The un-exceptionalism of U.S. exceptionalism.

• Author: Safrin, Sabrina

ABSTRACT

This Article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. It puts U.S. exceptionalism in perspective by identifying European exceptionalism as well as noting developing country exceptionalism, pointing to the exceptional rules sought by the European Union and by developing countries in numerous international agreements and institutions. It argues that most nations seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries' unwillingness to accommodate their needs as unfair. Requests for special treatment even exhibit a pattern.

This Article concludes by suggesting that the present emphasis on U.S. legal exceptionalism is overstated at best, misguided and even dangerous at worst. Furthermore, having shown that most nations seek exceptional legal accommodation, or double standards, in certain situations, it identifies some parameters for future work on the proper place for exceptionalism in international law.

TABLE OF CONTENTS I. INTRODUCTION II. A CLOSER LOOK AT U.S. EXCEPTIONALISM III. EUROPEAN EXCEPTIONALISM A. Regional Economic Integration Organization Provisions and Participation in International Bodies B. Built-in Exceptions C. Mixed Agreements IV. DEVELOPING COUNTRY EXCEPTIONALISM: COMMON BUT DIFFERENTIATED RESPONSIBILITIES V. CONCLUSION I. INTRODUCTION

Nations, like children, are each exceptional in their own way. This Article challenges the prevailing view that the United States acts exceptionally by examining the insufficiently considered legal exceptionalism of other countries. A nation that is "exceptional" seeks to apply a legal rule for itself that differs from an existing or emerging international norm as reflected in a multilateral treaty--behavior that might be called, in the words of Harold Koh, pursuit of a double standard. (1) This definition of legal exceptionalism differs from the historical understanding of American exceptionalism, credited to Alexis de Tocqueville, which refers to the United States' perception that it differs qualitatively from other nations due to its unique history, origins, and special political institutions, and that it serves as a beacon to other nations. (2) The attitude and policies of the George W. Bush Administration have increased and amplified allegations of the United States' legal exceptionalism. (3) However, concern over U.S. legal exceptionalism and unilateralism predates the Bush Administration and will likely persist after it. (4)

The collapse of the Soviet Union left the United States as the world's sole superpower and unleashed a growing torrent of international and academic concern over U.S. legal exceptionalism. A search of English-language law review articles published between 1990 and 2006 identified 732 articles referencing "American exceptionalism" and 45 discussing "U.S." or "United States" "exceptionalism." (5) An additional 294 articles referred to "American unilateralism," "U.S. unilateralism," or "United States unilateralism." (6) Law schools, law journals, and prestigious legal academic societies have devoted entire symposia and panels to the topic of U.S. exceptionalism and unilateralism in international law. (7) The articles and panels generally decry the alleged tendency of the United States to refrain from a series of international legal norms and certain international institutions. Often-cited examples include the refusal of the United States to join the International Criminal Court, the Kyoto Protocol on Climate Change, the Ottawa Convention Banning Landmines, the United Nations Convention on the Rights of the Child, and other international human rights agreements--actions that pre-date the current Bush administration. (8)

In sharp contrast, between 1990 and 2006, the term "European exceptionalism" appears in just three English-language law review articles and only three more refer to "European unilateralism." (9) Only nine articles in total mention French, British, English or German exceptionalism. (10) Only one article references "French unilateralism" and not one mentions English, British, or German unilateralism. Russia seems rarely to exempt itself from international norms. The term "Russian exceptionalism" appears in one article and "Russian unilateralism" appears in but two. Four articles refer to "Japanese exceptionalism" and one to "Japanese unilateralism." The term "African exceptionalism" appears in four articles. No articles mention Chinese, Indian, or developing country exceptionalism or unilateralism.

Books and articles with titles like American Exceptionalism and Human Rights, Rogue Nation: American Unilateralism and the Failure of Good Intentions, and American Exceptionalism and U.S. Foreign Policy: Public Diplomacy at the End of the Cold War abound. (11) The countries of Europe, to take one example, are perceived to differ dramatically from the United States, as evidenced by works entitled The Better Peoples of the United Nations, (12) The Limits of Unilateralism from a European Perspective, (13) and The United Nations and Europe: An Even Stronger Partnership. (14) From the perspective of scholarly concern, other nations appear to join an international community of norms and institutions, while the United States goes its own way. (15)

A rich body of scholarship exists as to when nations assume international obligations or when they comply with existing ones. The debate tends to the theoretical, with scholars congregating into doctrinal camps. These include the realist, (16) constructivist, (17) institutionalist, (18) and liberal theorist camps. (19) More recently, scholars like Oona Hathaway and Beth Simmons have injected some empirical analysis into the question of when nations assume or comply with international norms. (20)

This Article uses case studies to examine the concept of legal exceptionalism. In doing so, it paints a more nuanced and useful picture of exceptionalism in international law than that prevalent in current international scholarship, seeking to add to the theoretical and numbers-based empirical approaches of existing scholarship. The Article argues that most countries seek different international rules for themselves when they perceive themselves to have an exceptional need. Indeed, in cases of exceptional need, numerous countries believe themselves entitled to exceptional legal accommodation and may even perceive other countries' unwillingness to accommodate their need as unfair.

Most scholarship on legal exceptionalism takes a fairly binary approach: Has a country acceded to a convention, or, in the alternative, has it refused to join or joined but excepted itself from some of the treaty's norms by using reservations? (21) Compliance scholarship also assesses compliance in terms of whether a country fulfills its obligations as enumerated under a treaty. (22) Most of the criticism leveled against the United States stems from its refusal to join agreements, and, particularly in the human rights context, making its accession contingent on a series of reservations. (23)

This Article broadens the analysis of legal exceptionalism to include situations where a country or a group of countries seek a special or different legal norm for themselves during the process of negotiating a treaty and succeed in obtaining this legal accommodation. Having obtained this built-in accommodation, they can join the treaty; they need not file a reservation because the treaty already addresses their special interests; and, having had their special interests expressly accommodated, they can better comply with the norms that they have accepted. Politically, the situation of a country that joins a treaty and enjoys both the benefit of built-in exceptions and the international acclaim of participating in the treaty differs dramatically from a country that does not join and faces the possibility of international criticism. (24) However, with respect to double-standards, no compelling legal normative reason exists to distinguish, as a matter of course, between built-in exceptionalism and the exceptionalism of abstaining from a treaty or joining one subject to a reservation. In each case, a country excepts itself from a uniform international rule. Admittedly, in the case of built-in exceptionalism, the international community has sanctioned the differential treatment. However, in assessing, let alone excoriating, legal exceptionalism, we should not automatically distinguish between the two situations. International law permits countries to abstain from treaties or to join with reservations just as much as it permits built-in exceptions. The difference between countries that obtain built-in exceptions and those that do not often simply reflects discrepancies in their respective bargaining power in multilateral negotiations rather than discrepancies in the merits of their underlying claims for differential treatment.

Part II explores U.S. exceptionalism in the context of the 1997 Ottawa Convention Banning Landmines (the Landmines Convention). Part III points to the exceptional position taken by the European Union in various international agreements and international organizations to accommodate its unique and evolving status. Part IV considers developing country exceptionalism in seeking common but differentiated responsibilities in international environmental agreements and in trade agreements.

This analysis reveals that, while not exclusively the case, U.S. exceptionalism often flows from its perceived military needs and unique global security responsibilities. Overall, we can expect the United States to expect accommodation when an agreement raises significant military issues for it...