Foreword: on American Exceptionalism.

• Author: Koh, Harold Hongju
• Position: Symposium on Treaties, Enforcement, and U.S. Sovereignty

INTRODUCTION I. UNPACKING "AMERICAN EXCEPTIONALISM" II. THE OVERLOOKED FACE OF AMERICAN EXCEPTIONALISM III. RESPONDING TO AMERICAN EXCEPTIONALISM: THE BUSH DOCTRINE AFTER SEPTEMBER 11 A. Four Responses B. The Emerging Bush Doctrine C. Addressing Exceptionalism Through Transnational Legal Process 1. The global justice system 2. 9/11 detainees 3. Use of force in Iraq CONCLUSION INTRODUCTION

Since September 11, "American Exceptionalism" has emerged as a dominant leitmotif in today's headlines. I propose first, to unpack precisely what we mean by American exceptionalism; second, to clarify both the negative and the overlooked positive faces of American exceptionalism; and third, to suggest how we, as American scholars and lawyers, should respond to the most negative aspects of American exceptionalism in the wake of September 11.

By so saying, I directly address the focus of this Stanford Law Review Symposium on Treaties, Enforcement, and U.S. Sovereignty: whether and when the enforcement of international treaties against the United States affronts U.S. sovereignty. For if one uses "sovereignty" in the modern sense of that term--a nation's capacity to participate in international affairs (l)--I would argue that the selective internalization of international law into U.S. law need not affront U.S. sovereignty. To the contrary, I would argue, the process of visibly obeying international norms builds U.S. "soft power," enhances its moral authority, and strengthens U.S. capacity for global leadership in a post-September 11 world. (2)

1. UNPACKING "AMERICAN EXCEPTIONALISM"

   Let me begin with the words of University of Toronto historian Margaret MacMillan:

   American exceptionalism has always had two sides: the one eager to set the world to rights, the other ready to turn its back with contempt if its message should be ignored.... Faith in their own exceptionalism has sometimes led to a certain obtuseness on the part of Americans, a tendency to preach at other nations rather than listen to them, a tendency as well to assume that American motives are pure where those of others are not.... (3) The event: the Paris Peace Conference of 1919. The President: Woodrow Wilson, obsessed with his Fourteen Points and his ultimately unsuccessful fight to promote United States entry into the League of Nations. The point: When it comes to American exceptionalism, there is really nothing new under the sun. Whether pressing for or against multilateral action, in the twentieth century or the twenty-first, Americans generally tend to strike the world as pushy, preachy, insensitive, self-righteous, and usually, anti-French.

   While this "Obtuse American" angle is easy to parrot today, on closer inspection, the reality of American exceptionalism emerges as considerably more multifaceted. Over the centuries, the concept of "American Exceptionalism" has sparked fierce debates in both the academic and political realms. (4) Yet during the last fifteen years, I have had the chance to look at American exceptionalism from both sides now: not just from the perspective of the academy and the human rights world, but from two very distinct perspectives within the human rights arena: on the one hand, as a human rights scholar and nongovernmental advocate; on the other hand, as a U.S. government official. During my five years in the government--half in the Reagan Administration as a Justice Department lawyer and half in the Clinton Administration as Assistant Secretary of State for Democracy, Human Rights, and Labor--I have been asked to wear two hats: to serve as America's plaintiff's lawyer in cases where the United States holds a human rights grievance, as well as its defense lawyer when the United States has been charged with human-rights abuse. Both before and after my time in government, I spent considerable time suing the U.S. government, with regard to its refugee policy, foreign affairs decisionmaking,

   use of force abroad, and various human rights practices. (5)

   From these twin perspectives, I now see, the term "American exceptionalism" has been used far too loosely and without meaningful nuance. When we talk about American exceptionalism, what, precisely, do we mean?

   In a penetrating essay, Michael Ignatieff has catalogued various kinds of American exceptionalism, in the process separating out at least three different faces of American engagement with the world: (6) first, what he calls America's human-rights narcissism, particularly in its embrace of the First Amendment and its nonembrace of certain rights--such as economic, social, and cultural rights--that are widely accepted throughout the rest of the world. The second face is America's judicial exceptionalism, espoused by some Supreme Court Justices, and typified by Justice Scalia's statement in Stanford v. Kentucky that the practices of foreign countries are irrelevant to U.S. constitutional interpretation, because, in construing open-ended provisions of the Bill of Rights, "it is American conceptions of decency that are dispositive." (7) The third face Ignatieff calls "American exemptionalism"--ways in which the United States actually exempts itself from certain international law rules and agreements, even ones that it may have played a critical role in framing, through such techniques as noncompliance; nonratification; (8) ratification with reservations, understandings, and declarations; the non-self-executing treaty doctrine; or the latest U.S. gambit, unsigning the Rome Statute of the International Criminal Court (ICC). (9)

   While this trichotomy is intriguing, I find it both under- and overinclusive. It lumps together certain distinct forms of exceptionalism and misses others. Instead, I prefer to distinguish among four somewhat different faces of American exceptionalism, which I call, in order of ascending opprobrium: distinctive rights, different labels, the "flying buttress" mentality, and double standards. In my view, the fourth face--double standards--presents the most dangerous and destructive form of American exceptionalism.

   By distinctiveness, I mean that America has a distinctive rights culture, growing out of its peculiar social, political, and economic history. Because of that history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in America than in Europe or Asia. So, for example, the U.S. First Amendment is far more protective than other countries' laws of hate speech, (10) libel, (11) commercial speech, (12) and publication of national security information. (13) But is this distinctive rights culture, rooted in our American tradition, fundamentally inconsistent with universal human rights values? On examination, I do not find this distinctiveness too deeply unsettling to world order. The judicial doctrine of "margin of appreciation," familiar in European Union law, permits sufficient national variance as to promote tolerance of some measure of this kind of rights distinctiveness. (14)

   Similarly, America's tendency to use different labels to describe synonymous concepts turns out to be more of an annoyance than a philosophical attack on the rest of the world. When I appeared before the Committee Against Torture in Geneva to defend the first United States report on U.S. compliance with the Torture Convention, I was asked the reasonable question why the United States does not "maintain a single, comprehensive collation of statistics regarding incidents of torture and cruel, inhuman or degrading treatment or punishment," a universally understood concept. (15) My answer, in effect, was that the myriad bureaucracies of the federal government, the fifty states, and the territories did gather statistics regarding torture and cruel, inhuman, or degrading treatment, but we called that practice by different labels, including "cruel and unusual punishment," "police brutality," "section 1983 actions," applications of the exclusionary rule, violations of civil rights under color of state law, and the like. Refusing to accept the internationally accepted human rights standard as the American legal term thus reflects a quirky, nonintegrationist feature of our cultural distinctiveness (akin to our continuing use of feet and inches, rather than the metric system). But different labels don't necessarily mean different rules. Except for some troubling post-September 11 backsliding, the United States generally accepts the prohibition against torture, even if it calls that prohibition by a different name. (16)

   Third, I believe that lumping all of America's exclusionary treaty practices--e.g., nonratification, ratification with reservations, and the non-self-executing treaty doctrine--under the general heading of "American exemptionalism" misses an important point: that not all the ways in which the United States exempts itself from global treaty obligations are equally problematic. For example, although the United States has a notoriously embarrassing record for the late ratification, nonratification, or "Swiss cheese ratification" (17) of various human rights treaties, as my colleague Oona Hathaway has empirically demonstrated, the relevant question is not nonratification but noncompliance with the underlying norms, a problem from which the rest of the world tends to suffer more than the United States. (18) Many countries adopt a strategy of ratification without compliance; in contrast, the United States has adopted the perverse practice of human rights compliance without ratification. So, for example, during the thirty-seven years after the United States signed, but before it ratified, the Genocide Convention, (19) no one plausibly claimed that U.S. officials were committing genocide. This was simply another glaring example of American compliance without ratification.

   This third face of American exceptionalism Louis Henkin long ago dubbed...