, the Kosovo operation does not portend a new rule of international law. Rather, it poses a serious threat to the rule of law. Post-World War II international relations can be roughly divided into three periods. The first, stretching throughout the Cold War, was one in which the competing superpowers maintained a formal deference towards the Charter's prohibitions on non-defensive uses of force, but attempted to stretch the concept of self-defense to justify what in reality were violations of the Charter. The second was a brief unipolar yet multilateral moment between the Cold War's end and the late 1990s. During this time a United States-led U.N. authorized various military actions by the United States and other nations. The third and current era is characterized by the recent United States use of force outside of the U.N. framework against Iraq, Afghanistan, Sudan, and Yugoslavia. This era presents the grave danger that U.S. hegemony will further undermine the post-World War II quest to place the use of force under the control of a truly international organization.1 I. THE U.N. CHARTER IN A BIPOLAR WORLD The drafters of the U.N. Charter attempted to create a bright-line rule limiting the use of force. The use of force by individual states was prohibited, except in selfdefense, to respond to an armed attack by one country against another. The Charter required that the Security Council authorize all other uses of force. The clear rules of the Charter were premised on a set of assumptions that proved faulty. The Charter's framers sought to prevent a recurrence of the traumatic World War II experience from which they had just emerged. They assumed that interstate violence would dominate the second half of the twentieth century as it had the first. In fact, however, intrastate conflict constituted the predominant form of warfare during the next five decades. Moreover, the framers assumed that the Security Council would intervene to stop warfare, at least where one of the five permanent members was not directly involved. This assumption also proved inaccurate, as the Security Council remained deadlocked for almost half a century during the Cold War. Nonetheless, the bipolar Cold War struggle between the two superpowers strained, but did not break Article 2(4)'s restrictions on the use of force. While both the Soviet Union and the United States violated the Charter's prohibitions where their perceived national interest required-the Soviet invasions of Hungary, Czechoslovakia, and Afghanistan, and the U.S. military incursions against Cuba, the Dominican Republic, Nicaragua, Grenada, Libya, and Panama-both superpowers maintained a formal fealty to the principle that force not be used except in selfdefense. Neither the Soviet Union nor the United States and its allies chose to openly challenge the Charter's norms for several reasons. First, both had an interest in the stability of the formal rules stemming from World War II; neither desired the destabilizing effects that openly challenging the recently adopted Charter's scheme would bring. …

International Governance and American Democracy

Abstract: Does international governance threaten to crowd out American democracy? Many public figures and scholars think so. The street theater in Seattle last fall and Senator Dole's effort to establish a national tribunal to review World Trade Organization ("WTO") dispute resolution decisions both attest to the extent of the concern. As international institutions burgeon in number and significance, the residuum of authority left in our national government seems an ever diminishing domain. Extrapolating into the future, one can envision a time when the United States retains only as much sovereignty as, say, the members of the European Union or the States in our own federal system. The diminution of sovereignty brings with it a loss of democracy, as the distance between citizens and the institutions that make the most meaningful decisions grows greater. I take this concern seriously but believe its popular formulation is too simplistic and somewhat misplaced. International governance entails not only the formal institutions and explicit agreements that generate what I have called the "new international law."1 It also embraces a system of formulating and imposing norms on state and individual behavior that operates outside of any publicly accountable institution. A debate recently has arisen in the United States over the legitimacy of customary international law, with fierce arguments on each side. One dimension of this debate is the tension between American democracy and the adoption of customary norms through the courts. The uncritical incorporation of customary international law in US law encroaches on democracy by taking off the table choices that democratic institutions, whether federal, state or local, wish to make. To be sure, common law adjudication generally poses issues for a democracy, because the power to make law vests in the judiciary, a body designedly free of direct democratic constraints. But customary international law exacerbates this problem to the extent it involves a displacement of the common law process. It is one thing for courts, surveying precedent and relying on a variety of substantive and process preferences, to choose a rule that governs our conduct. It is another for courts to take over a prefabricated system of rules and norms, constructed by a loose alliance of like-minded academics and international law specialists through a form of advocacy that involves no democratic checks. These arguments provide a principled basis for rejecting the wholesale incorporation of customary international law into US law. The challenge to democracy posed by the new international law also is significant, but still quite different. The investment of lawmaking authority in multilateral international bodies, whether through the negotiation of international agreements or the resolution of international disputes, engages three antidemocratic tendencies. All things being equal, this shift strengthens the Executive with respect to Congress, enhances the ability of concentrated interest groups to procure rules that benefit their own, rather than the general, welfare, and bolsters the power of the bureaucracies of international institutions. Each of these developments shrinks the realm of democratic public decision-making and makes it less likely that lawmaking will reflect the popular will. US participation in the new international law, however, is not without democratic engagement. The multilateral agreements that make up this burgeoning field come to Congress for adoption, often after negotiations in which legislative leaders take some part. The agreements typically, although not inevitably, take the form of state-to-state commitments, with domestic legal consequences dependent on further administrative or legislative action. These limitations may be inadequate, because the agreements come as take-it-or-leave-it deals that cut short real deliberation, and the pressure on subsequent administrative and legislative actors to conform to international mandates may be too great to resist. …

International Legal Scholarship at the Millennium

Abstract: The beginning of a new journal is always a moment of great promise and expectation, and the start of The Chicago Journal of International Law is no exception. The decision to launch an international law journal at this time no doubt reflects both a widespread understanding that many problems traditionally considered domestic have important international dimensions, and the increasing prominence and diversity of international legal norms and institutions. In this sense, the start of this journal reflects good news about the state of international law. But there is something disquieting about starting a new international law journal with an inquiry into the problems of international legal scholarship. While it is often useful for an academic discipline to self-consciously examine its own understandings, a Symposium dedicated to this topic may signal an underlying weakness in the discipline. The purpose of this short essay is to explore the unsettling juxtaposition presented by the launch of this journal and its Symposium theme: is there a connection between the good news about international law that prompts the start of this journal, and the bad news about international law scholarship that prompts this specific Symposium? I Any discussion of the problems with international legal scholarship presupposes an understanding of the purposes and goals of this scholarship. These scholarly purposes and goals, however, are neither unitary nor static. Rather, at any one time, there are different forms of scholarship, and scholarship can play different roles at different times. Moreover, the purposes and goals of scholarship are and should be legitimate foci of academic debate. Nevertheless, it is often possible to generalize about dominant trends in legal scholarship at a particular time. For example, we can understand domestic law scholarship in this century to have moved through several discrete phases, including moves from Langdellian formalism to Legal Realism to Legal Process to various contemporary movements, including law and economics, critical legal studies and feminist legal thought. Harold Koh argues that international legal scholarship has undergone a very similar progression.' But there is another way to understand developments in international legal scholarship. For much of this century, and particularly in the decades following World War II, international law was a marginalized discipline. Political realists such as E.H. Carr, George Kennan and Hans Morgenthau, forcefully argued that power, rather than law, governed the international realm.2 They criticized the "legalistmoralist" tradition of American thought for naively attempting to transfer a domestic conception of legal order into the anarchic international system.3 At its heart, the realist critique challenged the relevancy-indeed, the very reality-of international law. In response, over the last few decades, much international law scholarship was at least implicitly dedicated to establishing the reality and relevance of international law. While the story of these efforts has been well-chronicled elsewhere,' the salient point here is this scholarship's success. International law scholars no longer feel compelled to justify their chosen area of study. As a result, international law scholarship today is heterogeneous, in terms of both goals and methodologies. However, notwithstanding this healthy diversity, international law scholarship today most typically consists of prescriptive or normative claims about how international legal issues should be addressed and resolved. As this is the most common form of international law scholarship-and as this prescriptive quality most sharply distinguishes legal scholarship from that of other disciplines-in what follows, I shall focus on this branch, without meaning to slight other important forms of international law scholarship. Efforts to prescribe-to solve specific legal problems-are deeply dependent upon the particular definition of the problem to be solved. …

I Hate International Law Scholarship (Sort of)

Abstract: ESSAYS I loathe international law scholarship for much the same reasons David Byrne hates world music. Music might seem an odd pairing with international law. And certainly David Byrne (rock musician, member of the former band, "Talking Heads," and now manager of his own record label) is an especially peculiar companion for me in this meditation on what is wrong with international law as an academic discipline. But in a recent article in The New York Times,1 Byrne lays out his appraisal of world music-what it is, what it has come to mean, and how the idea of multicultural and international sound has come to be perverted and distorted in the global marketplace of art and business. It is a powerful critique. It is all the more so since Byrne has been closely identified with world music, and he has been active in introducing American (meaning Western, parochial, and narrow-eared) audiences to the pleasures, nuances, and challenges of foreign and alternative music. In a similar vein, it might be regarded as strange for me to criticize international legal scholarship so openly since I have spent much of my professional life as a selfavowed academic, international lawyer, and advocate for the advancement of the role of international law in the United States. Teaching public international law has been central to my professional identity. But, just as David Byrne has become disenchanted with what world music has come to mean in the marketplace of sound, I have grown disillusioned with how the currency of international legal scholarship has come to be traded in the bazaar of ideas. This essay makes a very modest attempt to connect the problems of globalization in music with the internationalization of law. But, it also goes one step further to catalogue the pathologies-what I call here "the deadly sins"-that afflict current international legal scholarship as it struggles for a place in the legal academy, in the councils of power, and in the public square. I A close reading of David Byrne's contribution in The New York Times would quickly indicate that he is a master of conceit and artistic misdirection. Indeed, he does not hate world music at all. He just despises how world music has come to be portrayed and caricatured in a domestic musical aesthetic. Moreover, he fears how those who compose, play, and market world music have come to pander to a musical fashion and sensibility that actually despises and belittles what they do. I share these same visceral reactions and fears for international law scholarship. World music has become, according to Byrne, merely a "name for a bin in the record store signifying stuff that doesn't belong anywhere else in the store."2 In the same way, as international law has developed as a distinct and separate discipline within the American legal academy in the past century, it, too, has acquired a reputation for being a catch-all for forms of law and legal thinking that cannot be comfortably positioned in a construct of domestic law. International law scholarship has, almost by default, become legal writing and study that does not belong anywhere else. This sense of separation, of 11 otherness," is manifested in both the process of how international law scholarship is generated and how it is presented to its audience. International legal scholarship, like world music, has thus been relegated to a "ghetto."3 Consider David Byrne's concerns for world music: the use of the term world music is a way of dismissing artists or their music as irrelevant to one's own life. It's a way of relegating this "thing" into the realm of something exotic and therefore cute, weird but safe, because exotica is beautiful but irrelevant; they are, by definition, not like us. Maybe that's why I hate the term. It groups everything and anything that isrA "us" into "them."4 This pathology in the appreciation of world music is symptomatic of a larger illness that has come as a byproduct of globalization and multiculturalism. …

Few Reservations About Reservations

Abstract: I. INTRODUCTION The United States practice of attaching a package of reservations, understandings, and declarations ("RUDs")1 to its ratification of international human rights conventions has been the subject of severe criticism by some human rights advocates. As Professor Henkin has said, United States adherence to human rights conventions, after decades of resistance, should please all who support the international human rights movement. In fact, many are not pleased. For the United States has attached to each of its ratifications a 11 package" of reservations, understandings and declarations (RUDs), which has evoked criticism abroad and dismayed supporters of ratification in the United States. As a result of those qualifications of its adherence, US ratification has been described as specious, meretricious, and hypocritical.2 Professor Goldsmith's paper3 lays out a cogent argument in defense of the American practice. The present essay will consider some of the implications of Professor Goldsmith's article beyond the specific questions of US law. In particular, this essay will argue that, far from representing a net loss for the cause of human rights, RUDs actually play an important role in fostering the advancement of those rights. The International Covenant on Civil and Political Rights ("ICCPR") will serve as an example.4 II. THE FLEXIBLE RESERVATIONS REGIME AS A HUMAN RIGHTS STRATEGY The ICCPR permits reservations. Permitting reservations reflects a strategy of garnering the greatest possible adherence to the precepts of the treaty by allowing states to undertake some of the treaty's provisions while rejecting others.5 The advantages of such a strategy are obvious. But there are alternative strategies for promoting human rights that could be adopted. One alternative strategy would be to apply pressure to all states to adopt an ambitious set of substantive legal norms together with relatively specified mechanisms for their implementation and enforcement. This approach, if successful, presumably would provide the greatest protection for human rights. But states may be unwilling or unable to undertake or to fulfill some proposed human rights provisions, for a range of reasons. The more expansive and extensive the substantive norms proposed and the more highly specified the implementation mechanisms prescribed, the less likely it will be that broad and uniform adherence will be gained. To the extent that breadth and uniformity of adherence are lost, the normative force of the rules will be reduced. Looking specifically at the choices made by the United States concerning whether to adopt each provision of the ICCPR, one may question whether the optimal choice has been made in each instance. But the process has been the right one; the decisions have been made through the appropriate political decision-making process. A political decision could have been made simply to adopt the ICCPR wholesale, but that was not the choice made. Had the ICCPR by its terms required wholesale adoption-had it been an all-or-nothing choice-then the treaty might well have been rejected by the United States. Happily, the decision reflected in the ICCPR itself is not to require wholesale adoption. Rather, by permitting reservations, the treaty allows states to pick and choose which obligations to undertake, as long as those choices are not incompatible with the object and purpose of the treaty.6 This limitation-that reservations are permissible if and only if they are compatible with the object and purpose of the treaty-makes that compatibility determination crucial. There are a number of possible approaches to determining whether particular reservations are compatible with the object and purpose of a human rights treaty.7 (And there remains the related question, which I will not consider here, of who is to make that compatibility determination.)8 In pursuing the strategy of garnering the greatest possible treaty adherence by allowing states flexibility in selecting the provisions to which they will adhere, it would seem advisable to take an inclusive rather than a restrictive approach to permitting reservations. …

International Law/Intercultural Relations

Abstract: PERSPECTIVES New Zealand Government is a great place to work if you're interested in public policy. Our Westminster system of government means that it is generally possible to get things done in a more coherent, less "adulterated" form than in the U.S. system.1 The career public service position of Deputy Secretary for Justice (Public Law) in the New Zealand Ministry of Justice is an especially stimulating one. It gives me an opportunity to advise Ministers on a wide range of policy areas2 and to put to work whatever it was I learned in studying law, economics, and public policy at Yale Law School. Of all the policy issues I have dealt with, those involving indigenous peoples have been consistently the most challenging. The indigenous Maori people of New Zealand comprise a growing 15 percent of the population and are disadvantaged economically and socially. The complexity of the issues is startling-those involving Maori are usually steeped in history or at the cutting edge of political alienation and economic disadvantage. They often involve consideration of likely judicial decisions with little guiding precedent, and are always delicately poised in the political ether. Their far-reaching implications touch virtually all areas of Government policy, including our unwritten constitution. Having studied and observed the federal Canadian and U.S. governments grappling with similar issues with respect to their First Nations and Native Americans, I can say that at least the same degree of complexity exists in those countries. In this first issue of an important new journal about international law, I offer a perspective of these three liberal democratic states' relationships with indigenous peoples. I argue that the dynamics in these relationships-and the norms that govern them-are similar to those between sovereign states. By extension, as the world becomes more complex, "international" law seems on its way to both losing its conventional identity (as rules that are primarily accessed through the keyhole of Westphalian nationhood), and acquiring a new, more universal character (as norms that govern interactions between individuals and groups on a global basis). International law is no longer either international or law. I. INDIGENOUS PEOPLES AND TREATY SETTLEMENTS IN NEW ZEALAND The Treaty of Waitangi, signed by the British Crown with representatives of Maori tribes in 1840 granted sovereignty (or kawanatanga) to the Crown while guaranteeing protection of te rangatiratanga (or chieftainship) of Maori which also extended to them the rights and privileges of British citizens. The Treaty has never been formally incorporated into domestic New Zealand law per se. But it has acquired increasing political and legal weight since the 1980s. A number of statutes refer to it; successive Governments have promised to honor it; and, the general courts and a specialist tribunal have decided that where it is incorporated into law its meaning is somewhat more constraining than Government tended to believe.3 As a Treasury official in 1994-95, I was one of the leading advisers to Ministers of the New Zealand Crown on the first major settlement of an historical grievance -- with the Waikato-Tainui tribe. In 1865, the settler Government had invaded the land of Waikato-Tainui, conducted a military campaign, and confiscated 1.2 million acres of prime land. Successive generations of Tainui leaders had kept alive the grievance against this unjust behavior that had breached the Treaty of Waitangi. In 1994, they still wanted their land back: I riro whenua atu, me hoki whenua mai-as land has been taken, so it should be returned. In 1994, a constellation of influences were pressing the conservative (National Party) administration to resolve outstanding historical grievances with Maori. Negotiations with Waikato-Tainui crystallized when both sides realized that there existed a way to accommodate Tainui concerns (to have much of the land returned that the Crown still controlled) as well as Government concerns to manage the fiscal risk of settlement within affordable boundaries. …

The Future of International Human Rights: Commemorating the 50th Anniversary of the Universal Declarations of Human Rights

Abstract: The Future of International Human Rights: Commemorating the 50th Anniversary of the Universal Declarations of Human Rights Burns H. Weston and Stephen P. Marks, Editors Transnational Press 1999 Burns H. Weston and Stephen P. Marks' volume of essays commemorates the fiftieth anniversary of the Universal Declaration of Human Rights ("UDHR"), which the United Nations General Assembly proclaimed at the end of 1948. The book is something of a hodgepodge, containing detailed discussions of the UDHR and its normative impact, regional and gender-based discussions of human rights, and theoretical articles examining competing definitions of human rights. Such diverse content makes it difficult to generalize about the discussions it contains, but a few common themes emerge. Many of the essays make an effort to describe the normative impact of the UDHR. The feeling among the authors is fairly uniform in at least one respect. The UDHR has had little immediate, easily traceable impact on the human rights enjoyed by the citizens of the nations that ratified the UDHR. To some of the authors, this aspect of the UDHR, along with the attendant failure of the United States and other major powers to ratify and implement several major human rights accords, has rendered the UDHR moribund. Indeed, as Richard A. Falk has suggested in his article A Half Century of Rights: Geopolitics and Values, "[W)hy did oppressive governments agree to such an elaborate framework for human rights unless their leaders were convinced that the UDHR was nothing more than a paper tiger?" Other authors note that the UDHR's lack of immediate normative impact does not necessarily reflect a failure. To apply normative analysis to the UDHR is to misread its place in history. Many of the authors point out that, at the time it was proclaimed, the UDHR represented an unprecedented international acknowledgment that human rights existed, and helped inject the language of human rights into international discourse. Dinah Shelton acknowledges the labeling function served by the UDHR in her essay The Promise of Regional Human Rights Systems. A second major topic is the proper modern interpretation of the Western human rights norms contained in the UDHR. This discussion is conventionally described by asking how the putatively universal norms described by the UDHR survive under modern scrutiny which holds cultural integrity in much higher regard than human rights theories of the 1940s-1950s. The answer offered by many of the commentators is that the UDHR's norms are facially western and colonialist in their orientation. …

Catering for Israeli-Palestinian Peace

Abstract: I was on the White House lawn for the first time, cradling the final documents. Presidential adviser George Stephanopoulos asked me why I was holding up an internationally televised signing ceremony. For months Israeli and Palestinian negotiators had met in secret in Norway. Now they were ready to sign an historic "Declaration of Principles" that would provide a road map to resolve their fifty-year dispute.1 I was preventing President Clinton, Prime Minister Rabin, and PLO Chairman Arafat from coming to the stage and Mr. Stephanopoulos wanted to know why. In retrospect, that September day in 1993 was filled with irony. The United States has often been accused of serving merely as a "caterer for peace." By this, I suppose, is meant passively hosting ceremonial signings rather than exercising "superpower responsibilities." (The U.S. has also, of course, been accused of the opposite-dictating solutions to life-and-death issues whose consequences Americans will not have to bear.) All I knew at the time was that the Israeli and Palestinian legal representatives were not agreed on the final wording of their document, and I was not going to allow the dispute to move on to the stage to the embarrassment of all concerned. This initial experience taught me there can be far more to "catering for peace" than meets the eye. Simply providing technical assistance in preparing documents or logistical support for negotiations can be tricky, even nerve-wracking.2 But third-party facilitators can play an invaluable role in defusing the emotional barriers that impede constructive problem-solving for more than ceremonial events. For the United States, this has meant careful attention to nurturing the negotiating environment for Palestinian-Israeli peace talks. The U.S. has used its influence to urge the parties to restrain their public rhetoric and encouraged them to engage in confidence-building measures. More generally, it has expressed unwavering support for the process and sought to instill a sense of optimism to help build constituent support. When, as has happened all too often, the enemies of peace have lashed out violently, the United States has used its influence and prestige to overcome shocks to the process. It has organized and hosted emergency summits, boosted its own counter-terrorism support, and given the parties the confidence to continue once they have buried their dead. It is within this broader domain of political support that a third-party lawyer can best define his or her role. A key function for a State Department lawyer is to advise U.S. government officials on the full range of legal issues posed by the negotiations. On the Israeli-Palestinian peace process, this has meant counseling on the legal framework for the negotiations and the rationale and consequences of the parties' positions. My role has been to advise on domestic legal authorities for the U.S. regarding financial support and assurances to the parties. In addition, a third-party lawyer in a position like mine can also provide more direct support to the negotiating process, and that is what I would like to focus on here. The first task for me or any third-party lawyer is basic to everything else-to listen carefully to each side's description of its approach and the underlying rationale behind its objectives. At the table the negotiators may be reluctant to go into depth about their proposals. This may be because they want to give the impression that they have no room for compromise. Alternatively, they may feel their position will be difficult to justify in detail, since it is based on domestic political factors or on interagency processes necessary to reconcile a variety of internal needs. But both sides may feel comfortable confiding in a third-party, who will thereby acquire a greater understanding of the negotiating dynamics than either side. By posing questions as a neutral observer, I have sought to encourage each party to review its own position more carefully and to see how it appears from the point of view of its negotiating partner. …

The Dogs That Didn't Bark: Why Were International Legal Scholars MIA on Kosovo

Abstract: When they can, people like to analogize a seemingly obvious, but unnoticed point to Sir Arthur Conan Doyle's Sherlock Holmes story of the dog that didn't bark.1 In the story, Holmes deduced a murderer's identity because a guard dog failed to bark at the time of the crime, implying that the murderer and the dog's master were one and the same. Similarly, legal scholars like to infer the failure of various parties or institutions to speak up about something as implicit acquiescence. While we all like to make inferences from a dog's silence, however, we often never ask what was wrong with the dog in the first place. International legal scholarship is so frustrating and so disappointing for what it doesn't say, as much as for what it says. We rarely examine, however, what is so wrong with international legal scholarship that causes its failure to bark. At least the dog in the Holmes story had little choice; we can't blame a dog for recognizing the master who trained and fed him. International legal scholars, incredibly, often end up in the same place as the dog, even though they now enjoy so many choices or directions in which to work, spanning a number of disciplines and normative outcomes. The failure of international legal scholars to challenge the recent war in Kosovo serves up a prime example of the dog that didn't bark. International legal scholars' inconsistent positions on war powers suggest that scholarship in the field has failed to progress because it is too attached to the ambiguous normative goal of promoting international justice. Instead of attempting to study and analyze the nature of international law and why it appears to succeed in some areas and not others, international legal scholars devote too much time to fantasizing about the ideal international legal order and criticizing threats to it. Yet, by engaging in such a valuedriven normative enterprise, these scholars undermine the very idea that neutral law, not raw power or ideological politics, governs international affairs. Debates over war powers provide an example of the normatively-driven enterprise of international legal scholarship. In the 1980s and 1990s, prominent international legal scholars sharply criticized the use of force by Presidents Ronald Reagan and George Bush, who sent American forces into hostilities in places such as Grenada, Libya, Lebanon, Panama, and the Persian Gulf Throughout these wars, the leading lights of international legal scholarship argued that presidents who launched military interventions without congressional authorization had acted unconstitutionally.2 According to these professors, presidential war-making violated the Constitution's Declare War Clause, which they read to vest in Congress the authority to approve all uses of force. Some academics even allege that presidents who engaged the nation in hostilities in violation of the U.N. Charter (not in national selfdefense) compound the unconstitutionality of their actions by violating international law.3 International law, these scholars claim, is part of the law of the land, and therefore the President's constitutional duty to enforce the laws requires him to obey international rules.4 International law scholars take their views seriously, so seriously in fact that they have engaged in more direct forms of advocacy. Law professors supported challenges to the Reagan administration's military aid program for El Salvador,5 covert assistance for the Nicaraguan Contras,6 and American naval escort operations in the Persian Gulf.7 President Bush's war against Iraq provided the most notable example of the activism of international legal scholars. In an amicus curiae memorandum filed in a congressional lawsuit brought against President Bush,8 eleven prominent law professors argued that military action against Iraqi forces, without "the genuine approval of Congress," would violate the Constitution.9 In an effort to stop unilateral presidential war-making, they took to the popular press and the airwaves,10 testified before Congress,11 and even considered representing soldiers who might resist a call-up unless a declaration of war was issued. …

European Integration: Dangers for the United States

Abstract: I. OVERVIEW The United States has vital trade, defense, and foreign policy interests in halting the European Union's ("EU") accelerating drive toward a United States of Europe. At the same time, it remains important to encourage fair and free trade in and with Europe and all the advantages of the European Single Market. In short, European trade: yes, European government: no. II. AMERICAN INTERESTS IN EUROPE From the First and Second World Wars, through Marshall Aid, the Cold War, and to Kosovo, the United States has consistently shown it is willing to expend its wealth, and even its citizens' lives, to bring peace to Europe. Yet US citizens long to be relieved of the burden of rescuing Europe, and instead cooperate and trade with a continent as free and democratic as their own. Over the course of the post-war period, Washington has come to regard European integration as a means toward that end. The view of the State Department has been, at least since John Foster Dulles and Robert Kennedy, that the best way to achieve peace in Europe is by uniting Europe. As a means toward such unity, the United States has long supported and encouraged the European Union-but what type of European Union? Times and circumstances have changed, particularly since the end of the Cold War, and deepening European integration is now having negative consequences for vital US interests. Since the Maastricht Treaty in 1991, the European Community has evolved into an outright European government-a government pursuing policies that depart from the historical attachment of the United Kingdom and the United States to the principles of free trade, democracy, and the Atlantic Alliance. The eventual aim of many European leaders is a United States of Europe with one currency, one body of law, one supreme court, one flag, one anthem, one defense policy, and one frontier. The way in which this integration is proceeding, however, presents immediate challenges to the United States-challenges that it is my purpose here to explain. III. EUROPEAN UNION: ANTI-AMERICAN In 1997, the former Chancellor of Germany, Helmut Schmidt, made clear Berlin's and Paris's motivation behind European integration-to create a superpower capable of challenging the United States. [The] European Union will have the political, economic, and financial weight to exert an influence on global affairs equal to that of the three superpowers. This perception is gaining ground among the leaders of the EU, and it provides an additional strategic motivation for European integration. It was also natural that during the Cold War West Germany... maintained a close relationship with the United States, since Germany's security ultimately rested more on the United States than on its European allies. Because of this basic strategic reality, de Gaulle never succeeded in enticing Germany away from the United States. (Post-Cold War] Germany will remain in the (NATO] alliance, but European integration-further development of the EU and close co-operation with France-- is increasingly important.... The United States must understand that in the next century Germany will not automatically take its side in disputes between Washington and Paris.1 Just last year French Foreign Minister Hubert Vedrine echoed Helmut Schmidt, describing the United States as an unchecked "hyper-power."2 Former President Franqois Mitterrand went further, stating that "France does not know it, but we are at war with America. Yes, a permanent war, a vital war, an economic war, a war without death. Yes, they are very hard the Americans, they are voracious, they want undivided power over the world."3 President Jacques Chirac revived his predecessor's bellicose anti-Americanism, proclaiming last fall that the object of the European defense identity is to contain the United States.4 German support for the European Union can be just as anti-American. …

The Plight of Academic International Law

Abstract: When I entered the academic world almost twenty years ago, one of my objectives was to change the way public international law was taught, and more generally how it was understood by the wider community of academics and practitioners. The subject as presented to me when I was a student had been dominated by stale theoretical questions having to do with the sources, hierarchical status, and binding nature of international law, and by a puzzling reverence for the cases of the International Court of Justice. Even as a student, I sensed that what I was learning had little to do with the real world of government decision-making, politics, and commerce. Then, in private law practice on Wall Street, I found that my academic training had prepared me poorly to deal with the interconnected issues of domestic and international law, with which I grappled in tax and business planning, foreign government bond offerings, commercial bank loans, and joint ventures abroad, and all the associated human problems involving tax, estate, and immigration law. My next experience-as a lawyer in the Department of State-brought home additional gaps in international law as it had been presented in the academy, notably its neglect of the processes by which law was formed and implemented, how those processes related to the bureaucratic decision-making structures of governments, and the importance of foreign and domestic constitutional law in shaping realistic options available in any given situation. My academic training also lacked much consideration of important things that lawyers actually do in their practices, such as counseling, blending non-- legal/policy considerations with legal analysis in the formation of professional judgment and advice, and negotiating (both at the intragovernmental and the intergovernmental levels). As an academic, I have had the opportunity to reflect on the relevance of my experience to the academic enterprise, and, perhaps more importantly, the leisure to contemplate the role of international law in shaping our thinking about the world and in defining the problems that lawyers are asked to solve. I sought to address the deficiencies in academic international law as I had experienced them by adjusting the content of the courses I offered (deviating from the published teaching materials then available), by eventually authoring a new course book that could correct the problems that I saw, and by focusing my scholarship on presenting international law in a more realistic framework that would better reflect the political world in which it operated. I first recast our International Organizations course. The principal casebooks presented abstract rules and procedures of various organizations, without reference to context or to the actual impact of these organizations.1 The usual approach seemed to privilege the United Nations (which at the time was a politically marginal institution of little actual consequence, even for most international lawyers) as the preeminent example worthy of study. I substituted study of economic institutions-the GATT, the World Bank and the IMF-and I included material showing how these organizations worked in practice. Such a topic seemed to me hardly unimportant to lawyers whose practice could include counseling with respect to their projects or lobbying these organizations on behalf of a client, or to academics who might propose realistic reforms. I also sought to convey a sense of the actual impact of these institutions on the societies in which they operated, for example, examining the effects of IMF structural adjustment programs on the price of food in connection with considering their legal status and legitimacy. In our Public International Law course, I introduced subject matters that I felt American lawyers needed to know about.2 These included international law elements potentially relevant to civil litigation (the Hague Service and Evidence Conventions), choice of law and choice of forum, the Foreign Corrupt Practices Act, extraterritorial application of law, tax treaties and self-executing treaties in general, the potential effect of Presidential constitutional power, and individual problems associated with immigration, refugees, and the trans-border movement of persons. …

UN Wars, US War Powers

Abstract: Pressure on traditional notions of US sovereignty are nowhere clearer than in the area of national security In a number of areas, such as arms control, the Clinton administration has sought to achieve US foreign policy goals through multilateral international institutions Pursuing national security through international organizations confers certain advantages for US policymakers, such as allowing the United States to act under the aegis of multilateralism, which submerges the prominence of US national interests and allows for the use of collective military resources Acting through such alliances, however, raises policy and constitutional difficulties that pose problems for US notions of democratic accountability and the separation of powers This paper will address these issues by describing the impact of multilateral interventions, such as those in Kosovo, Bosnia, and Haiti, upon the US system of war powers In none of these cases did the Clinton administration receive congressional authorization for the use of force abroad While the administration has failed to issue a defense of the legality of the Kosovo intervention, President Clinton has claimed that he enjoys the constitutional authority under the commander-in-chief clause to use force without congressional consent Further, the President has justified these military interventions more often on the need to uphold our obligations to the United Nations ("UN") or the North Atlantic Treaty Organization ("NATO"), than upon congressional approval While he has often signaled that he would welcome congressional support, he also has made clear that he would implement his military plans without it President Clinton has refused to acknowledge that the War Powers Resolution ("WPR") restricts his discretion In fact, the Clinton administration's use of the military in these long-term interventions has rendered the WPR a dead letter I In recent decades, no President has used force abroad as much as President Clinton In March 1999, President Clinton ordered 31,000 US servicemen and women to engage in air operations against Serbia, the largest and most powerful province of the former Yugoslavia, to prevent the "ethnic cleansing" of Albanians living in Kosovo As part of an operation sponsored by NATO, 7,000 US ground troops then entered Kosovo on June 10, 1999, after NATO bombing had forced Serbia to withdraw its forces It is unclear when they will be withdrawn, as NATO's goals include not just ending war but building a new nation in Kosovo President Clinton never received congressional authorization for the use of force in Kosovo or Serbia, nor did Congress declare war US troops engaged in hostilities well past the sixty-day time limit imposed by the WPR US intervention was triggered by events in the spring of 19993 In early March, Serbian military forces began a broad offensive aimed at driving the Albanian population out of the province On March 23, after the Clinton administration's efforts at negotiation had failed, the Senate passed a concurrent resolution authorizing the President to "conduct military air operations and missile strikes in cooperation with our NATO allies against the Federal Republic of Yugoslavia (Serbia and Montenegro)"4 On March 24, US warplanes, in conjunction with other NATO forces, began attacking Serbian forces in Kosovo In a nationally televised address, President Clinton argued that air strikes were necessary to protect innocent Albanians, to prevent the conflict from spreading to the rest of Europe, and to act with our European allies in maintaining peace5 President Clinton declared that the military's mission would be "to demonstrate NATO's seriousness of purpose," to "deter an even bloodier offensive against innocent civilians in Kosovo," and "to seriously damage the Serbian military's capacity to harm the people of Kosovo"6 When air strikes did not convince Serbia to withdraw its forces, NATO air and missile operations expanded beyond Serbian military units in Kosovo to military, strategic, and civilian targets within Serbia itself, such as air defense, electrical, communications, and government facilities …

American Advice and New Constitutions

Abstract: The early 1990s were among the most extraordinary periods for constitution-- making in the history of the world. Several people at the University of Chicago Law School played a role in this period, mostly as observers, to some small degree as participants. The editors of this Journal have asked me for some brief reflections on this remarkable time; I am grateful to have been asked and happy to oblige. This is an impressionistic essay, but I do have a principal theme. It involves the conflict between what might be called pragmatic and expressive conceptions of constitution-making and constitutionalism. Americans generally tend to think of constitutions as pragmatic instruments, important for what they do in the real world. In Eastern Europe and (to a lesser extent) South Africa, by contrast, expressive considerations loomed very large; what constitutions say-what ideals they express-- was extremely important, not merely what constitutions would do. Of course what constitutions do is often a function of what they say; I am emphasizing the role of constitutions as carriers of symbols and statements, largely for their own sake. I also offer some brief notations on the contrast between Eastern Europe and South Africa, and on what Americans might learn from constitution-making efforts elsewhere. 1. FOUR TRANSITIONS AND RECURRING ISSUES After the downfall of the Soviet Union, a large number of nations were embarking on a remarkable enterprise in self-definition and constitutional reform. At the time it was clear that several quite different transitions were involved. Four are easy to identify. The first involved a shift from a command economy to some form of capitalism, or at least a system in which private property was acceptable. The second was a shift from party rule to some form of democracy. The third, of particular interest to law professors and lawyers, involved a shift from rampant official lawlessness, and meaningless constitutions, to some version of constitutionalism and the rule of law. "Constitutions did not play an important role under communism."' One of the principal goals of the transition from communism was to produce a system of meaningful constitutions; ten years later this goal has been largely achieved, to one degree or another.2 The fourth transition involved a shift to domestic rule from more than occasional control by the Soviet Union. This shift-from Soviet domination to national self-government-turned out to be extremely important to the early 1990s, and often it seemed foremost in the minds of the reformers. Soon after the fall of communism, it was clear to several of us at the University of Chicago that it would be very valuable to attempt to track and analyze the new efforts at constitution-making. Jon Elster, Stephen Holmes, and I created a Center on Constitutionalism in Eastern Europe, designed above all to house records and to engage in fact-gathering and analysis.' Our mission was emphatically not to provide "advice" to nations involved in constitution-making. As an organization, we believed that the academic tasks might be compromised by advice-giving roles. Nonetheless, some of us did participate, to a greater or lesser extent, as spectators and advice-givers with respect to constitution-making, not only in Eastern Europe but also in South Africa (with which the Center was not concerned). Many issues were discussed, in quite similar terms, in a range of countries-for example, whether to give the Constitutional Court the power to issue advisory opinions; whether the Court should be available to ordinary citizens, to government officials, or both; whether and how to handle problems of ethnic pluralism; whether and how to promote sex equality (an issue that was greatly neglected in Eastern Europe, but quite prominent in South Africa); the circumstances in which rights could be abridged (what form of words would be appropriate for identifying those circumstances? …

The Use of Force in the Clinton Era: Continuity or Discontinuity?

Abstract: A striking characteristic of the Clinton era has been an increased American propensity to employ military power as an adjunct of foreign policy. Since ordering a cruise missile attack on an Iraqi intelligence headquarters in Baghdad in June 1993 in retaliation for an alleged plot to assassinate former President George Bush, President Bill Clinton has employed US forces with striking frequency in a remarkable array of circumstances. In 1993, Clinton fought and lost a minor war in Somalia. In 1994, he dispatched US troops to occupy Haiti and reinstall President Jean Bertrand Aristide to power. In 1995, American aircraft provided the preponderance of the combat power for the North Atlantic Treaty Organization ("NATO") bombing campaign that paved a way for the Dayton peace accords ending (or at least suspending) the Bosnian civil war. When NATO peacekeepers entered Bosnia in December of that year, American ground troops were in the vanguard. On a reduced scale, they have remained ever since. That was not all. In 1998, to lend substance to its so-called "war on terrorism," the Clinton administration launched cruise missile attacks on suspected terrorist base camps in Afghanistan. In Sudan, US missiles also leveled a pharmaceutical plant alleged-incorrectly as it would turn out-to have been used to manufacture materials essential to the production of nerve gas. In the Persian Gulf, Clinton on two occasions directed the Pentagon to mount a show of force, deploying contingents of combat troops to Kuwait on short notice. He has maintained and expanded the air patrols in the "no-fly zones" over northern and southern Iraq, ordered air strikes from time to time to express displeasure with Saddam Hussein, and in December 1998 launched Operation Desert Fox to punish Iraq for refusing to cooperate with United Nations ("UN") weapons inspections. Since Desert Fox, the United States and Great Britain have continued a desultory bombing campaign against Iraq, attacking targets every two or three days for the ostensible purpose of enforcing UN resolutions dating back to the Gulf War of 1990-1991. And, of course, a year ago the United States was once again in the forefront of NATO's efforts to bring Slobodan Milosevic's Yugoslavia to heel, an initiative that resulted in a massive 78-day air war and another open-ended commitment of American troops as "peacekeepers"-this time to Kosovo. By any measure the decade of the 1990s has been an immensely busy-even exhausting-one for US forces. For the Pentagon, the "peace dividend" that was to result from the end of the Cold War has led instead to a ratcheting up of commitments and responsibilities. But apart from an increased tempo of activity, how much is really new here? In examining the "Clinton Doctrine" for the use of force, how much is really different? And what do those differences signify? Critics of Mr. Clinton's performance as commander-in-chief have taken him to task for violating a number of ostensible taboos. Whether implicitly or explicitly, those evaluating Clinton contrast his actions to those of earlier (especially Republican) presidents and discover much with which to find fault. The subtext of the critique is that those presidents, Ronald Reagan and George Bush-most notably-had used force wisely whereas Clinton has done so frivolously and ineffectually. Clinton's predecessors had digested and respected the essential lessons of Vietnam whereas Clinton, the Vietnam War draft-evader, has not. Thus, for example, in an essay published in this journal, Professor John C. Yoo writes: "Kosovo represents the culmination of several trends in the American use of force over the last eight years."' The basic insight is correct: the war for Kosovo does mark a culmination point. But the relevant trends stretch not over eight years but over five decades. The events in Kosovo grew not out of a single administration but out of the last ten presidencies. The prerogatives asserted by the Clinton administration regarding the use of force and even the methods employed do not differ as radically from past practice as Professor Yoo suggests. …

Customary International Law and Private Rights of Action

Abstract: It has been twenty years since the US Court of Appeals for the Second Circuit issued its landmark decision in Filartiga v Pena-Irala.1 In upholding federal court jurisdiction over a suit between aliens concerning violations of international human rights standards in a foreign country, the court in Filartiga paved the way for modern international human rights litigation. As Professor David Bederman has observed, "[iln a sense, all current human rights litigation owes its fortune to Filartiga."2 Since Filartiga, US courts have been confronted with two waves of international human rights litigation. The first wave has primarily involved suits, like Filartiga itself, between aliens concerning alleged human rights abuses occurring outside the United States. This wave has been moderately successful. While enforcement of judgments is often a problem in these cases, many courts have at least been receptive to hearing the plaintiffs' claims. In recent years, litigants have increasingly attempted to apply the principles developed in this first wave litigation to suits against domestic defendants. This "second wave" litigation has been much less successful than the first wave. More importantly, the failure of this litigation-especially in cases involving US plaintiffs-- has the potential to unravel some of the successes achieved in the first wave. To understand this point, some background is necessary. There are two principal types of international law-treaties and customary international law. International human rights litigation has not primarily involved treaty claims. There are of course many treaties today that govern human rights, but the United States either has not ratified these treaties, or it has declared them to be non-self-executing-that is, not enforceable in US courts until implemented by Congress. Consequently, international human rights litigation in the United States is primarily based on claims under customary international law-the law that "results from a general and consistent practice of states followed by them from a sense of legal obligation."3 The text of the Constitution says little about the domestic status of customary international law. It says a number of things about the status of treaties-in particular, it tells us that they are part of the supreme law of the land and that federal courts may hear cases arising under them.4 The only reference in the Constitution to customary international law, however, is a grant of statutory power to Congress to define and punish offenses against customary international law (referred to at the time of the founding as part of the "law of nations").5 In several decisions in the 19th and early 20th centuries, the Supreme Court referred to the law of nations as "part of our law" or "part of the law of the land."6 In practice, courts treated customary international law as general common law-a background source of law for federal and state courts in the absence of any federal or state legislation to the contrary. Federal court interpretations of this general common law were not binding on the state courts, and claims arising under this general common law did not fall within the federal question jurisdiction of the federal courts.7 In Erie Railroad v Tompkins,8 the Supreme Court held that federal courts were no longer free to apply general common law-the choice was either federal law or state law.9 On the same day it decided Erie, however, the Court held that for some issues it is appropriate for federal courts to create federal common law-common law that is truly federal in that it is binding on the states and provides a basis for federal question jurisdiction.10 The Supreme Court has not had occasion since Erie to resolve the status of customary international law. There is dicta in the Supreme Court's Sabbatino decision11 that could be read as endorsing a federal common law status for customary international law,12 but that was not the holding of the Court; indeed, the Court in Sabbatino refused to apply in that case customary international law governing expropriation of foreign citizen property. …