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With the 2003 invasion and subsequent occupation of Iraq, the most controversial question in world politics fast became whether the United States stands within the order of international law or outside it. Does America still play by the rules it helped create? American Exceptionalism and Human Rights addresses this question as it applies to U.S. behavior in relation to international human rights. With essays by eleven leading experts in such fields as international relations and international law, it seeks to show and explain how America's approach to human rights differs from that of most other Western nations.
In his introduction, Michael Ignatieff identifies three main types of exceptionalism: exemptionalism (supporting treaties as long as Americans are exempt from them); double standards (criticizing "others for not heeding the findings of international human rights bodies, but ignoring what these bodies say of the United States); and legal isolationism (the tendency of American judges to ignore other jurisdictions). The contributors use Ignatieff's essay as a jumping-off point to discuss specific types of exceptionalism—America's approach to capital punishment and to free speech, for example—or to explore the social, cultural, and institutional roots of exceptionalism.
These essays—most of which appear in print here for the first time, and all of which have been revised or updated since being presented in a year-long lecture series on American exceptionalism at Harvard University's John F. Kennedy School of Government—are by Stanley Hoffmann, Paul Kahn, Harold Koh, Frank Michelman, Andrew Moravcsik, John Ruggie, Frederick Schauer, Anne-Marie Slaughter, Carol Steiker, and Cass Sunstein.
"An excellent new collection of essays on American exceptionalism. . . . Michael Ignatieff . . . seeks to distinguish between US 'exemptionalism,' double standards and legal isolationism."—Quentin Peel, Financial Times
"This collection on American exceptionalism seeks to explain the seeming paradox of US governmental support for, and aversion to, global human rights. . . . This study is an important contribution to the scholarship of international humanitarian law and US foreign policy."—Choice
"[An] important collection of essays by leading scholars. . . . Together the authors wonderfully capture the complex interplay between values, law, and American power."—G. John Ikenberry, Foreign Affairs Magazine
"Beyond providing a highly valuable and innovative study of American exceptionalism, this book makes an original contribution to scholarship and may start a long overdue conversation with conservatives about the origins of their grievances with international human rights standards."—Michael J. Boyle, International Affairs
Since 1945 America has displayed exceptional leadership in promoting international human rights. At the same time, however, it has also resisted complying with human rights standards at home or aligning its foreign policy with these standards abroad. Under some administrations, it has promoted human rights as if they were synonymous with American values, while under others, it has emphasized the superiority of American values over international standards. This combination of leadership and resistance is what defines American human rights behavior as exceptional, and it is this complex and ambivalent pattern that the book seeks to explain.
Thanks to Eleanor and Franklin Roosevelt, the United States took a leading role in the creation of the United Nations and the drafting of the Universal Declaration of Human Rights in 1948. Throughout the Cold War and afterward, few nations placed more emphasis in their foreign policy on the promotion of human rights, market freedom, and political democracy. Since the 1970s U.S. legislation has tied foreign aid to progress in human rights; the State Department annually assesses the human rights records of governments around theworld. Outside government, the United States can boast some of the most effective and influential human rights organizations in the world. These promote religious freedom, gender equality, democratic rights, and the abolition of slavery; they monitor human rights performance by governments, including-and especially-the U.S. government. U.S. government action, together with global activism by U.S. NGOs, has put Americans in the forefront of attempts to improve women's rights, defend religious liberty, improve access to AIDS drugs, spread democracy and freedom through the Arab and Muslim worlds, and oppose tyrants from Slobodan Milosevic to Saddam Hussein.
The same U.S. government, however, has also supported rights-abusing regimes from Pinochet's Chile to Suharto's Indonesia; sought to scuttle the International Criminal Court, the capstone of an enforceable global human rights regime; maintained practices-like capital punishment-at variance with the human rights standards of other democracies; engaged in unilateral preemptive military actions that other states believe violate the UN Charter; failed to ratify the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination against Women; and ignored UN bodies when they criticized U.S. domestic rights practices. What is exceptional here is not that the United States is inconsistent, hypocritical, or arrogant. Many other nations, including leading democracies, could be accused of the same things. What is exceptional, and worth explaining, is why America has both been guilty of these failings and also been a driving force behind the promotion and enforcement of global human rights. What needs explaining is the paradox of being simultaneously a leader and an outlier.
While the focus of this book will be on human rights, exceptionalism is also a feature of U.S. attitudes toward environmental treaties like the Kyoto Protocol as well as the Geneva Conventions and international humanitarian law. Since the attack of September 11, it has been accused of violating the Conventions as well as the Torture Convention in its handling of prisoners at Guantánamo, Abu Ghraib, and other detention facilities.
This pattern of behavior raises a fundamental question about the very place of the world's most powerful nation inside the network of international laws and conventions that regulate a globalizing world. To what extent does the United States accept constraints on its sovereignty through the international human rights regime, international humanitarian law, and the UN Charter rules on the use of force? To what degree does America play by the rules it itself has helped to create?
In this book, we do not revisit wider historical and sociological debates about why Americans have seen their society as exceptional at least since the Pilgrim Fathers, or why America has been exceptional in its absence of a socialist movement. Nor is this another discussion of American unilateralism in foreign policy, since unilateralism and exceptionalism are different phenomena, requiring different explanations. Instead the volume is closely focused on U.S. human rights performance in comparative perspective, since this approach highlights new questions about the relation between U.S. rights traditions and political culture and their influence on U.S. projection of power, influence, and moral example overseas.
The book is the result of an academic collaboration by the scholars in this volume, initiated at a seminar series held at the Carr Center for Human Rights Policy at Harvard's John F. Kennedy School of Government and generously funded by the Winston Foundation. What began as a scholarly exercise has been given topical urgency by the war in Iraq and the war on terror. While the volume's contributors engage with both, the aim of the book is wider: to situate and explain current administration conduct within a historical account of America's long-standing ambivalence toward the constraining role of international law in general.
In this introduction, I will set out a three-part typology of American exceptionalism; identify and examine four central explanations offered by the contributors; and finally raise two questions about policy: What price does the United States pay for exceptionalism in human rights? What can be done to exercise human rights leadership in a less exceptional way?
Distinguishing Types of American Exceptionalism
American exceptionalism has at least three separate elements. First, the United States signs on to international human rights and humanitarian law conventions and treaties and then exempts itself from their provisions by explicit reservation, nonratification, or noncompliance. Second, the United States maintains double standards: judging itself and its friends by more permissive criteria than it does its enemies. Third, the United States denies jurisdiction to human rights law within its own domestic law, insisting on the self-contained authority of its own domestic rights tradition. No other democratic state engages in all three of these practices to the same extent, and none combines these practices with claims to global leadership in the field of human rights.
The first variant of exceptionalism is exemptionalism. America supports multilateral agreements and regimes, but only if they permit exemptions for American citizens or U.S. practices. In 1998, the United States took part in the negotiations for the International Criminal Court but secured guarantees that its military, diplomats, and politicians would never come before that court. The Clinton administration signed the treaty before leaving office, only to have the incoming Bush administration unsign it. The Bush administration then went on to negotiate agreements with allied countries requiring them to guarantee that they would not hand over U.S. nationals to the ICC. Over the Land Mines Treaty, America took part in negotiations but sought exemption for American military production and deployment of land mines in the Korean Peninsula.
Exemptionalism, of course, is not confined to the domains of human rights-related treaties. U.S. withdrawal from the Kyoto Protocol on Climate Change fits into the same pattern. Exemptionalism has also been on display in the war on terror in the U.S. insistence that while conditions of detention at Guantanamo and elsewhere will comply with Geneva Convention standards, interrogation procedures and determination of status will be determined by executive order of the president.
Exemptionalism is not the same as isolationism. The same administration that will have nothing to do with the ICC is heavily engaged in the defense and promotion of religious freedom abroad, the abolition of slavery, the funding of HIV/AIDS relief, and the protection of victims of ethnic and religious intolerance in Sudan. Nor is exceptionalism a synonym for unilateralism. An administration that will not engage on the ICC is insistently engaged with the UN and other allies on the issue of HIV/AIDS. While some of the U.S. human rights agenda, like the promotion of religious freedom abroad, is exceptional in the sense that other democratic states place less emphasis upon it, much U.S. human rights policy is aligned with those of other European countries and is advanced through multilateral fora like UN Human Rights Committees.
Exemptionalism also involves the practice of negotiating and signing human rights conventions but with reservations. Thus the United States ratified the International Covenant on Civil and Political Rights (ICCPR) in 1991 while exempting itself from the provisions banning the infliction of the death penalty on juveniles. America is not the only country to insist on this type of exemption. Saudi Arabia, for example, insists that international human rights convention language relating to free marriage choice and freedom of belief remain without effect in their domestic law. These exemptions are simply the price that any universal rights regime has to pay for country-by-country ratification. Indeed, it is doubtful that the framework would exist at all if it did not allow latitude for countries to protect the specificity of their legal and national traditions.
While European states also ratify with reservations and exceptions, they question whether a U.S. exemption on the right to life-a core human rights principle-can be justified. Allowing a state to pick and choose how it adheres to such a central principle threatens to empty international conventions of their universal status. Moreover, exemptionalism turns the United States into an outlier. The United States now stands outside an abolitionist consensus vis-à-vis capital punishment that applies to all democratic states and most nondemocratic ones, with the exception of China.
Even when the United States ratifies international rights conventions, it usually does so with a stipulation that the provisions cannot supersede U.S. domestic law. Thus, with a few exceptions, American ratification renders U.S. participation in international human rights symbolic, since adopting treaties does not actually improve the statutory rights protections of U.S. citizens in domestic law.
Exemptionalism also takes the form of signing on to international rights conventions and then failing to abide by their requirements. The U.S. record of treaty compliance is no worse than that of other democracies, but because of the superpower's exceptional political importance, U.S. forms of noncompliance have more impact than those of less powerful states. Examples of noncompliance include failing to inform UN human rights bodies when derogating from treaty standards; failing to cooperate with UN human rights rapporteurs seeking access to U.S. facilities; and refusing to order stays of execution in compliance with the Vienna Treaty on Consular Obligations. Both the Canadian and German governments have sought stays of execution for their nationals in U.S. courts, on the grounds that these nationals were convicted without prior access to their consular officials. Neither Virginia nor Texas paid any attention to these foreign requests, and these states allowed the executions to proceed. A third element of exemptionalism is the practice of negotiating treaties and then refusing to ratify them altogether or ratifying them only after extended delays. For example, the Senate refused to ratify the Convention on the Rights of the Child, leaving the United States the only nation besides Somalia not to do so. The United States took nearly forty years to ratify the Genocide Convention. Failure to ratify doesn't mean that the United States fails to comply: no one has complained that the United States is currently guilty of genocide. Nor does failure to ratify the Convention on the Rights of the Child mean that standards of child protection in the United States are as poor as those of the other nonratifier, Somalia. Nonratification simply means that U.S. child advocates cannot use international standards in domestic U.S. litigation. Likewise, U.S. refusal to ratify the Convention on Eliminating Discrimination against Women does not leave American women without protections and remedies. Nonratification means that UN instruments and standards have no legal standing in U.S. courts. How serious this is depends on the extent of the gap between current U.S. federal and state standards and international norms. Where this gap is large, Americans may lack rights and remedies available in other democratic states.
The second feature of American exceptionalism is double standards. The United States judges itself by standards different from those it uses to judge other countries, and judges its friends by standards different from those it uses for its enemies. This is the feature that Harold Koh identifies as the most costly and problematic aspect of American exceptionalism. The United States criticizes other states for ignoring the reports of UN rights bodies, while refusing to accept criticism of its own domestic rights performance from the same UN bodies. This is especially the case in relation to capital punishment in general and the execution of juveniles in particular, as well as conditions of detention in U.S. prisons. Overseas, the United States condemns abuses by hostile regimes-Iran and North Korea, for example-while excusing abuses by such allies as Israel, Egypt, Morocco, Jordan, and Uzbekistan. It has been condemned for arming, training, and funding death squads in Latin America in the 1980s, while condemning the guerrillas as terrorists. Hence when the United States called for a global war on all forms of terrorism after September 11, it faced accusations that its own policies toward attacks on civilians had been guilty of double standards.
The third form of exceptionalism-legal isolationism-characterizes the attitude of the U.S. courts toward the rights jurisprudence of other liberal democratic countries. The claim here is that American judges are exceptionally resistant to using foreign human rights precedents to guide them in their domestic opinions. As Justice Antonin Scalia remarked, when rejecting a colleague's references to foreign jurisprudence in deciding Printz v. US, "We think such comparative analysis inappropriate to the task of interpreting a constitution." This judicial attitude is anchored in a broad popular sentiment that the land of Jefferson and Lincoln has nothing to learn about rights from any other country. As Anne-Marie Slaughter points out in her contribution, this American judicial self-sufficiency is exceptional when compared to other judiciaries, with judges in Israel inspecting Canadian precedents on minority rights cases, and judges in the South African Constitutional Court studying German cases to interpret social and economic rights claims. Historically, the American judiciary has stood apart from the trend toward comparative legal problem solving, although as Slaughter also points out, law is being globalized, like commerce and communications, and in the process American lawyers and judges are being drawn into the global conversation.
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Chapter 1. Introduction: American Exceptionalism and Human Rights by Michael Ignatieff 1
PART I. THE VARIETIES OF EXCEPTIONALISM 27
Chapter 2. The Exceptional First Amendment by Frederick Schauer 29
Chapter 3. Capital Punishment and American Exceptionalism by Carol S. Steiker 57
Chapter 4. Why Does the American Constitution Lack Social and Economic Guarantees? By Cass R. Sunstein 90
Chapter 5. America’s Jekyll-and-Hyde Exceptionalism by Harold Hongju Koh 111 PART II. EXPLAINING EXCEPTIONALISM 145
Chapter 6. The Paradox of U.S.Human Rights Policy by Andrew Moravcsik 147
Chapter 7. American Exceptionalism, Popular Sovereignty, and the Rule of Law by Paul W. Kahn 198
PART III. EVALUATING EXCEPTIONALISM 223
Chapter 8. American Exceptionalism: The New Version by Stanley Hoffmann 225
Chapter 9. Integrity-Anxiety? by Frank I. Michelman 241
Chapter 10. A Brave New Judicial World by Anne-Marie Slaughter 277
Chapter 11. American Exceptionalism, Exemptionalism, and Global Governance by John Gerard Ruggie 304
Posted June 3, 2011
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