The global determinants of U.S. Foreign affairs law

Stanford Journal of International Law

Volumn 49, Issue 1, 2013, Pages 1-53

  Abebe, Daniel ^a  

^a UNIVERSITY OF CHICAGO   (United States)

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EID: 84877265164     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. Phillip R. Trimble, Globalization, International Institutions, and the Erosion of National Sovereignty and Democracy, 95 MICH. L. REV. 1944, 1946 (1997) ("U. S. predominance has been undercut by the rise in economic power of Europe and Asia, by accelerating international interdependence, and by the end of the Cold War.").
2. KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS 170 (1979) ("The United States is the obsessing danger for the Soviet Union, and the Soviet Union for the United States...").
3. Harold H. Koh, Why Do Nations Obey International Law?, 106 YALE L. J. 2599, 2630 (1997) ("[After the end of the Cold War] [t]he Soviet Union did a remarkable about-face, first embracing international law, then disintegrating, leaving the United States as 'the world's indispensable nation.'");
4. see also Kenneth W. Abbot, Toward a Richer Institutionalism for International Law and Policy, 1 J. INT'L L. & INT'L REL. 9, 13 (2005).
5. See KENNETH LIEBERTHAL, GOVERNING CHINA: FROM REVOLUTION THROUGH REFORM 248-49 (2004) (China is currently second in the world in purchasing power parity and has the world's largest foreign capital reserves);
6. Olena Havrylchyk & Sandra Poncet, Foreign Direct Investment in China: Reward or Remedy?, 20 WORLD ECON. 1662, 1662 (2007) (China is a leading destination for foreign direct investment);
7. see also Eric A. Posner & John Yoo, International Law and the Rise of China, 1 CHI. J. INT'L L. 1, 4 (2006).
8. Robert C. Bird, Defending Intellectual Property Rights in the BRIC Economies, 43 AM BUS. L. J. 317, 318 (2006) ("In less than forty years, the BRIC economies collectively will be larger than the G6.").
9. See generally ROBERT J. PAULY, JR. & TOM LANSFORD, STRATEGIC PREEMPTION: U. S. FOREIGN POLICY AND THE SECOND IRAQ WAR (2005) (detaling the United States' diplomatic, foreign policj and nation-buiding efforts before and after the 2003 invasion of Iraq);
10. David S. Meyer & Catherine Corrigall-Brown, Coalitions and Political Context: U. S. Movements Against War in Iraq, 10 MOBILIZATION: AN INT'L Q. 327, 333 (2005);
11. Felicity Barringer, Threats and Responses: The U. N.; Some on Security Council Want to Avoid Taking Sides on Iraq, N. Y. TIMES (Feb. 20, 2003), http://www.nytimes.com/2003/02/20/world/threats-responses-un-some-security- council-want-avoidtaking-sides-iraq.html (detailing the varied responses by U. N. members to a war against Iraq).
12. Kishore Mahbubani, Can Asia Re-legitimize Global Governance?, 18 REV. INT'L POL. ECON. 131, 136 (2011) ("The Doha Round is not progressing because many Western countries no longer believe that they will benefit from the talks. There is now a real danger that the Doha Round may be the first round to fail.").
13. See Daniel Abebe & Jonathan S. Masur, International Agreements, Internal Heterogeneity, and Climate Change: The "Two Chinas " Problem, 50 VA. J. INT'L L. 325 (2010) (arguing that China's political and economic characteristics uniquely affect its ability to address climate change);
14. ERIC A. POSNER & DAVID WEISBACH, CLIMATE CHANGE JUSTICE (2010) (critiquing proposed solutions to climate change that focus on wealth redistribution and past emissions);
15. Eric A. Posner & Cass R. Sunstein, Climate Change Justice, 96 GEO. L. J. 1565 (2008) (rejecting distributive and corrective justice arguments that impose special obligations on the United States and other wealthy countries);
16. RICHARD B. STEWART & JONATHAN B. WIENER, RECONSTRUCTING CLIMATE POLICY: BEYOND KYOTO (2007) (endorsing a climate change agreement for all countries and explaining the incentives for the United States to join).
17. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427, 433, 439 (1998).
18. See generally DOUBLE-EDGED DIPLOMACY: INTERNATIONAL BARGAINING AND DOMESTIC POLITICS (Peter B. Evans et al. eds., 1993) (explaining the two-level game structure of domestic and international theories of international bargaining;
19. Peter Gourevitch, The Second Image Reversed: The International Sources of Domestic Politics, 32 INT'L ORG. 881 (1978) (arguing that the international system is a cause of domestic politics, rather than simply the result of domestic politics).
20. Judith L. Goldstein & Richard. H. Steinberg, Negotiate or Litigate? Effects of WTO Judicial Delegation on U. S. Trade Politics, 71 LAW & CONTEMP. PROBS. 257, 267 (2008) ("The United States... remains willing, to delegate to WTO dispute settlement the authority to enforce the WTO 'contract.'").
21. We particularly see diis in the area of human rights. See, e.g., Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. CLN. L. REV. 367, 371 (1985) ("The UN Charter, having been ratified by the United States, is the supreme law of the land.").
22. See ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY (1973) (arguing that the power of the Presidency has grown well beyond the intent of the Framers).
23. Peter J. Spiro, Old Wars/New Wars, 37 WM. & MARY L. REV. 723, 723 (1996) ("With the end of the Cold War, Congress has become increasingly assertive on the foreign policy stage.").
24. Jenny S. Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 439-40 (2003) ("Not only are there more international courts than ever before, they now have a broader reach.").
25. Rachel Brewster, The Domestic Origins of International Agreements, 44 VA. J. INT'L L. 501, 510 (2004) ("Domestic groups demand international agreements as a source of international and domestic law.").
26. Robert Knowles, American Hegemony and the Foreign Affairs Constitution, 41 ARIZ. ST. L. J. 87, 158 (2009) ("[T]he classic realist assumptions that support special deference do not reflect the world as it is today.").
27. Julian Ku & John Yoo, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 SUP. CT. REV. 153, 181 (2004) ("[A]s a matter of institutional competence, the federal judiciary suffers significant disadvantages in [the development and enforcement of customary international law as] compared to the Executive Branch.").
28. ERIC A. POSNER & ADRIAN VERMEULE, TERROR IN THE BALANCE: SECURITY, LIBERTY, AND THE COURTS (2007) (endorsing broad executive power during times of emergencies).
29. FAREED ZAKARIA, FROM WEALTH TO POWER: THE UNUSUAL ORIGINS OF AMERICA'S WORLD ROLE 154 (1998) ("Facing weaker structural constraints than those that had dissuaded his predecessors from pursuing an expansionist foreign policy, McKinley could respond easily to international systemic pressures, further closing the gap between America's power and its interests abroad.").
30. See Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L. J. 1170, 1204-07 (2007). For arguments that high levels of deference to the executive in times of crisis or emergencies are appropriate
31. and RICHARD A. POSNER, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006).
32. cf. EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS, 1787-1984, at 201 (Randall Bland et al. eds., 5th ed. 1984) (discussing the institutional advantages of the Executive branch over Congress).
33. For an example of the role of historical practice, see Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ("Past practice does not, by itself, create power, but 'long continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent.").
34. HAROLD H. KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 69 (1990) (noting disapprovingly that, "[a]s it has evolved, the National Security Constitution assigns to the president the predominant role in the process [of making and validating foreign-policy decisions]").
35. See Derek Jinks & Neal K. Katyal, Disregarding Foreign Relations Law, 116 Yale L. J. 1230, 1230 (2007) ("We maintain that increased judicial deference to the executive in the foreign relations domain is inappropriate.");
36. see also KOH, supra note 22, at 181-84.
37. KOH, supra note 22, at 68 ("Perhaps most striking, the relative balance struck in the Constitution's text between the president's few and Congress's many enumerated foreign affairs powers hardly matches our present-day sense of their relative preeminence.").
38. David Sloss, Judicial Foreign Policy: Lessons from the 1790s, 53 ST. LOUIS U. L. J. 145 (2008) (arguing that judicial participation in foregin policy during the late eighteenth century suggests a greater role for the courts in foreign affairs today).
39. See, e.g., Bengt Holmstrom, Moral Hazard in Teams, 13 BELL J. ECON. 324, 324 (1982).
40. See, e.g., BERNARD SALANIE, THE ECONOMICS OF CONTRACTS: A PRIMER (1997) (discussing how contracts between agents and entities can lead to more optimal economic relationships).
41. See, e.g., Bengt Holmstrom & Paul Milgrom, Multitask Principal-Agent Analyses: Incentive Contracts, Asset Ownership and Job Design, 1 J. L. ECON. & ORG. 24 (1991) (discussing the intricate problem of providing appropriate incentive structures to agents, given necessarily incomplete monitoring by the principal).
42. ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC 174 (2010) ("Executives have always had the leading role in foreign affairs because of the fast-changing nature of international relations and the importance of secrecy and unity.");
43. KOH, supra note 22, at 116.
44. See generally SCHLESINGER, supra note 12 (discussing the growth of presidential power).
45. CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW: CASES AND MATERIALS 176 (Aspen 2d ed. 2006) ("In practice, the Executive Branch exercises a virtual monopoly over formal communications with foreign nations and also plays a lead role in announcing U. S. foreign policy.").
46. See Daniel Abebe, Great Power Politics and the Structure of Foreign Relations Law, 10 CM. J. INT'LL. 125, 128 (2009).
47. U. S. v. Curtiss-Wright Export Corp, 299 U. S. 304, 319 (1936) ("The President is the constitutional representative of the United States with regard to foreign nations.").
48. An estimated 58, 220 soldiers died in the Vietnam War. See ANNE LELAND, AMERICAN WAR AND MILITARY OPERATIONS CASUALTIES: LISTS AND STATISTICS 11 (2010).
49. ANTHONY GREGORY, THE INDEPENDENT INSTITUTE, WHAT PRICE WAR? AFGHANISTAN, IRAQ, AND THE COSTS OF CONFLICT 9 (2011) (estimating cost of funding war operations in Iraq for fiscal years 2001-2011 to be $862.89 billion).
50. David Axe, Somalia Redux: A More Hands-Off Approach, POLICY ANALYSIS (Cato Institute, Washington, DC) Oct. 12, 2009, at 3 ("Washington is Somalia's biggest sponsor. Annual State Department aid to Somalia averages around $100 million. The United States also helps pay for U. N. operations in Somalia, which cost nearly $500 million annually.").
51. See Ingrid Wuerth, Medellin: The New, New Formalism? 13 LEWIS & CLARK L. REV. 1 (2009) (questioning whether Medellin represents a formalist turn in foreign affairs).
52. See Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. CM. L. REV. 89 (2003) (criticizing the structure and goals of the International Criminal Court).
53. See generally Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557, 1595-96 (2003) (noting that U. S. power delegations to international institutions are generally treated as "non-self-executing within the U. S. legal system", thus reducing the constitutional concerns with delegation);
54. David M. Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697 (2003) (reviewing the Founders' perspective of delegation of authority to international bodies);
55. Emest A. Young, The Trouble with Global Constitutionalism, 38 TEX. INT'L L. J. 527 (2003) (discussing "the linkages between the domestic constitutional balance and the emerging phenomenon of global of global constitutionalism").
56. U. S. CONST, art. I, §8, cl. 11 (giving Congress the power to declare war);
57. U. S. CONST, amend. I;
58. Gregg P. Macey, Coasean Blind Spots: Charting the Incomplete Institutionalism, 98 GEO. L. J. 863, 883-84 (2010) ("Institutions entail sunk costs, taken-for-granted cognitive frames, and privileged means of problem solving. Actors inside an organization are subject to pressures to conform to typical practices from their peers, regulators, professions, and other sources. Feedback from these sources constrains problem solving.").
59. Courts often take into consideration the measures taken to avoid errors caused by the decisionmaking structures of administrative agencies. See U. S. v. Mead Corp., 533 U. S. 218, 228 (2001) ("The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality and relative expertness.").
60. Donald C. Langevoort, Organized Illusions: A Behavioral Theory of Why Corporations Mislead Stock Market Investors (and Cause Other Social Harms), 146 U. PA. L. REV. 101, 137 (1997) (noting that groups must simplify agendas to make decisions, which forces them to dismiss ambiguous information as unmanageable). Langevoort observes that: [w]hen a member brings up some information that suggests that the group's decision-making has failed to consider something troubling, a threatening form of stress is introduced into the environment. Without realizing it, each member is inclined to dismiss or ignore danger signals, leading to less informed decision-making that more closely resembles collective rationalization than prudent choice.
61. Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L. J. 31, 35-36 (noting interest groups exert pressure on the political process in part "by influencing the information that reaches legislators").
62. See generally Neal K. Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L. J. 2314 (2006) (critiquing expanded presidential authority in foreing affairs and endorsing a system of checks and balances within the executive branch).
63. Oona A. Hathaway, Presidential Power Over International Law: Restoring the Balance, 119 YALE L. J. 140, 260-63 (2009);
64. KOH, supra note 22, at 161-66.
65. See Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L. J. 231, 240 n. 25 (2001)
66. (citing David Gray Adler, Introduction, in THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 1, 3 (David Gray Adler & Larry N. George eds., 1996) (referring to the "Framers' studied decision to vest the bulk of foreign policy powers in Congress")).
67. U. S. Const, art I, § 8, cl. 11.
68. In one of Congress' first appropriations for use of a militia force, the authorization included an explicit limitation that it would only be in force until the end of the next session. See Act of Sept. 29, 1789, ch. 25, 1 Stat. 95 § 6
69. Stat. 95-96. During the Vietnam War, Congress responded to Nixon's expansion of the military campaign in Cambodia with a provision denying further funds to introduce ground combat troops in Cambodia.
70. Special Foreign Assistance Act of 1971, Pub. L. 91-652, § 7 (a), 84 Stat. 1942, 1943. Congress also passed a variety of restrictive laws and amendments during the Iran-Contra controversy to limit the President's ability to intervene.
71. See, e.g., Intelligence Authorization Act for Fiscal Year 1984, Pub. L. No. 98-215, § 108, 97 Stat. 1473, 1475 (1983) (limiting funding for the Contras from any source to $24 million).
72. See The 1992-1993 Staff of the Legislative Reference Bureau, An Overview of Congressional Investigation of the Executive: Procedures, Devices, and Limitations of Congressional Investigative Power, 1 SYRACUSE J. LEGIS. & POL'Y. 1, 22-24 (1995) (detailing the Senate Select Committee's investigation of Watergate);
73. Louis Fisher, Congressional Investigations: Subpoenas and Contempt Power, Report for Congress (April 2, 2003) (surveying past uses of subpoenas and contempt orders and concluding they are effective ways to gain access to executive branch documents).
74. War Crimes Act of 1996, 18 U. S. C. § 2441 (1996);
75. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 737 (2008) ("The argument for the virtually irrebutable presumption of supremacy of congressional war powers draws force from states such as the one the Court recently articulated in Hamdan that the President 'may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.'").
76. For an example of the Court upholding congressional authority to place limitations on the President during wartime see Little v. Barreme, 6 U. S. 170 (1804) (holding that the President cannot ignore congressional restrictions on the capture of vessels during war).
77. War Powers Resolution, 50 U. S. C. §§ 1541-48 (1973).
78. U. S. CONST, art III, § 2.
79. See Dames & Moore v. Regan, 453 U. S. 654, 686 (1981) ("Past practice does not, by itself, create power, but 'long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the [action] had been [taken] in pursuance of its consent....'")
80. (citing U. S. v. Midwest Oil Co., 236 U. S. 459, 474 (1915));
81. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 593-604 (1952) (Frankfurter, J., concurring) (stating the president's foreign relations authority is derived from historical practice combined with congressional acquiescence);
82. U. S. v. Curtiss-Wright Export Corp, 299 U. S. 304, 316-18 (1936) (noting the federal foreign affairs power of the national government is derived from the laws of nations and national sovereignty);
83. Ex Parte Merryman, 17 F. CAS. 144, 148-50 (C. C. D. Md. 1861) (discussing the enumerated grants of authority in the Constitution).
84. Ex parte Mitsuye Endo, 323 U. S. 283 (1944) (invaliding the wartime detention by the executive branch of a Japanese citizen loyal to the United States);
85. Brown v. United States, 12 U. S. 110, 129 (1814) (finding that the Executive could not confiscate enemy property located within the United States because Congress had not authorized it to do so).
86. U. S. CONST, art. II, § 2, cl. 2 ("[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur....").
87. U. S. CONST, art. III, § 2, cl. 1, stating: The judicial Power shall extend to all Cases, in Law and Equity, arising under... Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls, to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party....
88. See also U. S. CONST, art. III, § 2, cl. 2 ("In all Cases affecting Ambassadors,... the Supreme Court shall have original jurisdiction. ").
89. See, e.g., Hamdan v. Rumsfeld, 548 U. S. 557, 636-37 (2006) (Kennedy, J., concurring). Kennedy stated that: This is not a case, then, where the Executive can assert some unilateral authority to fill a void left by congressional inaction. It is a case where Congress, in the proper exercise of its powers as an independent is a branch of government, and as part of a long tradition of legislative involvement in matters of military justice, has considered the subject of military tribunals and set limits on the President's authority.
90. Cf. Hamdi v. Rumsfeld, 542 U. S. 507, 516-17 (2004) (refusing to consider whether explicit congressional authorization is required because Congress had already provided authorization for the detention at issue).
91. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 186 (1996) ("[T]he United Nations Security Council gave America and her allies the authorization it needed to 'use all necessary means' to eject Saddam Hussein's forces from Kuwait.");
92. Sean D. Murphy, Assessing the Legality of Invading Iraq, 92 GEO. L. J. 173, 233 (2004) ("[T]he 1993 attacks [on Iraq] had the informal approval of the Security Council...").
93. Hamada Zahawi, Comment, Redefining the Laws of Occupation in the Wake of Operation Iraqi "Freedom", 95 CAL. L. REV. 2295, 2296 (2007) ("On March 19, 2003 President George W. Bush proclaimed, 'My fellow citizens, at this hour, American and coalition forces are in the early stages of military operations to disarm Iraq, to free its people and to defend the world from grave danger.' With those words the United States and its 'Coalition of the Willing' launched Operation Iraqi Freedom.");
94. Okezie Chukwumerije, Obama's Trade Policy: Trends, Prospects, and Portends, 16 U. C. DAVIS J. INT'L L. & POL'Y 39, 49 (2009) ("[T]he [Obama] administration has reaffirmed its commitment to the World Trade Organization (WTO) and to 'a rules-based trading system that advances the well-being of the citizens of the United States and our trading partners.'").
95. Jessica L. Powers, Comment, Reduce, Reuse, Resort to Litigation: Global Warming Lawsuits and What They Mean for Texas, 40 TEX. TECH L. REV. 123, 141 (2007) ("In 2002, the Bush Administration reaffirmed its dedication to the United Nations Framework Convention on Climate Change (UNFCCC) and its goal to stabilize GHG concentrations at levels that will not adversely affect the climate system.").
96. Joseph W. Younker, Note, The "U. S. Department of the Treasury Anti-Terrorist Financing Guidelines: Voluntary Best-Practices for U. S.-Based Charities": Sawing a Leg Off the Stool of Democracy, 14 TRANSNAT'L L. & CONTEMP. PROBS. 865, 873 (2004) ("President Bush himself has recognized the strategic value in fighting international poverty by stating that the international community must 'fight against poverty because hope is an answer to terror.'").
97. See Andrew Higgins, Oil Interests Push China Into Sudanese Quagmire, WASH. POST, Dec. 25, 2011, at A01 (detailing China's interests in Sudan).
98. See Int'l Comm'n of Inquiry on Darfur, transmitted by letter dated Jan. 31, 2005 from the U. N. Secretary-General addressed to the President of the Security Council, ¶ 630, U. N. Doc. S/2005/60 (Feb. 1, 2005) ("[T]he Commission established that the Government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and the humanitarian law amounting to crimes under international law."). The U. N. Security Council imposed various sanctions on Sudan including an arms embargo, travel bans, and assets freeze.
99. See S. C. Res. 1591, U. N. Doc. S/RES/1591 (Mar. 29, 2005).
100. Roza Pati, The ICC and the Case of Sudan's Omar Al Bashir: Is Plea-Bargaining a Valid Option?, 15 U. C. Davis J. INT'L L. & Pol'y 265, 265 (2009) ("On July 14, 2008, Luis Moreno-Ocampo, the Prosecutor for the International Criminal Court (ICC)... applied to the Court's Pre-Trial Chamber III for the issuance of an arrest warrant against the President of the Sudan. ").
101. For a recent example, see Rick Gladstone, Backers of Iran Sanctions Make an Appeal to China, N. Y. TIMES, Feb. 14, 2012, at A9 ("While China has said it does not want to see Iran become a nuclear weapons power, it has also been highly critical of the American-led campaign to isolate Iran and has urged a resumption of international talks on Iran's uranium enrichment, which Iran contends is a purely peaceful endeavor.").
102. INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, HUMAN RIGHTS CRISES: NGO RESPONSES TO MILITARY INTERVENTIONS 22-23(2002), www.ichrp.org/files/reports/42/ 115-report.pdf ("Human Rights Watch has spoken out in favour of military intervention by international forces in Bosnia, northern Iraq, Rwanda, and Somalia.").
103. See Press Release, African Union Directorate of Information and Communication, Partners Engage in Dialogue with AU on Shared Value-Democracy and Governance, African Union Press Release 066/2011 (June 9, 2011) (calling for "African solutions to African problems").
104. See Ernst B. Hass, Why Collaborate?: Issue-Linkage and International Regimes, 32 WORLD POL. 357, 370-75 (1980) (discussing issue-linkages and when they arise).
105. see also INT'L ENERGY AGENCY, C02 EMISSIONS FROM FUEL COMBUSTION HIGHLIGHTS 24 (2012 Edition), http://www.iea.org/co2highlights/co2highlights.pdf ("China overtook the United States in 2007 as the world's largest annual emitter of energy-related C02, although in cumulative and percapita terms the United States remains the larger.").
106. OFFICE OF THE SECRETARY OF DEFENSE, ANNUAL REPORT TO CONGRESS: MILITARY AND SECURITY DEVELOPMENT INVOLVING THE PEOPLE'S REPUBLIC OF CHINA 1 (2010) (concluding that China's economic growth and development has enabled China to "embark on a comprehensive transformation of its military").
107. Anthony H. Cordesman et al., The Arab Uprisings and U. S. Policy: What is the American National Interest?, 18 MIDDLE E. Pol'Y 1, 1 (2011) ("The Obama administration has been accused of having a hesitant and reactive policy [in regard to the Arab Spring].").
108. ARTHUR A. STEIN, WHY NATIONS COOPERATE: CIRCUMSTANCE AND CHOICE IN INTERNATIONAL RELATIONS 11 (1991) ("Indeed, the realists' very distinction between international systems as unipolar, bipolar, and multipolar is drawn from economics.");
109. Alexander E. Wendt, The Agent-Structure Problem in International Relations Theory, 41 INT'L ORG. 335, 338 (1987) ("And in fact, although in very different ways, neorealism and world-system theory use... polarity... to explain state behavior.").
110. See, e.g., Edward D. Mansfield, Concentration, Polarity, and the Distribution of Power, 37 INT'L STUD. Q. 105 (1993) (arguing that polarity is more useful when combined with an analysis of concentration of power);
111. Joanne Gowa, Bipolarity, Multipolarity, and Free Trade, 83 AM. POL. SCI. REV. 4, 1245-56 (1989).
112. Daniel Abebe, Not Just Doctrine, 29 MICH. J. INT'L L. 1, 20 (2007) ("Few States have the material power... Those states that do-the great powers-are rational, self-interested actors that also enforce international law according to their self-interests.").
113. In 2011, China's GDP was estimated at $11.3 trillion, with a GDP per-capita of $8, 400. The same year, China's budget deficit was 1.8% of GDP. CENT. INTELLIGENCE AGENCY, WORLD FACTBOOK (html files, 2011) (open "index.html", select "China" from drop-down menu, select "Economy" tab), available at https://www.cia.gov/library/publications/ download/download-2011/index.html/. In comparison, the United States' GDP was estimated at $15.04 trillion, with a GDP per-capita of $48, 100. The United States' budget deficit was 8.9% of GDP.
114. See STOCKHOLM INTERNATIONAL PEACE RESEARCH INSTITUTE, BACKGROUND PAPER ON SIPRI MILITARY EXPENDITURE DATA (April 11, 2011).
115. Figure calculated based on July 2012 global population estimates for the United States, China, India, Russia, and the EU compared to global population. CENTRAL INTELLIGENCE AGENCY, supra note 96.
116. See ANATOL LIEVEN, AMERICA RIGHT OR WRONG 48-51 (2004) (analyzing U. S. nationalism and its role in the development of foreign policy in response to 9/11);
117. WALTER RUSSELL MEAD, SPECIAL PROVIDENCE: AMERICAN FOREIGN POLICY AND HOW IT CHANGED THE WORLD (2002) (offering four competing theories of U. S. foreign policy drawn from the United States historical experience).
118. See PETER HAYS GRIES, CHINA'S NEW NATIONALISM: PRIDE, POLITICS, AND DIPLOMACY 86-115, 136 (2005) (discussing how China's history shapes its diplomatic relations).
119. Surjit Mansingh, India-China Relations in the Post-Cold War Era, 34 ASIAN SURV. 285, 287-88 (1994);
120. ŠUMIT GANGULY, CONFLICT UNENDING: INDIA-PAKISTAN TENSIONS SINCE 1947 (2002) (reviewing India and Pakistan's nationalistic history).
121. Michael Abramowitz & Colum Lynch, Bush, Cheney Increasingly Critical of Russia Over Aggression in Georgia, WASH. POST, Aug. 11, 2008, at A12.
122. Anatol Lieven, The West Shares the Blame for Georgia, FIN. TIMES, Aug. 13, 2008, at 11. That article assessed: Yet all this time, Washington had not the slightest intention of defending Georgia, and knew it. Quite apart from its lack of desire to go to war with Russia over a place almost no American had heard of until last week, with the wars in Iraq and Afghanistan it does not have an army to send to the Caucasus.
123. Jennifer Steinhauer, House Spurns Obama on Libya, but Does Not Cut Funds, N. Y. TIMES (June 24, 2011), http://www.nytimes.com/2011/06/25/us/politics/ 25powers.html ("The United States has handed the leadership of the air war in Libya over to NATO, and has largely played a supporting role, offering things like aerial refueling, surveillance, and signal jamming.").
124. Charles Krauthammer, The Unipolar Moment, FOREIGN AFF., Winter 1990-91, at 23, 23 ("The immediate post-Cold War world is not multipolar. It is unipolar. The center of world power is the unchallenged superpower, the United States...");
125. cf, FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN 247-48 (2002) (describing the bipolar world before the collapse of the Soviet Union).
126. JOSEPH S. NYE, JR., SOFT POWER: THE MEANS TO SUCCESS IN WORLD POLITICS (2004) (arguing that a country's policies, ideals, values and culture-soft power-can influence world politics and international cooperation).
127. Joseph S. Nye, Jr., Soft Power and American Foreign Policy, 119 POL. SCI. Q. 255, 256 (2004) ("Soft power is the ability to get what you want through attraction rather than coercion or payments.").
128. See, e.g., Donald J. Kochan, The Soft Power and Persuasion of Translations in the War on Terror: Words and Wisdom in the Transformation of Legal System, 110 W. VA. L. REV. 545, 547-48 (2008) (arguing that U. S. intervention must include the export of ideas, and that others would benefit from readable translations of our foundational texts).
129. Zain Pasha, Torturing America: Securing the American Interest, 3 CORNELL INT'L AFF. REV. 1, 27 (2010). Pasha states: U. S. use of torture undermines U. S. soft power leadership because it diminishes international opinion about the U. S. To be sure, a January 2007 World Public Opinion Poll of 26, 000 people across 25 countries revealed that 67 percent of respondents disapproved of the way in which the U. S. treated Guantanamo Bay detainees and 49 percent of respondents (the largest plurality) felt the U. S. had an overall negative impact on the world.
130. Benjamin E. Goldsmith & Yusaku Horiuchi, Spinning the Globe? U. S. Public Diplomacy and Foreign Public Opinion, 71 J. POL. 863, 866 (2009) ("The situation [with U. S. foreign policy] turned to a noncredible one in 2004. There is room to debate when the turning point was, but we argue that the first significant event came in April 2004, when foreign publics were exposed to disturbing photos and stories of prisoner abuse by U. S. soldiers at the Abu Ghraib Prison in Iraq.").
131. For a discussion on different aspects of democratic peace theory, see, for example, Michael W. Doyle, Kant, Liberal Agencies, and Foreign Affairs, 12 PHIL. & PUB. AFF. 205 (1983) (drawing from Kant to explain how liberal societies vary in their interaction with other liberal and nonliberal societies);
132. John M. Owen, How Liberalism Produces Democratic Peace, 19 INT'L SEC. 87 (1994) (explaining how liberal ideology and institutions produce democratic peace).
133. But see Christopher Layne, Kant or Cannot: The Myth of the Democratic Peace, 19 INT'L SEC. 5 (1994) (criticizing the causal logic and explanatory value of democratic peace theory);
134. Sebastian Rosato, The Flawed Logic of Democratic Peace Theory, 97 AM. POL. SCI. REV. 585, 585 (2003) (criticizing the logic of democratic peace and suggesting that "mutual democratic pacifism" is not a function of democratic governance).
135. For a discussion on the weaknesses of popular measures of democracy, see Gerardo L. Munck & Jay Verkuilen, Conceptualizing and Measuring Democracy: Evaluating Alternative Indices, 35 COMP. POL. STUD. 5 (2002) (discussing the difficulties of conceptualizing, measuring, and aggregating data on democracy, such as narrow conceptions of democracy, narrow scope, and flaws in conceptual logic).
136. The Economist Intelligence Unit's Index of Democracy listed Georgia as a hybrid regime in 2011 while Russia was downgraded from a hybrid regime (its status during the conflict) to an authoritarian regime. THE ECONOMIST INTELLIGENCE UNIT'S INDEX OF DEMOCRACY 6-7 (2011).
137. Suzannah Linton & Firew K. Tiba, The International Judge in an Age of Multiple International Courts and Tribunals, 9 CHI J. INT'L L. 407, 410 (2009) ("At one level, the mere existence of such courts and tribunals is an incentive to resort to litigation, rather than to the use of force, to resolve disputes.");
138. Roger P. Alford, The Proliferation of International Courts and Tribunals: International Adjudication in Ascendance, 94 AM. SOC'Y INT'L L. PROC. 60, 160 (2000) ("The past two decades have seen an explosion of new international courts and tribunals.").
139. John J. Mearsheimer, The False Promise of International Institutions, 19 INT'L SEC. 5 (1994) (arguing that institutions do not have an independent effect on state behavior).
140. STANLEY MEISLER, UNITED NATIONS: THE FIRST FIFTY YEARS 3 (1995) ("The United Nations was mainly an American idea, and its structure today closely follows the plans prepared by American diplomats during World War II.... [Franklin] Roosevelt talked often of the need for 'Four Policemen'-the United States, the Soviet Union, Britain, and China-to order the postwar world.");
141. N. D. WHITE, KEEPING THE PEACE: THE UNITED NATIONS AND THE MAINTENANCE OF INTERNATIONAL PEACE AND SECURITY 3 (1997) ("The principal function of the United Nations is to maintain international peace and security.").
142. Robert Fleck and Christopher Kilby note the United States is the "most influential member of the World Bank, a position maintained by the institution's financial structure, its location in Washington, and the traditional nomination of World Bank Presidents by the U. S." Robert K. Fleck & Christopher Kilby, World Bank Independence: A Model and Statistical Analysis of U. S. Influence, 10 REV. DEV. ECON. 224, 224 (2006). They go on to conclude from their statistical analysis that the United States has influenced the World Bank in pursuit of its economic and strategic interests.
143. See also Axel Dreher, E. T. H. Zurich, & Nathan M. Jensen, Independent Actor or Agent? An Empirical Analysis of the Impact of U. S. Interests on International Monetary Fund Conditions, 50 J. L. & ECON. 105, 106-7 (2007) (describing the United States' power within the IMF and its ability to veto any decision based on its voting share).
144. MILES KAHLER, LEADERSHIP SELECTION IN THE MAJOR MULTILATERALS vii (2001) ("For the [International Financial Institutions], the United States and Europe have laid exclusive claims to leadership positions since the formation of the institutions.").
145. For example, prior to the war in Iraq, France and Russia both indicated they would not sanction a war. Similarly, the United States has used its veto power to regularly protect the Israeli government. Tarik Kafala, The Veto and How to Use It, BBC NEWS (Sept. 17, 2003), http://news.bbc.co. Uk/2/hi/middle-east/2828985.stm.
146. See M. J. WILLIAMS, NATO, SECURITY AND RISK MANAGEMENT: FROM KOSOVO TO KANDAHAR 44-48 (2009).
147. See Jim Van de Water, The United Nations' Success Story, SAN DLEGO UNION TRIB. (Feb. 24, 2005), http://www.signonsandiego.com/uniontrib/20050224/news- lzle24water.html;
148. Marrack Goulding, The Evolution of United Nations Peacekeeping 69 INT'L AFF. 451, 452 (1993) (noting the U. N.'s successes in defusing the Suez crisis, intervening between the Egyptian and Israeli armies in 1973, and controlling the buffer zone between Israel and Syria in 1974).
149. For instance, the United States, Japan, Germany, the United Kingdom, and France were the largest contributors to the United Nations budget in 2011. The United States alone contributed more than $580 million, or 22 percent of the budget contributions. Combined, the five countries compose more than 54 percent of the budget contributions by Member States. U. N. Secretariat, Assessment of Member States' Contributions to the United Nations Regular Budget for the Year 2011, U. N. Doc. ST/ADM/SET. B/824 (Dec. 28, 2010).
150. For example, the United States, the United Kingdom, Germany, France, and Italy are the largest contributors of troops to the International Security Assistance Force, the NATO-led security mission in Afghanistan. INTERNATIONAL SECURITY ASSISTANCE FORCE, INTERNATIONAL SECURITY ASSISTANCE FORCE (ISAF): KEY FACTS AND FIGURES 2 (Jan. 9, 2012).
151. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW §101 (1987) ('"International law', as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.").
152. But see Jack L. Goldsmith & Eric A. Posner, A Theory of Customary International Law, 66 U. CHI. L. REV. 1113 (1999) (arguing that state compliance with international law is driven by self-interest rather than legal or moral obligation).
153. (citing LOUIS HENKIN, HOW NATIONS BEHAVE 47 (2d ed. 1979)) (emphasis omitted). Koh notes that empirical work has largely confirmed Henkin's "hedged but optimistic description. "
154. JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW (2005) (arguing that international law is a function of state interests and does not encourage compliance).
155. See generally ALEXANDER WENDT, SOCIAL THEORY OF INTERNATIONAL POLITICS (1999) (offering a theory of how culture and ideas shape the way states define their interests, identities, friends and enemies in international politics)
156. Alexander Wendt, Anarchy is What States Make of It: The Social Construction of Power Politics, 46 INT'L ORG. 391 (1992) (explaining the role of socal norms in shaping states interests and indentity).
157. But see Dale C. Copeland, The Constructivist Challenge to Structural Realism: A Review Essay, 25 INT'L SEC. 187 (2000) (outlining the failure of social constructivism to appreciate the role of uncertainty and intentions in understanding and explaining international politics).
158. Harold Hongju Koh, The 1994 Roscoe Pound Lecture: Transnational Legal Process, 75 NEB. L. REV. 181, 199 (1996) (noting transnational litigation promotes international legal norms in domestic processes and "drive[s] how national governments conduct their international relations").
159. Discussions of democratic peace theory argue that the increase in democratic governance has resulted in a norm of peacefulness. See generally John R. Oneal & Bruce M. Russett, The Kantian Peace: The Pacific Benefits of Democracy, Interdependence, and International Organizations, 1885-1992, 52 WORLD POL. 1 (1999) (concluding that the probability of international conflict is reduced by high levels of international interdependence and democracy).
160. Human Rights Watch, for example, produces volumes of reports on various human rights abuses, covering issues from health and the environment to business and counterterrorism to name just a few. Topics, HUMAN RIGHTS WATCH (2012), http://www.hrw.org/home.
161. History is replete with instances of questionable presidential decisionmaking. See generally, William C. Banks, While Congress Slept: The Iran-Contra Affair and Institutional Responsibility for Covert Operations, 14 SYRACUSE J. INT'L L. & COM. 291, 310 (1987) ("In fixing responsibility on the President for the Iran-Contra Affair, the [Report of the Congressional Committees Investigating the Iran-Contra Affair] chastised him for a failure of 'leadership and supervision. '");
162. Lori F. Damrosch, War and Uncertainty, 114 YALE L. J. 1405, 1409 (2005) ("[M]any in Congress came to regret their votes for the Tonkin Gulf Resolution, and several judicial challenges were eventually brought contesting its validity.").
163. The Prize Cases, 67 U. S. (2 Black) 635 (1863) (holding that President Lincoln had the authority under the Commander in Chief clause to initiate a blockade during the Civil War).
164. M5 Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952) (rejecting President Truman's authority to seize private property in the absence of specific constitutional or congressional authorization).
165. Goldwater v. Carter, 617 F.2d 697 (D. C. Cir. 1979) (holding that the President's termination of a defense treaty with Taiwan was within the President's Article II authority).
166. Bas v. Tingy, 4 U. S. (4 Dall.) 37 (1800) (defining the meaning of "enemy" for purposes of determing whether the United States was at war with France).
167. Hamdan v. Rumsfeld, 548 U. S. 557 (2006) (invalidating military commissions initiated by the President for violations of domestic and international law).
168. Sanchez-Lamas v. Oregon, 548 U. S. 331 (2006) (holding that state courts are not required to admit evidence obtained in violation of Article 36 of the Vienna Convention).
169. Unfettered discretion in the executive can lead to discriminatory enforcement policies or overreaching. See Stephen J. Schulhofer, Checks and Balances in Wartime: American, British and Israeli Experiences, 102 MICH. L. REV. 1906, 1916 (2004) (noting overzealous executives may overreach, particularly in wartime conditions).
170. For an overview of the variations on realist theories, see JOHN J. MEARSHEIMER, THE TRAGEDY OF GREAT POWER POLITICS (2001) (articulating a theory of offensive realism to explain the motivations for state behavior among great powers);
171. See Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L. J. 1, 3-7, 35-44 (2011) (arguing that there are qualities that may cause Americans to believe in the country's exceptionalism, but U. S. behavior in international law is not exceptional from a global perspective);
172. See Stephen G. Brooks & William C. Wohlforth, American Primacy in Perspective, FOREIGN AFF., July/Aug. 2002, at 20-21;
173. Ian L. G. Wadley, U. S. and Them: Hubs, Spokes, & Integration with Reference to Transboundary Environment & Resource Issues, 21 BERKELEY J. INT'L L. 572, 578-79 (2003) (noting U. S. attempts to maintain good state-to-state relationships while preserving its status as a hegemonic state).
174. DAVID F. SCHMITZ, THE UNITED STATES AND RIGHT-WING DICTATORSHIPS, 1965-1989, at 2 (2006).
175. Ann Devroy, Clinton Reverses Course on China; MFN Action Separates Human Rights, Trade, WASH. POST, May 27, 1994, at A1 (describing President Clinton's decision to renew trade privileges with China despite significant progress on human rights).
176. See KENNETH B. MOSS, UNDECLARED WAR AND THE FUTURE OF U. S. FOREIGN POLICY (2008) (discussing how U. S. interventions in Central America and the Philippines set the stage for the United States as a dominant power).
177. Julius Pratt, The Origin of "Manifest Destiny", 32 AM. HIST. REV. 795 (1927) (describing the origin of the phrase as a general justification for United States expansion).
178. Rudyard Kipling, The White Man's Burden, MCCLURE'S MAG., Feb. 1899, at 12 (publishing a poem supporting imperialism as a noble cause for the United States).
179. See RICHARD E. WELCH, JR., RESPONSE TO IMPERIALISM: THE UNITED STATES AND THE PHILIPPINE-AMERICAN WAR, 1899-1902, at 1551-56 (1979) (describing how the occupation in the Philippines failed to produce the expected benefits and instead created costs for the United States).
180. See Manus Midlarsky & Raymond Tanter, Toward a Theory of Political Instability in Latin America, 4 J. PEACE RES. 209 (1967) (arguing that the interaction between the United States and Latin American nations results in political instability).
181. The Inauguration: Transcript of President Clinton's Second Inaugural Address to the Nation, N. Y. TIMES, Jan. 21, 1997, at A14;
182. see also Robert J. Delahunty & John Yoo, Against Foreign Law, 29 HARV. J. L. & PUB. POL'Y 291, 328 (2005).
183. Judith Miller, Crisis in the Balkans: United Nations; Annan Takes Critical Stance on U. S. Actions in Kosovo, N. Y. TIMES, May 18, 1999, at A11.
184. Helene Cooper, Obama Announces Killing of Osama bin Laden, N. Y. TIMES (May 1, 2011), http://thelede.blogs.nytimes.com/2011/05/01/bin-laden-dead-u-s- official-says.
185. Michael Dobbs, For Wolfowitz, A Vision May Be Realized, WASH. POST, Apr. 7, 2003, at A17 (describing Wolfowitz's belief in "the power of the democratic idea" and that Iraq could serve as a democratic inspiration to its neighbors).
186. Nuno Monteiro, Unrest Assured, 36 INT'L SEC. 9, 11 (2011/2012) (internal citations omitted).
187. See Goldwater v. Carter, 444 U. S. 996 (1979) (applying the political question doctrine in a case challenging the President's power to unilaterally terminate an Article II treaty);
188. Baker v. Carr, 369 U. S. 186 (1962) (articulating the modern test for the political question doctrine).
189. For the seminal case on the act-of-state doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964) (holding that the act-of-state doctrine precluded U. S. courts from questioning a foreign sovereign's acts within its own territory).
190. Early on, the Supreme Court described comity as "the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U. S. 113, 163-64 (1895).
191. See Banco Nacional de Cuba, 376 U. S. at 410 ("Respondents... contend that relations between the United States and Cuba manifest such animosity that unfriendliness is clear....").
192. United States v. Pink, 315 U. S. 203, 227-28 (1942);
193. United States v. Belmont, 301 U. S. 324, 330 (1937) (noting the Executive had the authority to "speak as the sole organ" of the government and to negotiate for the final settlement of claims between Russia and the United States without the advice and consent of the Senate).
194. Alien Tort Claims Act (ATS), 28 U. S. C. § 1350 (2000);
195. see, e.g., Khulumani v. Barclay Nat'l Bank Ltd., 504 F.3d 254, 296-98 (2d Cir. 2007);
196. cf. Kadic v. Karadzic, 70 F.3d 232, 250 (2d Cir. 1995) (noting that "an assertion of the political question doctrine by the Executive Branch, entitled to respectful consideration, would not necessarily preclude adjudication").
197. Thomas Brennan, Lee Epstein, & Nancy Staudt, Economic Trends and Judicial Outcomes: A Macrotheory of the Court, 58 DUKE L. J. 1191, 1219 (2009) (concluding that judicial decisions are more deferential to the government during times of crisis).
198. See Lee Epstein et al., The Supreme Court During Crisis: How War Affects Only Non-War Cases, 80 N. Y. U. L. REV. 1 (2005) (finding that the Supreme Court limits civil liberties during wartime but only in non-war civil liberties cases).
199. See Ex Parte Mitsuye Endo, 323 U. S. 283, 298-300 (1944);
200. Ex Parte Merryman, 17 F. Cas. 144, 148-49 (C. C. D. Md. 1861).
201. Doe v. Exxon Mobil Corp., 654 F.3d 11, 20 (D. C. Cir. 2011);;
202. Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995);
203. Filartiga v. Pena-Irala, 630 F.2d 876, 884-85 (2d Cir. 1980).
204. Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-85 (1982).
205. Kadic, 70 F.3d at 250.