Law without nations?: Why constitutional government requires sovereign states

Law without Nations?: Why Constitutional Government Requires Sovereign States

Volumn , Issue , 2009, Pages

  Rabkin, Jeremy A ^a  

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References (389)

1. Robert Kagan, Of Paradise and Power, America and Europe in the New World Order (Knopf, 2003), p. 3.
2. Samuel Huntington, The Clash of Civilizations and the Remaking of World Order (Simon and Schuster, 1996).
3. Quoted in R.E.M. Irving, The Christian Democratic Parties of Western Europe (George Allen & Unwin, 1979), p. 237.
4. "Jews Attacked in French Anti-war Protests," Sunday Telegraph (UK), April 6, 2003.
5. Christine Sylvester, Feminist Theory and International Relations in a Postmodern Era (Cambridge University Press, 1994), pp. 213, 221, 220.
6. John Locke, Essay Concerning Human Understanding (ECHU) (J. M. Dent, 1961), pp. 39-40.
7. Curtis A. Bradley and Jack L. Goldsmith, "Customary International Law as Federal Common Law," Harvard Law Review, vol. 110 (February 1997), p. 815, offers extensive documentation of how widely established this view has become- and how questionable it is, viewed from the traditional constitutional perspective.
8. Kadic v. Karadzic, 70 F.3d 232 (2d. Cir., 1995); Republic of Philippines v. Marcos, 806 F.2d 344 (2d. Cir., 1986).
9. Beanal v. Freeport-McMoRan, 969 F. Supp. 362 (E.D. La., 1997) (on behalf of workers in Indonesia);
10. Doe v. Unicol, 963 F. Supp. 880 (C.D. Cal. 1997) (on behalf of workers in Burma);
11. Aguinda v. Texaco, 850 F. Supp. 282 (S.D.N.Y., 1994) (on behalf of workers in Ecuador).
12. Don Beharry v. Janet Reno, 98 CV 5381 (January 22, 2002), arguing that federal immigration law must be interpreted to conform with the Convention on the Rights of the Child (CRC), so a non-citizen father, convicted of robbery, could not be deported to his home country (as the law otherwise required) without special hearings to determine "the best interests of the child" (as required by the CRC).
13. Stephen C. Neff, Friends But No Allies, Economic Liberalism and the Law of Nations (Columbia University Press, 1990), p. 58, describes several European "enforcement" efforts in the early nineteenth century in Latin America and in the eastern Mediterranean.
14. On medieval acceptance of rape as a legitimate form of punishment in a just war, see F. Vitoria, "Second Relectio on the Indians, or on the Laws of War Made by the Spaniards on Barbarians," in De Indis et de iure belli reflectiones, translated by J. P. Bate (Carnegie Institute, 1917), pp. 163, 185.
15. M. Weller, "The Reality of the Emerging Universal Constitutional Order," Cambridge Review of International Studies (Winter/Spring 1997), p. 40.
16. A more recent and similar argument: David Held, "Law of States, Law of Peoples," Legal Theory, vol. 8 (March, 2002), pp. 1-44, which accumulates many citations to other writings in this vein.
17. Described at length in Sandrine Tesner, The United Nations and Business, A Partnership Recovered (St. Martin's Press, 2000).
18. "Living with the Enemy," The Economist, August 9, 2003. The article says, "An NGO attack can wreak havoc with employee morale and on recruitment. . . . Moreover, when companies make concessions, NGOs often come back for more," citing complaints of former activists that NGOs try to generate publicity for their own fund-raising rather than build relations of trust with business firms inclined to cooperate.
19. "Notes from the President," Newsletter, American Society of International Law, March 1993.
20. One of the most recent and systematic versions of the argument is in Charles Jones, Global Justice, Defending Cosmopolitanism (Oxford University Press, 2000).
21. From a very extensive literature belaboring this argument, particularly emphatic versions are: Joseph Camilleri and Jim Falk, The End of Sovereignty (Edward Elgar, 1992);
22. H. G. Gelber, Sovereignty Through Interdependence (Kluwer Law International, 1997);
23. Jan-Aart Scholtz, Globalization, A Critical Introduction (Palgrave, 2000).
24. M. J. Peterson, "International Fisheries Management," in Peter M. Haas, Robert O. Keohane, and Marc A. Levy, eds., Institutions for the Earth (MIT Press, 1993).
25. William Blackstone, Commentaries on the Laws of England, vol. 1, Introduction (University of Chicago Press edition, 1979, facsimile of the first edition, 1765), p. 46.
26. Justice Sandra Day O'Connor, in a book of musings designed to be inoffensive, used this as her title: The Majesty of Law, Reflections of a Supreme Court Justice (Random House, 2003).
27. "Politics as a Vocation," translation by H. H. Gerth in From Max Weber (Oxford University Press, 1946), p. 78.
28. A fuller exposition can be found in Weber's Economy and Society, vol. 1, edited by Guenther Roth and Claus Wittich (University of California Press, 1978), p. 56.
29. "A Government which enjoys the habitual obedience of the bulk of the population with a reasonable expectation of permanence can be said to represent the State in question and as such to be entitled to recognition [by other states]." L. Oppenheim, International Law, vol. 1, 8th ed., revised by H. Lauterpacht (Longmans, Green and Co., 1955), p. 131.
30. No. 70, p. 395.
31. "Death is not Justice," Council of Europe, Strasbourg, June 2001.
32. No. 15, edited by Clinton Rossiter, notes by Charles Kesler (Mentor, 1999), p. 78.
33. Summa Theologica, Q. 90, A. 4.
34. Sydney Painter, Feudalism and Liberty (Johns Hopkins University Press, 1961), p. 157.
35. James Bryce, The Holy Roman Empire (Macmillan, 1907), pp. 183-91, documenting episodes in which imperial authority was claimed over "Hungary, Poland, Denmark, France, Sweden, Norway, Iceland, Spain, England, Scotland, Ireland, South Italy and Sicily, Venice, Cyprus and Armenia, the East."
36. Ruston Coulborn, Feudalism in History (Princeton University Press, 1956), p. 236.
37. Bernard Guenée, States and Rulers in Late Medieval Europe, English translation (Basil Blackwell, 1985), p. 16.
38. "As poems, folktales and prophecies show, during the last quarter of the fifteenth century the idea of empire as a universal organization was alive and well in the popular consciousness." Martin van Crevald, The Rise and Decline of the State (Cambridge University Press, 1999), p. 80.
39. For example, the holdings of the crusading order of Teutonic knights remained independent until 1525, when Albert of Brandenburg, master of the Order, on the advice of Martin Luther, simply annexed them to his own personal holdings and renamed them the "Duchy of Prussia," van Crevald, Rise and Decline, p. 68.
40. McIlwain, Growth of Political Thought, p. 390: "Until there is a State, standing prominent before the eyes of men with its reciprocal public relation of ruler and subject, instead of a mere quasi-private relationship existing between the individual vassal and his overlord, there can be no such organ by which national law can be made."
41. III, 1: Senate should have power to advise but not command (K 277, F 42). Bodin takes "counsel" so seriously that he sees more danger in a good prince with evil counselors than in an evil prince with good counselors (III, 1: K 254G, F 8).
42. IV, 6: wrong for princes to administer justice in person (K 507E, F 154); princes judging on their own will be tempted to display too much lenity (K 509D, F 164); where the sovereign's own interests are involved, "it is contrary to the law of nature that the party should be judge also" (K 514F, F 170-also III, 6: K 346F, F 149).
43. II, 1: Polybius mistaken to think king, nobles, and people can share in sovereignty (K 185, F 11); distinguishing "state" from "government of the state" (K 199, F 34); VI, 6 popular "sovereignty" can go with aristocratic "government" (K 785, F 297); justice best administered by men of different classes in magistracy (K 789C, F 297).
44. I, 9: French kings always resisted papal control (K 145-47, F 281-83); French kings not obligated to the Emperor (K 134-35, F 265); marginal note by translator, Knolles: "the majesty of the emperor too much impugned by this French author" (K 150).
45. II, 5: right to overthrow tyrants (K 219E, F 71); I, 1: obligations to keep promises and respect laws of war apply to other sovereigns, but not to robber bands (K 2F, F 28).
46. VI, 4: "if the prince be subtle and wicked, he will plant a tyranny; if he be cruel, he will make a butchery of the commonwealth; or a brothel house if he be licentious," etc. etc. (K 714K, F 177-78).
47. I, 8: sovereign bound by constitutional norms establishing sovereign power (K 95A, F 197); sovereign bound by own promise if received specific benefit for it in contract (K 92K, F 194); III, 7: in meeting of Estates General, Bodin successfully resisted king's plan to have joint committee speak for whole body, since each estate must separately vote and improper to override ancient constitution (K 370-71, F 188-89).
48. II, 2: first governments were "lordly" ["seigneuriales"] (K 200G, F 35); only in Muscovy and Turkey today (K 201C, F 37); elsewhere "every subject has true property in his own things" (K 201E, F 37); "men free borne and lords of their own goods . . . would easily rebel [against threat to reduce them to lordly rule] being noble hearts ["coeurs genereux"] nourished in liberty" (K 204H, F 42).
49. VI, 4: "chiefly established to . . . forbid theft" which is also "commanded by the word of God who will have every man to enjoy the property of his own goods" (K 707D, F 160-61); I, 8: "it is not in the power of any prince in the world at his pleasure to raise taxes upon the people, no more than to take another man's goods from him" (K 97A, F 201); III, 7: praises regular parliaments in England (K 384K, F 207).
50. III, 4: obligation to "law of nature and of God" ["loy de Dieu et de nature"] (K 312-313, F 97-98); magistrate should resign rather than enforce measures against "laws of God and nature" (K 318I, F 105); IV, 2: precept of "the great God of Nature" ["grand Dieu de nature"] (K 449C, F 72).
51. I, 5: "Christian princes" ended slavery from "fear" of revolts (K 39E, F 99).
52. For example, I, 3: divorce should be permitted because authorized in Hebrew Bible (K 18I, F 59); VI, 6: "eye for an eye" not to be taken literally but as basis for monetary compensation, according to Talmudic interpretation (K 781B, F 291).
53. Harvey Mansfield, Taming the Prince (Free Press, 1989), pp. 153-54.
54. VI, 4: small states encourage tyranny (K 721, F 192); I, 6: against Aristotle's notions, as slighting centrality of sovereignty (K 50-51, F 118-19); but see VI, 5: "natural people" of a country easily stirred to resentment and revolt against "foreign princes" (K 750H-I, F 243).
55. III, 8: nobility originally based in violence and murder and no one definition of true nobility would now be accepted by all nobilities of different nations (K 389B, but not in the Fayard edition); I, 6: Aristotle wrong to see nobles as more fully citizens (K 53C, F 123).
56. Reynolds, Method, ch. 9, "Tests by which to Test the Origins of People," p. 362: "all men for a long time have been so fused in migrations and also in teeming colonial populations, as well as in wars and captivity, that none can boast about the antiquity of their origin and the great age of their race except the Jews"-and the exception, too, may be intended as a discouragement to such "boasts," since it contradicts a number of other Bodinian tenets, as Reynolds notes in her introduction, p. 24.
57. I, 7: commercial treaties even with enemies (K 74-I, F 161); VI, 2: "in my opinion it is more seemly . . . to be a merchant than a tyrant and for a gentleman to traffic than to steal" (K 660H, F 60); VI, 4: God has scattered resources in different nations to encourage peaceful exchange (K 708H, F 162).
58. John Neville Figgis, Political Thought from Gerson to Grotius (Cambridge University Press, 1907; reprinted by Harper Torchbooks, 1960), p. 145.
59. Initially published in 1568 as La Réponse de Maistre Jean Bodin Advocat en la cour au paradoxe de Monsieur de Malestroict; then republished in 1578, as Discours de Jean Bodin sur le rehausement et diminution des monnoyes, enlarged with extensive extracts from Six livres de la république (VI, 3, on the same subject). An English translation of the expanded edition, by Henry Tudor and R. W. Dyson, has recently appeared as Response to the Paradoxes of Malestroit (Thoemmes Press, 1997), with an extended introduction indicating the importance of the work in the history of economic theory. H. W. Spiegel, The Growth of Economic Thought, revised ed. (Duke University Press, 1983) pp. 89-92, assesses Bodin's place in the history of economics, concluding with the remark that Bodin's account "com[es] close to enunciating what was to become one of the central ideas of modern times-the idea of progress."
60. République, VI, 3 (K 687C, F 117) is particularly emphatic on this point: "a prince may not make any false money, no more than he may kill or rob."
61. République, IV, 6 (K 517B, F 177).
62. Among other things, Bodin studied legal institutions of many countries to escape from the usual dependence of legal analysts on Roman Law digests. Julian Franklin, Jean Bodin and the Sixteenth Century Revolution in the Methodology of Law and History (Columbia University Press, 1963), describes some of the ambition behind this comparative study-the fruits of which are on display in the République. At the same time, Bodin tried to discern the influence of climate and terrain on culture and politics, developing a theory that has often been compared with Montesquieu's. Bodin rejects any notion that men are simply prisoners of their environment but he does try to show that different countries are likely to develop different patterns of law and government, even when they have access to the same learning. République, V, 1.
63. I, 5: Turks are only modern people to measure nobility by virtue rather than birth (K 44H: Knolles seems to have relied on the Latin text here, as the French is not so explicit); IV, 7: Turkish king tolerates all other faiths but observes his own with "more devotion" than any other ruler (K 537E, F 207).
64. Frederick Pollock, Introduction to the History of the Science of Politics (Beacon Press, 1960, reprinting 1911 revised ed. by Macmillan: original edition, 1896), p. 57.
65. See "The Readie and Easy Way to Establish a Free Commonwealth," Areopagitica and Other Political Writings of John Milton (Liberty Fund, 1999), p. 429, for an extended paraphrase of Bodin's République, III, 1; p. 443 for "one united and entrusted Sovrantie". Milton's title may have been intended to remind alert readers of Bodin's Methodus ad facilem, since it follows Bodin's "method" in surveying models from the ancient world to show what is most feasible in the modern world. Milton refers directly to "Bodin, the famous French writer" in his 1641 pamphlet, "The Reason of Church Government Urged Against Prelaty," where Bodin ("though a papist") is invoked in support of Milton's argument for separating Church authority from government (Milton's Prose Works [H. J. Bohn, 1883, vol. 2, p. 490]).
66. Pollock, Science of Politics, p. 47.
67. On Locke as the forerunner of international human rights movement, see Louis Henkin, Gerald Neuman, Diane Orentlicher, and David Lecbron, Human Rights (Little, Brown, 1998), pp. 22-27. On Locke as forerunner of supranational governance, see Michael Doyle, Ways of War and Peace (W. W. Norton, 1997), p. 225. On why Doyle's view is highly implausible, see Cox, Locke on War and Peace, ch. 5 and pp. 190-92.
68. "Letter on Toleration," in David Wooton, ed., John Locke, Political Writings (Mentor, 1993), pp. 424-26.
69. There is some ambiguity in this passage about whether it is "the community" or its individual members whose "self-preservation" is "fundamental, sacred and unalterable": In the course of the Second Treatise, Locke uses equally emphatic language when speaking of the community's authority and when speaking of the individual's rights-and he often, as here, seems to run them together. The rights of the individual are secured by an organized community. So, Locke insists in various passages that private property predates civil society (pp. 27, 35), that protecting this property is the purpose of entering into civil society (pp. 3, 88, 95, 120, 124, 139)-and then he says, in other passages, that the rights of property are determined by civil society (pp. 38, 45, 50).
70. République IV, 3: better to wait for a tyrant to die a natural death-unless he has children (K 475C, F 108-09); III, 5: always wrong for private citizens to resist magistrates with force, even when wronged, except to resist wrongful death sentence (K 338F, F 136); citing Roman rather than Christian examples to show "it is more necessary for private men to obey, respect and honor the magistrates, for the defense of the commonwealth and of the civil society" ("pour tuition des Republiques et soietez des hommes") (K 340I, F 140).
71. On the notion of shared language as a basis for nationality, see Jeremy A. Rabkin, "Grotius, Vattel and Locke: An Older View of Liberalism and Nationality," Review of Politics (Spring 1997), pp. 307-9. Scott, reviewing similar passages in the ECHU, makes the sensible suggestion that the power of language communities is a constraint on sovereign power. One could equally say, however, that it is a safeguard for the "supreme power" of the national government against outside powers, competing for popular support within the community: we "understand" each other. But trade across boundaries does not require much in the way of common understandings: exchange has been "made practicable out of the bounds of society, and without compact, only by putting a value on gold and silver and tacitly agreeing in the use of Money" (Second Treatise, par. 50).
72. Commentaries on the Laws of England, vol. 1, Introduction, sec. 2, p. 49.
73. "Cincinnatus V," New York Journal, November 29, 1787, "Commentaries on the Constitution," in John Kaminski and Gaspare Saladino, eds., Documentary History of the Ratification of the Constitution (DHRC), vol. 14 (State Historical Society of Wisconsin, 1983), p. 308.
74. "The Impartial Examiner," Virginia Independent Chronicle, February 20, 1788, Documentary History, vol. 8, p. 392.
75. "Genuine Information, XII," Baltimore Maryland Gazette, February 8, 1788, Documentary History, vol. 16, p. 91.
76. Max Farrand, Records of the Federal Convention of 1787 (Yale University Press, 1937, 1966); vol. 1, p. 331 (Wilson); vol. 1, p. 323 (Hamilton); vol. 1, p. 328 (King).
77. Speech at Pennsylvania Ratifying Convention, December 11, 1787: "The sovereignty rests with the people. In them consists the supreme power." Documentary History, vol. 2, p. 570. In the July 4th Oration in 1788, Wilson spoke of the ratification process as "the most dignified ["spectacle"] that has yet appeared on our globe . . . a WHOLE PEOPLE exercising its first and greatest power- performing an act of SOVEREIGNTY, ORIGINAL and UNLIMITED" (original emphasis), Documentary History, vol. 17, p. 244.
78. Farrand, Records, vol. 3, p. 112; even before the Convention, Benjamin Rush, in a published article, echoed the claim that the "people of America have mistaken the meaning of the word sovereignty: hence each state pretends to be sovereign. In Europe, it is applied only to those states which possess the power of making war and peace-of forming treaties and the like. As this power belongs only to congress, they are the only sovereign power" (original emphases). But he went still further: "It is often said that 'the sovereign and all other power is seated in the people.' This idea is unhappily expressed. It should be-'all power is derived from the people.' They possess it only on the days of their elections. After this, it is the property of their rulers, nor can they [the people] exercise or resume it, unless it is abused. It is of importance to circulate this idea, as it leads to order and good government" (original emphasis), Documentary History, "Commentaries," vol. 12, p. 47.
79. James Madison, "Sovereignty," in Gaillard Hunt, ed., Writings of James Madison (Phila, J. B. Lippincott & Co., 1867), vol. 4, p. 390.
80. No. 15, p. 76.
81. No. 16, p. 84.
82. No. 15, pp. 76-77, 78.
83. No. 16, p. 84.
84. No. 17, p. 88.
85. No. 2, p. 6: "a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general liberty and independence."
86. No. 17, p. 87.
87. No. 19, pp. 98, 100, 101; Bodin's account is in République, I, 7 (K 75-79, emphasizing sovereignty of individual cantons because they retain the armed forces of the confederacy: Bodin goes on to discuss the Achaen League of ancient Greece and the Holy Empire, the three main confederacies discussed in The Federalist, No. 19.
88. No. 30, p. 159.
89. No. 62, pp. 348-49.
90. Hamilton was still more explicit on this point at the Convention: "It had been said that respectability in the eyes of foreign Nations was not the object at which we aimed; that the proper object of republican Government was domestic tranquility & happiness. This was an ideal distinction. No Governmt. cd give us tranquility & happiness at home, which did not possess sufficient stability and strength to make us respectable abroad." Farrand, Records, vol. 1, 466-67.
91. "Special Message to Congress," July 4, 1861 in Abraham Lincoln, Speeches and Writings, 1859-1865 (Library of America, 1989), pp. 256, 259-60: the first ellipsis excludes Lincoln's qualification of the claim that "no one of our states ever was a sovereignty" with the acknowledgement of the special case of Texas, briefly an independent republic before joining the Union.
92. Art. I, Sec. 9. Unlike the prohibition on domestic titles of nobility, the international prohibition allows for exceptions with the consent of Congress. The Framers seem to have envisaged the need to accommodate certain innocent diplomatic gestures. But the location of this clause, amidst prohibitions on Congress rather than authorizations of federal power, emphasizes the general prohibition rather than the innocent exceptions. It did not appear at all in earlier drafts (see, Farrand, Records, vol. 2, pp. 169, 183, 389) and was evidently regarded as a natural extension of the preceding prohibition on titles of nobility.
93. See, for example, A. V. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Classics, 1982, reprinting 8th ed., 1915), p. 81 ("the legal sovereignty of the United States resides in the States' governments as forming one aggregate body represented by three-fourths of the several States"). For the earlier version, see John Austin, Jurisprudence, 4th ed. (Cockroft, 1875), p. 268 (emphasizing the Supreme Court).
94. The Constitution itself, Article VI, Sec. 3, requires that legislators and officials of state governments, as well as their federal counterparts, "be bound by oath to support this Constitution" and a federal statute prescribes a minimal version of this oath: "I solemnly swear that I will support the Constitution of the United States" (4 USC sec. 101). But the prescribed oath for new citizens requires a pledge to "support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; to bear true faith and allegiance to the same; and to bear arms on behalf of the United States when required by the law" (8 USC sec. 1448). The oath required of those in "the civil services or uniformed services" of the United States government follows this more elaborate formula (5 USC sec. 331).
95. James Madison, "Examination of the British Doctrine which Subjects to Capture A Neutral Trade not Open in Time of Peace," in Hunt, ed., Writings of James Madison, vol. 2, p. 234. Some years later, Chief Justice Marshall thanked his court reporter for supplying extracts from Grotius to elucidate cases on naval seizures on the high seas: "Old Hugo Grotius is indebted to you for your defence of him and his quotations. You have raised him in my estimation to the rank he deserves." Letter to Henry Wheaton, March 24, 1821, quoted in Wheaton, Elements of International Law, 6th ed. Henry (Little, Brown, 1857), p. liv.
96. Calvin DeArmond David, The United States and the First Hague Peace Conference (Cornell University Press, 1962), p. 166. A. D. White elaborates at some length in his memoirs, The Autobiography of Andrew Dickson White (Century Co., 1906), vol. 2, pp. 291, 326-32, noting also that he commissioned a portrait of Grotius (p. 320) which he subsequently donated to the Cornell Law School.
97. Quotations in the text are from the translation by Francis W. Kelsey (Clarendon Press, 1925).
98. Francisco Suarez, Defensio fidei Catholicae et Apostolicae adversus Anglicanae sectae errores ("Defense of the Catholic and Apostolic Faith in Refutation of the Errors of the Anglican Sect," 1613), in James Brown Scott, ed., Selections from Three Works (Clarendon Press, 1944), English translation by Gwladys L. Williams, Ammi Brown, and John Waldron. On papal powers to depose kings, see book 3, ch. 23, pp. 685-704. On objections to world government, De Leqibus, Ac Deo Legislatore, book 3, ch. 2, pp. 374-77. De triplici virtute theologica: De charitate, ch. 5, pp. 825-26.
99. In the Prolegomena to De jure (sec. 57), Grotius protests: "I have refrained from discussing topics which belong to another subject, such as those that teach what may be advantageous in practice. For such topics have their own special field, that of politics . . . Bodin, on the contrary, mixed up politics with the body of law with which we are concerned."
100. Richard Tuck, Natural Rights Theories (Cambridge University Press, 1979), p. 79, emphasizes the point.
101. Michael Zuckert, Natural Rights Republic (Princeton University Press, 1994), ch. 4, 5.
102. Arthur Nussbaum, Concise History of the Law of Nations (Macmillan, 1954), p. 110.
103. Heinrich Rommen, The Natural Law (Liberty Fund, 1998, original edition, 1947), p. 64.
104. Richard Tuck, Rights of War and Peace (Oxford University Press, 1999), pp. 94-108, offers a particularly ruthless Grotius.
105. It would be more accurate to say that Grotius follows the lead of some medieval thinkers in this view. As Grotius himself notes, many earlier Christian thinkers took the opposite view-that there is no generalized power to punish wrongdoers in other places. Book 2, ch. 20, par. 4, citing the "contrary view held by Vitoria, Vazquez, Azor, Molina and others, who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state or that he should have jurisdiction over him who is attacked" (p. 506).
106. Nussbaum, Concise History, p. 112. Grotius's acknowledgment of the rights of neutrals was what made him important for Madison's study.
107. See Tuck, Rights of War and Peace, pp. 106-8.
108. Neff, Friends But No Allies, p. 33, describes the frustration of Cornelius Bynkershoek, judge of a Dutch prize court, at the overriding of traditional claims of war by new treaties. Bynkershoek's treatise protests that "the interests of the mercantile class and the mutual needs of peoples have almost annulled the laws of war relating to commerce." Quaestionum Juris Publici, book 1, ch. 3, in translation by Tenney Frank (Clarendon Press, 1930), p. 30.
109. De jure naturae et gentium, translated by C. H. and W. A. Oldfather (Clarendon Press, 1934), book 8, ch. 5, sec. 18; ch. 6, sec. 5.
110. Nussbaum, Concise History, p. 150.
111. Quotations in the text from the translation by Charles G. Fenwick (Carnegie Institution, 1916).
112. Nussbaum, Concise History, p. 163, reports that twenty-three Englishlanguage editions of Vattel had been published by the early twentieth century (thirteen of them American), compared with twenty-one editions in the original French. Vattel seems to have known his audience: The original French edition, though actually printed in the Netherlands, was presented as having been published in England.
113. John Bassett Moore, The Principles of American Diplomacy (Harper & Bros., revised ed., 1918), p. 23, salutes the editor, Charles William Frederick Dumas for having (apart from the American diplomats, Adams, Franklin, and Jay) "rendered services more important than any other man" in advancing the "American cause" in Europe during the revolution. He was a Swiss native who spent most of his career working in the Netherlands, where he helped arrange loans for the rebellious colonies, publicized proceedings of the Continental Congress, and wrote articles on behalf of the American cause. His edition of Vattel contained "copious notes."
114. Nussbaum, Concise History, p. 158.
115. Pangle is most severe: "Edifying in tone while morally indulgent in substance, apparently rigorous yet intellectually easygoing or evasive, Vattel managed to produce an amiably eclectic combination of essentially incompatible philosophies, whose profound antagonisms were hidden by a veneer of earnest or well-meaning moralism" Justice Among Nations, p. 178. Madison, while acknowledging Vattel's "great merit," scolds that "Vattel is, however, justly charged with failing too much in the merit of a careful discrimination; and sometimes with delivering maxims, which he either could not reconcile or does not take pains to explain" "Examination," p. 249.
116. At the end of the nineteenth century, John Westlake's highly regarded treatise, Chapters on the Principles of International Law (Cambridge University Press, 1894), p. 76, saluted Vattel's treatise for describing international law with unprecedented "fullness" and "from the point of view of a man well-versed in affairs. . . . Its reputation was therefore as well deserved as it was immediate, and it must remain of lasting importance in the study of international law." Fifty years later, J. L. Brierly still acknowledged Vattel as a writer who "has probably exercised a greater permanent influence than any other writer on international law and his work is still sometimes cited as an authority in international controversies." The Law of Nations, 4th ed. (Clarendon Press, 1949), pp. 37-38.
117. Lectures on Jurisprudence (Oxford University Press, 1978), pp. 548-49 (from Lecture "Report" of 1766). Smith notes that "prisoners of war are now as well treated as other people" and in the war with France, "they generally treated our wounded prisoners better than their own wounded soldiers" but "there is no nation which pushes this point of gallantry farther than we do." He attributes respect for enemy soldiers to the chivalrous impulse encouraged by the Crusades- toward fellow Christians. But respect for enemy property he sees as "more from motives of policy than humanity" since naval warfare continues to practice ruthless confiscation of enemy property. "Why this distinction? It is the interest of the general not to rob the peasants, because it would be difficult to march an army carrying all its provisions thro' the country of the enemy. But by engaging them to stay he is supplyed without any other expedient. By this means, war is so far from being a disadvantage in a well cultivated country that many get rich by it."
118. "Regulations Respecting the Law and Customs of War on Land," art. 10: "Prisoners of war may be set at liberty on parole . . . and in such cases they are bound, on their personal honor, scrupulously to fill . . . the engagements they have contracted."
119. The six months grace period for merchants to clear their stock in the event of war between the home state and the host state was included, for example, in the first American treaty, a commercial treaty with France, signed in 1778. European states sometimes allowed trade to continue through the duration of a war, even among belligerent states themselves. Neff, Friends But No Allies, p. 35.
120. Included as "The State of War" in Jean-Jacques Rousseau, The Social Contract and Other Later Political Writings, translated by Victor Gourevitch (Cambridge University Press, 1997). Extracts quoted in text appear at pp. 162-63. French original, Oèvres Completes, III, 608.
121. "The State of War," in Rousseau, Social Contract, pp. 162, 163.
122. Letter to Thomas Jefferson, October 24, 1787 (explaining and justifying provisions in the proposed new constitution), Madison, James Madison, Writings, p. 149. Substantially the same argument appears, of course, in The Federalist No. 10 (though without the interesting allusion here to "theoretic writers"- presumably of special interest to Jefferson, then serving as ambassador in Paris).
123. Book IV, ch. 9 (Gourevitch, ed., p. 152). Pierre Hassner, "Rousseau and the Theory and Practice of International Relations," in Clifford Orwin and Nathan Tarcov, eds., The Legacy of Rousseau (University of Chicago Press, 1997) offers a very insightful survey of the difficulties getting from the kind of state sketched in the Social Contract to any binding version of international law.
124. "Extrait du Projet de Paix Perpetuelle de M. L'Abbé de Saint-Pierre," pp. 365-87, and "Jugement Sur La Paix Perpetuelle," pp. 388-96, C. E. Vaughan, ed., The Political Writings of Jean Jacques Rousseau (John Wiley & Sons, 1962). Rousseau insists that the project is not "chimerique" and if it is not likely to be executed that is because "les hommes sont insenses, et que c'est une sort de folie d'etre sage au milieu des fous," p. 387. "Realisez sa République européenne durant un seul jour, c'en est assez pour la faire durer eternellement: tant chacun trouverait par l'experience son profit particulier dans le bien commun."
125. Madison, "Universal Peace" in James Madison, Writings, p. 505.
126. David Hume, "Of the Balance of Power," in Eugene Miller, ed., Essays, Moral, Political, and Literary (Liberty Press, 1985), pp. 337, 341.
127. "Of the Rise and Progress of the Arts and Sciences," p. 119, original emphasis.
128. "Of Refinement in the Arts," p. 273.
129. Reiss, Kant's Political Writings, p. 103.
130. To the contrary, among the "Preliminary Articles for Perpetual Peace" is a stipulation that no state should "interfere in the constitution and government of another state," Reiss, Kant's Political Writings, p. 96. Kant nowhere indicates that this is suspended for the wider federation in dealings with individual states.
131. No. 51, Rossiter, ed., p. 324.
132. Madison, James Madison, Writings, p. 505. Madison then goes on to propose that, as a check on war, republican governments limit military expenditures to what can be financed through taxes-a proposal which is strikingly parallel to Kant's fourth "preliminary article for perpetual peace": "No national debt shall be contracted in connection with the external affairs of the state," p. 95. It may not be irrelevant that, at the time he published his own article on "Peace," Madison was a leader of the party questioning the constitutional propriety of a federal bank. As president, Madison presided over a disastrous war, for which the United States was quite unprepared. In his second term, Madison reversed his previous position and supported the rechartering of the Bank of the United States-so that the federal government could borrow money more easily.
133. Farrand, Records, vol. 1, p. 19: Speech of Randolph, May 29.
134. Federalist No. 2, by John Jay, is entitled "Concerning Dangers from Foreign Force and Influence." The next three papers each bear the title, "The Same Subject Continued."
135. Farrand, Records, vol. 2, pp. 614-15, September 14.
136. John Kaminski and Gaspare Saladino, eds., Documentary History of the Ratification of the Constitution (DHRC), vol. 10 (State Historical Society of Wisconsin, 1993), p. 1388 (speech of Mr. Grayson at Virginia Ratifying Convention, June 19, 1788).
137. p. 1392, speech of Francis Corbin, Virginia Ratifying Convention, June 19.
138. DHRC, vol. 17 (May-September 1788), p. 346 (compilation of proposed amendments from seven states, urging, among other things, stipulations that treaties not be allowed to override state constitutions, nor to invalidate federal legislation, nor to expand the jurisdiction of the federal courts).
139. "Camillus," in H. C. Lodge, ed., Works of Alexander Hamilton, vol. 5 (G. P. Putnam's Sons, 1885), p. 30.
140. Joseph Story, Commentaries on the Constitution, vol. 3, sec. 1502 (Hilliard, Gray, 1833, reprinted by DaCapo Press, 1970), p. 356.
141. James Kent, Commentaries on American Law, vol. 1, 14th ed. (Little, Brown, 1896), p. 21 ("Lecture 2").
142. Elements of International Law, part 1, sec. 15, par. 2; part 1, sec. 14. Originally published in London as well as Philadelphia, Wheaton's treatise was soon published in French translation (by the author) and went through several subsequent European editions. The quoted definition appears almost word for word in Madison's "Examination," too, though without attribution in either place: it probably has a common source but I have not been able to locate it. Despite his subsequent career as an American diplomat, Wheaton's name is most familiar to American lawyers from his years as "Reporter of the Supreme Court" from 1816 to 1827- as the case reports from those years still bear his name (abbreviated in standard form citations as "Wheat").
143. H. W. Halleck, International Law or Rules Regulating the Intercourse of States in Peace and War (D. Van Nostrand, 1861), ch. 2, sec. 8, p. 86. At the outset of the Civil War, Halleck commissioned the first U.S. army manual on the "laws of war" and served as military commander of the Western District, directing operations of Grant and Sherman in Tennessee.
144. "Opinion on the French Treaties," April 28, 1793 (memorandum written for President Washington, while acting as Secretary of State) in Peterson, ed., Thomas Jefferson, Writings, p. 423.
145. "Since all Princes and Rulers of Independent Governments all through the world are in a State of Nature, 'tis plain the World never was, nor ever will be, without Numbers of Men in that State. I have named the Governors of Independent Communities, whether they are, or are not, in League with others: For 'tis not every Compact that puts an end to the State of Nature between Men, but only this one of agreeing together mutually to enter into one Community and make one Body Politick". Second Treatise, par. 14. Note Locke's parenthetical claim "nor ever will be," implying that a "body politic" embracing the whole world is impossible or at least extremely unlikely.
146. Krasner, Sovereignty, ch. 6.
147. Nussbaum, Concise History, p. 136.
148. Charles Fairbanks, "The British Campaign Against the Slave Trade," in Marc F. Plattner, Human Rights in Our Time (Westview, 1984) pp. 30-68. Fairbanks served as deputy assistant secretary of state for Human Rights in the Reagan administration and offers useful contrasts between this highly effective nineteenth-century campaign and its dismal, late twentieth-century counterparts.
149. The text of the U.S. Constitution, for example, concludes with the affirmation that it was "done" in the year 1787, which it identifies as the "twelfth" year of "the independence of the United States"-dating independence to 1776, when the United States declared itself independent, rather than to 1778, when its independence was recognized by France or to 1783, when its independence was formally affirmed by Britain. The Constitution assumes a world in which the legal status of independence follows from an independent act.
150. No. 11, p. 55.
151. Congress proved the point by eliminating all funding for U.S. operations in Vietnam. The tragedy that ensued may raise doubts about the wisdom of the action but only underscores the ultimate legal claim of Congress to have the last word.
152. A proposal to reduce the required ratification vote to a simple majority was voted down-with all states opposing except one. Farrand, Records, vol. 2, pp. 548-49. W. Stull Holt, Treaties Defeated by the Senate (Johns Hopkins University Press, 1933; reprinted by Peter Smith, 1964), pp. 1-13, offers a useful review of the Founding debates on the treaty power, "When the Constitution was being debated in the states, one of the most frequent complaints about its treaty-making provisions was that two-thirds of the members of the Senate present was too small a number to prevent abuse of the great power involved." Citing Jonathan Elliot, ed., The Debates in the State Conventions on the Adoption of the Federal Constitution, 2d. ed., revised edition (J. B. Lippincott, 1881), III, pp. 331-65, 499-516.
153. Edward S. Corwin, The President, Office and Powers (New York University Press, 1954), pp. 178-81, offers a useful overview of the arguments on each side.
154. "Charters" (National Gazette, January 19, 1792), Madison, James Madison, Writings, p. 504.
155. The Federalist, No. 22, pp. 117-18.
156. Farewell Address, James D. Richardson, ed., A compilation of the Messages and Papers of the Presidents (Government Printing Office, 1897), vol. 1, p. 214.
157. "Foreign Influence," Aurora General Advertiser, January 23, 1799, Madison, James Madison, Writings, p. 595.
158. Jefferson, first Inauqural Address, Richardson, Messages and Papers, vol. 1, p. 322.
159. See Adams, History of the United States, pp. 301-2, noting that had "either of Jefferson's predecessors" instructed American diplomats to negotiate such an alliance with England "the consequence would have been an impeachment of the President, or direct steps by Virgina, Kentucky and North Carolina . . . tending to a dissolution of the Union."
160. Adams, History of the United States p. 1014: The British raiding force "burned the Capitol, the White House, and the Department buildings because they thought it proper, as they would have burned a negro kraal or a den of pirates. Apparently they assumed as a matter of course that the American government stood beyond the pale of civilization; and in truth a government which showed so little capacity to defend its capital, could hardly wonder at whatever treatment it received."
161. James Monroe, Seventh Annual Message, December 2, 1823, Richardson, ed., Messages and Papers, vol. 2, p. 787.
162. Dexter Perkins, A History of the Monroe Doctrine (tittle, Brown, 1963, original text in 1941), reports that collaboration with Britain was definitely considered-and then definitely rejected (pp. 38-49). Perkins also notes that Monroe resisted temptations to make a moral appeal to the moral claims of republican government. Instead, as Perkins sees it, "Monroe rested his opposition to European intermeddling in Spanish America on the danger to the 'peace and safety' of the United States. In so doing, he took a strong position from both a legal and a moral view. He was basing American policy on the right of selfpreservation, a right that is and always has been recognized as fundamental in international law" (p. 45).
163. Letter of Mr. Webster, secretary of state, to Mr. Hulsemann (Austrian foreign minister), December 21, 1850, reprinted in Francis Wharton, ed., Digest of International Law of the United States (Government Printing Office, 1886), vol. 1, pp. 188-94 (quoted passages at pp. 191-93).
164. Sixth Annual Message, December 1, 1834, Richardson, ed. Messages and Papers, vol. 2, p. 1326.
165. Letter to Wilson Cary Nicholas, September 7, 1803, Peterson, ed., Thomas Jefferson, Writings, p. 1140.
166. For example, while allowing Louisiana to draw up a civil code modeled on French practice, Jefferson insisted that it be published in English and that courts in Louisiana operate in English. George Dargo, Jefferson's Louisiana (Harvard University Press, 1975).
167. Dred Scott v. Sandford, 19 Howard 393 (1857). Andrew McLaughlin, Constitutional History of the United States (Appleton-Century, 1936), p. 768, pronounced it "an amusing and entertaining fact" that the Court should seek in this way to "defend the rights of freemen" in the context of a larger defense of slavery.
168. See Robert L. Beisner, Twelve Against Empire, The Anti-Imperialists, 1898-1900 (McGraw Hill, 1968). Civil service reform champion, Carl Schurz, for example, warned that the addition of "millions of persons belonging partly to races far less good-natured, tractable and orderly than the negro is would exacerbate American race problems" and down the road the country would cease to worry about "a few thousand immigrants from Italy, Russia and Hungary" as it tried to cope with "Spanish-Americans, with all the mixture of Indian and negro blood, and Malays and other unspeakable Asiatics, by the tens of millions," p. 27. E. L. Godkin, editor of The Nation warned that imperial acquisitions would entail "the admission of alien, inferior, and mongrel races to our nationality" while "our population" at home remained "unassimilated," p. 76.
169. Reid v. Covert, 354 U.S. 1 (1957): The case concerned American citizens, civilian dependents of American servicemen serving on overseas bases. The reasoning does not apply to American military personnel, for whom the Constitution authorizes military justice. Foreign military personnel might also be subject to American military justice in proper circumstances. It is less clear how the ruling in the Reid case applies to civilians who are non-citizens, particularly when punished in connection with activities taking place outside U.S. territory. The Court's ruling in U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990) held that Fourth Amendment protections against warrantless searches and seizures do not cover foreign nationals (or their personal effects), if apprehended on foreign territory. But the ruling emphasized the initial language of the Fourth Amendment ("the right of the people to be secure"), so it is uncertain how far its reasoning may apply to other guarantees in the Bill of Rights.
170. The official compilation of U.S. State Department pronouncements in the late nineteenth century covers policy toward Liberia as an annex to the Monroe Doctrine: "Liberia, although not a colony of the United States, began its independent career as an off-shoot of this country . . . which relationship authorizes the United States to interpose its good offices in any contest between Liberia and a foreign state" (citing statement of Secretary Blaine in 1881). But Secretary Evarts warned that the United States had no legal obligation to "interpose" its "naval forces to preserve order or to compel obedience to law in Liberia." And he subsequently added: "Nor should the United States minister in Liberia interfere with the government thereof by obtruding political advice." Francis Wharton, Digest of International Law of the United States (Government Printing Office, 1886), sec. 66, p. 445.
171. Michael Morrison, Slavery and the American West (University of North Carolina Press, 1997) describes debate over Texas at some length (in overview, pp. 13-38, and in succeeding chapters): Before the slavery issue arose, skeptics, like Henry Clay, focused on the danger of war with Mexico while a few New England protectionists worried about the influx of imports through Texas ports. The best argument for annexationists was that British intrigue would otherwise make future annexation impossible.
172. Until the end of the nineteenth century, no American diplomat even carried the designation of "ambassador" which was regarded as pompous and vaguely tainted by monarchy. John Bassett Moore, Principles of American Diplomacy, revised ed. (Harper, 1918), p. 435, American "ministers" operated from rented space. With the Foreign Service Building Act (44 Stat. 403, 1926), Congress committed the United States to a systematic program of building permanent U.S. embassies around the world. There were only sixteen permanent embassies in place at the time and only four in Europe (London, Paris, Oslo, Prague). John Mabry Mathews, American Foreign Relations, Conduct and Policy (Century Co., 1928), p. 292.
173. Moore, Principles, p. 371.
174. Moore, Principles, p. 45: "Jefferson, always perspicacious in his deductions from fundamental principles, expounded with remarkable clearness and power the nature and scope of neutral duty." Moore then records the approving comments of W. E. Hall, "one of the most eminent of English publicits" at the end of the nineteenth century, who saw Jefferson's standards as generally "identical with the standard of conduct which is now adopted by the community of nations" (pp. 46-47).
175. Madison, "Examination," James Madison, Writings, vol. 2, p. 230.
176. But not everyone accepted that legal arguments alone could prevail. John Randolph still denounced Madison's effort as "a shilling pamphlet against eight hundred British ships of war." Adams, History of the United States, p. 679.
177. Madison's "Examination" concludes with the argument that British admiralty courts must not presume to judge various commercial responses to necessities of war since such "questions" are "in their nature . . . improper to be decided by any judicial authority whatever" (pp. 389-90).
178. The Paquete Habana, 175 U.S. 677 (1900).
179. Arbitration of the Maine border was provided in the Treaty of Ghent, ending the War of 1812. The question was submitted to the king of the Netherlands as a neutral arbitrator. The king proposed a boundary. The Senate rejected the recommendation, on the grounds that the king had exercised discretion to propose an equitable compromise. The arbitration agreement, as the Senate conceived it, had not authorized proposals for compromise but had sought a judgment on the merits, given the available evidence. Direct negotiations between the United States and Britain ultimately secured mutual agreement, in 1842, on boundary lines-less favorable to the United States, as it turned out, than those proposed by the king. The Senate may not have foreseen this outcome, but its rejection of the initial arbitration result reflected characteristic concerns: the Senate did not want to entrust broad discretion to third parties.
180. "To vest in an outside commission the power to say finally what the treaty means by its very general and indefinite language is to vest in that commission the power to make for us an entirely different treaty from that which we supposed ourselves to be making." S. Doc. 98, p. 6, Congressional Record 47: 3935 (1911), quoted in Wright, Control, p. 111.
181. On these early efforts, Calvin DeArmond Davis, The United States and First Hague Peace Conference (Cornell University Press, 1962), pp. 29-35.
182. Moore, Principles, p. 64, which dismisses the constitutional argument as groundless, though symptomatic of American wariness.
183. The Autobiography of Andrew Dickson White (Century Co, 1906), vol. 2, pp. 352-53.
184. Ambrosius, Woodrow Wilson, p. 4, notes that in Woodrow Wilson, Constitutional Government of the United States (Columbia University Press, 1908), pp. 77-78, Wilson had said that when the president negotiates a treaty, the United States is "virtually committed" and the Senate would have no practical alternative but ratification, so "One of the President's greatest powers is control, which is very absolute, of the foreign relations of the nation." It required a great deal of inattention to make this claim in 1908.
185. F. P. Walters, A History of the League of Nations (Oxford University Press, 1952), vol. 1, p. 259 (on response to inquiry from Canada).
186. Robert H. Ferrell, American Diplomacy, A History, revised ed. (W. W. Norton, 1969), pp. 565-68 (noting Kellogg's recognition of the "justly admired axiom of diplomacy . . . that the more signatories to an agreement the less binding it becomes").
187. Gaddis Smith, The Last Years of the Monroe Doctrine (Hill and Wang, 1994), p. 33.
188. Speech in the Senate, August 12, 1919, reprinted in H. C. Lodge, The Senate and the League of Nations (Scribners, 1924), pp. 390-91. Of course, it turned out to be rather important who ruled the Hedjaz when the Wahabis won the internal fighting, established a new kingdom of Saudi Arabia and then found themselves sitting on the world's largest reserves of petroleum. But there are still questions about whether American troops should be committed to the defense of the ruling dynasty there.
189. Lasa Oppenheim, The League of Nations and Its Problems (Longmans, Green and Co., 1919), pp. 13, 21.
190. Oppenheim expressed a certain optimism on this score, characterizing the World War as "at bottom . . . a fight between the ideal of democracy and constitutional government, on the one hand, and autocratic government and militarism on the other." A League established by the victors would, naturally, be dominated by nations holding to the "ideal of democracy and constitutional government." But he did not think these could be conditions for membership.
191. Lodge, Speech, p. 394; Reservation 3, reprinted in Senate and the League, p. 174.
192. Moore, Principles, pp. 407-8, offers nearly contemporaneous reactions from a former State Department legal advisor (and acting secretary) who was highly skeptical: "opening the door to constant foreign intrusions into internal affairs."
193. Pitman Potter, "Inhibitions upon the Treaty-Making Power of the United States," American Journal of International Law, vol. 28 (July 1934), p. 456, reports the objection of the American delegates, H. M. Robinson and Samuel Gompers, including the concern that to "permit a foreign body to conclude a treaty binding upon the United States would be equivalent to delegating the power of making treaties in the measure of the provisions of the treaty in question."
194. Denna Frank Fleming, The United States and the World Court (Russell & Russell, revised ed., 1968), pp. 52-67 (failure of Hughes efforts), pp. 117-37 (FDR's failure in 1935).
195. Stephen C. Neff, The Rights and Duties of Neutrals (Manchester University Press, 2000), pp. 188-90, on replacement of "non-belligerency" for "neutrality" in American policy after 1939, with such measures as amendment of neutrality legislation to authorize discriminatory arms embargoes (helping one side only).
196. For contemporary criticism, see Edwin Borchard, "The Attorney General's Opinion on Exchange of Destroyers for Naval Bases," American Journal of International Law, vol. 34 (October 1940), pp. 690-97
197. Borchard, "War, Neutrality and Non-Belligerency," American Journal of International Law, vol. 35 (October 1941), pp. 618-25.
198. Ruth B. Russell, A History of the United Nations Charter (Brookings Institution, 1958), ch. 9, 10.
199. Smith, The Last Years of the Monroe Doctrine, pp. 40-55.
200. Reservation 3 reserved to "the United States itself exclusively the right to decide what questions are within its domestic jurisdiction" and insisted that the United States could not be obliged to submit such questions to "arbitration."
201. Fleming, United States and the World Court, p. 195.
202. Smith, Last Years of Monroe Doctrine, pp. 35-64, notes the impulse to mobilize support in Latin America against Soviet threats at the outset of the Cold War was closely paralleled by prewar mobilization against German and Japanese threats. In both eras, the first impulse was to rally nations in the U.S. neighborhood, rather than in Europe-because there was more support for this approach in Congress, as it was more in keeping with traditional U.S. policy. Stephen C. Schlesinger, Act of Creation, The Founding of the United Nations (Westview Press, 2003) reports that leading countries in Latin America also insisted that the Charter of the United Nations must allow U.S. regional security guarantees to operate independently of outside-that is, European, especially Russian-preferences (pp. 65-66, 175-91).
203. Sec. 8(a): "Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred . . . (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Forces into hostilities," 87 Stat. 555 (1973), 50 U.S.C. sec. 1548.
204. Louis Fisher, Presidential War Power (University of Kansas Press, 1995), ch. 7.
205. Restatement of the Law of Foreign Relations of the United States (Second) (American Law Institute, 1965), sec. 120, Reporters Note, p. 378. Court precedents on congressional power in domestic affairs "suggest that Congress can authorize the President to make an executive agreement relating to any matter of international concern."
206. Bruce Ackerman and David Golove, "Is NAFTA Constitutional?" Harvard Law Review, vol. 108 (1995), p. 801.
207. George Reedy, quoted in Robert Caro, The Years of Lyndon Johnson, Master of the Senate (Knopf, 2002), p. 529.
208. Natalie H. Kaufman, Human Rights Treaties and the Senate: A History of Opposition (University of North Carolina Press, 1990).
209. Louis Henkin, "U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker," American Journal of International Law, vol. 89 (April 1995), p. 341, complains about the result.
210. BNA Trade Reporter, June 2002.
211. Printz v. United States, 521 U.S. 898 (1997), where the majority opinion spars with dissenters over the correct interpretation of Madison's argument in The Federalist, No. 44-and not as pedantic embellishment in footnotes but as a central point in the argument on each side. Chapter Six A World Safe for Eurogovernance
212. The phrase seems to have been popularized by the philosopher Jürgen Habermas (see, for example, "Toward a Cosmopolitan Europe," Journal of Democracy, vol. 14 (October 2003), p. 99, but has been invoked in numerous speeches by the German foreign minister.
213. Marlene Wind, Sovereignty and European Integration (Palgrave, 2001) for extensive discussion of implications for international relations of the European experience, with extensive bibliography of recent literature.
214. The classic account is J.H.H. Weiler, "The Transformation of Europe," Yale Law Journal, vol. 100 (June 1991), emphasizing "constitutionalization" of the original treaty by independent action of the ECJ.
215. Cassis de Dijon/Rewe Zentral, Case 120/78, ECR 649. Wind, Sovereignty and Integration, pp. 172-73, offers a useful summary of the policy consequences.
216. David Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy (Harvard University Press, 1995).
217. Van Colson (1984), on reinterpreting national law to conform with directives; Marleasing (1990) authorizing national courts to rewrite national law for this purpose; Francovich (1991) on financial awards to parties injured by lack of implementing legislation. The implications of these rulings are helpfully described in Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000), pp. 163-64.
218. Internationale Handelsgesellschaft mbH v. Einführ-und Vorratsstelle fur Getreide und Futtermittel, ECJ Case 11/70, ECR 1125.
219. James L. Gibson and Gregory Caldeira, "Legitimacy of Transnational Legal Institutions," American Journal of Political Science, vol. 39 (May 1995), p. 459:
220. "The European Court of Justice does not have an extensive store of good will among ordinary citizens of the European Union. Few people are willing to accept a Court of Justice decision they find objectionable."
221. Similarly, Gregory Caldeira and James L. Gibson, "The Legitimacy of the Court of Justice in the European Union, American Political Science Review, vol. 89 (June 1995).
222. "Snoring while an EU Superstate Emerges?" The Economist, May 10, 2003.
223. Roger Scully, "Democracy, Legitimacy and the European Parliament," in Maria Green Cowles and Michael Smith, The State of the European Union, vol. 5 (Oxford University Press, 2000);
224. Simon Hix, "Executive Selection in the European Union," in Karnheinz Neunreither and Antje Wiener, European Integration after Amsterdam (Oxford University Press, 2000).
225. James A. Caporaso, "The European Union and Forms of State: Westphalian, Regulatory or Post-Modern?" Journal of Common Market Studies, vol. 34 (March 1966), arguing for the last alternative. For one of the few serious efforts to relate the characterization to actual themes in literary theory and social philosophy, see Ian Ward, "The European Union and Post-modernism," in Jo Shaw and Gillian More, New Legal Dynamics of European Union (Clarendon Press, 1995).
226. The most exhaustive version of the argument is Andrew Moravcsik, The Choice for Europe (Cornell University Press, 1998).
227. Thomas Pedersen, Germany, France and the Integration of Europe, A Realist Interpretation (Pinter, 1998).
228. Larry Siedentop, Democracy in Europe (Columbia University Press, 2001), p. 221.
229. Vogel, Trading Up, p. 97.
230. Bernard Connolly, The Rotten Heart of Europe (Faber and Faber, 1995).
231. The product of the "constitutional convention" was entitled-with characteristic ambiguity-a "Treaty Establishing a Constitution for Europe." It was submitted to the Rome meeting of EU heads of state on July 18, 2003 and subsequently made available on the website of the European Commission. Citations in the text are to this document.
232. Ulrich Sedelmeier, "Eastern Enlargement: Risk, Rationality and Role Compliance," in Cowles and Smith, eds., State of the European Union 2000, arguing that enlargement has been driven by the self-understanding of the EU as a transnational entity, rather than by definite calculations of advantage by existing member states.
233. Fritz Machlup, A History of Thought on Economic Integration (Columbia University Press, 1977), p. 11.
234. Alan Milward, The European Rescue of the Nation State (Routledge, 1999).
235. A narrative of the episode, with relevant documents, is provided in Ronald Tiersky, ed., Euro-skepticism (Rowman & Littlefield, 2001), pp. 213-25.
236. Brogan v. United Kingdom, November 24, 1988, 11 E.H.R.R. 117 (disallowing detention of terror suspects without charge for up to for seven days, rather than the usual two days for other suspects);
237. Fox, Campbell and Hartley v. United Kingdom, August 20, 1990, 13 E.H.R.R. 157 (disallowing detention for questioning of suspects previously convicted of terror crimes, when not subsequently charged);
238. Brannigan v. United Kingdom, May 26, 1993, 17 E.H.R.R. 594 (disallowing UK's invocation of exemption from the Convention under art. 15 provision for "measures derogating from its obligations" in time of "public emergency," on the grounds that continuing terror attacks in northern Ireland did not qualify as a "public emergency");
239. Open Door Counseling and Dublin Women v. Ireland, October 29, 1992, 15 E.H.R.R. 143 (nullifying Irish law against advertising of abortion services in neighboring countries);
240. Norris v. Ireland, October 26, 1988, 13 E.H.R.R. 186 (nullifying Irish laws against homosexual relations);
241. Lustig-Prean & Beckett v. United Kingdom, September 27, 1999 (nullifying exclusion of homosexuals from British military services);
242. Sutherland v. United Kingdom, 22 E.H.R.R. 22 (1996) (objecting to British law allowing homosexual relations from the age of eighteen while legalizing heterosexual encounters from age sixteen, as denial of equal rights to homosexuals).
243. Justin Greenwood, Representing Interests in the European Union (Macmillan, 1997), p. 181, which concludes, from a survey of specialized studies of EU environmental policy that "of the main influences, economic motives seem to [be] . . . the most important" p. 183.
244. Ibid., p. 186.
245. Greenpeace does not publish detailed accounts of its revenue sources, but does indicate country of origin for donations: more than half its funding in the 1990s came from Germany and Scandinavia.
246. "Parties to Basel Convention Adopt Two-List System for Waste Export," BNA Environmental Reporter, March 4, 1998, p. 185, noting that the decision was strongly supported by Greenpeace International, which took the same position as the European governments.
247. Joseph Jupile, "The European Union and International Outcomes," International Organization, vol. 53 (Spring 1999), p. 409, shows that interpretation of the original Basel convention became much more aggressive in the mid-1990s, after negotiations among "the parties" (at the time, thirty-five states) were coordinated by the EU (controlling nearly half the votes, as European parties were required to hold to a common EU position).
248. UNDP, Human Development Report 2001: Making New Technologies Work for Human Development (Oxford University Press, 2001). Lomborg, Skeptical Environmentalist, pp. 342-48, provides a useful overview of the debate.
249. Rick Weiss, "Starved for Food, Zimbabwe Rejects U.S. Biotech Corn," Washington Post, July 31, 2002;
250. Elizabeth Neuffner, "Hungry Nations Balk at Gene-Altered Food," Boston Globe, August 23, 2002.
251. William Nordhaus, "Costs of Kyoto," Science, November 9, 2001.
252. Calculated from figures for 1998 in 2001 World Development Indicators, Table 5.9, pp. 302-4.
253. A 1992 resolution of the European Parliament (A3-0329/92) called for protective duties against "environmental dumping" by countries which did not conform to international environmental standards. By 1998, MEPs were urging bans on "cheap imports from countries enforcing lower animal welfare standards than the EU." "WTO Rules Must Not Thwart Environment Agreements," Europe Environment, No. 524, June 9, 1998.
254. "Europe's Political Architecture," Speech to the Global Panel in The Hague, May 15, 1992, reprinted as Appendix I in Margaret Thatcher, The Path to Power (Harper Collins, 1995), quoted passages at p. 614.
255. Original statement, in German, published June 6, 2003 in FAZ, with accompanying introductory text by Derrida. English translation by Ludwig von Tranzivan.
256. "Gegen Volkermord und Diktatur," Berliner Zeitung, April 12, 2002.
257. "Council Common Position of 20 June 2002," 2002/474/CFSP. The Commission's "action plan to follow-up on the common position" was released-in advance of the Council's action-on May 15, 2002.
258. UN Charter, art. 103: "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any international agreement, their obligations under the present Charter shall prevail." Only the Security Council was authorized, under the Charter, to impose directly binding "obligations."
259. The Irish diplomat, Conor Cruise O'Brien noted a few years later that the EEC's "Venice Declaration" was rejected by the PLO as well as by Israel and therefore could not be regarded as much of "a contribution to a comprehensive peace," but European leaders "will not have been disappointed with the results of their efforts" if the Declaration "goes down reasonably well in Riyadh and the Gulf capitals" (that is, in the principal oil-exporting centers). The Siege (Simon & Schuster, 1986), pp. 598-99.
260. Fiona Symon, "Europe's Growing Mideast Role," EU Observer, February 7, 2002, reports aid of $900 million between 1996 and 2002, more than half of all international aid to the Palestinian Authority.
261. Forsythe, Human Rights in International Relations, p. 169.
262. Ian Black, "Patten Faces Battle Over EU Funds for Palestinians," The Guardian (UK), February 5, 2003;
263. Ian Black, "EU Hits out at Israeli Fence," The Guardian (UK), November 18, 2003 (reporting EU protest at refusal of Israel to meet with the EU's official representative to the Mideast, Marc Otte).
264. Janine Zacharia, "Palestinians Support Armed Struggle Even After Statehood-poll," Jerusalem Post, October 22, 2003, reports 59 percent of Palestinians believe that Hamas and Palestinian Islamic Jihad should continue their armed struggle against Israel, even if Israel leaves all of the West Bank and Gaza, including East Jerusalem, and a Palestinian state is created.
265. Ambrose Evans-Pritchard, "Patten, the EU Bruiser, Upsets U.S. and Israel," Daily Telegraph (UK), May 11, 2002.
266. "Israel's Fair-weather Friend" (Leader), Daily Telegraph, June 20, 2002.
267. Kim Willsher, "Jews Attacked in French Anti-war Protests, Officials Fear New Wave of Anti-semitism," Sunday Telegraph, April 6, 2003;
268. "France's Realists, Continued," editorial, The Wall Street Journal, April 9, 2003.
269. The survey was conducted by Eurobarometer for the European Commission. "Iraq and Peace in the World," Flash EB, No. 151 (October 10-16, 2003), available at .
270. Of course, not everyone was high-minded even in the era of wartime fervor: Deputy Premier Pierre Laval told an American diplomat in 1941 that he "hoped" for a German victory so that "Britain will pay the bill [for initially resisting Germany] and not France." Paxton, Vichy France, p. 85.
271. One of the most forthright versions yet to appear in English is Tony Judt, "Israel: An Alternate Future," New York Review of Books, October 23, 2003, proposing a binational state of Israel/Palestine under international military control- to reduce motivations for renewed violence against Jews in western Europe.
272. Michael J. Dennis, "Current Development: The Fifty-Seventh Session of the UN Commission on Human Rights," American Journal of International Law, vol. 96 (January 2002), p. 181.
273. Philip Jessup, A Modern Law of Nations (Macmillan, 1947), p. 90.
274. Ibid., p. 71. Jessup also contemplated "real legislation enacted by a world parliament composed of representatives not of states but of peoples"-but not right away (p. 91).
275. Nadine Gordimer, "Reflections by Nobel Laureates," in Yael Danieli, Elsa Stamatopoulou, and Clarence Dias, eds., The Universal Declaration of Human Rights: Fifty Years and Beyond (Baywood, 1998).
276. Henry Steiner, "Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?" in Philip Alston and James Crawford, eds., The Future of UN Human Rights Treaty Monitoring (Cambridge University Press, 2000), p. 38.
277. Anne F. Bayefsky, ed., The UN Human Rights Treaty System in the 21st Century (Kluwer Law International, 2000), pp. 8-9 (article by Jane Connors, "Analysis of the System of State Reporting"), notes that in 1999, two-thirds of all state parties were behind in their reports to the Human Rights Committee and most submitted reports were quite cursory.
278. Belinda Clark, "The Vienna Convention Reservations Regime and the Convention on Sex Discrimination," American Journal of International Law, vol. 85 (April 1991), p. 281.
279. Committee Against Torture, Concluding Observations-Saudi Arabia, December 6, 2002. Saudi Arabia protested that such judgments "presumed to impugn the 1,400 year-old religious beliefs of Saudi Arabia. It is not within the Committee's mandate to do so."
280. Oona A. Hathaway, "Do Human Rights Treaties Make a Difference?" Yale Law Journal, vol. 111 (June 2002).
281. Myres McDougal, Harold Lasswell, and Lung-Chu Chen, Human Rights and World Public Order (Yale University Press, 1980), pp. 272-73 (with extensive citation to other legal scholars making similar claims).
282. On Amnesty's reluctance to associate itself with "conservative opinions" warning of genocide in Cambodia (as late as 1977)
283. see Samantha Power, A Problem from Hell, America and the Age of Genocide (Basic Books, 2002), pp. 113-14.
284. See also William Korey, NGOs and the Universal Declaration of Human Rights (St. Martin's Press, 1984), p. 169 notes that AI, founded in 1961, did not issue a long report on political prisoners in the Soviet Union until 1975 and the organization's "non-involvement" in human rights advocacy for Soviet victims during the 1970s and 1980s "was striking."
285. McDougal et al., Human Rights and World Public Order, p. 711.
286. 630 F.2d 876.
287. Harold Koh, "Transnational Public Law Litigation," Yale Law Journal, vol. 100 (June 1991), p. 2366.
288. American Law Institute, Restatement of the Foreign Relations Law of the United States, Third (American Law Institute, 1987), ch. 7.
289. Michael DeBan, "Amnesty International Seeks Support on Mall," Rocky Mountain News, October 26, 2002, describing AI organized "march" in Denver to drum up public support for U.S. ratification of CEDAW-drawing Denver citizens interested in women's rights. A march on behalf of political prisoners in Burma might not have drawn as much interest.
290. CEDAW Committee, "Concluding Observations-Belarus," January 31, 2000, par. 361.
291. Toonen v. Australia, "Views of Committee," March 31, 1994, 1 International Human Rights Reports 97 (1994).
292. Fr. Robert Araujo, "Sovereignty, Human Rights, and Self-Determination," Fordham International Law Journal, vol. 24 (June 2001), p. 1477 protests endorsements of "reproductive rights" and "sexual health" as human rights claims, pressed by western NGOs at UN conferences in the 1990s.
293. Ronald Inglehart and Pippa Norris, "The Truth Clash of Civilizations," Foreign Policy (March/April 2003), report survey findings that people in Muslim nations do express support for democracy, but generally reject prevalent western attitudes toward divorce, abortion, gender equality, and gay rights. There would seem to be much more potential for human rights advocacy to focus on shared values than these most divisive issues.
294. Thomas Risse, "The Power of Norms versus the Norms of Power: Transnational Civil Society and Human Rights," in Ann M. Florini, ed., The Third Force.
295. Chris McGreal, "UN Human Rights Commissioner Takes Symbolic Stance as Clashes Over Zionism Threaten to Wreck World Meeting," The Guardian (London), August 31, 2001 (reporting Robinson protest against NGO pamphlets "equating the Star of David with a swastika");
296. Tim Butcher, "Norway Offers Hope to Racism Summit After Setback on Israel," Daily Telegraph (London), September 3, 2001 (reporting Robinson disavowal of declaration adopted at NGO forum at Durban, accusing Israel of "genocide and ethnic cleansing").
297. A collection of studies published at the end of the 1990s sought to demonstrate the importance of "international norms" in pressing for democratization- but gives most credit to the pressures brought to bear by "international non-governmental organizations" backed by western governments and provides almost no evidence that formal machinery of the UN made any significant difference.
298. Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds., The Power of Human Rights, International Norms and Domestic Change (Cambridge University Press, 1999).
299. Figures from Tesner, The United Nations and Business, p. 46.
300. Boutros-Ghali, "Foreword" in Thomas Weiss and Leon Gordenker, NGOs, The UN and Global Governance (Lynn Rienner, 1996), p. 11.
301. Kofi Annan, "Full Implementation and Enforcement of International Law Rooted in Shared Global Values," Speech of February 11, 2000, .
302. Roy Gutman, "Bosnia: Negotiation and Retreat," in Barbara Benton, ed., Soldiers for Peace, Fifty Years of UN Peacekeeping (Facts on File, 1996), describes the episode (pp. 201-4) with appropriate emphasis on Dutch passivity in the face of mass murder.
303. See Helen Fein, Accounting for Genocide (Free Press, 1979), pp. 286-89; on "social defense" efforts after 1943 to help those seeking to evade forced labor requisitions, contrasted with complete acquiescence to the round-up of Dutch Jews in 1940-42, pp. 265-75.
304. American officials continued to negotiate with Serb militia leaders even after their indictment by the ICTY. When a subsequent peace agreement provided more security for NATO forces in Bosnia, NATO commanders still remained quite reluctant to risk their own troops by going after indicted war criminals. Gary Bass, Stay the Hand of Vengeance (Princeton University Press, 2000), pp. 230-41, 248-60.
305. Compare Stephen Castle, "Liberation of Kosovo: War Crimes-Milosevic May Be Charged with Genocide," The Independent (London), June 19, 1999;
306. Marlise Simons, "Milosevic Will Face Two Trials Instead of One," The New York Times, December 12, 2001. For an account of political maneuvers which finally resulted in Milosevic's transfer to the Hague, see Bass, Stay the Hand of Vengeance, pp. 311-23.
307. Abi-Saab in A. Cassese, ed., The New Humanitarian Law of Armed Conflict (Oceana Publications, 1981), p. 250. He does indicate that "Third World representatives in general attached great weight to general principles."
308. Tobias Buck, "Belgium Decides to Repeal Controversial War Crimes Law," Financial Times, July 14, 2003.
309. Kofi Annan, The Question of Intervention: Statements by the Secretary General (UN Dept. of Public Information, 1999).
310. John Shattuck, "In Iraq, U.S. Ignores Human Rights Lessons," Boston Globe, November 5, 2003, a theme also of the concluding chapter in Shattuck's book, Freedom on Fire, Human Rights Wars and America's Response (Harvard University Press, 2003).
311. Jonathan Petre, "Terrorists Can Have Serious Moral Goals, says Williams," Daily Telegraph (UK), October 15, 2003.
312. For details on how carefully the architects of the Nuremberg tribunal sought to limit its significance as a precedent, see Rabkin, "Nuremberg Misremembered," SAIS Review, vol. 19 (Summer-Fall 1999).
313. Wheaton, Elements of International Law part 2, ch. 1, sec. 2, pp. 85-86 (in 6th edition, Boston, 1857).
314. "Laying the Foundations for a Fair and Free Trade System," in Gary P. Sampson, ed., The Role of the World Trade Organization in Global Governance (UN University Press, 2001).
315. Remarks at University of Chicago Convocation Ceremony, June 12, 1999, calling for "trade agreements that . . . enhance labor standards and environmental protection all across the world" and comparing this vision to efforts "through the New Deal" to "develop a national economy with a human face." Echoes of the slogan of 1960s communist reformers, "socialism with a human face," may have been unintentional.
316. De jure naturae et gentium ("On The Law of Nature and of Nations," 1688), book 3, ch. 3, translation by C. H. and W. A. Oldfather (Clarendon Press, 1934), pp. 364-65, replying to arguments of Francisco Vitoria. On the prior claim that protection of a nation's own people is the primary duty of the sovereign: book 8, ch. 6, par. 14, pp. 1305-306 ("it was to enjoy such defense that free men of their own accord set up governments or submitted to them").
317. Vattel, Law of Nations, book 2, ch. 2, sec. 22-24; book 1, ch. 8, sec. 98-99.
318. Neff, Friends But No Allies, pp. 33-34.
319. Adam Smith, Wealth of Nations, book 5, ch. 1, first part (in R. H. Campbell and W. B. Todd, eds., Oxford University Press, 1976), p. 707.
320. Paul Bairoch, "European Trade Policy, 1815-1914," in P. Mathias and S. Pollard, eds., Cambridge Economic History of Europe, vol. 8 ("The Industrial Economies: The Development of Social and Economic Policies," 1989), pp. 103-26 (on "Colonial trade policies").
321. Carl Srikwera, "Reinterpreting the History of European Integration" in J. Klausen and L. A. Tilly, eds., European Integration in Social and Historical Perspective (Rowman & Littlefield, 1997), p. 54.
322. F. W. Taussig, The Tariff History of the United States, 8th revised ed. (Capricorn Books, 1964), thus devotes several chapters to pre-Civil War tariff politics.
323. Arthur Bentley, The Process of Government, A Study of Social Pressures (University of Chicago Press, 1908).
324. Moore, Principles, p. 160.
325. Field v. Clark, 143 U.S. 649 (1892).
326. Harold James, The End of Globalization, Lessons of the Great Depression (Harvard University Press, 2001), pp. 9-13, provides a useful survey of pre-First World War "globalization" as exceeding, in some ways, the levels of the 1990s.
327. On the World Economic Conference, Charles Kindleberger, "Commerical Policy Between the Wars," in Mathias and Pollard, eds., Cambridge Economic History of Europe, vol. 8 "The Industrial Economies," pp. 185-88.
328. Richard Gardner, Sterling-Dollar Diplomacy (Oxford Press, 1956), p. 377, quoting a pamphlet issued by the U.S. Council of the International Chamber of Commerce (a private, business-advocacy group), protesting various provisions in the ITO Charter as making too many concessions to state planners.
329. Gardner, Sterling-Dollar Diplomacy, analyzes the American debate on the ITO in detail (pp. 371-78) but also shows that opposition in the British Parliament would probably have killed the new organization, in any case (ch. 27: "End of the ITO").
330. Robert E. Hudec, The GATT Legal System and World Trade Diplomacy, 2d. (Butterworth, 1990), p. 57.
331. Quoted in Hudec, GATT Legal System, p. 40, from minutes of negotiating session in Geneva, May 30, 1947.
332. For a useful overview, emphasizing the eagerness of Third World countries to extend international authority to compel development assistance-and their inability to do so under actual UN arrangements of that era, see Robert W. Gregg, "The Politics of International Economic Cooperation and Development," in L. S. Finkelstein, ed., Politics in the United Nations System (Duke University Press, 1988).
333. Gardner, Sterling-Dollar Diplomacy, p. 367 (remarks by Clair Wilcox, vice chairman of U.S. delegation, replying to demands by Australia, Brazil, and others to retain the right to impose "quantitative restrictions" on imports, at least for developing countries).
334. For a useful sketch of the legal and political concerns motivating the new system, see John H. Jackson, Jean-Victor Louis, and Mitsuo Matsushita, Implementing the Tokyo Round (University of Michigan Press, 1984), pp. 145-55.
335. In the version published by the U.S. Government Printing Office, the official NAFTA text runs to 590 pages, with an additional 2,452 pages of "annexes" (most of which are lists of rates and products, sometimes descending to the enumeration of individual entities): NAFTA, Texts of Agreement, Implementing Bill, Statement of Administrative Action and Required Supporting Statements (GPO, 1993).
336. The problem was noticed under the earlier U.S.-Canada agreement from which NAFTA was later constructed. James Chen, "Appointments with Disaster: The Unconstitutionality of Binational Arbitral Review under the U.S.-Canada Free Trade Agreement," Washington & Lee Law Review, vol. 49 (Fall 1992), p. 1455.
337. The arguments were noticed in Coalition for Competitive Trade v. Clinton, 128 F.3d 761 (D.C. Cir. 1997) but jurisdictional issues prevented a decision on the merits.
338. See Jason Gudofsky, "Shedding Light on Article 1110 of the NAFTA, Concerning Expropriations," Journal of International Business Law, vol. 21 (Fall 2000), p. 243 (emphasizing wide latitude given to Mexican environmental regulators in early cases).
339. Paul Stanton Kibel, "The Paper Tiger Awakens: North American Environmental Law After the Cozumel Reef Case," Columbia Journal of Transational Law, vol. 39 (2001), argues that the North American Agreement on Environmental Cooperation (NAAEC) has helped to stimulate environmental advocacy in Mexico-but makes no similar claim for the U.S. where environmental advocacy already had a considerable head-start.
340. Gregory Shaffer, "The WTO under Challenge: Democracy and Law and Politics of the WTO's Treatment of Trade and Environment Matters," Harvard Environmental Law Review, vol. 25 (July 2001), p. 38, attributes the deadlock to differing views among states and constituencies within states.
341. The episode and its background are well described in Robert O'Brien, Anne Marie Goetz, Jan Aart Scholte, and Marc Williams, Contesting Global Governance, Multilateral Economic Institutions and Global Social Movements (Cambridge University Press, 2000), pp. 72, 83-84. The ICTFU's position is set out in International Workers Rights and Trade: The Need for Dialogue (Brussels, 1996).
342. Kofi Annan, "Help the Third World Help Itself," The Wall Street Journal, November 29, 1999. The secretary general elaborated on this appeal at the Davos conference on world economic affairs in 1999 and in subsequent speeches, described in Tesner, The United Nations and Business, pp. 51-53, 174-75.
343. Frances Williams, "Washington Urges WTO to be More Responsive to Environmental Concerns," The Financial Times (London), March 16, 1999.
344. "United States-Import Prohibition of Certain Shrimp and Shrimp Products," WT/DS58/AB/R (November 6, 1998).
345. United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/RW (November 21, 2001).
346. Yasmin Moorman, "Integration of ILO Core Rights Labor Standards into the WTO," Columbia Journal of Transnational Law, vol. 39 (2001), p. 555;
347. Robert Howse, "The WTO and Protection of Workers' Rights," Journal of Small and Emerging Business Law, vol. 3 (1999), p. 131, relying on exemptions in Article 20 for measures "(a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; (g) relating to the conservation of exhaustible natural resources"; Steve Charnovitz, "The Moral Exception in Trade Policy," Virginia Journal of International Law, vol. 38 (Summer 1989), p. 689.
348. The perspective is defended in Robert Howse, "The Early Years of WTO Jurisprudence," in J.H.H. Weiler, ed., The EU, The WTO, and the NAFTA (Oxford University Press, 2000), emphasizing access to WTO "judicial" decision making by non-business interests.
349. See, for example, Mighell v. Sultan of Johore, 1 Q.B. 149 (1894), dismissing breach of promise suit by jilted lover against the Sultan, on advice from the Colonial Office that Johore was "sovereign" merely enjoying exclusive British "protection" based on treaty.
350. John Yoo, "Constitutionality of Congressional-Executive Agreements," Michigan Law Review, vol. 99 (February 2001), p. 757 (emphasizing distinctive character of trade agreements, given congressional power to regulate "commerce with foreign nations").
351. Robert Howse, "Adjudicative Legitimacy and Treaty Interpretation in International Law: The Early Years of the WTO," in J.H.H. Weiler, The EU, the WTO and the NAFTA, Toward a Common Law of International Trade (Oxford University Press, 2000) offers a particularly sympathetic account by a Canadian advocate of integrating labor, environmental, and human rights standards into global trade agreements.
352. On the Foreign Sales Corporation tax dispute, see Shaffer, Defending Interests, pp. 73-74.
353. For a rare survey of constitutional issues, see Scott McBride, "Dispute Settlement in the WTO: Backbone of the Global Trading System or Delegation of Awesome Power?" Law & Policy in International Business, vol. 32 (Spring 2001), emphasizing that U.S. government has so far treated WTO rulings as if legally "binding" so that AB acquires authority, in effect, to rewrite U.S. trade law.
354. Kenneth A. Oye, Economic Discrimination and Political Exchange (Princeton University Press, 1992).
355. One version is John O. McGinnis and Mark Movsesian, "The World Trade Constitution," Harvard Law Review, vol. 114 (December 2000).
356. Visionaries who think otherwise expound their visions in Volker Rittberger, ed., Global Governance and the United Nations System (United Nations University Press, 2001), especially R. Higgot, "Economic Globalization and Global Governance: Towards a post-Washington Consensus" and Otfried Hoffe, "A Subsidiary and Federal World Republic."
357. No. 23, p. 121.
358. Ronald Inglehart, Modernization and Postmodernization (Princeton University Press, 1997), pp. 39-45, explains the "postmaterialist" values that have taken the place of religion-and therefore, in this somewhat strange analysis, of older "materialist values." The point seems to be that before "postmodernism," people worried about "security" in several senses.
359. James Rosenau, "Governance, Order and Change in World Politics," in James Rosenau and Ernst-Otto Czempiel, eds., Governance Without Government: Order and Change in World Politics (Cambridge University Press, 1992), p. 4.
360. Myres S. McDougal and associates, Studies in World Public Order (Yale University Press, 1960), especially the first chapter, "The Identification and Appraisal of Diverse Systems of Public Order."
361. "Legal Education and Public Policy: Professional Training in the Public Interest," Yale Law Journal, vol. 52 (March 1943), pp. 203, 206, 209, 219: reprinted as chapter 2 in McDougal and associates, Studies in World Public Order.
362. Richard Falk, Religion and Humane Global Governance (Palgrave, 2001), pp. 25, 29.
363. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton University Press, 2001).
364. More indulgently, Brian Simpson, Human Rights and the End of Empire (Oxford University Press, 2001) says: "The human rights movement has a quasi religious character and one cannot but be reminded of an analogous problem [to determining the effect of UN human rights treaties]: the difficulty of telling whether prayer really works, which used to worry me as an adolescent," (p. 823).
365. Albert Gore, Earth in the Balance (Houghton Mifflin, 2000), pp. 12, 269.
366. Numerous other examples of such thinking are surveyed in Robert Whelan, Joseph Kirwan, and Paul Haffner, The Cross and the Rain Forest, A Critique of Radical Green Spirituality (Eerdmans, 1996).
367. Heinrich Rommen, The State in Catholic Thought, A Treatise in Political Philosophy (B. Herder, 1945), p. 401.
368. Rommen's very cogent exposition, though purporting to expound Thomistic philosophy, draws more heavily on authorities from the era of the Counter-Reformation. He dismisses "Christian emperors of the Middle Ages," for example, as ruling "empires of short duration" (p. 404), leaving out quite a bit of history in that summation.
369. John Courtney Murray, S.J., We Hold These Truths: Catholic Reflections on the American Proposition (Sheed and Ward, 1960), p. 195.
370. As Louis Henkin has put it, "states have few inalienable rights." "Notes from the President," Newsletter, American Society of International Law, March 1993.
371. Atkins v. Virginia, 536 U.S. 304 (2002).
372. Lawrence v. Texas, 123 S.Ct. 2472.
373. Inaugural Address, 1927.
374. Eisenhower, Second Inaugural Address, 1957 (Public Papers of the President, Eisenhower series, vol. 5, p. 64).
375. 536 U.S., p. 348.
376. "The American, taking part in everything that is done in his country, feels a duty to defend anything criticized there, for it is not only his country that is being attacked, but himself; hence one finds that his national pride has recourse to every artifice and descends to every childishness of personal vanity." Alexis de Tocqueville, Democracy in America, translated by G. Lawrence (Anchor, 1969), p. 237.
377. Given that law professors have agitated these arguments for over a decade, that cases involving actions overseas have begun to accumulate, the paucity of cases affecting domestic affairs is striking.
378. Andrew Nathan, "China and the International Human Rights Regime," Elizabeth Economy and Michael Oksenberg, eds., China Joins the World (Council on Foreign Relations, 1999).
379. "Australia: Rumbles from Down Under," National Review, December 3, 2001.
380. Compare "A Historic UN Ruling on Quebec," The Gazette (Montreal), April 10, 1993 (criticism of Quebec language laws by UN Human Rights Committee) and "Language Law Violates Helsinki pact," The Gazette (Montreal), August 30, 1999 (describing Quebec's rejection of UN criticism, now warning of adverse reaction in a non-UN forum-which also turned out to make no difference in Quebec).
381. No. 9, pp. 39, 40.
382. Well documented by Caroline Moorehead, Dunant's Dream, War, Switzerland and the History of the Red Cross (Harper Collins, 1998), pp. 416-45.
383. For example: T. J. Lawrence, Principles of International Law, 7th ed. (McMillan, 1923): "An intervention to put a stop to barbarous and abominable cruelty is a question rather of policy than of law. . . . It is destitute of technical legality but it may be morally right and even praiseworthy to a high degree" (pp. 127-28).
384. Stephen Erlanger and Christopher Wren, "Early Count Hints at Fewer Kosovo Dead," The New York Times, November 11, 1999.
385. For appropriately skeptical assessment of the competing human rights claims-noting the vast suffering imposed by NATO intervention and the plausible grounds for initial Serb resistance-see Ignatieff, Human Rights, pp. 45-47.
386. Perhaps there is not quite so much agreement even on slavery: Sudan, one of the states where the practice is known to continue, was elected to the UN Commission on Human Rights in 2002 and almost elected to chair the commission. There has been no serious international intervention to stop the practice of slavery in Sudan.
387. Statement of Lord Browne-Wilkenson, Macedo ed., Princeton Principles.
388. Dissociating responsibilities for border controls from responsibility for security raises questions for EU states that are far from hypothetical in an age when terrorists-or individuals suspected of terror connections-move readily across borders and EU authorities claim the right to override national border controls. See, for example, Philip Johnson, "EU Overrules Britain's Refusal of Entry to Moroccan," Daily Telegraph (UK), September 24, 2003.
389. See, for example, extensive reliance on this epithet in William Schulz, In Our Best Interest, How Defending Human Rights Benefits Us All (Beacon Press, 2001), pp. 13, 15, 31-33, 47, 64-65, 179-80, 186, 188, 190.