Universal exceptionalism in international law

Harvard International Law Journal

Volumn 52, Issue 1, 2011, Pages 1-54

  Bradford, Anu ^a   Posner, Eric A ^a  

^a UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 79955825063     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (356)

1. See Andrew Moravcsik, The Paradox of U. S. Human Rights Policy, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 147 (Michael Ignatieff ed., 2005).
2. For the bill of particulars, see, for example, Michael Ignatieff, Introduction: American Exceptionalism and Human Rights, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 1, 1-3 (Michael Ignatieff ed., 2005);
3. Harold H. Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1480-83 (2003);
4. Anne Peters, Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures, 19 LEIDEN J. INT'L L. 579, 604-05 (2006);
5. Peter Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, FOREIGN AFF., Nov.-Dec. 2000, at 9-13.
6. See, e.g., JOHN J. MEARSHEIMER, THE TRAGEDY OF GREAT POWER POLITICS 29-40 (2001).
7. See, e.g., ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLITICAL ECONOMY (1984);
8. see also Robert O. Keohane & Lisa L. Martin, The Promise of Institutionalist Theory, 20 INT'L SEC. 39(1995).
9. See, e.g., Ignatieff, supra note 2.
10. See generally ALEXIS de TOCQUEVILLE, DEMOCRACY IN AMERICA (Harvey C. Mansfield & Delba Winthrop eds., trans., Univ. Chi. Press 2000 1st ed. 2000) (1835, 1840).
11. See generally SEYMOUR MARTIN LIPSET, AMERICAN EXCEPTIONALISM: A DOUBLE-EDGED SWORD (1996).
12. See generally id.
13. See Jed Rubenfeld, Unilateralism and Constitutionalism, 79 N. Y. U. L. REV. 1971, 1993-95 (2004).
14. See Eyal Benvenisti, The US and the use of Force: Double-edged Hegemony and the Management of Global Emergencies, 15 EUR. J. INT'L L. 677, 688(2004);
15. Steven G. Calabresi, "A Shining City on a Hill": American Exceptionalism and the Supreme Court's Practice of Relying on Foreign Law, 86 B. U. L. REV. 1335, 1396-97 (2006).
16. See Calabresi, supra note 10, at 1337-38, 1389-92;
17. Ignatieff, supra note 2; cf. Anne-Marie Slaughter, International Law in a World of Liberal States, 6 EUR. J. INT'L L. 503(1995).
18. See Oona Hathaway, Treaties' End: The Past, Present, and Future of International Lawmaking in the United States, 117 YALE L. J. 1236, 1307-12 (2008).
19. Some distinctive doctrines of the Soviet view included, at various times: (1) the right to repudiate treaty obligations after a socialist revolution; (2) the right to intervene to assist a socialist revolution; and (3) the right to intervene in capitalist countries that fail to protect workers' rights. See generally KAZIMIERZ GRZYBOWSKI, SOVIET PUBLIC INTERNATIONAL LAW: DOCTRINES AND DIPLOMATIC PRACTICE (1970);
20. TARJA LÅ NGSTRÖ M, TRANSFORMATION IN RUSSIA AND INTERNATIONAL LAW 50-117 (2003).
21. A typical view is that Europeans, unlike Americans, do not have the power to pursue their values in international law because they are too weak. See, e.g., Stanley Hoffman, American Exceptionalism: The New Version, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 225, 225-26 (Michael Ignatieff ed., 2005). We disagree with this premise.
22. HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 298-99 (Kenneth Thompson ed., Knopf 1985) (1948). Codifications refer to laws that have been codified and published in written form (for example, federal statutes in the United States or civil codes in many civil law jurisdictions). Codifications can be contrasted to judge-made common law.
23. LASSA OPPENHEIM, INTERNATIONAL LAW:A TREATISE 56 (Hersch Lauterpacht ed., 7th ed. 1948).
24. See, e.g., our discussion of Michael Ignatieff's views, infra Part I. B.
25. In the modern legal literature, the lone example of this view that we have found is Sabrina Safrin, The Un-Exceptionalism of U. S. Exceptionalism, 41 VAND. J. TRANSNAT'L L. 1307(2008) (arguing that the U. S. stance on international law is not exceptional).
26. Our argument builds on her work. Some skepticism about the usefulness of the notion of American exceptionalism in international law can also be found in Michael A. Newton, Exceptional Engagement: Protocol I and a World United Against Terrorism, 45 TEX. INT'L L. J. 323(2009).
27. See Ignatieff, supra note 2, at 4. The term "exemptionalism" is his.
28. See Stephen C. Neff, A Short History of International Law, in INTERNATIONAL LAW 31, 40-41 (Malcolm D. Evans ed., 2003).
29. See id. at 37-49.
30. See id. at 52-56.
31. See id.
32. See 147 CONG. REC. 18, 231-32 (2001) (statement of Sen. Jesse Helms) (supporting a bill aimed at hindering the International Criminal Court, because the United States "owe[s] it... to our men and women representing this country, both in the military and in civilian agencies, " as they "get ready for a long campaign against global terrorists, " to protect their actions from U. N. "second-guessing").
33. See David J. Scheffer, U. S. Ambassador at Large for War Crimes Issues, Address before the Carter Center in Atlanta, GA: U. S. Policy and the Proposed Permanent International Criminal Court (Nov. 13, 1997), available at http://www.amicc.org/docs/Scheffer11-13-97.pdf (explaining the U. S. position on ICC jurisdiction to be that the "[United Nations] Security Council should have an essential role to play in a trigger mechanism").
34. The United States does benefit from its veto in the Security Council, and in this sense one might argue that it seeks a system in which other states are bound to norms that it can avoid - de facto. We discuss this argument in Part V. C, infra.
35. Sarah H. Cleveland, Norm Internalization and U. S. Economic Sanctions, 26 YALE J. INT'L L. 1, 30(2001).
36. See id. at 4-5, 4 n. 6 (describing the United States as "by far the most active player" in imposing sanctions in order to promote human rights).
37. Ignatieff, supra note 2, at 2.
38. Foreign leaders have been quick to condemn the United States' behavior as exceptionalist, accusing the United States of embracing international norms selectively.
39. See, e.g., Ambassador Qiao Zonghuai, Head of Chinese Delegation to the United Nations, Statement before Vote on Draft Resolution Entitled "Situation of Human Rights in China" (Apr. 23, 1999), available at http://www.china-un. ch/eng/rqrd/jblc/t85086.htm (condemning a resolution on Chinese human rights violations as an example of American "double standards and the politicization of human rights" as evident from the United States' own human rights violations and refusal or delay to sign and ratify international human rights treaties).
40. Ignatieff, supra note 2, at 5-6.
41. See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399, 460(2000);
42. see also Arthur Rovine, Defense of Declarations, Reservations, and Understandings, in U. S. RATIFICATION OF THE HUMAN RIGHTS TREATIES: WITH OR WITHOUT RESERVATIONS? 54, 57-59 (Richard B. Lillich ed., 1981).
43. Ignatieff, supra note 2, at 14.
44. Koh, supra note 2, at 1485-87.
45. See discussion infra Parts II, III.
46. Ignatieff, supra note 2, at 4;
47. see also Calabresi, supra note 10, at 1405-06.
48. Despite the ferocity of the normative debate over whether American courts should cite foreign court decisions, no study directly compares the frequency with which courts in the United States cite foreign cases relative to foreign courts. However, the general consensus among scholars is that courts in the United States cite foreign sources much less frequently than do courts outside of its borders. For an empirical assessment of the extent to which American courts cite foreign cases
49. see David T. Zaring, The use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. EMPIRICAL LEGAL STUD. 297(2006) (finding that the lower federal courts rarely cite to foreign decisions). In contrast, scholars have noted the frequency with which courts outside of the United States cite foreign cases.
50. See, e.g., C. L. Ostberg, Matthew E. Wetstein & Craig R. Ducat, Attitudes, Precedents and Cultural Change: Explaining the Citation of Foreign Precedents by the Supreme Court of Canada, 34 CANADIAN J. POL. SCI. 377(2001) (finding that the Canadian Supreme Court often cites foreign cases, especially when interpreting the Canadian Charter of Rights and Freedoms).
51. Mary Ann Glendon, Rights in Twentieth-Century Constitutions, 59 U. CHI. L. REV. 519, 521(1992).
52. See Ignatieff, supra note 2, at 4.
53. Id. at 20;
54. see also Andrew Moravcsik, The Paradox of U. S. Human Rights Policy, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS, supra note 2, at 147, 150 (giving a related argument that emphasizes American institutions and institutional history).
55. Central Intelligence Agency, The World Factbook: Country Comparison: Population, available at https://www.cia.gov/library/publications/the-world- factbook/rankorder/2119rank.html (last visited Nov. 6, 2010).
56. They are all classified as not free or partly free in Freedom House's 2010 survey. See Freedom House, Freedom in the World 2010: Global Data, available at http://www.freedomhouse.org/uploads/fiw10/FIW-2010-Tables-and- Graphs.pdf (last visited Nov. 6, 2010).
57. See, e.g., Ignatieff, supra note 2;
58. Rubenfeld, supra note 9 (describing European "universalism"). Rubenfeld emphasizes Europeans' faith in "international consensus" as a source of legal validation and authority.
59. See id. at 2005-06. He also explains how Europeans are committed to the "universalistic view" of constitutional law and international human rights law, favoring "supranational legal and political institutions because most important legal and political principles... transcend national boundaries and indeed exist to check national governments."
60. See id. at 1975-76.
61. Peters, supra note 2, at 605, describes American exceptionalism against a background of global constitutional values that look suspiciously European.
62. See also JURGEN HABERMAS, THE DIVIDED WEST 179-84 (2006) (describing Europeans' continuing commitment to the Kantian cosmopolitan order and contrasting that with American preference for hegemonic liberalism post 9/11);
63. Martti Koskenniemi, International Law in Europe: Between Tradition and Renewal, 16 EUR. J. INT'L L. 113, 117(2005) ("We Europeans share this intuition: the international world will be how we are. And we read international law in the image of our domestic legalism....").
64. The EU is not technically a state and would better be described a quasi-state. However, we will refer to it as a state for simplicity's sake.
65. See OPPENHEIM, supra note 16, at 49.
66. See Peter Wonacott & Neil King Jr., Lowering the Wall: China Irks U. S. as It Uses Trade to Embellish Newfound Clout, WALL ST. J., Oct. 3, 2005 (describing China's increased economic power in Asia, including dramatically greater clout among non-aligned countries).
67. See Much Wind and Little Light, ECONOMIST (U. S.), Oct. 18, 2003 (reporting the U. S. Trade Representative describing Brazil as the leader of the bloc of developing countries in WTO negotiations).
68. See MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS 221-29 (2004).
69. Magdalena Lièková, European Exceptionalism in International Law, 19 EUR. J. INT'L L. 463, 472-74 (2008).
70. Article 2 of the EU Charter of Fundamental Human Rights provides, "Everyone has the right to life" and "No one shall be condemned to the death penalty, or executed." Charter of Fundamental Rights of the European Union, 2000 O. J. (C 364) 1. All EU member states have signed the 13th Protocol of the 2003 European Convention of Human Rights ("ECHR"), which commits the signatories to the permanent abolition of the death penalty in all circumstances.
71. See, e.g., U. N. Economic and Social Council, Comm'n on Human Rights, 56th Sess., 66th mtg. at ¶ 17-19
72. U. N. Doc. E/CN.4/2000/SR.66 (Dec. 21, 2000), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/136/03/PDF/G0013603.pdf;
73. U. N. Economic and Social Council, Comm'n on Human Rights, 55th Sess., 58th mtg. at ¶ 38-44
74. U. N. Doc. E/CN.4/1999/SR.58 (July 13, 1999), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G99/132/70/PDF/G9913270.pdf.
75. See, e.g., Memorandum by the European Union at the 54th United Nations General Assembly 10 (Sept. 21, 1999), available at http://www.consilium.europa. eu/uedocs/cmsUpload/memo-en-99.pdf;
76. European Union, EU Welcomes UN Vote Calling for a Global Moratorium on the Death Penalty, EU/NR 118/07 (Nov. 16, 2007), available at http://www.eurunion.org/eu/index.php?option=com-content&task= view&id=91&Itemid=58.
77. See Press Release, European Union, EU Demarche on the Death Penalty, Presented to the US Administration on May 10, 2001, available at http://www.eurunion.org/eu/index.php?option=com- content&task=view&id= 1959&Itemid=26.
78. European Comm'n, Background: EU Policy against the Death Penalty 2 (Sept. 2008), available at http://www.eurunion.org/DPBackground-9-08.doc;
79. see, e.g., Brief for the European Union and Members of the International Community as Amici Curiae Supporting Petitioner, Medellin v. Texas, 552 U. S. 331(2008) (No. 08-5573)
80. WL 1874804;Brief for the European Union and Members of the International Community as Amici Curiae Supporting Petitioner
81. Maharaj v. McDonough, 549 U. S. 1072(2006) (No. 05-1555)
82. WL 1594034; Brief for the European Union and Members of the International Community as Amici Curiae Supporting Petitioner
83. Sanchez-Llamas v. Oregon, 548 U. S. 331(2006) (Nos. 04-10566, 05-51)
84. WL 3530558.
85. John R. Schmidt, The EU Campaign against the Death Penalty, 49 SURVIVAL, no. 4 123, 127(2007):
86. see also Peter Finn, Germany Reluctant to Aid Prosecution of Moussaoui, WASH. POST, June 11, 2002, at A1 (reporting on Germany's threat to withhold evidence if the accused, Moussaoui, may be punished with the death penalty).
87. The exclusionary rule prevents the state from using illegally obtained evidence in criminal or quasi-criminal proceedings when reliance on such evidence would effectively violate individuals' right to be protected against unreasonable searches and seizures guaranteed by the Fourth Amendment of the U. S. Constitution.
88. See Herring v. U. S., 129 S. Ct. 695, 699-704 (2009).
89. Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council of the EU, 2008 E. C. R. I-06351 ¶32, available at http://eur-lex.europa.eu/LexUriServ/ LexUriServ. do?uri=CELEX:62005J0402:EN:HTML [hereinafter "Kadi"].
90. See S. C. Res. 1267, ¶4
91. U. N. Doc. S/RES/1267 (Oct. 15, 1999);
92. see generally Kadi, supra note 57.
93. Council Regulation 881/2002
94. O. J. (L 139) 9 (EC).
95. See generally Kadi, supra note 57.
96. Id. at ¶ 321-28.
97. Id. at ¶285.
98. See id. The ECJ added that even though the EU constitutional norms and the U. N. Charter exist on a separate plane (consistent with the dualist view of international law), if they were to be classified within the same hierarchy of norms within the EU's legal order, the U. N. Charter would be subordinate to the EC Treaties and the general principles of law. See id. at ¶ 305-08.
99. Gráinne de Búrca, The European Court of Justice and the International Legal Order after Kadi, 51 HARV. INT'L L. J. 1, 4-5 (2010);
100. see also Joined Cases C-402/05 P and C-415/05 P, Kadi v. Council of the EU, Opinion of Advocate General Poiares Maduro, at ¶38 (Jan. 16, 2008), available at http://curia. europa.eu/en/content/juris/c2-juris.htm (follow "C-402/05 P" hyperlink; then follow "C-402/05 P" hyperlink next to "Opinion").
101. The European Commission coordinates various "social protection" and social inclusion initiatives that, among other things, combat poverty, reform welfare systems, and provide support for problems caused by demographic changes.
102. See European Comm'n, Social Protection & Social Inclusion, http://ec. europa.eu/social/main. jsp?catId=750&langId=en (last visited Nov. 6, 2010).
103. Sophie Meunier & Kalypso Nicolaïdis, The European Union as a Conflicted Trade Power, 13 J. EUR. PUB. POL'Y 906, 921-22 (2006).
104. Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998).
105. Panel Report, European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, WT/DS293/R, at Part VIII, §§ 8.14, 8.18, 8.34, 8.38 (Sept. 29, 2006).
106. Meunier & Nicolaïdis, supra note 66, at 913.
107. Jan Vanderberghe, On Carrots and Sticks: The Social Dimension of EU Trade Policy, 13 EUR. FOREIGN AFF. REV. 561, 569-70 (2008).
108. Id. at 570.
109. Id. (citing European Comm'n, Promoting core labour standards: Commission grants additional tariff preferences to Sri Lanka and initiates an inquiry into labour rights violations in Belarus (Jan. 7, 2004), available at http://trade.ec.europa.eu/doclib/docs/2004/january/tradoc-115531.pdf);
110. Council Regulation (EC) No 552/1997 of 24 March 1997 Temporarily Withdrawing Access to Generalized Tariff Preference from the Union of Myanmar; Council Regulation (EC) No 1933/2006 of 21 December 2006 Temporarily Withdrawing Access to the Generalised Tariff Preferences from the Republic of Belarus.
111. European Comm'n, Communication from the Commission to the Council and the European Parliament - The European Union and the United Nations: The choice of multilateralism, at§ 1.1
112. COM (2003) 526 final (Sept. 10, 2003), available at http://eurlex.europa. eu/smartapi/cgi/sga-doc?smartapi!celexplus!prod!Doc Number&lg=en&type- doc=COMfinal&an-doc=2003&nu-doc=526.
113. Council of Europe, Council of Europe in Brief: Who We Are, available at http://www.coe.int/about coe/index.asp?page=quisommesnous&l=en (last visited Nov. 6, 2010).
114. The Council of Europe is distinct from the European Council. The Council of Europe promotes democracy and human rights among its forty-seven member states, while the European Council is a decision making body in the European Union ("EU"), consisting of the heads of all EU member states.
115. See Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950
116. 213 U. N. T. S. 222, 224, available at http://www.echr.coe.int/nr/ rdonlyres/d5cc24a7-dc13-4318-b457-5c9014916d7a/0/englishanglais.pdf. The rights and freedoms secured by the ECHR include, for example, the right to life (abolishment of death penalty), the right to a fair hearing, the right to privacy, freedom of expression, freedom of thought, conscience, and religion, and the protection of property. The ECHR prohibits, for example, torture and inhuman or degrading treatment or punishment, forced labor, arbitrary and unlawful detention, and discrimination in the enjoyment of the rights and freedoms secured by the Convention.
117. These forums and conferences include, for instance, the U. N. Commission on Human Rights, the Third Committee of the General Assembly, the Commission on the Situation of Women, the World Conference against Racism of 2001, and the U. N. General Assembly Special Session on Children of 2002. The EU is also active in supporting the High Commissioner for Human Rights.
118. See European Comm'n, supra note 73, § 1.1.
119. Int'l Criminal Court, The States Parties to the Rome Statute, http://www.icccpi.int/Menus/ASP/states+parties/(last visited Nov. 6, 2010);
120. see Jeremy Rabkin, Is EU Policy Eroding the Sovereignty of Non-Member States?, 1 CHI. J. INT'L L. 273, 278(2000) (noting that Germany and France amended their constitutions to adhere to the Rome Statute).
121. See European Council, The European Union and the International Criminal Court, at 9 (Feb. 2008), available at http://www.consilium.europa.eu/uedocs/ cmsUpload/ICC-internet08.pdf (explaining that "[a]chieving the widest participation in the Rome Statute was also an EU objective during the enlargement negotiations and accession phases of the new EU Member States");
122. see, e.g., id. at 10-11 (lauding Croatia's support for the ICC and highlighting the EU's commitment to furthering universal acceptance of the ICC);
123. cf. Council Common Position on the International Criminal Court (EU) No. 444/2003 of 16 June 2003
124. O. J. (L 150) 67-68.
125. See European Council, supra note 78, at 15-16;
126. U. N. GAOR, 63rd Sess., 45th plen. mtg. at 10, U. N. Doc. A/63/PV.45 (Nov. 11, 2008);
127. U. N. GAOR, 62nd Sess., 57th plen. mtg. at 27
128. U. N. Doc. A/62/PV.57 (Nov. 26, 2007);
129. U. N. GAOR, 61st Sess., 56th plen. mtg. at 1, U. N. Doc. A/61/PV.56 (Nov. 20, 2006);
130. U. N. GAOR, 60th Sess., 53rd plen. mtg. at 9, U. N. Doc. A/60/PV.53 (Nov. 23, 2005).
131. See Laeken Declaration on the Future of the European Union (EU) SN 273/01 of 15 Dec. 2001 ("[The EU is] a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework, in other words to anchor it in solidarity and sustainable development.").
132. See generally Ian Manners, Normative Power Europe: A Contradiction in Terms?, 40 J. COMMON MKT. STUD. 235(2002).
133. See European Council, Report on the Implementation of the European Security Strategy, at 4, 9, S407/08 (Dec. 11, 2008), available at http://www.consilium.europa.eu/ueDocs/cms-Data/docs/pressdata/EN/reports/104630. pdf;
134. European Council, A Secure Europe in a Better World: European Security Strategy, at 6, 10 (Dec. 12, 2003), available at http://www.consilium.europa.eu/ uedocs/cmsUpload/78367.pdf. An example of this strategy is the EU's Everything But Arms initiative, which grants duty-free and quota-free access to all exports, excluding arms and munitions, from the least developed countries.
135. See Council Regulation 416/2001
136. O. J. (L 60) 43 (EC);
137. Meunier & Nicolaïdis, supra note 66, at 917.
138. European Council, Report on the Implementation of the European Security Strategy, supra note 81, at 2.
139. See European Council, A Secure Europe in a Better World: European Security Strategy, supra note 81, at 1, 9 (recognizing the United States' "dominant position as a military actor" but stating that "no single country is able to tackle today's complex problems on its own" and that "[t]he United Nations Security Council has the primary responsibility for the maintenance of international peace and security");
140. see also European Council, Extraordinary European Council, Brussels, 17 February 2003, at 1, 6466/03, available at http://www.consilium.europa.eu/ ueDocs/cms-Data/docs/pressData/en/ec/74554.pdf (stating that "[f]orce should be used only as a last resort" in resolving the crisis over Iraq's compliance with Security Council resolutions).
141. See, e.g., Thomas M. Franck, What Happens Now? The United Nations After Iraq, 97 AM. J. INT'L L. 607, 610-17 (2003) (arguing that the 2003 invasion of Iraq violated international law and the U. N. Charter).
142. Press Conference, Javier Solana, Secretary General of NATO, Wesley Clark, Supreme Allied Commander Europe of NATO (Mar. 25, 1999), available at http://www.nato.int/kosovo/press/p990325a.htm. Solana justified the bombing as necessary to "stop further humanitarian catastrophe."
143. Int'l Comm. on Intervention and State Sovereignty, Responsibility to Protect xi-xiii (Dec. 2001), available at http://www.iciss.ca/pdf/Commission- Report.pdf (giving a synopsis of the principles of R2P and the guidelines for determining whether military intervention is justified).
144. This is often referred to as an "embedded liberalism" compromise.
145. See John G. Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 INT'L ORG. 379, 392-98 (1982);
146. see generally GøSTA ESPING-ANDERSEN, THE THREE WORLDS OF WELFARE CAPITALISM (1990).
147. See, e.g., Panel Report, supra note 68, at §§ 4.152-53, 4.173-4.180 (outlining the U. S. argument before the WTO, which contrasted the EU's purported purpose of maintaining food safety with the discriminatory effects of the food safety regulations);
148. Benedetto Della Vedova, Op-Ed., Bio-Fueling a Trade War, WALL ST. J., Aug. 3, 2009, available at http://online.wsj.com/article/SB1000142405297020 4313604574328533995657764.html (giving one former European Parliament member's opinion that the EU uses environmental protections to disguise protectionism).
149. European cattle farmers do not use hormones in raising cattle, whereas U. S. beef producers give hormones to ninety percent of their cattle.
150. See Frode Alfnes & Kyrre Rickertsen, European Consumers' Acceptance of US Hormone-Treated Beef, 3(3) EUROCHOICES 18 (Nov. 2004). Similarly, by restricting the importation of GMO-products to Europe, the EU's measures adversely affect the United States, Argentina, Brazil, and Canada, which cultivate ninety percent of the GMOs and food containing GMOs worldwide.
151. Press Release, European Comm'n, Europe's rules on GMOs and the WTO (Feb. 7, 2006), available at http://europa.eu/rapid/pressReleasesAction. do?reference=MEMO/06/61&format=PDF&aged=1&lan guage= en&guiLanguage=en;
152. see also WTO panel rules EU GMO moratorium illegal (Feb. 8, 2006), http://www.euractiv.com/en/trade/wto-panel-rules-eu-gmo-moratorium-illegal/ article-152341.
153. European Comm'n, Special Eurobarometer 238: Risk Issues, at 53 (Feb. 2006), available at http://ec. europa.eu/public-opinion/archives/ebs/ebs-238-en. pdf.
154. European Comm'n, Eurobarometer 55.2: Europeans, Science, and Technology, at 40 (Dec. 2001), available at http://ec.europa.eu/research/press/2001/ pr0612en-report.pdf.
155. European Comm'n, Eurobarometre 49: la Securite des Produits Alimentaires, at 15 (Sept. 3, 1998), available at http://ec.europa.eu/dgs/health-consumer/ library/surveys/eb49-fr.pdf;
156. see also Jayson L. Lusk et al., Demand for Beef from Cattle Administered Growth Hormones or Fed Genetically Modified Corn: A Comparison of Consumers in France, Germany, the United Kingdom, and the United States, 85 AM. J. AGRIC. ECON. 16, 23 (Feb. 2003) (reporting that, on a scale of one (not concerned) to five (very concerned), French, German, and U. K. consumers reported average levels of concern of 4.54, 4.38 and 4.20, respectively, regarding the use of hormones in livestock production).
157. See Carol S. Steiker, Capital Punishment and American Exceptionalism, 81 OR. L. REV. 97, 126-27 (2002) (noting that the death penalty was outlawed in several European countries in the immediate aftermath of WWII, following the wave of executions of innocent civilians without a trial);
158. see also Schmidt, supra note 55, at 125 (noting that other European countries kept capital punishment on their books but refrained from enforcing the punishment).
159. See Rabkin, supra note 77, at 279.
160. Id.
161. See infra Table 1, at note 210. It should also be noted that this is not a recent historic development, as the great powers of Europe have long maintained among the largest standing armies in the modern world.
162. See Mearsheimer, supra note 3, at 83-137.
163. See Diego J. Liñán Nogueras & Luis M. Hinojosa Martínez, Human Rights Conditionality in the External Trade of the European Union: Legal and Legitimacy Problems, 7 COLUM. J. EUR. L. 307, 315-17 (2001) (describing the sequence of agreements made to create a policy of external promotion of human rights as beginning in the mid-1990s).
164. See Robert Kagan, Power and Weakness, 113 POL. REV. 3, 13-14 (2002).
165. See, e.g., id. at 8.
166. See generally Meunier, supra note 66 (discussing how the EU is a power in trade and through trade).
167. See id. at 908-09. Currently there are 27 members in the EU: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom.
168. European Union, Member States of the EU, http://europa.eu/abc/european- countries/eu-members/index-en.htm (last visited Nov. 6, 2010).
169. Meunier, supra note 66, at 909.
170. See generally Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-level Games, 42 INT'L ORG 427, 434(1988) (explaining two-level bargaining when a constrained agent negotiates on behalf of a principal).
171. Rabkin, supra note 77, at 274-75.
172. See Rubenfeld, supra note 9, at 1975 (contrasting American "democratic constitutionalism" with European "international constitutionalism").
173. Id. at 1986-87, 2006.
174. However, integration has produced a backlash.
175. See Gráinne de Búrca, After the Referenda, 12 EUROPEAN L. J. 6(2006) (describing the failure to ratify a European Constitution as a moment of public expression on the direction of the EU that cannot be ignored);
176. see also Maria Cahill, Ireland's Constitutional Amendability and Europe's Constitutional Ambition: The Lisbon Referendum in Context, 9 GERMAN L. J. 1191, 1191-94 (2008) (describing how the Lisbon Treaty was rejected by popular referendum in Ireland);
177. Eric Posner, Europe's Missing Identity, WALL ST. J., June 2, 2010 (describing the limits to supranational delegation of powers to international institutions in the absence of common identity).
178. The EU has deployed forces under the name of the "European Union Force" four times - to Macedonia (2003), Bosnia (2004), Congo (2006), and in Chad and the Central African Republic (2007). These deployments, however, are not from a permanent EU military, which the EU has failed to create due to internal disputes and continued reliance and deferral to NATO.
179. See James G. McLaren, Europe's Efforts to Develop an Autonomous Defense Capability, A Constitution of Europe, and the Implications for NATO, 11 COLUM. J. EUR. L. 523, 523-36, 548-56 (2005).
180. Over the years, China has continued to assert that its sovereignty extends to Taiwan, which it considers to be a province under its "one China" policy. Because of this, China has blocked Taiwan from joining the United Nations as a member and impeded Taiwan's ability to enter into relations with other states. Foreign governments' attempts to engage directly with Taiwan have provoked strong reactions in Beijing. For instance, when the United States announced its intention to sell advanced weapons to Taiwan in 2001, China protested by stating that the weapons deal would violate the Sino-U. S. open communique' and infringe China's territorial sovereignty.
181. See Björn Ahl, China, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW § C, available at http://www.mpepil.com/subscriber- article?script=yes &id=/epil/entries/law-9780199231690-e1876&recno= 24&pletter=c.
182. Wen Jiabao, Premier of the State Council of the People's Republic of China, Address at the Rally Commemorating the 50th Anniversary of the Five Principles of Peaceful Coexistence (June 28, 2004), in 3 CHINESE J. INT'L L. 363, 365-66 (2004), available at http://www.fmprc.gov. cn/eng/topics/ seminaronfiveprinciples/t140777.htm.
183. Ahl, supra note 108, § C.3.
184. See Rosemary Foot, Chinese Strategies in a US-Hegemonic Global Order: Accommodating and Hedging, 82 INT'L AFF. 77, 88 n. 31(2006).
185. Ministry of Foreign Affairs of the People's Republic of China, The Five Principles, available at http://www.fmprc.gov. cn/eng/topics/ seminaronfiveprinciples/t140589.htm.
186. Xue Hanquin, Chinese Observations on International Law, 6 CHINESE J. INT'L L. 83, 86(2007). Xue is the Chinese member of the International Law Commission.
187. Id.
188. Wen, supra note 109, at 365.
189. See Foot, supra note 111, at 91-92.
190. Id. at 91.
191. Id.
192. See, e.g., Ministry of Foreign Affairs of the People's Republic of China, Statement By H. E. Ambassador Qiao Zhonghuai, Head of the Chineses [sic] Delegation, Before the Vote on the Draft Resolution Entitled "Situation of Human Rights in China" at the 56th Session of the Commission on Human Rights (April 18, 2000), available at http://www.fmprc.gov. cn/eng/wjb/zzjg/gjs/ gjzzyhy/2594/2596/t1 5151.htm;
193. U. N. Human Rights Council Fourth Universal Periodic Review, 11th Plenary Meeting Webcast (Feb. 9, 2009), available at http://www.un.org/webcast/unhrc/ archive.asp?go=090209;
194. Ariana Eunjung Cha, China Tells U. N. Panel That It Respects Rights, WASH. POST, Feb. 10, 2009, at A12;
195. cf. People's Daily Online, Full Text of the Human Rights Record of the US in 2004 (Mar. 3, 2005), available at http://english.peopledaily.com.cn/200503/ 03/eng20050303-175406.html (China's response to the United States' periodic report of the human rights record in China).
196. See Ahl, supra note 108, § C.6.
197. Zhu Lijiang, Chinese Practice in Public International Law: 2007 (II), 7 CHINESE J. INT'L L. 735, 741(2008).
198. U. N. SCOR, 62d Sess., 5619th mtg. at 3, U. N. Doc. S/PV.5619 (Jan. 12, 2007) (remarks by Wang Guangya, Chinese representative to the United Nations).
199. U. N. SCOR, 55th Sess., 3868th mtg. at 11, U. N. Doc. S/PV.3868 (Mar. 31, 1998) (remarks by Shen Guofang, Chinese representative to the United Nations).
200. See C. FRED BERGSTEN ET AL., CHINA'S RISE: CHALLENGES AND OPPORTUNITIES 227-28 (2008).
201. Ministry of Foreign Affairs of the People's Republic of China, Foreign Ministry Spokesperson Liu Jianchao's Remarks on the Chairman's Statement of UN Security Council on the Myanmar Issue (Oct. 12, 2007), available at http://www.fmprc.gov. cn/eng/xwfw/s2510/2535/t371707.htm;
202. see U. N. SCOR, 5757th mtg., U. N. Doc. S/PV.5757 (Oct. 11, 2007);
203. see also Human Rights Council Res. S-5/1, Situation of Human Rights in Myanmar: Draft Resolution/Portugal (on Behalf of the European Union), 5th Sess., Oct. 2, 2007, U. N. GAOR, 62d Sess., A/HRC/S-5/L.1/Rev. 1, (Oct. 2, 2007).
204. See Ministry of Foreign Affairs of the People's Republic of China, Hu Jintao Meets with Sudanese First Vice President (July 19, 2007), available at http://www.fmprc.gov. cn/eng/wjb/zzjg/xybfs/xwlb/t34 3862.htm;
205. see also Ministry of Foreign Affairs of the People's Republic of China, Yang Jiechi Welcomes UN Security Council Resolution to Send Peacekeeping Force to Darfur (Aug. 1, 2007), available at http://www.fmprc.gov. cn/eng/wjb/wjbz/2467/t347715.htm.
206. See BERGSTEN ET AL., supra note 124, at 228.
207. Ahl, supra note 108, § C.5.
208. The Rome Statute of the International Criminal Court arts. 5, 17, July 17, 1998
209. 2187 U. N. T. S. 90.
210. See Lijun Yang, On the Principle of Complementarity in the Rome Statute of the International Criminal Court, 4 CHINESE J. INT'L L. 121, 130-32 (2005).
211. Xue, supra note 113, at 92.
212. Id. at 93.
213. See id. at 91-92.
214. See, e.g., Zhu, supra note 121, at 754-55 (quoting a Chinese Foreign Ministry spokesperson who explains the Chinese "common but differentiated responsibilities" policy as it relates to international environmental law).
215. See Ahl, supra note 108, § C.6.
216. See, e.g., Rosemary Foot, Chinese Power and the Idea of a Responsible State, CHINA J., Jan. 2001, at 1, 12.
217. See Christopher D. Stone, Common But Differentiated Responsibilities in International Law, 98 AM. J. INT'L L. 276, 279(2004).
218. Id. at 276-77.
219. Nat'l Dev. and Reform Comm'n of the People's Republic of China, Implementation of the Bali Roadmap: China's Position on the Copenhagen Climate Change Conference (May 20, 2009), available at http://en. ndrc.gov. cn/newsrelease/t20090521-280382.htm.
220. "Notwithstanding the provisions of Article I of the General Agreement, contracting parties may accord differential and more favorable treatment to developing countries, without according such treatment to other contracting parties." Differential and Favourable Treatment Reciprocity and Fuller Participation of Developing Countries, L/4903 at ¶1 (Nov. 28, 1979), available at http://www.wto.org/english/docs-e/legal-e/tokyo-enabling-e. pdf (note that this document was promulgated within the WTO's predecessor framework, the GATT).
221. The preferential tariff treatment of developing countries is often administered under domestic GSP programs, which the enabling clause allows individual states to set up. The United States, for instance, provides a duty-free entry for about 4800 designated products from over 130 beneficiary countries and territories. These do not include China.
222. See Office of the U. S. Trade Representative, Generalized System of Preference (GSP), available at http://www.ustr.gov/trade-topics/trade- development/preferenceprograms/generalized-system-preference-gsp (last visited Nov. 6, 2010);
223. Office of the U. S. Trade Representative, Information on Countries Eligible for GSP, available at http://www.ustr.gov/sites/default/files/ATT%20 (A) %20-%20090417%20GSP-BDC.pdf (last visited Nov. 6, 2010).
224. MITSUO MATSUSHITA ET AL., THE WORLD TRADE ORGANIZATION: LAW, PRACTICE, AND POLICY 386-88 (1st ed. 2003).
225. See ZOU KEYUAN, CHINA'S LEGAL REFORM: TOWARDS THE RULE OF LAW 244(2006) (citing Information Office of the State Council of the PRC
226. Human Rights in China, Government White Paper 1(1991)) ("the right to subsistence is the foremost human right the Chinese people long fight for [sic]").
227. Foot, supra note 111, at 84.
228. Ahl, supra note 108, § C.6.
229. Id.
230. MITSUO MATSUSHITA et AL., supra note 142, at 388-89.
231. G. A. Res. 3281 (XXIX)
232. U. N. GAOR, 29th Sess., U. N. Doc. A/RES/29/3281 (Dec. 12, 1974);
233. see also Charter of Economic Rights and Duties of States, G. A. Res. 40/182
234. U. N. GAOR, 119th Sess., U. N. Doc. A/RES/40/182 (Dec. 17, 1985).
235. MITSUO MATSUSHITA et AL., supra note 143, at 388-89.
236. See Andrew T. Guzman, Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties, 38 VA. J. INT'L L. 639, 647-51 (1998) (describing developing countries' efforts to undermine the Hull Rule, which required "prompt and adequate" payment for expropriation of foreign property, in favor of an alternate international rule that allowed for self-determined payment).
237. See Zha Peixin, H. E. Ambassador, Ministry of Foreign Affairs of the People's Republic of China, Speech at the Chinese Economic Association Annual Conference (Apr. 14, 2003), available at http://www.fmprc.gov. cn/ce/ceuk/eng/dsjh/t27161.htm;
238. see also Su Wei, Ministry of Foreign Affairs of the People's Republic of China, Statement by the Chinese Delegation on Agenda Item 154: The Progressive Development of International Legal Principles and Rules for a New International Economic Order (Oct. 16, 2000), available at http://www.fmprc.gov. cn/ce/ceun/eng/chinaandun/legalaffairs/sixthcommittee/t2856 0.htm.
239. Access to foreign markets has fueled China's economic growth and allowed it to sustain growth rates averaging over nine percent each year since its 2001 accession to the WTO.
240. David Barboza, China Passes Japan as Second-Largest Economy, N. Y. TIMES, Aug. 15, 2010, at A12.
241. Central Intelligence Agency, The World Factbook, Country Comparison: Reserves of Foreign Exchange and Gold, available at https://www.cia.gov/library/ publications/the-world-factbook/rankorder/2188rank.html (last visited Nov. 6, 2010).
242. Int'l Monetary Fund, World Economic Outlook Database, http://www.imf.org/external/pubs/ft/weo/2009/01/weodata/weoselgr.aspx (click "all countries" hyperlink and select China; then click "select all"; then select start year "2008" and end year "2008") (last visited Nov. 6, 2010) (GDP per capita based on the current international dollar, purchasing power parity, using 2008 statistics).
243. Id. (click "all countries" hyperlink and "select all"; then select "Gross domestic product based on purchasing-power-parity (PPP) per capita GDP" and select start year "2008" and end year "2008"; download table and sort by 2008 column) (last visited Nov. 6, 2010).
244. See, e.g., Is China Fraying?, THE ECONOMIST (U. S.), July 11, 2009.
245. See Yang Yao, The End of the Beijing Consensus, FOREIGN AFF., Feb. 2, 2010, available at http://www.foreignaffairs.com/articles/65947/the-end-of-the- beijing-consensus ("Since the Chinese Communist Party (CCP) lacks legitimacy in the classic democratic sense, it has been forced to seek performance-based legitimacy instead, by continuously improving the living standards of Chinese citizens.").
246. WTO rules do not contain a definition of a "developing country." Instead, states self-designate themselves as developed or developing countries as part of a political calculus. The United States and the EU persistently opposed China's attempts to claim developing country status based on the size of its economy and trade flows.
247. See WTO Committee on Trade and Development, Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions, WT/COMTD/W/77/Rev. 1, at 8 (Sept. 21, 2001).
248. Michael P. Vandenbergh, Climate Change: The China Problem, 81 S. CAL. L. REV. 905, 914 (2007-08).
249. See Eric Neumayer, In Defense of Historical Accountability for Greenhouse Gas Emissions, 33 ECOLOGICAL ECON. 185, 187(2000) (noting that "almost every scholar and policy maker from the developing world" supports factoring differences in historical emissions into a comprehensive climate change agreement).
250. For an overview of the Chinese position, see Nat'l Dev. & Reform Comm'n of the People's Republic of China, China's National Climate Change Programme (June 2007), available at http://www.ccchina.gov. cn/WebSite/CCChina/ UpFile/File188.pdf. For an analysis of the Chinese position
251. see Eric A. Posner & Cass R. Sunstein, Climate Change Justice, 96 GEO. L. J. 1565, 1602-11 (2008).
252. See Vandenbergh, supra note 161, at 917.
253. See, e.g., Ministry of Foreign Affairs of the People's Republic of China, Joint Statement of the People's Republic of China and the Russian Federation on Major International Issues (May 23, 2008), available at http://www.fmprc.gov. cn/eng/zxxx/t465821.htm.
254. Foot, supra note 136, at 17.
255. Ivan Rasmussen, Torture in the United States and China: Comparing American and Chinese Exceptionalism with Respect to the United Nations Convention Against Torture, 2 ASIAN J. PUB. AFF. 65, 69(2009) (citing GERALD CHAN, CHINA'S COMPLIANCE IN GLOBAL AFFAIRS: TRADE, ARMS CONTROL, ENVIRONMENTAL PROTECTION, HUMAN RIGHTS 177(2006)).
256. For an argument that the Helsinki Accords helped delegitimize communist states, see generally DANIEL C. THOMAS, THE HELSINKI EFFECT: INTERNATIONAL NORMS, HUMAN RIGHTS, AND THE DEMISE OF COMMUNISM (2001). In particular, Article 7 of the Helsinki Accords calls for "respect for human rights and fundamental freedoms" and argues for the guarantee of the freedoms of thought, speech, conscience, religion, and faith of all citizens of the signatory states, including the communist states.
257. See Conference on Security and Co-Operation in Europe Final Act, Aug. 1, 1975, 14 I. L. M. 1292, 1295.
258. See Ying Ma, China's Stubborn Anti-Democracy, 141 POL'Y REV., Feb.-Mar. 2007, at 3, 4-5.
259. See id. at 10-11.
260. Id. at 11.
261. See Foot, supra note 111, at 92.
262. Ministry of Foreign Affairs of the People's Republic of China, Keynote Speech by Assistant Foreign Minister Shen Guofang, Towards an Enhanced Role of the UN Security Council in Maintaining International Peace and Security (Nov. 21, 2003), available at http://www.fmprc.gov. cn/eng/xwfw/zyjh/t45317.htm.
263. International Covenant on Civil and Political Rights, Dec. 19, 1966
264. 999 U. N. T. S. 171. Among other rights, the ICCPR prohibits slavery, torture, and cruel, inhuman, or degrading treatment or punishment, guarantees the rights to liberty and personal security, ensures legal procedural rights, including the rights to a fair and public hearing by a competent, independent, and impartial tribunal established by law, and guarantees the right to be presumed innocent until proved guilty according to law, and the right to be informed promptly and in detail in a language that the defendant understands of the nature and cause of the charge against him or her.
265. International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966
266. 993 U. N. T. S. 3. These rights include the rights to work, health care, social security, welfare, and education.
267. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U. N. T. S. 113.
268. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U. N. T. S. 277.
269. See, e.g., THE WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 45-46 (2006) ("Abroad, we will work with our allies on three priorities: [1.] Promoting meaningful reform of the U. N., including... [r]einvigorating the U. N.'s commitment, reflected in the U. N. Charter, to the promotion of democracy and human rights.... [2.] Enhancing the role of democracies and democracy promotion throughout international and multilateral institutions, including: [s]trengthening and institutionalizing the Community of Democracies, [f]ostering the creation of regional democracy-based institutions in Asia, the Middle East, Africa, and elsewhere, [and i]mproving the capacity of the U. N. and other multilateral institutions to advance the freedom agenda through tools like the U. N. Democracy Fund....").
270. See, e.g., U. S. Dep't of State, 2008 Country Reports on Human Rights Practices, available at http://www.state.gov/g/drl/rls/hrrpt/2008/index.htm.
271. See R. W. Apple, Jr., The Pacific Summit; Godfather to Pacific Era? Clinton Succeeds by Merely Getting Asians to Meet, N. Y. TIMES, Nov. 21, 1993.
272. President William J. Clinton, Press Conference on China MFN Status 5/26/94 (May 27, 1994), available at Westlaw 1994 WL 209851.
273. See JOHN H. JACKSON ET AL., Legal Problems of International Economic Relations 1065 (5th ed. 2008).
274. See President Woodrow Wilson, Fourteen Points (Jan. 8, 1918), available at http://www.our documents.gov/doc.php?doc=62&page=transcript.
275. Atlantic Charter, Declaration of Principles issued by the President of the United States and the Prime Minister of the United Kingdom, U. S.-U. K., Aug. 14, 1941, 55 Stat. 1600, available at http://www.nato.int/cps/en/SID- 2788FECD-8FACF71E/natolive/official-texts-16912.htm.
276. Jeane J. Kirkpatrick, Dictatorships and Double Standards, COMMENT., Nov. 1979, at 34, 37.
277. See Joint Statement Released in Conjunction with the U. S.-EU Summit, Human Rights and Democratization Priorities in Bosnia and Herzegovina (Dec. 5, 1997), available at http://www.state.gov/www/regions/eur/eu/971205-useu-bosnia- hr.html ("The United States and the European Union have thus decided to coordinate their efforts to enhance their means to work with the parties in a constant dialogue with the aim of promoting democratic normalization and the stabilization of the region. ").
278. See Tamara Cofman Wittes & Sarah E. Yerkes, What Price Freedom? Assessing the Bush Administration's Freedom Agenda, Analysis Paper No. 10, The Saban Center for Middle East Policy at The Brookings Institution (Sept. 2006), available at http://www.brookings.edu/~/media/Files/rc/papers/2006/09middle east-wittes/wittes20060901.pdf.
279. See, e.g., Deputy U. S. Secretary of State James B. Steinberg, Remarks at the 5th Community of Democracies Ministerial (July 12, 2009), available at http://www.state.gov/s/d/2009/126052.htm (asserting before the Community of Democracies delegates that "[o]ur common efforts reinforce the universality of the democratic values and serve as a powerful response to those who would argue that democracy belongs only to one region, or history or tradition" and listing the many regional "democratic backtracking" mechanisms in the AU, OAS, EU, OSCE, and ASEAN).
280. World Trade Organization, The GATT Years: From Havana to Marrakesh, available at http://www.wto.org/english/thewto-e/whatis-e/tif-e/fact4-e.htm (last visited Nov. 6, 2010).
281. Dani Rodrik, Goodbye Washington Consensus, Hello Washington Confusion?, 44 J. ECON. LITERATURE 973, 973-74 (2006).
282. See G. JOHN IKENBERRY, AFTER VICTORY: INSTITUTIONS, STRATEGIC RESTRAINT, AND THE REBUILDING OF ORDER AFTER MAJOR WARS 215-56 (2001).
283. See, e.g., President George W. Bush, Address to the Nation on Iraq, 39 WEEKLY COMP. PRES. DOC. 338, 338-39 (Mar. 17, 2003) ("Under [Security Council] Resolutions 678 and 687... the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction. This is not a question of authority. It is a question of will.");
284. U. S. Secretary of State Colin Powell, Presentation to the United Nations Security Council, U. N. SCOR, 58th Sess., 4701st mtg. at 2-17, U. N. Doc. S/PV.4701 (Feb. 5, 2003) (arguing that Iraq's failure to comply with Security Council Resolution 1441 warranted military action against Iraq).
285. See Warren Zimmermann, The Last Ambassador: A Memoir of the Collapse of Yugoslavia, FOREIGN AFF., Mar.-Apr. 1995, at 2, 12-14 (relating a personal account of the dissolution of Yugoslavia).
286. President Clinton contended that Security Council Resolutions 1199 and 1203 implicitly granted authority for military intervention by affirming "that the deterioration of the situation in Kosovo constitutes a threat to the peace and security of the region. "
287. WALTER GARY SHARP, SR., Jus Paciarii: Emergent Legal Paradigms for U. N. Peace Operations in the 21st Century 313-14 (1999). The United Kingdom, Germany, and Belgium argued that authorization was unnecessary since intervention supported "the values represented in Article 2(4)."
288. James P. Terry, Rethinking Humanitarian Intervention after Kosovo: Legal Reality and Political Pragmatism, ARMY LAW., Aug. 2004, at 36, 45.
289. For instance, on the eve of the invasion of Panama in 1989, President George H. W. Bush argued that "[t]he deployment of U. S. Forces is an exercise of the right of self-defense recognized in Article 51 of the United Nations Charter..." and that the United States has often cast the use of military force by the United States in terms consistent with the U. N. Charter.
290. George H. W. Bush, Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on United States Military Action in Panama, 2 PUB. PAPERS OF GEORGE H. W. BUSH 1734(1989).
291. See Chitra Ragavan, A Different Brand of Warfare: How Cross-Border Legal Moves are Giving the White House Lots to Worry About, U. S. NEWS & WORLD REPORT, Mar. 19, 2007.
292. The United States began seeking bilateral immunity agreements after other countries ratified the Rome Statute.
293. See Coalition for the International Criminal Court, Status of US Bilateral Immunity Agreements (BIAs), available at http://www.iccnow.org/ documents/CICCFS-BIA status-current.pdf (last visited Nov. 6, 2010).
294. See, e.g., Private vs. State Ownership of Business, WORLD VALUES SURVEY, http://www.wvsevsdb.com/wvs/WVSAnalizeQuestion. jsp (last visited Nov. 6, 2010) (To access data, navigate to "Online Data Analysis" subpage, click on "Begin Analysis, " select the "WVS 2005-2008" hyperlink, select all countries to analyze and click on "Confirm Selection, " and then follow the "Private vs. State Ownership of Business" hyperlink).
295. See, e.g., Simeon Djankov et al., The Regulation of Entry, 117 Q. J. ECON. 1, 18(2002).
296. Meredith R. Sarkees, Correlates of War Inter-State War Data, 1816-1997 (v3.0), http://www.correl atesofwar.org/cow2data/WarData/InterState/Inter-State War Participants (V 3-0).csv (last visited Nov. 6, 2010);
297. see generally Meredith R. Sarkees & Phil Schafer, The Correlates of War Data on War: An Update to 1997, 18 CONFLICT MGMT. & PEACE SCI. 123(2000) (describing inter-state war data set).
298. Sarkees, Correlates of War Inter-State War Data, 1816-1997 (v3.0), supra note 200.
299. Id. Fighting in both the European and Pacific theatres, the United States still suffered fewer battle deaths than Britain (418, 765 missing or killed). Id. France's military only lost 2500 (missing or killed); however, since it was occupied after 1940, subsequent losses were only suffered by the forces in exile at the time of occupation.
300. See id.
301. The United States suffered essentially no civilian deaths; Britain, separated from continental Europe by the English Channel, had 60, 600 killed as a result of aerial bombing; and Germany and Russia exited the war with 2.35 million and 6.7 million civilians dead, respectively.
302. JOHN ELLIS, WORLD WAR II: A STATISTICAL SURVEY: THE ESSENTIAL FACTS AND FIGURES FOR ALL THE COMBATANTS 253-54 (1993).
303. 4 WORLD WAR I ENCYCLOPEDIA 1222 (Spencer C. Tucker et al. eds., 2005).
304. See, e.g., BRUCE RUSSETT, GRASPING THE DEMOCRATIC PEACE: PRINCIPLES FOR A POST-COLD WAR WORLD (1993). The U. S. government seems to agree.
305. See THE WHITE HOUSE, A NATIONAL SECURITY STRATEGY FOR A NEW CENTURY 2(1998) ("In designing our strategy, we recognize that the spread of democracy supports American values and enhances both our security and prosperity. Democratic governments are more likely to cooperate with each other against common threats, encourage free trade, and promote sustainable economic development. They are less likely to wage war or abuse the rights of their people. Hence, the trend toward democracy and free markets throughout the world advances American interests. The United States will support this trend by remaining actively engaged in the world.").
306. While some European populists have risen to prominence in recent years, such as Joerg Haider, Jean Marie le Pen, and Geert Wilders, this position remains the exception more than the norm, as it is in the United States. These populist figures have also remained marginal in European politics; they have not obtained (or kept) real political power like their counterparts in the United States. For an overview of the greater prevalence of American populism compared to Europe
307. see Steiker, supra note 93, at 114-17.
308. See Rabkin, supra note 77, at 274.
309. U. S. Dep't of State, World Military Expenditures and Arms Transfers 2005, available at http://www.state.gov/documents/organization/121776.pdf.
310. In relative terms, however, the United States spends only 4.06 percent of its GDP on military expenditures, which ranks it 25th out of the 173 countries ranked by the CIA. Central Intelligence Agency, The World Factbook, Country Comparison: Military Expenditures, available at https://www.cia.gov/library/ publications/the-world-factbook/rankorder/2034rank.html (last visited Nov. 6, 2010).
311. U. S. Dep't of State, supra note 208.
312. For a statement of these circumstances, see THE WHITE HOUSE, NATIONAL SECURITY STRATEGY 22(2010) (stating that force "may be necessary to defend [the United States] and allies or to preserve broader peace and security, including by protecting civilians facing a grave humanitarian crisis, " and that the United States will "exhaust other options before war whenever [it] can, " "seek broad international support" when force is used, but "reserve[s] the right to act unilaterally if necessary [for defense]").
313. The U. S. leaders often emphasize the United States' unique role and leadership in the world, which may - mistakenly, in our view - be perceived as evidence of American exemptionalism. See President Barack Obama, Acceptance Speech for the Nobel Prize in Peace (Dec. 10, 2009) (transcript available at http://www.whitehouse.gov/the-press-office/remarks-president-acceptance-nobel- peace-prize) ("The United States of America has helped underwrite global security for more than six decades with the blood of our citizens and the strength of our arms. The service and sacrifice of our men and women in uniform has promoted peace and prosperity from Germany to Korea, and enabled democracy to take hold in places like the Balkans. We have borne this burden not because we seek to impose our will. We have done so out of enlightened self-interest - because we seek a better future for our children and grandchildren, and we believe that their lives will be better if others' children and grandchildren can live in freedom and prosperity.");
314. see also President George W. Bush, State of the Union Address (Jan. 29, 2002) (transcript available at http://millercenter.org/scripps/archive/speeches/ detail/4540) ("And we have a great opportunity during this time of war to lead the world toward the values that will bring lasting peace.... America will lead by defending liberty and justice because they are right and true and unchanging for all people everywhere.... We have no intention of imposing our culture. But America will always stand firm for the nonnegotiable demands of human dignity....");
315. President William J. Clinton, Address on Bosnia (Nov. 27, 1995) (transcript available at http://millercenter.org/scripps/archive/speeches/ detail/3929) ("From our birth, America has always been more than just a place. America has embodied an idea that has become the ideal for billions of people throughout the world.... In this century especially, America has done more than simply stand for these ideals. We have acted on them and sacrificed for them. Our people fought two World Wars so that freedom could triumph over tyranny.... After World War II, we continued to lead the world. We made the commitments that kept the peace, that helped to spread democracy, that created unparalleled prosperity, and that brought victory in the cold war.... Today, because of our dedication, America's ideals - liberty, democracy, and peace - are more and more the aspirations of people everywhere in the world. It is the power of our ideas, even more than our size, our wealth, and our military might, that makes America a uniquely trusted nation. ").
316. See Panel Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas, WT/DS27/R/ECU (May 22, 1997).
317. Jacques Delors, The Future of Free Trade in Europe and the World, 18 FORDHAM INT'L L. J. 715, 723-24 (1995).
318. On the legal basis of this claim, see supra note 160 and accompanying text.
319. See Safrin, supra note 18, at 1328 (claiming that the EU seeks different rules for itself because of the "exceptional accommodations" its institutional structures require).
320. In the WTO, however, individual member states vote even though the external trade policy falls under the European Community's competence. This is partly justified by the expansion of the WTO to new areas, including services and intellectual property rights, where the EC and the member states share competence and where the EU could not legally exercise the vote of its individual member states. See Opinion 1/94, Re The Uruguay Round Agreements, Decision of 15 November 1994, 1994 E. C. R. I- 5267, ¶¶ 1-3. Consistent with their individual voting rights, all member states pay dues to the WTO based on their total trade, including intra-EU trade.
321. BERNARD M. HOEKMAN & MICHEL M. KOSTECKI, THE POLITICAL ECONOMY OF THE WORLD TRADING SYSTEM: THE WTO AND BEYOND 56 (2d ed. 2001).
322. See, e.g., Kyoto Protocol to the United Nations Framework Convention on Climate Change art. 22, Dec. 11, 1997
323. I. L. M. 22, available at http://unfccc.int/resource/docs/convkp/kpeng. pdf. For a sole example to the contrary
324. see Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, June 27, 1989, available at http://www.wipo.int/madrid/en/legal-texts/trtdocs-wo016.html.
325. See United Nations Framework Convention on Climate Change, Kyoto Protocol Targets, available at http://unfccc.int/kyoto-protocol/items/3145.php (last visited Nov. 10, 2010) ("The 15 States who were EU members in 1990 will redistribute their targets among themselves, taking advantage of a scheme under the Protocol known as a 'bubble', whereby countries have different individual targets, but which combined make an overall target for that group of countries.").
326. It is also questionable that the "Kyoto bubble" should be considered exemptionalist per se. When a regional trading block is formed, the WTO allows for an individual country belonging to a regional customs union or a free trade area to increase its duties and other barriers to trade as long as trade barriers on the whole will not be higher than the corresponding duties and trade barriers before the formation of the regional trading block.
327. See General Agreement on Tariffs and Trade arts. XXIV:5 (a), XXIV:5 (b), Oct. 30, 1947, 61 Stat. A-11
328. 55 U. N. T. S. 194. The idea is the same: offsetting emissions or trade barriers is allowed as long as the EU as a whole ensures that a certain maximum level of tariffs or emissions is not exceeded.
329. Safrin, supra note 18, at 1334-35.
330. See id. at 1332-33; cf. Convention on Biological Diversity, Open-Ended Ad Hoc Working Group on Biosafety, Individual Government Submissions on the Contents of the Future Protocol, U. N. Doc. UNEP/CBD/BSWG/Inf.2, at 93-106 (May 6, 1997), available at http://www.cbd.int/doc/meetings/bs/bswg-02/information/ bswg-02-inf-02-en.pdf (indicating that the EU proposed separate treatment for regional economic integration organizations).
331. See Safrin, supra note 18, at 1350; C. Fred Bergsten, A Partnership of Equals: How Washington Should Respond to China's Economic Challenge, FOREIGN AFF., July-Aug. 2008, at 58 (reporting that some have construed China's policy as "the usual free-riding and skirting of responsibility by a powerful newcomer");
332. cf. Stanley J. Michalak, U. N. Conference on Trade and Development, Part 5: The U. S. Must Reassess Its Role, HERITAGE FOUND. BACKGROUNDER 477, at 7-8 (1985), available at http://www.policy archive.org/handle/10207/bitstreams/9236. pdf (accusing developing countries, generally, of keeping double standards);
333. John N. Moore, Grenada and the International Double Standard, 78 AM. J. INT'L L. 145, 167(1984) (arguing that the international community is more tolerant of violations of law when totalitarian regimes, generally, act purportedly for "revolutionary" or "anti-imperialist" goals).
334. See Edward Wong & Jonathan Ansfield, China Insists That Its Steps on Climate Be Voluntary, N. Y. TIMES, Jan. 29, 2010, at A5 (noting that "China is banding together with other major developing nations to stress that only the wealthier countries need to make internationally binding commitments").
335. See The World Bank, Country and Lending Groups, available at http://go.worldbank.org/D7SN 0B8YU0 (last visited Nov. 6, 2010).
336. China suggested this differentiation between developing countries during international climate change negotiations. See Press Release, National Development and Reform Comm'n of the People's Republic of China, Implementation of the Bali Roadmap: China's Position on the Copenhagen Climate Change Conference (May 20, 2009), available at http://en. ndrc.gov. cn/newsrelease/t20090521-2803 82.htm (stating that least developed countries, particularly among developing countries, need assistance adapting to climate change);
337. Sun Xiaohua et al., African Nations Will Stay at the Table, CHINA DAILY, Dec. 15, 2010, available at http://www.chinadaily.com.cn/world/2009-12/15/ content-9179402.htm (reporting China's preference for least developed countries to receive preferential treatment in receiving funds for climate change mitigation and adaption);
338. Jim Yardley, China Says Rich Countries Should Take the Lead on Global Warming, INT'L HERALD TRIB., Feb. 7, 2007. Nor is China alone in making this distinction. India has also suggested that not all developing countries should be treated alike in international negotiations on climate change.
339. See Rama Lakshmi, India's Carbon Fighters Must Wait, WASH. POST, Oct. 19, 2009.
340. See, e.g., Michael J. Gilligan & Nathaniel H. Nesbitt, Do Norms Reduce Torture?, 38 J. LEGAL STUD. 445(2009).
341. See supra note 125 and accompanying text (describing China's decision to join in condemnation of Myanmar).
342. For a book-length account of China's compliance with international law, see generally Chan, supra note 167, at 205 (arguing that China's compliance with arms control treaties is "satisfactory, " with trade treaties is "good, " with human rights treaties is "fair to poor, " and with environmental protection treaties is "poor").
343. See, e.g., Jacob K. Cogan, Representation and Power in International Organization: The Operational Constitution and Its Critics, 103 AM. J. INT'L L. 209, 240(2009) (listing various U. N. General Assembly discussions on whether to change the composition of the Security Council and explaining the G-4's bid for seats in the Security Council).
344. See, e.g., David D. Caron, The Legitimacy of the Collective Authority of the Security Council, 87 AM. J. INT'L L. 552, 558-60 (1993) (explaining how perceptions of illegitimacy that arise when the organization fails to live up to its "promise and spirit" may lead to failed negotiations).
345. See Daniel W. Drezner, The New World Order, FOREIGN AFF., Mar.-Apr. 2007, at 35 (suggesting that European nations are unwilling to "reduce their overrepresentation in multilateral institutions");
346. cf. Yehuda Z. Blum, Proposals for UN Security Council Reform, 99 AM. J. INT'L L. 632, 643-44 (2005) (analyzing the potential power struggles that would result if countries tried to add seats to the Security Council).
347. India, Pakistan, North Korea, and Israel, which are either commonly known or widely believed to possess nuclear weapons, are not participants to the NPT. North Korea signed the NPT, violated it, and subsequently withdrew from it.
348. See Int'l Monetary Fund, IMF Executive Directors and Voting Power, http://www.imf.org/external/np/sec/memdir/eds.htm (last visited Nov. 6, 2010);
349. Jeffrey D. Sachs, The FP Memo: Urgent: How to Run the International Monetary Fund, FOREIGN POL'Y, July-Aug. 2004, at 60, 61.
350. See Sachs, supra note 234, at 61.
351. See World Bank, International Bank for Reconstruction and Development: Subscriptions and Voting Power of Member Countries, http://web.worldbank.org/ WBSITE/EXTERNAL/EXTABOUTUS/ORGANIZATI ON/BODEXT/0,contentMDK: 20124831∼menuPK:64020035∼pagePK:64020054∼piPK:64020408∼ theSitePK:278036,00.html (last visited Nov. 14, 2010).
352. See Sachs, supra note 234, at 61 (insinuating that the current IMF managing director owes his job to the collusion of rich countries).
353. See Steve Charnovitz, Rethinking WTO Sanctions, 95 AM. J. INT'L L. 792, 816-17 (2001).
354. However, the powerful exceptionalist states may still engage in trade disputes among themselves, since the threat of retaliation is credible for those countries.
355. For example, Ecuador needs access to the U. S. market much more than the United States needs access to the Ecuadorian market. Ecuador would therefore be vulnerable to U. S. sanctions whereas the United States would be only mildly harmed by retaliatory tariffs on the Ecuadorian border. Ecuador is also more likely to be dependent on U. S. imports, and the decision to restrict the entry of U. S. goods into its market is likely to hurt Ecuador much more than the United States. Thus, the United States may intentionally violate its commitments to Ecuador, knowing that Ecuador cannot follow through on its threats.
356. The same argument applies to the NPT.