On the Political Geography of the Right to Survive: the EU and Mass Migration

On the Political Geography of the Right to Survive: The EU and Mass Migration

Sara Dillon*

Foreword. 37

The European Union and the Rule of Law: A Home for Human Rights? 38

Mass Migration and Supranational Freak-outs 46

On Mass Migration, International Human Rights and the Role of the E.U. 47

Is There a Right to Survive? If So, What is its Scope? 48

Finale: Institutions Will Not Save You. 53

Foreword

The following essay is based on remarks I made as a panelist at the Gonzaga University Law School-RFK Human Rights Center Florence in May 2017, as part of a conference on the subject of Human Rights in Anxious Times. In the essay, I discuss the recent rise of illiberal politics in Europe and the U.S., and the worrying prospect of the general public rejecting what had been a post-World War II consensus on the importance of human rights and the international rule of law. The essay considers the effects within European consciousness of high levels of migration into Europe, the meaning of the “right to survive,” and the manner in which public anxieties are being manipulated by the illiberal far right. The essay argues that for the international rule of law—including human rights law and refugee law—to flourish, that law must live in actual places; it must be protected within actual jurisdictions, or risk being dismissed as a set of meaningless abstractions set out on insubstantial pieces of paper. The great danger at present is that, although Europe lived up to the letter and spirit of the post-World War II human rights consensus better than anywhere else on earth, public alienation puts the survival of the regime of rights itself at risk. The European Union and the Rule of Law: A Home for Human Rights?

Some years ago, soon after the beginning of the 2003 U.S. invasion of Iraq, I wrote an academic article in the persona of an American dissident longing for the E.U. to act as a “progressive empire” and take a stand against that war on clear-cut international law grounds.[1] After watching Colin Powell make his now notorious presentation to the U.N. Security Council, during which he tried to convince the world that Iraq still had weapons of mass destruction (WMDs), I remember thinking, My goodness, they actually do not have any real evidence![2] After that speech, the act of making war against another country pre-emptively, on a rather flimsy basis, broke new ground all those years ago.[3] In 2003, the U.S. insisted it had a sovereign right to do something established norms of international law had long held no nation had the legal right to do.

Up to that point, almost every credible interpretation of Article 2(4) of the United Nations Charter had rejected the notion that a nation could lash out militarily in order to prevent certain dangerous behavior that was not only yet to occur, but for which there was little predictive evidence.[4] Pre-emptive war was widely considered to be contrary to the most basic principles of international law.[5] Yet, at that moment the United States government was so eager to bring down Saddam Hussein it relied on what became known as the “Bush Doctrine” to achieve that.[6] Throughout 2003, American and international politics were profoundly split over the question of whether a nation’s sovereignty extended to the power to violate a core, even sacred, international doctrine prominently enshrined in the U.N. Charter based solely on its own fear of a future attack.[7] We know that the United States proceeded to take exactly that kind of preemptive action, and that in the end—whether ironically or tragically—no conclusive evidence of the existence of WMDs was found in Iraq.[8]

My theory in 2003, which seems somewhat naive in retrospect, was that the European Union had the capacity to be the enduring location of international law principles, the site of human rights enforcement, and the home for our shared sense of international conscience and resolve, even if the U.S. should temporarily go off the international law rails.[9] In this vision, the E.U. could be the ongoing inspiration for forlorn American political dissidents, in the way America used to inspire Russian dissidents.[10] The law review article I wrote at the time was entitled, “Looking for the Progressive Empire.”[11] I remember with fondness and nostalgia Joschka Fischer arguing with Donald Rumsfeld over the legality of the Iraq War; giving hope to American viewers that a strong European sense of international law might restrain those in the U.S. being overcome with the fumes of irrational militarism.[12] Whereas the American political class had always struggled with subordinating its own sense of unique Constitutional destiny to “international law” rules, the thoroughly “postwar” E.U. had rather easily embraced these basic global rules, or so it seemed to me. Many in the United States were buoyed by Joschka Fischer lecturing Rumsfeld about the dangers of pursuing military adventurism without solid legal justification, as this showed that bedrock principles of international law could survive no matter what move the U.S. took next.[13]

On the first night of the Iraq War in March 2003, when we turned on our televisions and saw bombs dropping on what was then a troubled but completely intact Baghdad, my thoughts went out to Europe, expecting to find a source of stable, reliable legal principles and hoping to find a counterweight to the war fever that had apparently gripped the United States.[14] I anticipated the reaction of what I considered to be the legally sane world: the E.U., because of its less manipulable politics, would come to the rescue of the rest of us. Hence, I hit upon the idea of an American dissident seeking solace in the belief that the flame of enlightened legal concepts would still be alive somewhere.[15] Interestingly, we should recall that Donald Rumsfeld’s technique at that moment was to try and divide Europe—old Europe versus new Europe—to split apart what seemed to be a broad European consensus that invading a country for the avowed purpose of toppling the government was an inherently bad idea, and a violation of an irreducible principle of international law.[16] The states of Eastern Europe were just on the cusp of entering the E.U. at that time, and had a far more favorable view of what the U.S. was up to in invading Iraq.[17] (This is somewhat ironic in light of recent anti-democratic developments in Poland, since back then countries like Poland were reacting based on their vivid and extremely negative memories of Russian aggression.[18] At the time, the E.U.’s Eastern European candidate countries were unusually pro-U.S. and inclined to favor heavily sovereigntist ideas.).

Moreover, then British Prime Minister Tony Blair surprised many by signing on to George W. Bush’s 2003 war in Iraq, thus guaranteeing that it would go forward without the U.S. appearing to be a completely isolated pariah state in international law terms, and that the war would, in one sense at least, “succeed.”[19] It is important to consider where the prosecution of that war has led us fourteen years later. While it would be unfair to blame the long-running chaos of the Middle East on that war alone, it certainly contributed to widespread instability for many years after 2003.[20] It would seem that the international law rules, for all their defects in implementation and enforcement, had a lot of good sense at their core after all. The international rule against pursuing an unprovoked war, or engaging in armed attack against a state that has not first attacked your state, are rational, practical and idealistic, especially when measured against the alternative.[21]

American neocon scholars argued earnestly during that period that Europeans had lost a sense of what a “just war” might be.[22] In other words, under this kind of analysis, the E.U., its governments and peoples, were too constrained by a sense of international legal rules, that it lacked the psychological space for reacting with resolve and outrage in a manner that might break the rules when necessary. This led to a great deal of frustration within the Washington establishment at the European refusal to support the U.S. in its Iraq War—even to the point where French fries in Washington became “freedom fries.”[23] The very name of the U.S.’s oldest ally could not be spoken inside federal government buildings.

Yet even in that 2004 article I wrote on the “progressive empire,” I had to concede that there was a weakness within the E.U. that could undermine its ambitious project. As I saw it, there was danger in the E.U.’s total aversion to “blood and soil” politics, in that by banishing feeling from politics, the E.U. risked alienating its adherents and failing to provide the emotional bases for attachment that, in the end, every kind of politics—even the most rarified—requires.[24] Even back then, I feared that when tested the rational technocratic ether so characteristic of the E.U. would prove too insubstantial for the fretful human political imagination.[25] (In that regard, how interesting and how daring that recently elected French president Emmanuel Macron walked out onto the presidential stage to the sound of the E.U.’s Anthem, the Ode to Joy![26] Macron seems to be unique in his attempt to inject emotional potency back into the European project; not asking the E.U. to be perfect, but for it to be capable of eliciting emotional connection in its own populations. While Macron is having his own difficulties in France, his central insight was to try and reconnect the E.U. to political emotion.[27]) But there has long been a question as to whether the E.U. as an entity allowed for the emotional dimension in politics, the aspect that feeds on political passion, with its capacity for good and for ill. It is very possible that, with the memory of World War II etched on the collective E.U. mind, popular attachment can only extend as far as admiration for an abstract idea of overarching rules, technocratic politics, and incremental constitutionalism.[28] I admired and counted on the E.U.—but I perceived and feared the weakness inherent in dismissing emotion from politics. At this moment, when democracy and human rights seem to be under their most serious threats since World War II, we should consider how to infuse human rights with human feeling, and guarantee broad-based loyalty that will outlive the current (hopefully short-lived) flirtation with neo-fascism in so many countries.[29] To survive, human rights must have an enduring geographical home.

My objective in recalling the dismay I experienced in the spring of 2003 is to make the larger point that international law and human rights law must live somewhere, so that when these are endangered in one place, they do not die out altogether. At the time, I hoped that if core international law rules were extinguished in the U.S. they would continue to be honored in the E.U. From an international law perspective, the great tragedy of the 2016 Trump election was that the U.S. had suddenly become a completely unfit home for human rights.[30] For example, U.S. Secretary of State Rex Tillerson recently made clear that human rights must not “interfere” with the so-called “America First” agenda.[31] Perhaps reflecting his years as an oil executive, he declared that “it is really important that all of us understand the difference between policy and values,” ironically while addressing a State Department he had done so much to weaken.[32] In this vision, the United States would no longer be the standard bearer for human rights. Rather, the U.S. would emulate autocracies and oligarchies, by rejecting the notion that the national mandate must derive from a set of sacred, if often violated, principles.

I think that those of us who have made human rights law a professional study have lost sight of the fact that we are stuck with existing political geography. There is no “alternative” world in which human rights can be protected. We have come to take the existence of human rights law for granted, simply because we study it and talk about it. But people migrate across political geography with no more rights than they are granted in a particular time and place. If international law dies out in country after country, the rules we have treated as independently and inherently robust will be suddenly revealed as shockingly weak.[33]

It is important to face the fact that no one will be protected by pieces of paper that represent a system no longer regarded as powerful by actual people in actual places. If there is no geopolitical home for human rights, if there is no core alliance of countries with a durable consensus on human rights, talking about U.N.-based paper rights will be meaningless. At the level of propaganda, a great deal of effort is expended in encouraging people to believe that democracy is a fantasy, and at best a cynical exercise led by “global elites.” As this point of view takes hold, people become more willing to approve of anti-democratic experiments.[34]

The autocrats of today go beyond merely suppressing internationally protected rights, they engage in pseudo-democratic processes, a blend of real and false that is completely disorienting, as pointed out by such writers on authoritarianism as Masha Gessen.[35] Human rights cannot survive in an artificial bureaucracy alone. Documents need to reflect what holds conceptual sway in the world—legal words, even inscribed in stone, cannot generate conditions of life by themselves. In the U.S. and the E.U., while not saintly and far from perfect, our countries have enjoyed the post-World War II reputation of being the “homes” of human rights law—often hypocritical and irresolute, but nevertheless the best hope for people around the world trying to find inspiration and hope.[36]

Within the E.U. itself, there has been an interesting tension between technocratic incrementalism and big picture political union, with the Euro-optimists believing that ultimately the “project” would end up in a political Shangri-la of sorts.[37] The long-held ideal was that the E.U. would be firmly based on the rule of law—and not on the old-style, emotional, competitive nationalistic attachments of the pre-WWII period. Nationalism would exist to some degree, but it would be tamed, and it would always be comfortably subordinate to an international rule of law. It would be called national “culture” and it would remain within its safe spaces. [38] The date of arrival for the E.U.’s “political union” was unclear—but in Europeanist thinking, it would happen.[39] While inconvenient reality might periodically intervene, reality would not defeat this deeply held belief, and so that remained the enduringplan. Human attachment to this political union could be fostered based on the rightness of the policies. But as history informs us, being right and being loved are often two different things.

A great deal of this safely technocratic plan was attractive. Over the past year or two, however, we have witnessed openly fascist rallies in Poland, a quarter of the vote in major E.U. nations going to the far right, openly anti-Muslim political parties, and the E.U. itself appearing powerless to react in any forceful way.[40] With the re-emergence of these unsavory sentiments and political passions comes the corresponding wish to restrict democracy, to turn away from hard-won freedoms and return to a comforting past that rejects the uncertainty of rights and liberties.[41]

Of course, destiny does toss up surprises, twists and turns that represent the romance of life heading in unexpected directions. The recent presidential election season in France offered one such unexpected surprise, though young President Macron will have to confront many problems.[42] Mass Migration and Supranational Freak-outs

In the United States, the traditional animating principle was to be on guard against the “enemies of freedom”—whereas in the E.U., one had to fend off the “enemies of legalism.”[43] From the E.U.’s collective viewpoint, by contrast with the U.S.’s, everything—including the less attractive human emotions—could be regulated, people would see the light if given enough chances, and the implicit constitutionalism of the E.U. “project” would prevail. What other solution could there be? This ethos was prevalent as long as certain historical lessons were remembered by enough people in Europe. Not surprisingly, however, as the events that led to the creation of the E.U. begin to dissipate in the memories of Europeans, so too does the sense of supranational inevitability.

The integrationist rationale for regionalism and globalization had long been found in the lessons of two world wars.[44] To avoid a repeat of the devastation caused by hyper-nationalism, certain kinds of extra-national structures had to be created. That necessity was considered obvious for a very long time. Extreme nationalism, as practiced in Europe in the 1930s and 1940s, had proven to be sterile, a colossal failure, and provided cover for repression.[45] It was the false way; the road to nowhere. The only way forward for the E.U. would be through integrated European and world markets and a letting go of the old version of patriotism.[46] It is only recently that this doctrine of integrated markets has been openly and even brazenly questioned from within “the West” itself, as resistance has grown to the economic model advocated by supposed “globalists.”[47] On Mass Migration, International Human Rights and the Role of the E.U.

In the past three years, the “right to survive” has come into focus very dramatically. It is estimated that approximately 60 million people are “on the move” in the world.[48] The causes of displacement are varied and complex. Civil wars, hunger, bad governance, corruption, climate change, lack of opportunities and other circumstances drive people out and away from home in search of some improvement in their conditions of life.[49] The spectacle of this mass migration and resistance to it have led to a scholarly focus on the “right to survive.”[50] Europe has received fewer migrants overall than other parts of the world; the Middle East and Africa are the sites of massive refugee camps and millions of people may remain displaced for generations to come.[51] However, it is also the case that Europe has experienced more migrant pressures than ever before, and from a variety of places in the world.[52] The U.S., by contrast and in part due to geography, has experienced relatively little.[53]

However, along with the obvious need to protect those who are most desperate came a resurgence of hatred and rejection across Europe.[54] While it is impossible to prove conclusively that these two phenomena are linked in this manner, it seems likely that the rise of nationalism and anti-foreigner sentiment in Europe is tied to the unusually large influx of human beings crossing the Mediterranean and traversing the Balkans to escape violence and intolerable living conditions of all kinds.[55] So intense has been this backlash that we may have come close to the end of the empire of rationality, the empire of law, the E.U. itself—or at least an E.U. that is respected and admired for its high mindedness in these areas. It is pointed out that the migration crisis in Europe is not in fact a “crisis” by world standards—that the E.U. is not shouldering an undue burden, and that there is no need to over-react to the migration phenomenon as experienced over the past few years.[56] However, it seems clear that the European public is generally skeptical about the ability of the E.U., or their national governments, to control external borders, and it would seem prudent to figure out where this sentiment fits in with the development of the E.U. in the near future.

So here we return to the main theme of this discussion: the right to survive. This is no doubt the most basic of rights, the right to be taken in by members of your own species, when the world is collapsing and there is nowhere to go. One’s right to live entails not only the right not to be deprived of life arbitrarily, but also the more positive aspect of the right, to be protected when protection is possible. So, when people who are struggling to live show up on one’s doorstep, what are they owed, and what is the scope of the obligation placed by international law on the host state?[57] Within the E.U., of course, uncertainty has persisted as to which state is in fact the host state. What was to be a characteristically reasonable parceling out of migrants has run into a wall of refusal on the part of several of the E.U. states, leaving states like Germany and Italy to take in even more than heretofore, or to reassess the feasibility of such wide acceptance.[58] Is There a Right to Survive? If So, What is its Scope?

The right to survive as it has been discussed over the past decade or so has at least two dimensions: the right to live when threatened by man-made catastrophes and the right to live when threatened with natural disasters—often themselves the indirect products of bad public policy.[59] There is no shortage of examples of human beings under complete and immediate threat and danger of death. As indicated above, this prospect of course poses a challenge to the rest of us: Where can such threatened people go? Who will welcome them? Is there a right they have that is not only opposable to all the rest of us, but that also has a real chance of being generally recognized and embraced? As previously noted, formal acknowledgment alone does not guarantee the survival of a right. When the numbers of people on the move, internally and externally displaced, are almost inconceivably large, how does that affect the right? Does it affect the very plausibility of the basic right?

This set of questions boiled up into a crisis that began in 2014, as Middle East chaos, generated in part by a U.S. eager to invade Iraq after 9/11, spilled over into the contiguous E.U., which dutifully tried to live up to its “international rule of law” self-image.[60] In 2015, Germany took in 316,000 refugees and migrants, France 273,100, Sweden 169,500 and so forth.[61] And it seemed for a while that not only were Syrian families in their tens of thousands on the way to Europe, but half the whole world—young men from the Balkans, from Afghanistan, from sub- Saharan Africa, literally everywhere.[62] Again, even recognizing that other regions of the world are far more profoundly affected by much larger numbers of refugees than Europe is, the E.U. has a symbolically significant role in the world. Right wing political opportunists were quick to exploit skepticism on the part of the European public concerning a specifically European obligation to continue to take potentially millions of migrants of many different kinds, and destabilization of the E.U. itself seemed a consequence of this conceptual confusion.[63]

At least some E.U. states attempted to live up to international refugee law, and were ready to offer migrants full rights to remain within the E.U. host state; by contrast, some countries outside Europe offered only temporary refuge and no possibility of citizenship.[64] Neo-fascists seized on a perceived vulnerability as European leadership insisted on living up to core international human rights, while a skeptical public recoiled from the full implications of an ongoing, poorly defined open door policy.[65]

To account for the political morass that threatens the prestige of human rights law in Europe, we must also take into account the violent images that made their way into the global political consciousness, particularly as a result of the rise of ISIS. Inspired by a brutalist ideology, that group began to spread its “alternative state” message, drawing in second and third generation Muslims from various parts of Europe.[66] According to some estimates, there were at one one time approximately six thousand European Muslims fighting for ISIS in Syria and Iraq.[67] The ISIS videos, with the prisoners in orange and the terror and loneliness of the desert scene in the background, symbolized the intense fear that we could all be drawn back into the Middle Ages, a time of gleeful violence and utter repression different from anything we have seen in modern times, except perhaps the “revolution” of Pol Pot in Cambodia in the 1970s.[68] It is likely that these and other images affected the overall political climate in Europe, simultaneously with the images of mass migration on the European doorstep.[69]

It could be argued that the European problem was a crisis of “solidarity” rather than of migration itself—yet there is no doubt that there has been a crisis of political perception as well, since the “E.U.” came to be associated with elite decision-making at odds with popular beliefs.[70] The result seems to be a European population much more susceptible than usual to manipulation by those with a decidedly anti-E.U., and even anti-international law, agenda.[71] However unappetizing the prospect, it must be wondered if 2015-2017 provided an object lesson in the international rule of law being overwhelmed by the sheer volume of crises, at least as perceived by the general public.

The right to survive can only mean that others will recognize your absolute right to exist and that you will be protected by others against death. The principal argument being made here is that the idea of that right (and other rights) has to live somewhere, for those who enjoy the right to be able to live. Europe has been caught in the crosshairs of a mass migration that has left it without any intellectual or psychological means of coping with events. On the one hand, we saw the images of an adorable little boy who had drowned in the beautiful Mediterranean Sea.[72] On the other hand, the public seemed largely unconvinced by official responses to terrorist attacks by ISIS sympathizers within Europe, or confused by the prospect of mass migration continuing into the indefinite future with no particular end point. Indeed, the traditional logic of international asylum law rules out the drawing of any end point in such a situation. The plight of the migrants elicited profound dismay, regret, and a wish to do more, while at the same time images of pointless slaughter led to a kind of terror fatigue.[73] To further trouble and confuse the public, there were the lurid stories about sexual violence by migrants in Germany and Sweden, with numerous websites devoted to playing up all thesupposed social and cultural horrors of recent immigration.[74]

When talking to reporters at a campaign, Geert Wilders, a far-right politician in the Netherlands, portrayed Moroccan immigrants asendangering Dutch citizens.[75] Wilders stated that “not all are scum, but there is a lot of Moroccan scum in Holland who make the streets unsafe.”[76] Political players from Britain to France and beyond linked E.U. membership itself with mass migration, as if the E.U., with its adherence to the rule of law and a sense of human dignity, had in essence forced people to act against their own interests.[77] After the nightmare of Greek austerity—surely one of the E.U.’s greatest miscalculationscame the tidal wave of humanity arriving from the East and the South.[78] The result seemed to be that the carefully constructed vision of a rational Europe, an E.U. that is the epicenter of the international rule of law, began to dissipate.[79] It would be tempting to deny that the house of European international law principles could ever crumble; on the other hand, commitment to the rule of law must not be allowed to die out in the consciousness of people themselves. History should make obvious that ideals based on humanist values will not survive merely because they are self-evidently good. The right to survive in this context pre-supposes the right to come in, to be sheltered. In most parts of the world, such a right is not recognized, either because national governments do not want migrants, or the migrants want to go elsewhere, or because there are few, if any, resources with which to provide shelter.[80] It may be that the E.U. itself was too convinced by its own prior success as a body, as a set of legal and political institutions. The major E.U. states seem to have believed that their populations were no longer vulnerable to the limitations of ordinary people in more typical societies. We need not assume that the European public said a definite no to the general right to survive; yet at some point in the migration drama, the European public seems to have said, beyond this we are not going.

In this fraught environment, a new brand of neo-fascist rhetoric became fashionable across the Western world: The public has been told by those acting in bad faith that the rule of law itself was forcing them to be polite, to tell lies, to give shelter to the undeserving. The most shocking example of this might be President Trump reciting a poem about a “snake” as a symbol for immigrants—with the underlying message being that when one tries to be kind and accommodating, a venomous snake emerges ready to pounce.[81] The post-World War II vision of the migrant had been a relatively benevolent one—and the commonly embraced concept was that “never again” would people find themselves on boats, wandering the earth, wanted by no one. That could never happen again, we believed, because now we had pieces of paper with high-minded ideas written on them, and the governments of the world would act accordingly.[82] We have come to see that we took the rules, the principles and the commitments for granted, and that legal ideas may be undone by the right combination of dangerous circumstances. Finale: Institutions Will Not Save You

After the election of Donald Trump to the U.S. presidency, many Americans turned to Russian dissidents for advice on how to survive this unfamiliar autocracy.[83] The history of the 1930s gained new interest; how Hitler was “normalized” became a topic of general conversation. Writers like Yale historian Timothy Snyder gained new prominence, as many Americans tried to devise a strategy for resistance to autocracy.[84] A common theme was that institutions one had previously believed to be protective would not in fact protect against the autocrat, and the autocrat would act audaciously to overturn the familiar political and constitutional norms. Americans who had been brought up on doctrines of constitutional “checks and balances” had, perhaps for the first time, to contemplate the possibility of the weakening and perhaps the death of their democratic system.

Outside the U.S., there was also a new awareness that institutions like the United Nations and the European Union would not prove able to protect the people against anti-democratic forces. The European treaties, like the international covenants on human rights, are only words on a page when they do not enjoy wide support from the general public.[85] Even the most fundamental rights are ineffective if a significant proportion of the population does not embrace them in all their difficulty and complexity.[86] Although constitutional rights are believed to be an effective bulwark against majoritarianism, that is not really the case.[87] Constitutions themselves are only words on paper. Only an actual, collective belief in the importance of core rights provides such a bulwark. International law, including the very basic right to survive, can only itself survive within the limits of anthropological reality.

This essay has argued that international human rights must have a geographical home; not a perfect home, but an actual, literal location. There is a looming danger that those who work in human rights at a professional and specialized level too easily believe that the rule of law and the regime of rights can survive in a disembodied fashion, but this is certainly untrue. Once the political regimes that sustain these rights have been impaired, the outlook for the survival of the rule of law is strikingly poor.

It is not sufficient for those academics and activists who work in the area of human rights to describe norms recorded in treaties and directives. Rather, they must return to the political geography in which these norms actually live to test their continued viability. The European Union is surely the most robust structure ever created to house the “rule of law,” and it appears at this moment that it is the E.U.’s steadfast adherence to the rule of law that has led many in Europe to reject its full implications. The renewed attractiveness of nationalism, nativism and exclusionary values is profoundly worrying, particularly in light of its connection with a heightened taste for an autocratic leadership style. Perhaps it is a moment for a certain degree of revision for the postwar consensus on human rights. Crises as extensive as the current ones require global cooperation of a kind that has never been created in anything but a rhetorical sense. No one region, not even the E.U., is capable of bearing the burden for a world in which every major region seems ripped apart with violent struggle. It may be that a more realistic role for Europe, and an enhanced role for other regions, will better serve the survival of the right to survive.

[1]. See Sara Dillon, Looking for the Progressive Empire: Where is the European Union’s Foreign Policy?, 19 Conn. J. Int’l. L. 275 (2004).

[2]. See Colin Powell, U.N. Speech “Was a Great Intelligence Failure”, PBS: Frontline (May 17, 2016), http://www.pbs.org/wgbh/frontline/article/colin-powell-u-n-speech-was-a-great- intelligence-failure/ (describing preparations leading up to speech).

[3]. See generally Charles Pierson, Preemptive Self-Defense in an Age of Weapons of Mass Destruction: Operation Iraqi Freedom, 33 Denv. J. Int’l. L. & Pol’y. 150 (2004) (describing the legal issues at stake in the Bush Administration’s position in favor of preemptive war in Iraq).

[4]. See U.N. Charter art. 2, ¶ 4 (“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations,”); see also U.N. Charter art. 51 (“inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations . . . “). [5]. See Ben Chigara, Short-Circuiting International Law, 8 Or. Rev. Int’l. L. 191, 200- 205 (2006) (pre-emptive war is outside the bounds of established international law and “[s]cholarly debate on the question of whether the practice of pre-emption inaugurated by the 2003 invasion of Iraq could ever become an exception to the international legal system’s prohibition on the threat or actual use of force against other states has only just begun.”).

[6]. See Paul F. Diehl, Shyam Kulkarni & Adam Irish, The Bush Doctrine and the Use of Force: Reflections on Rule Construction and Application, 9 Loy. U. Chi. Int’l. L. Rev. 71, 74- 75 (2011) (describing the Bush Doctrine).

[7]. See, e.g., Eustace Chikere Azubuike, Probing the Scope of Self Defense in International Law, 17 Ann. Surv. Int’l. & Comp. L. 129, 162-73 (2011) (exploring the dividing line between permissible uses of force based on the doctrine of self-defense, and impermissible uses of force).

[8]. See Charles Duelfer, Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD, CIA (Sept. 30, 2004), https://www.cia.gov/library/reports/general-reports- 1/iraq_wmd_2004/index.html (providing final report and findings of Iraq Survey Group’s, including that Saddam Hussein neither had nor had the capacity to build WMDs).

[9]. See Volker Röben, Constitutionalism of the European Union After the Draft Constitutional Treaty: How Much Hierarchy?, 10 Colum. J. Eur. L. 339, 347-51 (2004) (providing contemporaneous view of the E.U.’s own constitutional order and its embodying of the international rule of law).

[10]. See Dillon, supra note 1, at 285-87 (questioning whether the E.U. will fulfill its role as a beacon of hope, or simply fall in line with the United Nations).

[11]. See Dillon, supra note 1, at 291 (concluding E.U. and its new constitution are, for better or worse, American dissidents’ best hope in light of current U.S. foreign policy).

[12]. See Richard Bernstein, The German Question, N.Y. Times Mag., (May 2, 2004), http://www.nytimes.com/2004/05/02/magazine/the-german-question.html (quoting Fischer on his disapproval of the reasons for war with Iraq); see also John Hooper & Ian Black, Anger at Rumsfeld Attack On ‘Old Europe’, Guardian (Jan. 23, 2003), https://www.theguardian.com/world/2003/jan/24/germany.france (quoting Fischer on desire to continue investigating U.S. claims about Iraq’s WMDs).

[13]. See Kate Connolly, I am not convinced, Fischer tells Rumsfeld, The Telegraph (Feb. 10, 2003), http://www.telegraph.co.uk/news/worldnews/europe/germany/1421634/I-am-not- convinced-Fischer-tells-Rumsfeld.html (noting Fischer’s switch from German to English and glaring at Rumsfield while speaking at an international security conference in Munich).

[14]. See Jon Lee Anderson, Letter from Iraq: The Bombing of Baghdad, The New Yorker (Mar. 31, 2003), http://www.newyorker.com/magazine/2003/03/31/the-bombing-of- baghdad (describing the so-called “shock and awe” that began the Iraq War of 2003). [15]. See Dillon, supra note 1, at 275 (“spare a thought for the American dissident, standing behind the “corporate curtain” of American news, in a country whose leadership is apparently oblivious to the dissident’s desire for more complex, less nationalistic, longer-term and more analytically sound solutions.”).

[16]. See Rumsfeld Repeats “Old Europe” Comments, Deutsche Welle: Current Affairs (June 11, 2003) http://www.dw.com/en/rumsfeld-repeats-old-europe-comments/a-890806 (quoting Rumsfield’s distinction between countries based on the “behavior and vision” they bring to transatlantic relations).

[17]. See Chirac Lashes Out at ‘New Europe’, CNN World (Feb. 18, 2003), http://www.cnn.com/2003/WORLD/europe/02/18/sprj.irq.chirac/ (quoting France’s then- President Jacques Chirac as saying that eastern European countries hoping to join the E.U. missed “a great opportunity to shut up” by signing a letter supporting the U.S. in its desire to go to war against Iraq)

[18]. See Jacek Lubecki, Poland in Iraq. The Politics of the Decision, 50 Pol. Rev., no. 1, 2005, at 69, 70 (describing belief that continued U.S. and NATO presence in Europe would prevent revival of Russian empire).

[19]. See Luke Harding, Tony Blair Unrepentant as Chilcot Gives Crushing Iraq War Verdict, The Guardian (July 6, 2016), https://www.theguardian.com/uk- news/2016/jul/06/chilcot-report-crushing-verdict-tony-blair-iraq-war (describing how even many years later, and in the face of withering criticism for his role, Blair insists that “we made the right decision and the world is better and safer.”).

[20]. See Peter Van Buren, How the U.S. Wrecked the Middle East, The American Conservative (Oct. 22, 2015), http://www.theamericanconservative.com/articles/how-the-u-s- wrecked-the-middle-east/ (acknowledging that, when Bush administration launched attack on Iraq, the region was “simmering,” but most countries in the region at least had stable leadership).

[21]. See Allen S. Weiner, The Use of Force and Contemporary Security Threats: Old Medicine for New Ills, 59 Stan. L. Rev. 415, 422, 437-442 (2006) (contrasting U.S. justification for Iraq invasion with principles of international law requiring imminence of threat justifying anticipatory self-defense, and generally discussing rationale behind international norms).

[22]. See George Weigel, The Just War Case for the War, America Magazine (Mar. 31, 2003), https://www.americamagazine.org/issue/428/article/just-war-case-war (noting absence of Just War principles during French and European Union debates over violence around the world, and explicit use of Just War terminology in U.S. debate over Iraq).

[23]. See US Congress Opts for “Freedom Fries”, BBC News (Mar. 12, 2003), http://news.bbc.co.uk/2/hi/americas/2842493.stm (noting that Republicans in the U.S. Congress protested France’s refusal to support the Iraq War by changing the name of fried potatoes in the House of Representatives’ cafeteria). [24]. See Dillon, supra note 1, at 286-87 (questioning whether a technocracy can succeed in the long run).

[25]. See id. at 286 (citing German desire for straight talking, energetic leader). “[T]he assumption that the EU has created a political culture of any kind may be premature. Technocracy may be a valid relief from blood and soil politics, but there is no guarantee that it can satisfy European aspirations over the long term.”

[26]. Roger Cohen, Macron and the Revival of Europe, N.Y. Times (May 7, 2017), https://www.nytimes.com/2017/05/07/opinion/macron-and-the-revival-of-europe.html (“Macron underlined his message by coming out to address his supporters in Paris accompanied by the European anthem, Beethoven’s ‘Ode to Joy,’ rather than the Marseillaise—a powerful gesture of openness.”).

[27]. See Isaac Chotiner, Macron’s Coup: France’s New President Doesn’t Have Many New Ideas. But He’s Still A Political Master, Slate (July 13, 2017) (correction July 14, 2017), http://www.slate.com/articles/news_and_politics/interrogation/2017/07/emmanuel_macron_s_po litical_genius.html (interviewing French scholar on Macron’s brand of emotional politics, described not as “nationalist nor nationalistic,” but “an appeal to emotions . . . rather than values or policies.”).

[28]. See Dillon, supra note 1, at 280 (lamenting inadequacy of incremental progress which has served the E.U. well in other areas but not in foreign policy). The E.U.’s “longer-term goal has acted as a shimmering shangri la on the horizon, alive in the hearts of Europeanists and expressed in the rational and often opaque language of bureaucrats and systematizers. The grave danger, both to Europe and the world in which it operates, is that this vision will never come to fruition, partly because the well-planned incrementalism on which it is premised cannot give rise to political identity; it can at best give rise to aspirations in this direction.” Id.

[29]. See Thomas Carothers & Saskia Brechenmacher, Closing Space: Democracy and Human Rights Support Under Fire 5-9, 56-59 (2014), http://carnegieendowment.org/files/closing_space.pdf (surveying the rise of anti-democratic and anti-human rights regimes in the early 21st Century, and considering how to best combat such efforts).

[30]. See Suzanne Nossel, It’s OK That Trump Doesn’t Care About Human Rights, Foreign Policy (June 19, 2017), http://foreignpolicy.com/2017/06/19/its-ok-that-trump-doesnt- care-about-human-rights/ (reviewing a recent Trump overseas trip, which confirmed to some his disregard for human rights and the U.S.’s decline as a “human rights standard-bearer”); #TrumpWatch 100 Days, Amnesty Int’l., https://www.amnestyusa.org/trump100days/ (last visited Oct. 30, 2017) (listing 100 ways Trump threatened human rights in his first 100 days in office).

[31]. See Ted Piccone, Tillerson Says Goodbye to Human Rights Diplomacy, Brookings Inst.: order from chaos (May 5, 2017), https://www.brookings.edu/blog/order-from- chaos/2017/05/05/tillerson-says-goodbye-to-human-rights-diplomacy/ (reiterating Tillerson’s instructions to diplomats).

[32]. See Julian Borger, Rex Tillerson: ‘America First’ Means Divorcing Our Policy From Our Values, THE GUARDIAN (May 3, 2017, 10:01 PM), https://www.theguardian.com/us-news/2017/may/03/rex-tillerson-america-first-speech-trump- policy (describing Tillerson’s concern that requiring foreign countries follow U.S. morals gets in way of national interests).

[33]. See Jules Lobel, Fundamental Norms, International Law, and the Extraterritorial Constitution, 36 Yale J. Int’l. L. 307, 312-15 (2011) (discussing competing theories on the enforceability of domestic law internationally and international law domestically, and U.S. courts’ unwillingness to apply laws extraterritorially).

[34]. Roberto Stefan Foa & Yascha Mounk, The Danger of Deconsolidation: The Democratic Disconnect, 27 J. Democracy, July 2016 at 5, 7-9, 12 (providing data showing younger generations believe a democratic government is not “essential” and a “bad” or “very bad” way to govern).

[35]. See generally Mesha Gessen, The Future is History: How Totalitarianism Reclaimed Russia (2017); Mesha Gessen, The Man Without A Face: The Unlikely Rise of Vladimir Putin (2013).

[36]. See Mark Gibney, Human Rights Litigation in U.S. Courts: A Hypocritical Approach, 3 Buff. J. Int’l. L. 261, 269, 279 (1997) (summarizing U.S. courts willingness to hear human rights claims brought against foreign state actors, but not against the U.S. itself based on its foreign policy).

[37]. See Martin Shapiro, “Deliberative,” “Independent” Technocracy v. Democratic Politics: Will the Globe Echo the E.U.?, 68 L. & Contemp. Probs. 341, 342-47 (discussing tension between democracy and technocracy in global administrative law context).

[38]. See Joschka Fischer, German Foreign Minister, Speech at Humboldt University in Berlin: From Confederacy to Federation – Thoughts on the Finality of European Integration 3 (May 12, 2000) (transcript available at http://ec.europa.eu/dorie/fileDownload.do?docId=192161&cardId=192161) (asking “Quo vidas Europa?” and answering “onwards to the completion of European integration.”).

[39]. Id.

[40]. See Shree Paradkar, Massive Fascist Rally in Poland Shows How the Far Right Has Perverted the Word ‘Patriotism’: Paradkar, THESTAR.COM, https://www.thestar.com/opinion/2017/11/13/massive-fascist-rally-in-poland-shows-how-the-far- right-has-perverted-the-word-patriotism-paradkar.html (describing the massive fascist rallies, which have recently plagued Poland); Jan Cienski, Polish President Tells Opposition, Brussels to Back Off, POLITICO (Dec. 21, 2016), https://www.politico.eu/article/andrzej-duda-interview- poland-crisis-jaroslaw-kaczynski-european-commission-democracy-rule-of-law/ (describing constitutional crisis in Poland and country’s President’s pushback against E.U. intervention); Ted Jeory, UK Entering ‘Unchartered Territory’ of Islamophobia After Brexit Vote, Independent (June 27, 2016), http://www.independent.co.uk/news/uk/home-news/brexit-muslim-racism-hate- crime-islamophobia-eu-referendum-leave-latest-a7106326.html (describing “explosion” of animosity towards Muslims since U.K.’s vote to leave the E.U.).

[41]. C.f. Matthew Warren, The Reminiscence Bump: Why America’s Greatest Year Was Probably When You Were Young, The Guardian (Oct. 31, 2017), https://www.theguardian.com/science/head-quarters/2017/oct/31/the-reminiscence-bump-why- americas-greatest-year-was-probably-when-you-were-young (citing studies showing Americans, regardless of age and history, believe America was greatest during their youth).

[42]. See Alissa J. Rubin, Election Success for Emmanuel macron May mask Real Challenges, N.Y. Times (June 17, 2017) (highlighting high level of dissatisfaction in France and desire for substantial reform from Macron administration).

[43]. Compare George W. Bush, United States President, Enemies of Freedom Committed an Act of War Against America, in The Attack on America: September 11, 2001 10 (William Dudley ed., Greenhaven Press 2002) (quoting President Bush on “enemies of freedom” that attacked U.S. on September 11, 2001), with Cris Shore, Building Europe: The Cultural Politics of European Integration 134 (2000) (describing European governance as grounded in legalistic rationality and aimed at establishing primacy of European law).

[44]. See Sungjoon Cho, Defragmenting World Trade, 27 Nw. J. Int’l. L. & Bus. 39, 47- 49 (2006) (describing ideals that led to post-war world order and global relationships).

[45]. See James J. Friedberg, The Wane in Spain (of Universal Jurisdiction): Spain’s Forgetful Democratic Transition and the Prosecution of Tyrants, 114 W. Va. L. Rev. 825, 848- 50 (2012) (discussing authoritarian seeds sowed through nationalism in Spain, Germany, and Italy).

[46]. See Fischer, supra note 38.

[47]. Id.

[48]. See Somini Sengupta, 60 Million People Fleeing Chaotic Lands, U.N. Says, N.Y. Times (June 18, 2015) (citing U.N. Refugee Agency’s estimates of number of people fleeing wars and persecution in their homeland).

[49]. See id.

[50]. See, e.g., Yuri Mantilla, ISIS’s International Crimes and Jus Cogens Norms: The Protection of Human Rights in Times of Global Terrorism, 11 Liberty U. L. Rev. 451 (2016); Upendra Acharya, The Future of Human Development: The Right to Survive As A Fundamental Element of the Right to Development, 42 Denv. J. Int’l. L. & Pol’y. 345 (2014); Annette Demers, Women and War: A Bibliography of Recent Works, 34 Int’l. J. Legal Info. 98 (2006).

[51]. See Randy Rieland, Coping with the Displaced Millions, John Hopkins Magazine (Summer 2017), https://hub.jhu.edu/magazine/2017/summer/coping-with-displaced-millions- refugees/ (summarizing findings of researchers visiting refugee camps, including length of refugee status and costs and benefits of accepting refugees).

[52]. See Migrant Crisis: Migration to Europe Explained in Seven Charts, BBC (Mar. 4, 2016), http://www.bbc.com/news/world-europe-34131911 (showing diversity of migrants’ nationality, route, and destination).

[53]. See Drew DeSilver, How the U.S. Compares with Other Countries Taking in Refugees, Pew Res. Ctr. (Sept. 24, 2015), http://www.pewresearch.org/fact- tank/2015/09/24/how-the-u-s-compares-with-other-countries-taking-in-refugees/ (providing data showing U.S. hosts relatively few refugees, likely due to policy and geography).

[54]. See Rieland, supra note 51 (describing politic rhetoric stirring resentment and anxiety towards migrants by describing them as criminals and jihadists).

[55]. See id. (discussing routes taken and rise in nationalism).

[56]. See DeSilver, supra note 53 (showing Turkey and Middle Eastern countries bordering on conflict zones take in more refugees than Western Europe in terms of raw numbers and percentage of population).

[57]. See generally United Nations Convention Relating to the Status of Refugees (July 25, 1951) (providing protections to refugees and obligations of signatory states).

[58]. See Nick Gutteridge, ‘We Will Never Accept’ Eastern Europe Launches Furious Fightback Against E.U. Migrant Ruling, Express (July 27, 2017), http://www.express.co.uk/news/politics/833614/Migrant-crisis-Hungary-Slovakia-hit-back-ECJ- refugee-ruling (discussing Poland, Hungary, and Slovakia’s rejection of a refugee quota system approved of by the European Court of Justice that would remove refugees from overburdened Italy and Greece).

[59]. See Nicole Angeline Cudiamat, Displacement Disparity: Filling the Gap of Protection for the Environmentally Displaced Person, 46 Val. U. L. Rev. 891, 899-906 (2012) (discussing increase in natural, man-made, and hybrid disasters and how they affect the right to life, survival, and development).

[60]. See generally Scott Anderson, Fractured Lands: How the Arab World Came Apart, N.Y. Times Magazine (Aug. 10, 2016), https://www.nytimes.com/interactive/2016/08/11/ magazine/isis-middle-east-arab-spring-fractured-lands.html (providing comprehensive and well researched reporting on conflicts in the Middle East and the scores of migrants travelling into Europe because of them). [61]. U.N. High Commission for Refugees, Global Trends: Forced Displacement in 2015, 14 (2015) [hereinafter Global Trends 2015] (providing numbers of refugees residing in regions and countries).

[62]. See id. at 56-60 (listing refugees’ country of origin).

[63]. See Global Trends 2015, supra note 61, at 14, 60 (observing Europe hosted the second most refugees in 2015 at 4.4 million, with 2.5 million in Turkey alone, whereas the U.S. only hosted 273,000); see also Gutteridge, supra note 58 (reporting on conflict and disagreement between European leaders).

[64]. See Citizenship and Displacement in the Great Lakes Region 1-6 (Int’l. Refugee Rights Initiative, Working Paper No. 8, 2013), http://www.refugee-rights.org /htdocs/Assets/PDFs/2013/ICantBeACitizen-FINAL.pdf (summarizing nationalization and citizenship issues that refugees face in Tanzania and other African countries).

[65]. See Guide to Nationalist Parties Challenging Europe, BBC (May 23, 2016), http://www.bbc.com/news/world-europe-36130006 (surveying far right parties in various European countries challenging open door immigration policies).

[66]. See Clint Watts, Why ISIS Beats al Qaeda in Europe, Foreign Affairs (Apr. 4, 2016), https://www.foreignaffairs.com/articles/2016-04-04/why-isis-beats-al-qaeda-europe (comparing al Qaeda’s failure to ISIS’s success in attracting second and third generation European Muslims that feel alienated and are attracted to violence).

[67]. See Ashley Kirk, Iraq and Syria: How Many Foreign Fighters Are Fighting for ISIL?, The Telegraph (Mar. 24, 2016), http://www.telegraph.co.uk/news/2016/03/29/iraq-and- syria-how-many-foreign-fighters-are-fighting-for-isil/ (noting most European fighters come from France, Germany, and the U.K.).

[68]. See Dan Lamothe, Once Again, Militants Use Guantanamo-inspired Orange Suit in an Execution, Wash. Post (Aug. 28, 2014), https://www.washingtonpost.com/news/check point/wp/2014/08/28/once-again-militants-use-guantanamos-orange-jumpsuit-in-an-execution

/?utm_term=.58c11a9193ce (attributing orange jumpsuits to anger at indefinite detention of Muslim captives in Guantanamo Bay, Cuba); see also Charles Keyes, Buddhism and Revolution in Cambodia, Cultural Survival Q. Mag. (Sept. 1990), https://www.culturalsurvival.org

/publications/cultural-survival-quarterly/buddhism-and-revolution-cambodia (describing Khmer Rouge’s attempt to purge Cambodia of standing institutions and Vietnamese as “one of the most radical revolutions in modern history.”).

[69]. See generally Douglas Murray, The Strange Death of Europe: Immigration, Identity, Islam (2017) (arguing influx of intolerant Muslims threatened Europe’s social tolerance and gender equality and that, in turn, tolerance towards migrants would boomerang into far less tolerant European societies).

[70]. See Stephen Kinzer, Brexit—A Stern Rebuke to Arrogant Elites, Bos. Globe (June 24, 2016), https://www.bostonglobe.com/opinion/2016/06/24/brexit-stern-rebuke-arrogant- elites/Uz5BLaweyL71MHWlTeWobL/story.html (blaming U.K.’s vote to leave the E.U. on failure to preserve illusions of self-control and leadership comprised of unelected bureaucrats “contemptuous of public opinion.”).

[71]. See Gutteridge, supra note 58 (discussing success of nationalist political parties in Poland, Hungary, and Slovakia).

[72]. Bryan Walsh, Alan Kurdi’s Story: Behind the Most Heartbreaking Photo of 2015, Time (Dec. 29, 2015), http://time.com/4162306/alan-kurdi-syria-drowned-boy-refugee-crisis/.

[73]. See Amarnath Amarasingam & Colin P. Clarke, Terrorism Fatigue: ISIS Attacks Are Losing Their Ability to Terrify, Slate (Nov. 1, 2017), http://www.slate.com/articles/news

_and_politics/foreigners/2017/11/terrorist_acts_like_the_new_york_vehicle_attack_are_losing_t heir_ability.html (observing as violence becomes normalized, responses motivated by outrage and compassion dwindle).

[74]. See Rick Noack, Leaked Document Says 2,000 Men Allegedly Assaulted 1,200 German Women on New Year’s Eve, Wash. Post (July 11, 2016), https://www.washingtonpost

.com/news/worldviews/wp/2016/07/10/leaked-document-says-2000-men-allegedly-assaulted- 1200-german-women-on-new-years-eve/?utm_term=.93a9e8c8c952 (reporting mass sexual assault reported in Cologne and Hamburg, among other German cities, on New Year’s Eve 2015- 2016 and attempts to link such crimes to refugees and immigrants).

[75]. Russell Goldman, Geert Wilders, a Dutch Nationalist Politician, Calls Moroccan Immigrants ‘Scum’, N.Y. Times (Feb. 18, 2017), https://www.nytimes.com/2017/02/18/world

/europe/geert-wilders-netherlands-freedom-party-moroccan-immigrants.html.

[76]. Id.

[77]. See David Frum, Why Britain Left, The Atlantic (June 24, 2016), https://www.theatlantic.com/international/archive/2016/06/brexit-eu/488597/ (linking E.U. policies and leadership to mass migration crisis); Laura Mowat, Marine Le Pen Blasts: EU to Blame for Mass Migration and Brexit Has Inspired Frexit Fight, Express (Sept. 21, 2016), https://www.express.co.uk/news/world/712727/Marine-Le-Pen-EU-blame-mass-migration- Brexit-inspired-Frexit.

[78]. See Andrew Soergel, Greek Referendum Vote No ‘Oxi-’dent, US News (July 6, 2015), https://www.usnews.com/news/articles/2015/07/06/greece-rejects-austerity-measures- faces-uncertain-future (discussing uncertain future for Greece and Eurozone, and market instability, following Greek voters’ rejection of austerity measures).

[79]. Id.

[80]. See Acharya, supra note 50, at 359 (noting even when governments want to help, such aid is limited by resources and austerity measures imposed by the IMF and World Bank).

[81]. See Chris Cillizza, That Trump Read ‘The Snake’ at His 100-day Rally Tells You All You Need to Know About His Next 100 Days, CNN (May 1, 2017), http://www.cnn.com/2017/05/01/politics/trump-the-snake/index.html (providing text of “The Snake,” the Al Wilson song Trump explicitly analogized to the U.S.’s experience with undocumented immigrants).

[82]. See, e.g., Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948).

[83]. Masha Gessen Autocracy: Rules for Survival, NYR Daily (Nov. 10, 2016), http://www.nybooks.com/daily/2016/11/10/trump-election-autocracy-rules-for-survival/.

[84]. See Chauncey Devega, Historian Timothy Snyder: After Charlottesville, “We Are Hanging by Our Teeth to the Rule of Law”, Salon (Aug. 26, 2017), https://www.salon.com/2017/08/26/historian-timothy-snyder-after-charlottesville-we-are- hanging-by-our-teeth-to-the-rule-of-law/ (interviewing Professor Snyder on parallels between Trump and past authoritarians in wake of violence at Charlottesville rally).

[85]. See Acharya, supra note 50, at 348-51 (highlighting difficulty of applying non- binding “soft law,” like the Universal Declaration of Human Rights, to difficult problems like crafting sustainable development policies in underdeveloped counties).

[86]. See Mantilla, supra note 50, at 455-57 (considering difficulty in preventing genocide and preserving right to survive even when there is global consensus ISIS must be held accountable for international crimes).

[87]. See Stephen Macedo, Against Majoritarianism: Democratic Values and Institutional Design, 90 B.U. L. Rev. 1029, 1030-31 (2010) (describing the “Gap” Thesis, which claims political equality is the essence of democracy, and judicial review and policy-decisions are also required to prevent majoritarianism).