The Un-Exceptionalism of U.S. Exceptionalism

By Safrin, Sabrina | Vanderbilt Journal of Transnational Law, November 2008 | Go to article overview

The Un-Exceptionalism of U.S. Exceptionalism


Safrin, Sabrina, Vanderbilt Journal of Transnational Law


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. …

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