American Exceptionalism and Human Rights

Chapter 1

INTRODUCTION: AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS

MICHAEL IGNATIEFF

Defining Exceptionalism

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 1948.1 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 the world. 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 Milos evic ? 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 Guanta ? namo, 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.2 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.3 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.4 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.5

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.6 Exemptionalism has also been on display in the war on terror in the U.S. insistence that while conditions of detention at Guanta ? namo and elsewhere will comply with Geneva Convention standards, interrogation procedures and determination of status will be determined by executive order of the president.7

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.8 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.9 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.10 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.11 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-?-vis capital punishment that applies to all democratic states and most nondemocratic ones, with the exception of China.12

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. 13 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.14 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.15

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.16 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.17 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.18 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. 19

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."20 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.21 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.

The American legal profession in general has not ignored global human rights developments, and American academic experts like Thomas Franck, Louis Henkin, and Thomas Buergenthal have played key roles in international rights institutions.22 American constitutional scholars assisted their Eastern European and South African counterparts in drafting constitutions, and U.S. programs of democracy development abroad have an increasingly important rule-of-law component.23 But the trade in legal understanding continues to be mostly one-way, with the U.S. legal tradition teaching others but not learning much itself. As Frank Michelman points out in his contribution, American judicial interpretation is marked by what he calls "integrity-anxiety," a concern to maintain rules of judicial interpretation that are stable, continuous, and legitimate. These stable canons can appear threatened by indiscriminate or undisciplined recourse to foreign precedents and sources. In addition to concerns about the stability of the interpretive canon, there is the belief of some American judges that foreign judicial attitudes are too liberal--on issues like the death penalty, abortion, sentencing, and so on--and should be resisted as alien to the American mainstream.24

American mainstream values are more than just the artifact of American conservatism since the 1960s. These values are structured legally by a rights tradition that has always been different from those of other democratic states and increasingly diverges from international human rights norms. As Frederick Schauer shows in his essay, in its free speech and defamation doctrine the United States has always been more protective of speakers' rights than any other liberal democratic state. Canada, France, and Germany permit the punishment of Holocaust deniers. New Zealand criminalizes incitement to racial hatred. UK libel laws provide more remedies against UK newspapers than would be conceivable in the United States.

U.S. law and international human rights standards also diverge markedly. International human rights laws allow more infringements of private liberty, in the name of public order, than do U.S. laws. The International Covenant on Civil and Political Rights mandates specific overrides of free speech if the free speech involves a threat to public order, the defamation of a religious or ethnic group, or the promotion of war propaganda. When the United States ratified the ICCPR, it specifically exempted itself from these provisions, just as it exempted itself from the ICCPR prohibition on juvenile execution.25 The European Human Rights Convention permits states to suspend political and civil rights in times of national emergency, while the U.S. Constitution has no provision for the declaration of national emergencies and only a single reference to presidential power to suspend habeas corpus.26

The U.S. Constitution makes no reference to socioeconomic and welfare rights--entitlements to food, shelter, health care, and unemployment insurance--that are standard features of both international rights regimes and the constitutions of European states. As Cass Sunstein points out in his contribution, U.S. rights, moreover, are defined in negative terms ("Congress shall make no law"), while modern democratic constitutions enunciate rights as positive entitlements to welfare and assistance at the hand of the state. Certain U.S. constitutional rights like the right to bear arms do not feature in other democratic systems.27 Hence no American ally approaches the problem of regulating the international trade in small arms with this constitutional restraint in mind.