Henry H. Perritt, Jr.*
Recently, I published a law review article, “Structures and
Standards for Political Trusteeships,” which sought to draw lessons from
international interventions in
It would be a mistake, however, to overlook the positive
aspects of the Bush Administration’s
Abandoning a foolish early myth that the occupation army would be uniformly embraced, the Administration came to recognize, by late October of 2003, that intolerance for the occupying forces was high and building. Any sound exit strategy had to result in a turnover of governmental power before legitimacy of the trustee broke down completely. Working under this time pressure, the Administration formulated reasonably coherent concepts for evolving the initial Interim Authority into a more effective and more representative Iraqi interim government, while exploring a variety of ways in which to improve representation. At the same time, the Administration deferred popular elections until more progress was made on erecting mediating institutions.
The Bush Administration consciously was willing to pay the
price of reduced international legitimacy in order to have greater control over
a political trusteeship aimed at establishing internal legitimacy, building the
institutions of a liberal democracy, and defining for itself an appropriate
Whether the results prove worth the price depends on how competently the
violence, and liberal democracy are emerging slowly ,
if at all, and no coherent exit strategy, linked to concrete
progress in building local capacity, is apparent.
The impact on American foreign policy depends in part on
In either event, this article argues that the
The experiences in Bosnia, Kosovo, East Timor, Afghanistan,
and Iraq, combined with the history of earlier international interventions,
teach that political trusteeships succeed when they are defined clearly to
include the basic attributes of sovereignty: when they enjoy international
legitimacy, when they
in an explicit goal to build
liberal democracy, and when they are shaped by a coherent and realistic exit
strategy to hand-off power to local institutions as their capacity increases.
argues that effective political trusteeship requires a clear legal framework
investing temporary sovereignty in the trustee.
The legal framework for
On May 22, 2003, after U.S. and British forces militarily
subdued resistance in Iraq, the U.N. Security Council adopted Resolution 1483 (“SCR
1483”). The Resolution recognized the role of
The Resolution left no doubt that the occupying authorities were to play the role of political trustees:
It “[c]alls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future.”
The Resolution “[s]supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority.”
The Resolution also authorized the Secretary General to
appoint a “Special Representative” “to coordinate” U.N. international-agency
and Authority activities in
In October of 2003, the Security Council adopted Resolution 1510, declaring that Iraqi sovereignty resides in Iraqi institutions, and urging the Coalition Provisional Authority (the civil administration established by the occupying powers) to devolve power to local institutions as soon as practicable. The Resolution provided for a strengthened United Nations role in supporting local institutions, however, without, suggesting any U.N. power to make governmental decisions. Under the Resolution, the local institutions are responsible for designing and implementing processes to write a constitution and hold national elections, with U.N. support.
This framework left the political trustee’s scope of decision-making
responsibility unclear. The U.N. legal framework established a political
trusteeship by declaring the duty to develop eventual self- governance and to
govern for the benefit of the Iraqi people.
The U.N. left the allocation of governing power between international
and local institutions vague. It thus resembled
The legal framework for the
Congressional oversight of the CPA implied that some
attributes of sovereignty remained with the
, women, and religious discrimination as
mandates for the CPA, but not otherwise addressing political trustee
The CPA established the Interim Iraqi Governing Council, which was meant to
exercise indigenous authority. But its power was contingent on CPA approval,
and it owed its existence entirely to the decrees of the CPA.
ambiguity in defining the political trusteeship in ad
to confusion and conflict.
When sovereignty was formally transferred to the Interim
Political Trusteeship argues that successful political trusteeship requires the trustee be free of archaic limitations on the exercise of governmental powers, particularly those derived from the doctrine of belligerent occupation. Under this doctrine, a belligerent occupant may not make changes in law or institutional arrangements beyond those absolutely necessary to protect the security and viability of the occupation. If the changes would be difficult to undo if the previous sovereign returns, the law of belligerent occupancy prohibits them. On the other hand, if a change in the status quo is necessary to protect the immediate interests of the population of the occupied territory, it is permissible even though the returning sovereign-ante may have difficulty undoing it.
Declarations in the Security Council resolutions for Iraq state, “sovereignty of Iraq resides in the State of Iraq,” combined with express limitations on CPA authority to that permitted “under applicable international law and to that to “be exercised . . .under the laws and usages of war,” permit the inference that the doctrine of belligerent occupation limits trustee authority. The rationale for the limitations on change imposed on belligerent occupants is that the “State of Iraq” continued to exist notwithstanding the U.S.-led invasion. The possibility that the limitations of the doctrine of belligerent occupancy are acknowledged by the Security Council’s reference to “occupying powers” and “relevant” and “applicable” international law, and by the CPA’s reference to “laws and usages of war” is problematic. Respecting these limitations will make fundamental economic, legal, and political reform impossible. Ignoring these limitations will undercut legitimacy.
argues that successful political trusteeship requires close coordination
between political trustees and military as well as security forces operating in
the trust territory.
Such coordination is necessary so that a security environment exists within
which the exercise of civilian authority is a reality; and decisions by the
political trustee can be enforced.
While the military occupation of
The Administrator of the CPA determined, “the Commander of
U.S. Central Command shall directly support the CPA by deterring hostilities;
maintaining Iraq’s territorial integrity and security; searching for, securing
and destroying weapons of mass destruction; and assisting in carrying out
Coalition policy generally.” The shortcoming of this order is that it is
unclear whether the Administrator of CPA reports to the Commander of U.S.
Central Command, in which he lacks the authority to give orders to the Commander, or whether
the Commander reports to him, as the quoted language implies. In the absence of
a formal delegation of authority from the Secretary of Defense or the President
to the Administrator of the CPA, the Administrator is not in the chain of command
of the Commander and thus lacks authority over him.
B. Failure to Achieve International Legitimacy
argues that successful political trusteeship requires international legitimacy,
which, in turn, depends on harnessing international law, reducing threats to
international peace and security, holding democratic elections, enforcing human
rights, demonstrating governmental effectiveness, providing charismatic
leadership, and bringing an end to national-stage conflicts.
On the eve of the U.S.-led attack, President Bush identified threats to
international peace and security as the principal justification for starting
the war to force Saddam Hussein from power.
In particular, he argued that Saddam Hussein’s possession of weapons of mass
destruction and the imminent likelihood of his using them justified immediate
use of military force without waiting for further U.N. inspections or for explicit
authority for military force from the U.N. Security Council.
He asserted that the war was legal under the privilege of self-defense and
under earlier Security Council resolutions.
Immediate intervention was also justified as necessary to prevent further human
rights abuses by the Iraqi regime and to install democracy in
1. Harness International Law
In seeking international support for its intervention in
Achieving international legitimacy for political trusteeship depends in substantial measure on persuasive arguments that the intervention into the affairs of another country satisfies international law. The decades-old debate over the relevance of international law to a successful foreign policy and its impact on state behavior continues. Nevertheless, appeals to international law influence public opinion in democracies, and, in turn shape the foreign policies of democratic governments. The norms of international law also shape the attitudes of non-state actors such as the growing universe of Non-Governmental Organizations (“NGOs”), which exercise increasing influence in international forums and with domestic publics.
International law’s power as a source of international
legitimacy is strengthened by the evolution of the international relations
system. The international legal and political system no longer can be represented
accurately by a model of impermeable states interacting with each other.
Many private institutions enjoy power in international politics and law that
rivals that exerted by traditional states.
“It is through the non governmental organizations and, more and more
often, through the mass media that world public opinion makes its voice heard
on the major problems requiring action at the international level.” NGOs and other private actors deal with each
other and exert pressure through national interest groups, thereby shaping the
policy of states.
New communication technologies, including the Internet, empower national interest groups, strengthening the interpenetration process. The same technologies, as they blur the lines between domestic interest groups and international NGOs, also strengthen the power of individuals and small-group interests–weak in domestic politics–to be expressed and given fulfillment through international NGOs. No longer is the choice of intervention solely the province of political elites and professionals in diplomacy; now, due to information technology and the growing influence of NGOs and other international interest groups, it is a mass political question. Democratization strengthens the effect of international law because international law, as rhetoric, influences masses more than it influences leadership cadres, who are more likely to set policy based on interests in the realist tradition.
The Bush Administration conspicuously failed to mobilize international
law as a source of international legitimacy, in significant part because of its
embrace of neorealist theories of international relations that demean the
effect of international law.
It failed to convince the international community that its invasion was
justified by the privilege of self-defense, and it gained only marginally
greater acceptance that the invasion was legal because it was
authorized by earlier Security Council resolutions on
(a) Understand that International Law Operates Within an Evolving Set of Norms
International law is not fixed; it evolves through a
combination of state practice and opinio
juris. Several commentators and the National Security Strategy document
, issued by the Bush Administration,
argue that the U.S.-led invasion of
International law evolves in response to changes in state
practice, but the
While plausible arguments exist that international law needs to evolve in the wake of the September 11, 2001 attacks against the United States, the Iraq invasion was not incremental, which would have enhanced claims of a deliberate effort by the U.S. to nudge international norms in the right direction. Rather, it was radical, and thus, more easily viewed as a renunciation of those norms altogether.
(b) Reconcile Principles of Sovereignty and Self-Determination
The U.S.-led intervention in
The conflicts in
The U.S.-led invasion of
(c) Seek Consent or U.N. Approval
Generally, popular opinion accepts the premise that political trusteeship or military action leading up to political trusteeship is not permissible under international law unless the United Nations Security Council approves the international intervention in advance. This premise enjoys uncertain support in both state practice and in scholarship of international law. Nevertheless, approval by the U.N. Security Council, either before or after the fact, is broadly perceived as a powerful source of legality and international legitimacy:
“[T]he preemptive use of force by the
Of the major post-Cold War political
Under Article 51, advance approval of military force by the
Security Council is unnecessary when application of force is justified as “self-defense.”
Most experts question whether the
U.S.-led invasion of
The Bush Administration has paid the price of reduced international legitimacy by sidelining the U.N. in order to have the benefits of better control over a political trusteeship aimed at establishing internal legitimacy, building the institutions of a liberal democracy, and defining for itself an appropriate exit strategy. Whether the results prove worth the price depends on much greater success than is apparent so far in increasing internal legitimacy for the political trusteeship, building the institutions of liberal democracy, and in linking an exit strategy to concrete progress in building local capacity.
2. Reduce Threats to International Peace and Security
Even if the U.S.-led invasion of
The U.S.-led invasion of
“[S]o far as the battle against al Qaeda is concerned, the
“For the war on terrorism in the broadest sense, the
invasion of Iraq brought two important advantages: A state sponsor of
terrorism, albeit a rather inactive one, has been removed, and the
demonstration of military might in toppling Saddam Hussein’s regime has given
the United States more leverage against the outstanding state sponsors of
terrorism—Iran and Syria. . . . But as a threat to
“Independent polling by groups such as the Pew Foundation
and others has established that conditions are ripe for this message since
there has been a massive turn in public opinion against
“There are also further threats, such as proliferation of
weapons and other dangerous materials. In the worst-case scenario, weapons of
mass destruction material may have been privatized by regime adherents who know
their future in an American-guided
The Peace Institute report makes it
3. Hold Democratic Elections
As self-determination is a potent legal basis for intruding
on sovereignty, elections linked to the power of self-determination are a
powerful source of international legitimacy for international intervention.
has resisted local demands for elections and instead appointed members of the
Governing Council, seeking to validate the exercise of power by local political
leadership and institutions. Further, the trustee has
backed off from expressed plans to write a constitution and subject
it to electoral approval before turning over power to the appointed institutions.
Democratic elections as a source of international legitimacy
have thus played no role in
4. Enforce Human Rights
When political trustees enhance recognition and enforcement
of human rights, they enjoy greater international legitimacy. One of the
changes in the international law of sovereignty and non-intervention, codified
in Article 2(4) of the U.N. Charter, is the growing recognition that egregious
human rights abuses can justify international intervention notwithstanding
opposition by the sovereign committing the abuses.
Part of the justification for the U.S.-led attack against
After President Bush declared the military phase of the
intervention complete, the Administration continued to consider the enhancement
of human rights as a goal of the political trusteeship.
Arguably, Administration’ reluctance to have elections that might result in
Shiite dominance was consistent with a position aimed at protecting rights of
minorities. Nevertheless, the conduct of occupation forces, the absence of
judicial review, and the protracted detention of persons without statement of
charges or access to counsel raises questions among human rights activists as
to the success of the occupying authorities in improving human rights.
Prisoner abuse by
5. Develop Governmental Effectiveness
In seeking international legitimacy for a political
trusteeship, nothing succeeds like success.
If the early stages of political trusteeship in
The widespread looting in the earliest days of the political
trusteeship was obviously a bad start; and continued inability of the political
trustee to provide basic security undercuts any perception that the trusteeship
was effective even on the basics. Continued lack of transparency and
accessibility to the general Iraqi public, dumping the first civil administrator,
Jay Garner, two major zigzags on approaches to elections and writing a
constitution all reinforce the perception of the
Charismatic leadership of the political trustee at the outset
of trusteeship enhances international legitimacy
.. A charismatic foreign administrator like
Douglas McArthur in at it.
The United States government
apparently thought that Ahmad Chalabi might play this role but his capacity to
mobilize international public opinion in his favor
largely frustrated by initial perceptions that he has a corrupt past, and growing perceptions that he ha s
little support from within Iraq and, later, by charges
that he spied for Iraq.
But at least he was willing to play the role, actively working to build
support in key constituencies at the United Nations and the
In any event, the leadership element of the political
The justification for international intervention into the affairs
of a state often relates to inability–or unwillingness–of the existing
government to protect human rights and to maintain minimal physical security. A
political trustee gains international legitimacy when it demonstrates the
capacity to end–or at least to control–conflicts on the national stage. In
If the U.S.-led occupation had mitigated these underlying
intra-Iraq conflicts, it might have attracted some measure of international
legitimacy for its intervention. But as of December 2003, the intervention had
not reduced national-stage conflicts between Sunni and Shi’a Muslims and
between these groups and the Kurds.
Indeed, the CPA
caught off guard by these
conflicts, and was forced to back away from its insistence that the Governing
Council write a constitution because ethnic and religious conflicts within the
Governing Council made writing a constitution infeasible.
Apart from insisting that the Governing Council proceed with
a process for becoming more effective and preparing to receive more authority,
the CPA revealed no real plan for bridging the conflicts that had undermined
the Council’s effectiveness. Neither the Bush Administration nor the CPA
advanced any new ideas, such as the one advanced by Leslie Gelb on
Political Trusteeship argues that political trusteeships are unlikely to succeed unless they build internal legitimacy, which, in turn, depends on delivering effective government, promoting governmental transparency, providing mechanisms for judicial review, promoting popular confidence in local institutions, respecting indigenous personal and group pride, implementing structures compatible with common ideology, and harnessing tribal custom. These tests for internal legitimacy overlap the prescriptions for building a liberal democracy, considered in Part II.D.
The Bush Administration’s’ intervention in
come too late. Nevertheless, the experience in
Governmental effectiveness, beginning with basic security—”law
and order”—is a powerful foundation for internal legitimacy. As Political Trusteeship pointed out,
instances abound in which a local population was willing to forgive other
shortcomings of a government that could deliver security and basic governmental
If the U.S.-led occupation had produced an
As Political Trusteeship points out, any trusteeship inherently creates confusion about what the law is, who is in charge, and where to go to resolve uncertainties or disputes. Transparency of the trusteeship mitigates the confusion. The Iraq Emergency Supplemental Appropriation Act recognizes the need for transparency in certain activities of the CPA by requiring that reports be posted on the Internet.
The U.S.-led political trusteeship in
a website, including the full text of regulations and orders issued by the
Administrator of the CPA.
On the other hand, as Part II.A explains, the legal framework for the CPA is vague and the content of the CPA website does
not answer important questions
about the chain of command for CPA decisions.
Also, even as the CPA makes
a point of transferring more
authority to the Governing Council, the Governing Council is completely non-transparent, with
no website of its own, or even a link from the CPA website as of the end of
When any authority makes governmental decisions, international legitimacy will be impaired unless those affected by the decisions have some place they can go to test the legality of the decisions. As Political Trusteeship points out, the international community insists on rule of law in countries attracting international attention. Any prescription for rule of law starts with the opportunity for judicial review of governmental decisions. To earn internal legitimacy for a political trusteeship justified in any part by the need to establish a rule of law, the political trustee must provide some mechanism for judicial review.
The Iraq Emergency Supplemental Appropriation Act provides
for an independent Inspector General with limited oversight responsibilities,
nothing to afford tribunals within which the legality of trustee decisions
can be tested. It is not inconceivable that someone could
file a civil action in a United States District Court seeking review under the
U. S. Administrative Procedure Act of decisions by some component of the CPA. Litigating the merits of CPA decisions in this
context is surely inferior to litigating them in some specialized tribunal
which might be established by the CPA.
As political trusteeships are justified by their goal of
preparing local populations for self-government, their internal legitimacy, is
measured in part by their success in establishing local institutions that
themselves enjoy local legitimacy. The record of the U.S.-installed
institutions of local government is weak in terms of local legitimacy. Although
the Governing Council was carefully balanced by ethnicity and religion, it
individuals with weak support in local constituencies. The institutions’ reputation
for being puppets of the
5. Respect Indigenous Personal and Group Pride
Internal legitimacy of government institutions in any society is determined in large part by the attitudes of opinion leaders. These elites lead institutions that form part of the social fabric of the local society. Affronts to the pride of such leaders and affronts to the dignity of individuals make support from these sources less likely.
Aggressive tactics by U.S forces in
Although some commanders have avoided psychological assaults
on local customs and mores, the U.S.-led occupation of
6. Implement Structures Compatible with Common Ideology
Trusteeship explains, ideology is a powerful source of legitimacy.
This is especially true in states where
Islam predominates because Islamic doctrine integrates religion and politics.
Antagonism against an outside force also
can be a potent ideology. In
As Part II.B § 7 explains, disagreements over the role that
Islam should play in a new Iraqi Constitution frustrated early efforts to write
Columnist Thomas Friedman argues that the struggle over the future of
7. Nurture Charismatic Leadership
Charismatic leadership enhances internal and international
The political trusteeship in
Other possibilities existed at the end of the military
campaign. One of the most promising candidates while under protection of
8. Bring an End to National-Stage Conflicts
In some cases of international intervention, such as
Political Trusteeship argues that political trustees achieve their objectives only if they build liberal democracy by designing institutional structures to manage internal political competition. This is accomplished by drawing on unique local experiences, by recruiting and developing appropriate leadership elites, by defining and implementing strategies for economic development and by not letting corruption dominate their agenda. Meeting these objectives supports an exit strategy premised on the trustee turning over more and more responsibility for governance to local institutions that are viable politically and economically and which respect democratic and human rights values.
A liberal democracy in
The Bush Administration recognizes at some level of abstraction the need to build institutions of liberal democracy, but it has so far grossly overestimated the ease of doing so. The Administration recognizes the need to build political structures for managing internal conflict. It has sought to avoid democratic elections before the mediating institutions of a liberal democracy sprout. It has been deliberate in its effort to identify appropriate local and external elites.
Abandoning a foolish early myth that the occupation army would be uniformly embraced, it came to recognize by late October that intolerance for the occupying forces was high and building. Ultimately, any sound exit strategy needs to result in a turnover of governmental power before legitimacy of the trustee breaks down completely. In other words, the necessity for a coherent and practicable exit strategy, considered in Part II.E, collides with the goal of developing a liberal democracy. Working under increasing time pressure, the Bush Administration formulated reasonably coherent concepts for evolving the initial Interim Governing Council into a more effective and more representative Iraqi interim government. The goal was to improve representation, while at the same time deferring popular elections until more progress had been made on erecting mediating institutions.
Often the implementation of the prescriptions was flawed and naive, or driven by ideology or cronyism. This should not obscure the reality that many of the basic policy pillars were sound.
Liberal democracy signifies, among other things, the capacity of democratic political institutions to manage inter-group conflict. The challenge is greater when ethnic and religious differences reinforce mere political differences. The test of viable democracy is not only a willingness to compete for political power through established institutions, but also to be willing to lose without organizing a coup or starting a civil war.
repress Sunni and other minority elements, possibly leading to a rebellion
of Sunnis against a new Iraqi government.
The plan unraveled when Grand Ayatollah Ali al-Sistani, a
powerful Shiite cleric, insisted on direct elections of representatives to
write a constitution.
2. Recruit Leadership Elites
from Outside and Inside the
Liberal democracy requires political elites who can provide
leadership to competing parties and factions while respecting the norms of
democracy and a rule of law. The Bush Administration apparently envisioned, not
early democratic elections, but spontaneous “emergence” in
Any political trustee inherits a reality in which the
interaction of political elites has gone awry. Accordingly, one of the
essential responsibilities of a political trustee is to ve
those aspiring to leadership positions, and to recruit elites for
under-represented groups. Early post-war initiatives in
Eliminating Baath Party members from leadership positions
In some cases, local Iraqi leaders and their American Army counterparts have
been reluctant to remove Party members because “throwing people of authority
and expertise onto the street” would fuel resistance to the occupation.
In other cases, they cannot be identified because they altered databases and
other records to conceal their Baath Party involvement.
In many cases, their expertise is needed to run the country and its institutions.
At first, the Bush Administration sought to reduce likely Shiite dominance of
any elected Iraqi government, but gradually accommodated itself to the reality
that Shiites would likely govern
3. Define and Implement Strategies for Economic Development
Political trustees cannot achieve their political and
security objectives unless they pay as much attention to building a sustainable
economy in the trust territory as they do to human rights, rule of law, and
constitution writing. Declining standards of living and frustrated aspirations
for economic advancement are powerful sources of political instability. In
at least at first, to link its plans for reconstruction
and reform of the Iraqi economy with establishment of basic law and order and
the rebuilding of the local institutional apparatus necessary to allow private
sector initiative to succeed.
The political trustee in
The top level of the CPA website is an “Economy” button, which branche s into foreign investment, financial
market construction, transparency in accounting, public sector finance, private
sector development, strengthening science and technology, public sector
management reform, and private bank information.
These categories should receive attention early in any political trusteeship,
along with development of appropriate macro-economic policies and
In November, 2003, the
to improve enforceable resolution of business disputes relating to
According to an August 2003 survey of 600 businesses in
The economic initiatives in
4. Do not let Corruption Dominate the Agenda
Successful political trusteeship requires simultaneous effort and progress on a variety of political, legal and economic fronts. Public and private-sector corruption is a fact of life in all parts of the world. While any political trustee must seek to reduce corruption as part of its effort to build a liberal democracy and to establish conditions for private markets to function effectively, it must not let fear of corruption hold back progress.
The U.S.-led political trustees in
argues that successful political trusteeship requires defining a coherent exit
strategy that permits the trustee to leave before local resentment overwhelms
its international legitimacy, but after the seeds of a liberal democracy have
been planted so they are likely to grow after the trustee leaves.Abandoning
early myth that the occupation army would be uniformly embraced, the Bush
Administration came to recognize by late October 2003 that it had no real exit
strategy, and needed to develop one quickly.
Intolerance for the occupying forces was high and growing. The
Working under this time pressure, the U.S. formulated
reasonably coherent concepts for evolving the initial Interim Authority into a
more effective and more representative Iraqi interim government, and explored a
variety of ways in which to improve representation, while at the same time
deferring popular elections until more progress had been made on erecting
mediating institutions. Failure to deal effectively with Shiite ambitions for a
share of power commensurate with Shiite numbers made the reformulated
The outlines of an exit strategy for political trusteeship in
will be tempted to “declare victory and come home.”
conditions in will
be followed by chaos or
by establishment of a militant, anti-American Islamic regime, influenced by , one hopes this temptation will be avoided. It is far from clear what other scenarios would
produce both liberal democracy and early American exit.
1. Expect Post-Conflict Euphoria to Turn into Resentment of the Trustee
Political trustees, like any occupying force, become
it has built substantial stores of internal legitimacy, it
may enjoy a longer period of popularity. Eventually, the trust people will
resent any power retained in trustee hands and insist that the trustee turn
over all remaining power to locally accountable institutions.
much sooner in
2. Clearly Define Triggers for Devolution to Local Institutions
The ultimate challenge for any political trustee is to implement a coherent program of phased withdrawal, linking each major phase to achievement of explicit benchmarks tied to establishment of a liberal democracy. Premature withdrawal results in failure because conditions in the trust territory will revert to a state of affairs as bad as, or worse than, those that justified the international intervention in the first place. Deferring withdrawal too long will result in a progressive loss of control by the political trustee as local opposition grows, eventually accompanied by violence.
Two distinct questions exist about the impact of the
Assessing the impact of the
is reelected and continues to pursue the
Bush Doctrine. The assessment would ask what the ,
either in 2004
or 2008, and articulate fundamental changes in foreign policy. The
assessment would ask how the
The following sections present basic tenets of
This part concludes with two sections, one arguing that any
alternative to the Bush Doctrine must have the potential to attract at least as
much mass public support. The second
section suggests that part of any alternative should embrace the opportunity to
use a redesigned Peace Corps to extend American inspiration, even as the
A. Tenets of
At a sufficiently high level of abstraction, broad agreement
exists across the ideological spectrum and through time on three basic goals
Project the American
vision. Although some realist theorists in international relations disdain
this goal, broad agreement exists that a goal of
Agreement is narrower on the means that should be used to
is broad agreement that deterrence, in the form of a threat of nuclear
retaliation for a nuclear attack or of overwhelming conventional military
response to direct attacks on American assets, plays an important role in
central characteristic of
fact is, despite criticism of American cultural imperialism, that American
culture is widely admired. For many around the world, the
invasion and the Doctrine undercut
1. The invasion symbolizes adherence to Bush Doctrine
As the invasion of
(a) Emergence of the Bush Doctrine
The end of the Cold War left the world without a structure of
international relations. The first Bush
Administration briefly flirted with the vague idea of a New World Order. The
Clinton Administration pursued a policy of selective intervention with an
emphasis on the development of civil society and human rights, as in
The determination to invade
The Bush Administration, frustrated like its predecessors
with lack of progress in the
President Bush wanted a bold foreign policy initiative as a response to the attacks of September 11. The Republican foreign policy establishment had consistently criticized the Clinton Administration for failing to develop a coherent foreign and national-security policy strategy to follow the Cold War. The National Security Strategy was the strategic result of Bush’s push.
Major elements of the Bush doctrine are expressed in the
National Security Strategy, which reflects a stock of intellectual capital
developed during the 1990s by the Republic foreign policy establishment. In
1996, William Kristol and Robert Kagan characterized conservatives as “adrift”
in foreign policy.
They argued that a “neo-Reaganite foreign policy would be good for
conservatives, good for
During the Presidential campaign of 2000, Condoleezza Rice, later to become National Security Adviser in the Bush Administration, argued for a “disciplined and consistent foreign policy that separates the important from the trivial.” She urged rejection of the idea that American exercise of power is only legitimate when exercised on behalf of someone or something else (such as international law) and urged instead explicit pursuit of American self-interest. Pursuit of American self-interest would focus policy on the priorities: ensuring American ability to project power through a strong military, promoting economic growth and political openness by extending free trade and a stable international monetary system, seeking strong relationships with allies, developing relationships with Russia and China to mold the international political system and dealing with the threat of rogue regimes which fuel the potential for terrorism and the spread of weapons of mass destruction.
The core ideas of the Bush Doctrine have been described as a short shrift for NATO and the UN, dismissal of treaties as non-binding, and “brazen” protectionism. This new “grand strategy” envisions an America “less bound to its partners and to global rules and institutions, while it steps forward to play a more unilateral and anticipatory role in attacking terrorist threats and confronting rogue states seeking weapons of mass destruction.”
(b) The decision to
The Bush Administration, like the Clinton Administration, perceived
that any international strategy would mean little unless the American people would
show support. The Administration needed a way to crystallize the new National
Security Strategy in concrete action, without which the Strategy might become an
empty pronouncement. Politics is the art of the possible and the science of
timing. The September 11 attacks satisfied the “scientific” timing element for
a bold move, leaving the question of what sort of move was “possible.” What kind of bold assertion
A number of candidates, otherwise qualified because of their
support for international terrorism, could be ruled out as impracticable.
The process of elimination left the Iraqi regime of Saddam Hussein.
The Bush Administration’s
2. The invasion avoids the real threats to American Interests
The threats to
The invasion of
(a) The invasion of
Societies where education is available with limited opportunities are breeding grounds for extremism. Creating opportunities for participation in public life and economic activity will enhance political stability and reduce the allure of religious extremism for future generations. Such opportunities arise only when progress is made toward rule of law, civil society and market competition. The same kinds of institutions necessary for a liberal democracy: courts and judiciaries, independent political parties, judges and bar associations, analogs of parent-teacher associations, leagues of women voters, veterans of foreign wars, rotary clubs, alumni associations appropriate for local cultures, ministries of culture and education, trade promotion agencies, chambers of commerce, trade associations and trade unions all provide pathways of participation for those with ambition.
Demonizing Islam and pronouncing a “War on Terrorism” are unresponsive
to these realities. Moreover, the
Historically, states have been uncomfortable when another
state is so powerful that they must acquiesce in its foreign policy. When this occurs, weaker states tend to adopt
foreign policies to contain the power of stronger states. In the 21st century, this can take
the form of acquiring weapons of mass destruction to deter the stronger state
from actions antagonistic to the interests of weaker states. It can also take the form of alliances
against the stronger state. There is no reason to suppose that this tendency
has disappeared. Accordingly, one measure
of success in
Leaders of foreign states, especially those opposing
American interests are served better by a cooperative
Charles Kupchan offers a useful comparative analysis of the
major scenarios articulated by commentators and scholars on the future of international
Kupchan disagrees and suggests that a unipolar world dominated by the
Kupchan believes that a culmination of unilateralism and
isolationism will leave the
Sharp disagreements over the invasion of
3. The invasion ignores the reality that that international relations now involves more than sovereign states
Historically, foreign policy proceeded from two assumptions:
military capability must aim at opposing and defeating armies directed by
states; and diplomacy is defined by relations among states—the “billiard ball”
theory of international relations. Now states are only one of several types of
international actors. The central conceptual challenge of the war on terrorism
is dealing with this reality. Winning the campaign against al Qaeda is not at
all the same as driving
In this century, political power has been diffused above and
below the state level. States cede a measure of sovereignty upward in a complex
framework of inter-governmental organizations, such as the World Trade
Organization and the institutions of the European Union. They also exercise
power constrained by the diffusion of political power into sub-state private
groups, such as NGOs and militant organizations, including the Kosovo
Liberation Army, al Qaeda, Hamas, and Hezbollah.
New information technologies, including the Internet, open up new channels for
political interaction, both domestically and across national boundaries. At the same time, other technological advances
place powerful new weapons—anti-aircraft missiles and biological weapons—into
the hands of individuals and groups. An
Realists such as John Mearshimer and Charles Kupchan treat
international relations as interactions among impermeable states—”billiard
balls.” Though they reach different conclusions about its effects, Mearshimer predicts
fragmentation into a multipolar system, in which stability is assured only by a
limited proliferation of nuclear weapons. Kupchan predicts an end to
The problem with realist theories is that they treat states as inanimate, influenced by interstate forces, much as physics views atomic elements, influenced by electrical fields and intra-atomic forces. Their theories give short shrift to leadership, good and bad, and to the uncertainties of political conflict within states. They suggest that states will behave in certain ways in response to changes in the balance of power, but they do not explain why. Another popular commentator, Thomas Friedman suggests why these realist theories are incomplete: states respond to popular opinion, which in turn is influenced by global as well as intra-state forces.
Realist international relations theory obscures the importance of foreign public opinion in international relations because it treats states as impermeable, represented by leaders who accurately perceive state interests and act rationally in pursuit of those interests. No foreign policy or national security strategy can be effective if it only focuses on the actions of states. International legitimacy is built or undermined nowadays, not only by arguments made by diplomats and chiefs of government to their counterparts around the world; it is also shaped by public perceptions of human suffering and injustice. In fact, foreign leaders, especially in democratic political systems, act like American politicians. Foreign policy issues are part of an overall matrix of political calculation. If it is unpopular in their country to support American positions, leaders of other countries are more likely to oppose American positions. This is why popular legitimacy is so important, and why an American foreign policy that looks arrogant and unconcerned with the interests and welfare of other parts of the world is so damaging.
This is hardly a new idea. Any experienced negotiator knows that negotiators often defend their positions and their refusals to acquiesce to opposing positions based on their perception of constituent pressures. Foreign policy theory must be connected to the reality of international negotiations, and that reality includes the growing impact of public opinion in a world increasingly democratic and transparent.
American policy must treat international politics as
politics. Decision makers in foreign states behave like decision makers in the
In the dynamics of internal politics, Diaspora opinion
counts. In the
s the ability of the
This article does not argue for a “Wilsonian” approach to
international relations. A crucial
difference exists between Woodrow Wilson’s approach to the world and a desirable
American approach to the world in the twenty first century. Woodrow Wilson tended to over-emphasize the
impact of appropriate institutional arrangements on political behavior. He
embraced public administration more than politics. What
This is a better perspective for understanding and shaping
the behavior even of autocrats in non-democratic states. Any political leader who survives for long
recognizes that there are limits on coercion as a means of maintaining
power. At some point, the gap between
decisions by a government and popular opinion may grow so wide that the result
is revolution. Leaders of foreign states are likely to remember the example of
the Shah of Iran, who was deposed despite overwhelming
Public opinion matters not just in the
(b) International Law and Other Formal Multistate Structures Matter
Rhetoric seeking to shape public opinion depends importantly
– though not exclusively – on reference to international law.
In 1997, Richard Haas wrote a book entitled The
The title signifies that the
Writing later, in 1999, Haas continues by arguing that “an
effort to assert or expand
My 1998 review of Haas’ book embraced the sheriff and posse metaphors, while arguing that the metaphors necessitate attention to the role of international law and multilateral institutions. The sheriff in the Old West had to persuade the public. A posse, whether or not organized by the sheriff, was a lynch mob unless a court-issued writ authorized its formation and activity. Similarly, international law plays a major role in legitimizing the modern form of an international posse.
International law comprises not only norms but also
institutions for coordinating action, for modifying norms and for resolving
disputes. Acting through these institutions reduces transaction costs and
enhances popular support because it appears law abiding. “Every major international
institution. . .was made in
The Bush Doctrine is startling for its abandonment of a commitment to a rule of law in international affairs and its disdain for multilateral frameworks. The chapter of the National Security Strategy document entitled “Cooperation” makes almost no mention of the United Nations, of NATO of the WTO or of other treaty frameworks.
The “new imperialism” of the Bush strategy is associated with
Neo-imperialist approaches are likely to prove unsustainable. American
unilateralism will diminish the willingness of other states to participate in
multilateral efforts to monitor and enforce non-proliferation commitments,
which will leave the part of the Bush strategy focused on weapons of mass
destruction blind and deaf.
The use of force to eliminate regimes seeking to acquire weapons of mass destruction
or to support terrorism must be followed by extended nationbuilding activities
to “put “the target country. . . back together,” and this is likely to
require greater resources than the American people are prepared to commit.
Unilateralism is unlikely to generate multilateral cooperation in the areas of “intelligence,
law enforcement and logistics”.
Foreign states, unable to oppose the
4. The Bush Doctrine Ignores New Geopolitical Opportunities
While realist theories of international relations are incomplete,
they nevertheless offer insights; states matter in international relations, and
big states matter greatly.
American foreign policy cannot succeed unless it appropriately engages
(a) Realignment with
The attacks of September 11 and reaction to them provide the
best opportunity since the Second World War for fundamental realignment of
Apart from avoidance of major-power conflict, dealing successfully
with smaller-scale problems depends on the willingness of major powers to
This apparent thaw in Russian-U.S. relations is likely to
prove illusory in the long run because it has too narrow a base. Russian
foreign policy long has reflected paranoia about nationalism and Islam.
Enlisting Russia in what appears to be a campaign against Islam and disdaining
multilateral structures that otherwise might prove attractive to Russian
leadership seeking to define a new place of respect for Russia
is likely to encourage Russian unilateralism which will not always
serve U.S. interests. If the
(b) Engagement of
The evolution of
The Bush Administration appropriately places priority on
Moreover, the Bush Administration has proven bizarrely insensitive
to the risks of increased Chinese commitment to weapons of mass destruction.
The controversy over
American foreign policy has always included a special regard
for conditions in the
Before the invasion of
Before its recent economic
The war in
Trade policy is an important tool in achieving
The full impact of the
Continued conflict between
Despite the fanfare associated with President Bush’s trip to
the region and his formal unveiling of a “roadmap” for peace, available evidence
suggests that the burst of attention was driven by desire to build Arab-state
support for the
As it does in many other parts of the world, the
Terror can be brought under control in three ways. Outside forces can apply positive or negative
incentives with Palestinians in the hope that they will ease their terror
tactics. An outside force can interrupt the infrastructure necessary to support
terrorism. For example,
Progress in the Palestinian territories cannot come through
the Palestinian Authority. The demonstrable lack of economic progress, the obvious
corruption, and the large infusion of foreign aid from
This program must focus on the economic sphere; not the
political and security spheres even though the three spheres obviously are
interrelated. The conceptual model is multi-lateral, not unilateral. This model is that of the European Iron and
Steel Community, which was started alongside and in parallel with NATO at the
end of World War II, motivated by the realization that economic development is
a necessary condition for political stability, and that the common effort and
mutual trust that grows out of economic relations can blossom into trust and
formal arrangements in the political and security spheres. For example, some
form of international presence in the region might be helpful, ranging from a
handful of UN monitors to a Kosovo-like military presence. The
5. The Bush Doctrine
avoids fundamental restructuring of
National defense strategy must be based on a sophisticated
understanding of how the armed forces can respond effectively to each threat.
Peacekeeping and war-fighting missions are not entirely distinct; in fact they overlap. The best force-structure and training approaches increase the overlap as much as possible to avoid the need for two armies, one for peacekeeping and one for fighting a war. The appropriate doctrine can increase the amount of overlap. For example, a peace enforcement doctrine can call for use of military forces to secure and pacify an area for a limited period of six months, and then to withdraw, with a rapid-response capability if trouble overwhelms other forces. (“Other” forces must, of course, exist.)
One example of this problem can be found in General Wesley
Clark’s book about the Kosovo conflict.
There he reveals that
The mismatch between the
forces available and the problems to be solved is manifest in the Bush Administration’s
approach to the missions in Iraq and Afghanistan; in the professed inclination
of US military leadership in Afghanistan to keep its distance from the UN- and
British-led initiative to establish an interim government and to rebuild
6. The Bush Doctrine increases the risk of a “Clash of Civilizations”
Samuel Huntington’s book, Clash
of Civilizations, has infected some neo-realists in the Bush Administration
with the view that a collision between the Islamic world and the rest of the
world is inevitable. If one believes this, the best American foreign policy is
one that opposes the Islamic world aggressively.
There is growing evidence that this bleak view of
international politics is unwarranted. Certain
The Bush Administration, by placing undue reliance on
military force, fails to embrace what would be the most potent weapon against
terrorism: “a powerful, inclusive idealism with which the world can identify—a
counter vision that will dispel the lingering attractions of Islamism,
especially for younger generations in places such as
C. Failure in
While the easy military victory in Iraq might have instilled
temporary fear in foreign regimes about what could happen to them if they
opposed the U.S., U.S credibility is undermined by the confused and chaotic
progress of building a ‘model democracy’ after the war, and intelligence
failures or outright deception about the presence of weapons of mass
destruction in Iraq. If the
the Administration may learn from its mistakes in
The outcome of the
The same thing is likely to be the case going forward. Leaders of foreign states opposing the
It may be that the Administration disdains a military role in
nationbuilding. The fact is that it structured the political trusteeship in
Out of scores of papers posted on the
and appreciate the frustrating experience of
D. Any Alternative to the Bush Doctrine must be as Popular with the American People
Central to the argument that the Bush Doctrine is
unsatisfactory and that the invasion of
American foreign policy always has contended with competing isolationist and idealist currents in American public opinion. Its content has been determined as much by pragmatic American politics—what will sell at the ballot box—as by the merits of contending realist or idealist theories of international relations—the product of universities and think tanks. Theory helps make policy messages coherent, but the political process of forming positions and platforms draws as much from perception of interests that will move voters and opinion leaders as from theoretical analysis by experts. The natural tendency of policy in a democratic society to borrow a bit from contending advocates so as to gain a measure of support from both.
The history of American foreign policy teaches that the
idealist current in American public opinion does not represent a critical mass.
The failure of the Wilsonian commitment to the
The Bush Doctrine and the invasion of
E. A New Kind of Peace
Corps for the Twenty-First Century can Reduce Genesis of terrorism and Can Project
This article argues that the essential core of American
foreign policy is that it recognize the influence of public opinion in foreign
states. Public diplomacy is an essential—one might say the most essential—tool
in the American foreign policy arsenal. Effective public diplomacy requires a
larger budget for public diplomacy institutions in the
A new mandate for the Peace Corps would focus on recruiting
volunteers interested in building the institutions of a civil society.
The new Peace Corps could be shaped to facilitate cooperation and multilateralism. A regional approach might be useful, focusing efforts on “change agents,” individuals (or maybe institutions or even countries) that others in the community and society look to and trust. Once ideas and institutions take root in a region, they look more “organic,” and less threatening, to neighboring countries and peoples.
The major elements of a new Peace Corps, distinguishing it from the present Peace Corps would be:
· A focus on young professional who are embarked on or who seek careers in foreign affairs or international business
· Integration with any future requirement for a period of national service, as a part of, or an alternative to, a reinstated draft
· Acceptance of foreign nationals into the new Peace Corps
· Deployment of members to carry out concrete projects related to democracy development, economic development, and rule of law
· Assignment of members to work alongside nationals of target countries as “coaches”
The design of the new Peace Corps should draw upon the largely successful experience of the American Bar Association’s Central European and Eurasian Law Initiative and on the ideas presented by Eliot Cohen for recruitment and training of a new cadre of professionals qualified for nation building and by USIP for a Rule of Law Reserves. Among other models is the White House Fellows program, in which promising young professionals are assigned to work for one year in White House Agencies and for federal cabinet officers.
Despite President Bush’s call for reinvigorated volunteerism
in his 2002 State of the Union message, the Administration has given almost no
attention to embracing opportunities to make this a reality through recruitment
of young people to work on nationbuilding in places that need it. The
Administration is too busy managing its invasion of
It is not so much that the
The cultural war in American foreign policy is not a clash of competing theory; mainstream American foreign policy has never been purely realist or purely idealist; indeed, it would be surprising were it so because of the natural tendency of policy in a democratic society to borrow a bit from contending advocates so as to gain a measure of support from both. It is a clash of competing pragmatic visions: a clash between those who want to avoid the messy realities of engaging complex political forces in a changing world and those who are willing to provide leadership to shape the direction in which those forces are applied.
* Professor of Law and
former Dean, Chicago-Kent College of Law, Illinois Institute of
Technology. Democratic Candidate for
.Henry H. Perritt, Jr., Structures and Standards for Political Trusteeship,
J. Int’l L. & Foreign Aff. 385 (2003) [hereinafter “Political
Trusteeships”]; A “political trusteeship” is the exercise of sovereignty over a
territory by international organizations or foreign powers for a limited time,
for the benefit of the peoples of the territory, aimed at creating the capacity
for self-government. It resembles the exercise of “mandatory” power under the
League of Nations Mandate System and the exercise of “Trust” power under the
United Nations Trusteeship System, but occurs outside those general treaty
frameworks. It can be distinguished from
more limited forms of international intervention such as peacekeeping.
.“Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”). . .” Id. Pmbl. “Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly. . .” Id.
.“[W]orking intensively with
the Authority, the people of
. U.N. S.C. Res. 1511, 58th Sess., 4844th mtg.,
U.N. Doc. S/RES/1511 (2003) [hereinafter Security Council Resolution 1511 or
SCR 1511]. “[T]the sovereignty of
It “calls upon the Authority. . .to
return governing responsibilities and authorities to the people of
.“[T]he United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission in Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government. . .” SCR 1511, supra note 13, ¶ 8.
.The Resolution “[t]akes note of the intention of the Governing Council to hold a constitutional conference and, recognizing that the convening of the conference will be a milestone in the movement to the full exercise of sovereignty, calls for its preparation through national dialogue and consensus-building as soon as practicable and requests the Special Representative of the Secretary-General, at the time of the convening of the conference or, as circumstances permit, to lend the unique expertise of the United Nations to the Iraqi people in this process of political transition, including the establishment of electoral processes. . .” SCR 1511, supra note 13, ¶ 10.
Authority [hereinafter CPA], §
1, ¶ 1 (2003), available at http://www.iraqcoalition.org/regulations/20030516_CPAREG_1_The_Coalition_Provisional_Authority_.pdf.
Appropriations Act for Defense and for the Reconstruction of Iraq and
.“The president made a decision
to start it out with Jerry Bremer reporting to me. The implication in the press was that he was
going to report to the White House or Condi Rice. As Condi has indicated, that was not the
import of the memo, that’s not what the memo said, that’s not what was
intended. We know that that activity, as
it matures, will migrate over at the Department of State. I mean, that’s how—where ambassadors report.
And eventually, it will arrive there at some point. And that would be a decision would make at
some point as these—as the task kind of moves less security towards more
political and economic, one would think.”
Press Conference, Secretary of Defense Donald H. Rumsfeld with NATO
Secretary General Lord Robertson (
.Iraq Emergency Supplemental
Appropriation, supra note 19. The Act requires procurement to occur under
federal procurement law.
.Security Council Resolution 1511, supra note 13, pmbl; CPA Regulation No. 1 § 1, ¶ 2; see also Pieter H.F. Bekker, ASIL Insights: The Legal Status of Foreign Economic Interests in Occupied Iraq (July 2003), at http://www.asil.org/insights/insigh114.htm (last visited June 24, 2004) (arguing that Articles 43 and 46 of Hague Regulations, absent any provision in Security Council resolutions voiding contracts or authorizing interference with property, require occupying authority to respect pre-invasion contract rights).
.The legal requirement that the occupant minimize changes to fundamental laws and institutions derives from the legal principle that the ousted power retains sovereignty, “albeit in a state of abeyance,” over the held territory. The duty to protect the status quo arises from international laws recognition of “that kind or precariousness which results from the fact that a war is still going on. No matter how unlikely a reversal of fortunes may be in fact, a territorial change obtained by a belligerent during and in the course of a war is not treated as final state succession, but as ‘belligerent occupation.’” Political Trusteeships, supra note 1, citing and quoting Ernst H. Feilchenfeld, The International Economic Law of Belligerent Occupation, 5 ¶ 11 (Carnegie Endowment for Int’l Peace, Div. of Int’l Law, Monograph No. 6) (1942).
.“The commanding officer of the
facility is not legally bound to follow the orders of anyone outside his
operational chain of command, no matter what that person’s
rank.” Lt. Commander Thomas C. Wingfield, The
Chemical Weapons Convention and the Military Commander: Protecting Very Large
Secrets in a Transparent Era, 162 Mil.
L. Rev. 180, 217 (1999). “Unless otherwise directed by the
President, the chain of command to a unified or
specified combatant command runs from the
President to the Secretary of Defense; and from
the Secretary of Defense to the commander of the combatant command.” See 10 U.S.C. § 162(b). See generally Jennifer M. Rockoff, Case
Note, Prosecutor v. Zejnil Delalic (the
Celebici Case), 166 Mil. L. Rev.
172 (2000) (discussing prosecutor’s obligation to demonstrate that person
giving orders was in chain of command, in war crimes prosecution). The
controversy over prisoner abuse and torture by the
.“[T]he Iraqi regime continues
to conceal some of the most lethal weapons ever devised. It has used weapons of
mass destruction. It has a history of reckless aggression and a deep hatred for
.International legitimacy for the invasion is surely even
lower now than at the time of the invasion because of revelations by former
National Security Council staff and the Senate Intelligence Committee that
there was no credible evidence of links to al Queda or of weapons of mass
destruction. See Richard A.
Clark, Against All Enemies: Inside
.Compare Thomas M. Franck, What Happens Now? The United Nations After
. See Jonathan Zasloff, Law and the Shaping of American Foreign Policy: From the Gilded Age to the New Era, 78 N.Y.U. L. Rev. 239 , 323 (2003); see Mortimer “Tim” Sellers, Book Review, International Law in Antiquity, by David J. Bederman, 15 Emory Int’l L. Rev. 521, 525 (2002) (“Then, as now, unfavorable public opinion would punish most violations of international law.”). Compare James C. Hsiung, Anarchy and Order: The Interplay of Politics and Law in International Relations 5–26 (1997) (criticizing neorealist position and arguing that international law is an “integral part of international politics”) with John J. Mearsheimer, The Tragedy of Great Power Politics (2001) (presenting theory of “offensive realism,” which denies that anything other than power relationships and the desire for hegemony drives international relations).
.See Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Va. J. Int’l L. 1, 11 (2002) (characterizing states as “disaggregating,” and citing critics of billiard-ball theory of international relations); Peter G. Danchin, U.S. Unilateralism and the International Protection of Religious Freedom: The Multilateral Alternative, 41 Colum. J. Transnat’l L. 33, 79 (2002) (concluding that billiard-ball view of international relations does not comport with realities of human rights movement); Jose E. Alvarez, Comment on Anne Marie Slaughter, A Liberal Theory of International Law, 94 Am. Soc’y Int’l L. Proc. 240, 250 (2000) (applauding “insight that states are not opaque billiard balls but collections of actors with concrete interests”); Jeffrey L. Dunoff & Joel P. Trachtman, Economic Analysis of International Law, 24 Yale J. Int’l L. 1, 10 (1999) (noting traditional positivist/realist view of international relations “‘billiard ball’ states that interact only with one another”).
.See Jessica T. Mathews, Power Shift, 76 Foreign Aff. 50, 59 (1997) (creating new constituencies for compliance with international law by NGOs). Francois Rigaux’s “Transnational Civil Society,” involves three types of actors: the state acting through its domestic law, the community of states in the international order, and individuals acting through private initiatives including NGOs. International Law: Achievements and Prospects 12 (Mohammed Bedjaoui ed., 1991).
Law, supra note 44;
see generally Martin Wolf, Uncivil Society, Financial
Times, Sept. 1, 1999, at 12 (lamenting role of NGOs in
blocking negotiation of multilateral agreement on investment; “only elected
governments can be property responsible for the making of law, domestically and
internationally. . . . to grant any private interests a direct
voice in negotiations over how coercion is to be applied is fundamentally
subversive of constitutional democracy”). “If NGOs were indeed representative
of the wishes and desires of the electroate those who embrace their ideas would
be in power. Self evidently, they are not.”
.Professor Koh’s “transnationalist” school of international relations theory emphasizes the role of private actors in international law. Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181, 183—85 (1996).
.In his illuminating synthesis of competing and overlapping strands of international law, Harold Koh explores the process of “norm internalization.” Cf. Harold Hongju Koh, Why Do Nations Obey International Law?, 106 Yale L. J. 2599, 2645 (1997); Harold Hongju Koh, The 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623 (1998) (offering examples of internalization of international law: 12-mile territorial limit from UNCLOS III, landmines treaty, European Human Rights Convention, torture convention). The process can be viewed at three overlapping and potentially reinforcing levels: the level of the international system itself; the level of individuals and groups who make up the state; and the processes and institutions of domestic politics. He explains that transnational actors such as public officials, “norm entrepreneurs,” and NGOs mobilize domestic elites and popular constituencies and set in motion a domestic political process that internationalizes a norm of international law. See id. at 2649—50.
.Harold Hongju Koh, On American Exceptionalism, 55 Stan. L.
Rev. 1479, 1521 (2003) (“
.Taft, supra note 40 (arguing that U.S. invasion of Iraq was legal because it responded to a material breach of Iraq’s obligations under earlier UN Security Council resolutions, and that this justification was accepted in Security Council Resolution 1441).
generally, The National Security Strategy of the
.Jane E. Stromseth, Law and Force after
.The head of the CPA was
appointed by the Secretary of Defense and/or the President of the
.See generally Falk, supra note 47,
at 591 (identifying possibilities that
.David M. Ackerman,
International Law and the Preemptive Use of Force Against Iraq, CRS Report to
.See Frederic L.
Kirgis, ASIL Insights:
Pre-emptive Action to Forestall Terrorism (June 2002), available at http://www.asil.org/insights/insigh88.htm (last
.“The coalition is committed to
working in partnership with international institutions, including, of course,
the United Nations. But I would just caution that
“When I said that this isn’t
. The Dayton Accords were negotiated outside UN auspices, and subsequently adopted by the Security Council. See Political Trusteeships, supra note 1. Negotiations outside the UN by the “Contact Group” produced the framework for political trusteeship subsequently adopted in Security Council Resolution 1244. See id. The Berlin Agreement was negotiated outside the UN and subsequently incorporated by reference in Security Council resolutions. See id.
.President Bush stated, “In a
.As Part II.B § 3, explains,
premature democratic elections may undercut the success of a political
trusteeship in establishing a liberal democracy.
.See Karen Heymann, Earned Sovereignty
.See Political Trusteeships, supra note 1,
at 398—404 (discussing antecedents of war in
.See Thomas Carother, Aiding Democracy Abroad 9 (1999) (criticizing preoccupation with elections at the expense of other elements of democratization); id. at 91 (explaining emphasis on elections in democratization efforts); id. at 135 (explaining that international community emphasizes elections to get legitimate government in place quickly and facilitate exit strategy).
.President George W. Bush,
remarks at the 20th Anniversary of the National Endowment for
Democracy (Nov. 6, 2003), available at http://www.ned.org/events/anniversary/oct1603-Bush.html
.See Joel Brinkley, U.S. Rejects Iraqi Plan to Hold Census by Summer, N.Y. Times,
.“When you get rid of the reign
of fear that Saddam Hussein has wreaked on people who hold their communities
together, you’re going to see leadership emerge.” “And so it’s not as if somebody is picking
these people; these people are emerging from
.See Oona A. Hathaway, The Cost of Commitment, 55 Stan. L. Rev. 1821, 1827 n.16 (2003) (favoring and opposing overriding sovereignty based on human rights abuses by collection authorities); Modibo Ocran, The Doctrine of Humanitarian Intervention in Light of Robust Peacekeeping, 25 B.C. Int’l & Comp. L. Rev. 1 (2002) (reviewing shift toward acceptance of humanitarian intervention).
.United States Department of State, Interview of the President by Al-Sharq Al-Awsat (Nov. 19, 2003), available at http://www.state.gov/p/eur/rls/rm/2003/26561pf.htm (last visited June 24, 2004) (referring to a basic law to protect individual rights and minority participation in Iraqi government before power is transferred, even if constitution is not written before then).
.See Amnesty International, Reconstruction After the War in
.Fareed Zakaria, Our Last Real Chance, Newsweek,
.Warrick had earned the enmity
of the Bush Administration by opposing the deference the Defense Department gives
to Iraqi exiles during the planning process. See Lawrence F. Kaplan, The
State Department’s Anti-Democracy Plan for Iraq, New
Republic, Nov. 2003 (reporting that Warrick tried to bar
participation by the Iraqi National Congress in planning meetings). The order
to dismiss Warrick apparently came from Vice President Cheney.
. MacArthur was a paradigmatic leader of a
political trusteeship with charisma reaching into the international community. Churchill is an example, not of a leader
involved in a political trusteeship, but of a national leader who projected his
charisma abroad to build international support, especially in the
.Compare Max Singer, After Saddam: The Controversy over Ahmad Chalabi, National
Review Online, June 20, 2002, available at http://www.nationalreview.com/comment/comment-singer062002.asp
(last visited June 24, 2004) (reporting controversy over whether Chalabi “has
the potential to be one of the great Arab leaders of this century” or whether
he is a small time opportunist and playboy trying to use his position in the
Iraqi National Congress to make something for himself”) with David Corn, Postwar Democracy? Iraq is a Hard
Place, The Nation,
.Dexter Filkins, The
.Dexter Filkins & Richard A. Oppel, Jr., After the War: Truck Bombing; Huge Suicide Blast Demolished U.N. Headquarters in Baghdad; Top Officials Among 17 Dead, N.Y. Times, Aug. 20, 2003, at 1 (reporting on attack that Killed Viera).
.No-fly zones: The Legal Position,
.How to Rebuild
.The Act requires that certain
reports be posted on the CPA website. See
Iraq Emergency Supplemental Appropriation Act § 2215(a)(3), Stat. at 1232 (oil
production reports); Iraq Emergency Supplemental Appropriation § 3001(i)(4), Stat. at 1237 (quarterly Inspector General
reports to Congress), available at http://www.export.gov/iraq/pdf/public_law_108-116.pdf?dbname=108_cong_public_laws&docid=f:publ106.108.pdf
.After the June, 2004 transfer of power, the CPA website had
links to information on the “new sovereign
.The Act establishes an
Inspector General of the Coalition Provisional Authority, appointed by the
Secretary of Defense, who must report to the Congress on the use of appropriated
funds and monitor and review reconstruction activities. Iraq Emergency Supplemental
Appropriation Act, supra note 111,
§ 3001, Stat. at 1234–35. The Inspector General also has the same duties and
responsibilities as other inspectors general under the Inspector General Act of
.Political Trusteeship, supra note 1, at 452. See generally Ideas & Foreign Policy: Beliefs, Institutions and Political Change (Judith Godstein & Robert O. Keohane, eds., 1993) (arguing that ideology plays a role, and challenging purely rationalist approached to international relations theory).
.Haifa Alangari, The Struggle for Power in Arabia 176 (1998) [hereinafter “Alangari”] (describing how Ibn Saud used Wahhabism, a fundamentalist Muslim revivalist movement, to consolidate his political power, and to overcome the limits of coercion as a means of controlling tribal rivalries).
.Leela Jacinto, Murder in the Mosque,
“The failure of Iraqi democracy would embolden terrorists
around the world, increase dangers to the American people, and extinguish the
hopes of millions in the region. Iraqi democracy will succeed—and that success
will send forth the news, from
.Political Trusteeship, supra note 1, at 467—71. (explaining how exit strategy must be coordinated with development of institutions of liberal democracy, lest opposition to continued trusteeship force premature withdrawal).
.The Grand Ayatollah enjoyed an effective veto on plans for governmental transformation because of his influence with the 12 Shiite members of the 24-member Governing Council. Brinkley & Fisher , supra note 142.
“And so it’s not as if somebody is picking these people;
these people are emerging from
“Ultimately, there will have to be a process of elections and
all of the things that go with democracy, that will finally affirm what the
actual government of
.The content of the web pages
associated with these categories is sparse, however, mostly reporting on CPA
philosophy and aspirations. As of
.Iraq Investment and
Reconstruction Task Force, at http://www.export.gov/iraq
.See Will Dunham, Americans Squirm at U.S. Death Toll in Iraq
.Compare id. at 1–2 (“ignite a new era of global economic growth through free markets and free trade; expand the circle of development by opening societies and building the infrastructure of democracy”) with Samuel R. Berger, A Foreign Policy for the Global Age, 79 For. Aff. 22, 32 (2000). (“Economic integration advances both our interests and our values but also accentuates the need to alleviate economic disparities”).
.Compare NSS document, supra note 47, at 1—2
(“champion aspirations for human dignity”) and
NSS document at 1-2 (“Our goals on the path to progress are clear: political
and economic freedom, peaceful relations with other states, and respect for
human dignity”) with Berger, supra note
176, at 38. (arguing that the
. The Bush Administration believed that
deterrence was insufficient to forestall the possibility of use of weapons of
mass destruction by Saddam Hussein and thus that it was necessary to remove him
from power to remove the threat. Compare NSS document, supra note 47, at 1-2 (“transform
.Compare NSS document, supra note 47, at 1-2 (“transform America’s national security institutions to meet the challenges and opportunities of the twenty-first century”) with Berger at 30 (“New dangers, accentuated by technological advances and the permeability of borders, require new national security priorities”); compare NSS document, supra note 47, at 1-2 (“prevent our enemies from threatening us, our allies, and our friends, with weapons of mass destruction”) with Berger at 30 (“New dangers, accentuated by technological advances and the permeability of borders, require new national security priorities”); compare NSS document, supra note 47, at 1-2 (“work with others to defuse regional conflicts”) with Berger at 29 (“Local conflicts can have global consequences”)
.Compare NSS document, supra note 47, at 1-2 (“strengthen alliances to defeat global terrorism and work to prevent attacks against us and our friends”) with Berger, supra note , at 25 (“America’s alliances with Europe and Asia remain the cornerstone of its national security, but they must be constantly adapted to meet emerging challenges”). Compare NSS document, supra note 47, at 1-2 (“develop agendas for cooperative action with other main centers of global power”) with Berger, supra note , at 27 (“Peace and security for the United States depend on building principled, constructive, clear-eyed relations with our former great-power adversaries”).
. Michael Hirsh, Bush and the World, 81 Foreign Aff. 18, 20 (1996) [hereinafter Hirsh]; id. at 22 (reporting on convergence between realist internationalists such as Rumsfeld and Cheney and neoconservatives led by Wolfowitz, which leaves moderate unilateralists such as Powell and Haass lonely).
.Joseph S. Nye, Jr.,
.See William O. Beeman, A Formidable Muslim Bloc Emerges, Los Angeles
.See Nye, supra note 164, at 72-73 (power is “widely distributed and chaotically organized” among state and non state actors; United States cannot obtain outcomes it wants without agreement of European Union, Japan, and others; “by devaluing soft power and institutions, the new unilateralist coalition of Jacksonians and Neo-Wilsonians is depriving Washington of some of its most important instruments for the implementation of the new national security strategy.”).
.“In its modern iteration, liberal international relations theory has come to stand for the straightforward proposition that domestic politics matter.” Oona A Hathaway, Do Human Rights Treaties Make a Difference? 111 Yale L .J. 1935, 1952 (2002).
.This is the “billiard ball” metaphor. See William C. Bradford, International Legal Regimes and the Incidence of Interstate War in the Twentieth Century: A Cursory Quantitative Assessment of the Associative Relationship, 16 Am. U. Int’l L. Rev. 647, 665 n. 57 (2001). (stating that realists embrace ““billiard ball” model of the international system, in which states are regarded as identical in form and function and opaque with regard to domestic regime type and state society relations”).
.See, e.g. Keith Bradsher &
Joseph Kahn, Running for Re-election,
Taiwan Leader Takes on China, N.Y.
Times, Dec. 6, 2003 at page A7 (explaining how re-election
position of Taiwan President seeking referendum on Chinese missile threat to
Taiwan is destabilizing relations between China and Taiwan); James Bennet, An Ally of Sharon Foresees a Palestinian
State, N.Y. Times,
Dec. 6, 2003, at page A6 (suggesting that position by senior leader of Likud
Party is intended “to build support on the right” for action to break
Middle-East negotiation stalemate). Whether these political positions
predominate in the domestic politics of
.See Anne Marie Slaughter, A Liberal Theory of International Law, 94 Am. Soc’y Int’l L. Proc. 240 (2000) (embracing view of “international political system as some political scientists see it—from the bottom-up rather than the top down . . . .”) [hereinafter Slaughter, Liberal Theory].
Usman, The Evolution of Iranian Islamism
from the Revolution Through the Contemporary Reformers, 35 Vand. J.
Transnat’l L. 1679, 1704—05,
n. 154 (2002). (characterizing Islamic revolution in
.“The Holy Grail of politically-oriented international law scholars has been to reconnect our discipline with the study of political science and international relations, a connection lost since at least the 1950s. Some prominent international relations scholars flatly rejected law as anything worth considering, while political scientists generally became mired in methodological thickets as irrelevant as the old positivist scholarship. In the past decade, however, the disciplines have been fruitfully reunited. Anne-Marie Slaughter and Ken Abbott proposed agendas, and several scholars have used the two disciplines to elucidate particular areas of law. Most impressively, Michael Byers has studied power and customary international law using a sophisticated understanding of realism, regime theory, and traditional international law scholarship to show ways in which law makes a difference in state behavior.” Phillip R. Trimble, The Plight of Academic International Law, 1 Chi. J. Int’l L. 117, 122-123 (2000) citing Harold Hongju Koh, Review Essay, Why Do Nations Obey International Law?, 106 Yale L. J. 2599 (1997); Anne-Marie Slaughter, International Law and International Relations Theory: A Dual Agenda, 87 Am. J. Intl L. 205 (1993); Kenneth W. Abbott, Modern International Relations Theory: A Prospectus for International Lawyers, 14 Yale J. Intl L. 335 (1989); Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, International Law and International Relations Theory: A New Generation of Interdisciplinary Scholarship, 92 Am. J. Intl L. 367 (1998).
.See Eliot A Cohen, History and the Hyperpower, 83 For. Aff. 49 (2004). (evaluating Bush foreign policy as imperialist); Joseph S. Nye, Jr., U.S. Power and Strategy after Iraq, 82 For. Aff. 60 (2003). (noting that Bush foreign policy is increasingly labeled as “imperial”).
.See Evan Criddle,
.See Steven Lee
Myers, Putin Says
.See Anssi Kullberg, From Neo-Eurasianism to National Paranoia: Renaissance of Geopolitics
in Russia, Eurasian
Politician, Issue 4 (Aug. 2001), available at http://www.cc.jyu.fi/~aphamala/pe/issue4/duginism.htm.
.See Shambaugh, supra note 233. (global affairs will be “profoundly destabilized”
by an American policy that confronts
.See Jorge A. Vargas, Mexican Law on the Web: the Ultimate Research Guide, 32 Int’l J. Legal Info. 34, 39 (2004) (“undemocratic” nature of Mexican political changes with election of Fox in 2000).
.See Thomas Andrew
O’Keefe, The Central American Integration
System (SICA) at the Dawn of a New Century: Will the Central American Isthmus
Finally Be Able to Achieve Economic and Political Unity? 13 Fla. J.
Int’l L. 243, 254 (2001).
(describing the success of Mercosur and its influence as a model for
integration elsewhere in
.Jeff Madrick, Economic
Roadmap to Israeli-Palestinian Peace, available
at http://www.mideastweb.org/quartetrm3.htm (last visited
.One worrisome trend in the
.See Henry H. Perritt, Jr., Policing International Peace and Security: International Police Forces, 17 Wis. Int’l L.J. 281 (1999) (arguing that the international community should develop better capability to perform policing functions in post-conflict situations).
.See Cohen, supra note 221, at 61. (arguing that
.A Job Half-Done in