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Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.

Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc "coalition of the willing" that invaded Iraq on March 19,2003, quickly defeated Iraq's armed forces, and ended the regime of Saddam Hussein and the Ba'ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.

This paper explores the international law governing the use of force in the wake of conflicts in Kosovo, Afghanistan, and Iraq. Developments since the conclusion of World War II, such as the emergence of international terrorism and rogue states and the easier availability of weapons of mass destruction, have placed enormous strain on the bright line rules of the UN Charter system. This paper argue that a more flexible standard should govern the use of force in self-defense, one that focuses less on temporal imminence and more on the magnitude of the potential harm and the probability of an attack. It further argues that the consensus academic view on self-defense - that force is justified only as a necessary response to an imminent attack - which was largely borrowed from the criminal law, makes little sense when transplanted to the international context. It concludes by questioning whether self-defense, grounded as it is in a vision of individual rights and liberties in relation to state action, is the proper lens through which to view the use of force in international politics. Rather than pursuing doctrinal or moral approaches, this paper addresses the rules governing the use of force from an instrumental perspective. It asks what goals the international system, and its most currently powerful actor - the United States - should seek to achieve with the use of force, and whether the current rules permit their pursuit. An approach that weighs costs and benefits to the stability of the international system, which could be seen as an international public good currently provided by the United States and its allies, might better explain recent conduct and provide a guide for future action.

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from serious political instability over the last two centuries brought about by sometimes extreme political ideologies, and since World War II has enjoyed a different tradeoff between rights and security thanks to an American security guarantee.

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from serious political instability over the last two centuries brought about by sometimes extreme political ideologies, and since World War II has enjoyed a different tradeoff between rights and security thanks to an American security guarantee.

Many international legal scholars and foreign governments have argued that the recent war in Iraq violated international law. This paper, published as part of an Agora in the American Journal of International Law, criticizes this view on two grounds. It explains that these scholars have failed to properly read existing United Nations Security Council resolutions that authorized the use of force against Iraq. Even putting the United Nations to one side, this paper explains that the use of force could have been justified, at the time of the invasion of Iraq in the spring of 2003, as an exercise of self-defense. It argues that traditional notions of self-defense, which permit the anticipatory use of force before an offensive attack occurs, have changed to take into account the greater magnitude of destruction of weapons of mass destruction and the behavior of rogue states.