SUMMARY: ... Since
September 11, "American Exceptionalism" has emerged as a dominant leitmotif in
today's headlines. ... This brings me to the fourth and most problematic face of
American exceptionalism: when the United States actually uses its exceptional
power and wealth to promote a double standard. ... In January 1991, through an
impressive diplomatic effort that led then-Secretary of State James Baker to
more than forty nations, the United States obtained a U.N. Security Council
resolution authorizing member nations to "use all necessary means" after January
15, 1991 to drive Iraq from Kuwait. ... That strategy would have pursued
disarmament and regime change not simply through coercion, but rather, through a
transnational legal process solution, whereby the United States would have used
the threat of U.N.-authorized force to demand that Saddam and his sons leave
Iraq to face prosecution before either the International Criminal Court or an ad
hoc tribunal. ... In a remarkably brief time, the war against Iraq has turned
into a new global debate about American exceptionalism. ... In short, the
diplomatic missteps that led to the Iraq War need not signal the demise of
international law. ...
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
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
n1 - 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. n2
Unpacking "American Exceptionalism"
Let me begin
with the words of University of Toronto historian Margaret MacMillan:
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 ... ." n3
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. n4 Yet during
the last fifteen years, I have had the chance to look at [*1482]
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. n5
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: n6 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." n7 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; n8
ratification with reservations, understandings, and declarations; the
non-self-executing treaty [*1483] doctrine; or the latest U.S.
gambit, unsigning the Rome Statute of the International Criminal Court (ICC).
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
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, n10 libel, n11
commercial speech, n12 and publication of national security information. n13 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. n14
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. n15 My [*1484] 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. n16
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" n17 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. n18 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, n19 no one plausibly claimed that
U.S. officials were committing genocide. This was simply another glaring example
of American compliance without ratification.
face of American exceptionalism Louis Henkin long ago dubbed "America's flying
buttress mentality." Why is it, he asked, that in the cathedral of international
human rights, the United States is so often seen as a flying buttress, rather
than a pillar, willing to stand outside the structure supporting it,
[*1485] but unwilling to subject itself to the critical examination
and rules of that structure? The short answer is that compliance without
ratification gives a false sense of freedom. By supporting and following the
rules of the international realm most of the time, but always out of a sense of
political prudence rather than legal obligation, the United States tries to have
it both ways. On the one hand, it enjoys the appearance of compliance. On the
other, it maintains the illusion of unfettered sovereignty. It is a bit like the
driver who regularly breaks the speed limit but rarely gets a ticket, because he
uses radar detectors, cruise control, ham radios, and similar tricks to stay
just this side of the law. He complies, but does not obey, because to obey
visibly would mean surrendering his freedom and admitting to constraints, while
appearing "free" better serves his self-image than the more sedate label of
being law-abiding. n20
Like "distinctive rights" and
"different labels," the flying buttress mentality is ultimately more America's
problem than the world's. For example, it is a huge embarrassment that only two
nations in the world - the United States and Somalia, which until recently did
not have an organized government - have not ratified the Convention on the
Rights of the Child. Nevertheless, this ultimately is more America's loss than
that of the world. Why? Because the United States rarely gets enough credit for
the large-scale moral and financial support that it actually gives to children's
rights around the world, in no small part because of its promiscuous failure to
ratify a convention with which it actually complies in most respects. n21 But
once one weighs in the unfavorable alignment of proratification votes in the
Republican-controlled Senate, and considers the amount of political capital that
U.S. activists would require to obtain the sixty-seven votes needed for
ratification any time soon, one soon concludes that children's rights advocates
are probably better off directing their limited energies not toward
ratification, but rather, toward real strategies to reduce the exploitation of
child labor or to expand the prohibitions in the child-soldiers protocol. n22
This brings me to the fourth and most problematic face of
American exceptionalism: when the United States actually uses its exceptional
power and wealth to promote a double standard. The most problematic case is not
distinctive American rights culture, a taste for different labels, or a flying
[*1486] buttress mentality, but rather, when the United States
proposes that a different rule should apply to itself than applies to the rest
of the world. Recent well-known examples include such diverse issues as the
International Criminal Court, n23 the Kyoto Protocol on Climate Change, n24
executing juvenile offenders or persons with mental disabilities, n25 declining
to implement orders of the International Court of Justice with regard to the
death penalty, n26 or claiming a Second Amendment exclusion from a proposed
global ban on the illicit transfer of small arms and light weapons. n27 In the
post-9/11 environment, further examples have proliferated: America's attitudes
toward the global justice system, holding Taliban detainees on Guantanamo
without Geneva Convention hearings, and asserting a right to use force in
preemptive self-defense, about all of which I will say more shortly.
For now, we should recognize at least four problems with
double standards. The first is that, when the United States promotes double
standards, it invariably ends up not on the higher rung, but on the lower rung
with horrid bedfellows - for example, with such countries as Iran, Nigeria, and
Saudi [*1487] Arabia, the only other countries that have not in
practice either abolished or declared a moratorium upon the imposition of the
death penalty on juvenile offenders. n28 This appearance of hypocrisy undercuts
America's ability to pursue an affirmative human rights agenda. Worse yet, by
espousing the double standard, the United States often finds itself co-opted
into either condoning or defending other countries' human rights abuses, even
when it previously criticized them (as has happened, for example, with the
United States critique of military tribunals in Peru, Russia's war on Chechen
"terrorists," or China's crackdown on Uighur Muslims). n29 Third, the perception
that the United States applies one standard to the world and another to itself
sharply weakens America's claim to lead globally through moral authority. This
diminishes U.S. power to persuade through principle, a critical element of
American "soft power." Fourth, and perhaps most important, by opposing the
global rules, the United States can end up undermining the legitimacy of the
rules themselves, not just modifying them to suit America's purposes. The irony,
of course, is that, by doing so, the United States disempowers itself from
invoking those rules, at precisely the moment when it needs those rules to serve
its own national purposes. n30
II. The Overlooked Face
of American Exceptionalism
Having focused until
now on the negative faces of American exceptionalism, I must address a fifth,
much-overlooked dimension in which the United States is genuinely exceptional in
international affairs. Looking only at the half-empty part of the glass, I would
argue, obscures the most important respect in which the United States has been
genuinely exceptional, with regard to international affairs, international law,
and promotion of human rights: namely, in its exceptional global leadership and
activism. To this day, the United States remains the only superpower capable,
and at times willing, to commit real resources and make real sacrifices to
build, sustain, and drive an international system committed to international
law, democracy, and the promotion of human rights. Experience teaches that when
the United States leads on human rights, from Nuremberg to Kosovo, other
countries follow. [*1488] When the United States does not lead,
often nothing happens, or worse yet, as in Rwanda and Bosnia, disasters occur
because the United States does not get involved. n31
Let me illustrate with two anecdotes from my own experience. The first
comes from my time as Assistant Secretary of State. A young British diplomat I
knew came from the British Foreign and Commonwealth Office to work "on detail"
at the State Department's Bureau of European Affairs. As he was returning to the
British Embassy, I asked him: "So what was the major difference between working
at the British Foreign Office and at the U.S. State Department?" His immediate
answer, "When something happens in the world, the Americans ask, "What should we
do?' In the British Foreign Office, when something happens in the world, we ask,
"What will the Americans do?'"
This explains in part
the Bush Administration's cynicism about the French. Can you remember the last
major human rights campaign led by the French? If you cannot remember, it is
because in fact, they have led very few, even while notoriously fraternizing
with abusive regimes in such countries as China, Iraq, and Burma.
My second, bittersweet anecdote comes from my childhood.
It is really the story that made me a human rights lawyer. My late father, Dr.
Kwang Lim Koh, served as Minister to the United States for the first
democratically elected government in South Korea. In 1961, a military coup
overthrew the democratic government of Prime Minister Chang Myon, and Chang was
taken into house arrest amid rumors that he would shortly be executed. To plead
for Chang's life, my parents brought Chang's teenaged son to see Walt W. Rostow,
then the Deputy National Security Adviser to the President. As my father
recalled, Rostow turned to the boy, and told him simply, "We know where your
father is. Let me assure you, he will not be harmed." n32
Rostow's words stunned my father, who simply could not believe that any
country could have such global power, reach, and interest. The story so
impressed my father that he repeated it on countless occasions as I grew up, as
proof of the exceptional goodness of American power. But after I entered the
State Department, I came to realize that what I had thought had been exceptional
behavior is in fact America's diplomatic rule: Every day in [*1489]
virtually every embassy and consulate around the world, American diplomats make
similar interventions for and inquiries about political prisoners, opposition
politicians, and labor leaders, even in countries that most Americans could not
locate on any map. Without question, no other country takes a comparable
interest or has comparable influence worldwide. Both America's global interest
and its global influence are genuinely exceptional.
ironically, as I grew older, I came to realize that this canonical story was
inherently double-edged. On the one hand, it showed that America both has and
exercises exceptional power, every day and in every country on the planet. But
the real problem in the Korean case was not that the United States did too much,
but that it probably did too little. n33 The United States was ready to
intervene to save Prime Minister Chang's life, but not to take the additional
steps necessary to restore democracy in South Korea. Instead of doing more to
effectuate its human rights commitment, for several decades, the United States
instead supported a military government committed to political stability through
authoritarian rule and economic growth, a story that became all too familiar
throughout the Cold War era.
What this taught me is
that human rights problems may arise as often when the United States does not
exercise its exceptional leadership in human rights, as when it does. If critics
of American exceptionalism too often repeat, "America is the problem, America is
the problem," they will overlook the occasions where America is not the problem,
it is the solution, and if America is not the solution, there will simply be no
To illustrate, let me cite three timely
examples: Afghanistan, the Middle East, and North Korea. In Afghanistan, only
one year ago, the United States led an extraordinarily swift and successful
military campaign to oust the Taliban and restore democracy. n34 Yet the greater
challenge has not been winning the war, but securing the peace. In Bosnia, the
United States famously "went in heavy" after the Dayton Accords, committing
60,000 NATO peacekeepers, including some 20,000 Americans. n35 But in
Afghanistan, the United States has committed less than 500 of fewer than 6,000
NATO peacekeepers to a significantly larger geographic area. The predictable
result: While Hamid Karzai nominally acts as president of Afghanistan, outside
of Kabul, much of the country remains under the de facto control of warlords and
druglords. Karzai's vice president was assassinated and Karzai himself narrowly
avoided assassination, necessitating the commitment of a cordon of
[*1490] U.S. diplomatic security personnel to ensure his safety. n36
Human rights abuses continue, but under the name of some Northern Alliance
leaders whom the United States supported during the war. n37 Yet instead of
making the additional financial commitments necessary to secure Afghanistan and
promote serious nation-building, the administration initially allocated zero
dollars in its 2004 budget for Afghan reconstruction, until embarrassed
congressional staffers finally wrote in a paltry line item of $ 300 million to
cover the oversight. n38 So again, the problem in Afghanistan has not been what
the United States has done, but what it has not yet done. The United States won
the Afghan war, without making the necessary commitments to secure the peace.
Nor has the United States done enough to build democracy in a country that has
been ravaged by warfare for decades, even as it has moved on to a far more
ambitious war and nation-building exercise in Iraq.
parallel story can be told about the Middle East peace process, which
accentuates the contrast between America's military exceptionalism and its
relative diplomatic impotence. The success of "Operation Iraqi Freedom" has
again reminded the world that no one fights modern wars like Americans can. Yet
the magnitude of American hard power in Iraq contrasts with a remarkable decline
in diplomatic initiative by the United States in the Middle East over the past
two years. From 1973 on, administrations of both political stripes played an
activist, mediating role in the Middle East peace process, most notably at the
Clinton and Carter Camp David summits, and the Madrid peace process of the first
Bush Administration. The working assumption was that the United States was the
only country with the power and position to play the role of honest broker in
the regional process. The diplomatic mechanism was a special envoy system for
the Middle East that engaged in moment-to-moment shuttle diplomacy, ensuring
that the highest-ranking officials would work on the Middle East peace process
virtually every day. n39 Yet after January 2001, the United States abruptly
withdrew from this activist role, discontinued the special [*1491]
envoy system, and disengaged from diplomatic mediation, with consequences akin
to removing adult supervision from a playground populated by warring switchblade
Since then, the situation has dramatically
deteriorated. Left in the hands of Ariel Sharon, Yasir Arafat, and parties
beyond either of their control, the peace process has crumbled. New, multiple
spasms of violence have broken out that have greatly multiplied the challenges
of mediation in the Middle East. When the Bush Administration finally reengaged
diplomatically, its initiatives proved singularly unsuccessful. n40 And even
while now finally committing itself to a new "road map" for negotiations, n41
the United States has engaged in an ambitious military assault on Iraq that
threatens to turn much of the Middle East against us and perhaps to disable us
from playing the indispensable role of honest broker in a Middle East peace
process. n42 So again, the irony: Even as the United States directs exceptional
energy toward Iraq, the greater danger is that that effort will undermine our
capacity to do enough elsewhere in the Middle East. Exceptional United States
leadership in one place may diminish American soft power to mediate the broader
Middle East controversy, in which the United States is undeniably the
My third example is North Korea.
When I went to Pyongyang, North Korea in November 2000 with then-Secretary of
State Madeleine Albright, the United States had chosen an activist option toward
North Korea: creating in 1994 an Agreed Framework for multilateral diplomatic
engagement and negotiation as its preferred mechanism for alleviating long-term
tensions on the peninsula. Under the Agreed Framework, the United States, South
Korea, and Japan would all engage diplomatically with North Korea around a
coordinated message and negotiating strategy. The Agreed Framework sought to
freeze North Korea's plutonium program, including operations at the Yongbyon
nuclear reactor. In exchange, the West promised light-water reactors and oil
shipments to replace Yongbyon's energy output, and the longer-term goals of U.S.
disavowal of hostile intent toward North Korea, help in dismantling North Korean
weapons facilities, and eventual expansion of South Korean and Japanese social,
cultural, and economic links.
plainly violated in part by the North, the Agreed Framework still yielded clear
benefits. In addition to the freeze at Yongbyon, over the next decade, North
Korea reduced its nuclear missile production, placed a moratorium on tests of
long-range missiles, admitted that it had kidnapped Japanese citizens in the
1970s and 1980s, and allowed U.S. inspections of a mountain suspected as a site
of further nuclear-weapons work. n43 Most important, North Korea engaged in
bilateral dialogue with South Korea, under South Korean President Kim Dae Jung's
"Sunshine Policy," which brought Kim Dae Jung to Pyongyang for a historic June
2000 North-South summit meeting with North Korean President Kim Jong Il. n44
Bolstered by winning the Nobel Peace Prize, in late 2000, Kim Dae Jung talked of
ways to expand the North-South dialogue, even considering holding the semifinal
of the 2002 World Cup Soccer Championships in Pyongyang. n45
The Clinton Administration had left an agreement to stop certain kinds
of missile development and proliferation just short of completion. But when U.S.
administrations changed, the new administration broke off talks and withdrew
from direct engagement with North Korea, over the objections of President Kim
Dae Jung and even of former President George H.W. Bush and his key Asia
advisers. By his January 2002 State of the Union Address, the younger President
Bush had famously labeled North Korea as part of the "Axis of Evil," along with
Iraq and Iran. North Korean President Kim Jong Il was faced with the question of
how to get U.S. attention back on his own terms. n46 His chosen
[*1493] solution: building more bargaining chips by lifting the
freeze at Yongbyon, beginning to enrich plutonium to make nuclear weapons,
ousting weapons inspectors, openly cheating on other international agreements,
and in January of this year, announcing North Korean withdrawal from the Nuclear
America's "hard power"
alternative-disarming North Korea militarily-raises such a threat to the people
of South Korea and the nearly 40,000 U.S. troops stationed there as to be
effectively unusable. Yet the passive alternative initially chosen by the Bush
Administration would have let North Korea go nuclear, while seeking to isolate
and contain it in hopes of bringing about the eventual collapse of the North
Korean regime. Yet an isolationist approach seems most unlikely to affect what
is already the most isolated country on earth. Under intense pressure from Seoul
and Tokyo, the administration has now finally shifted back to a diplomatic
alternative: to reinitiate talks on the condition - rejected by the North - that
the North first abandon its effort to develop a highly enriched-uranium
Meanwhile, Kim Dae Jung has retired, having
made little headway with his Sunshine Policy during the last years of his
presidency. Our diplomatic ties with South Korea and its new president, Roh Moo
Hyun, have been strained. The North Koreans continue to build nuclear weapons
and could have six or seven in a year or two, enough to test, sell, and target
Seoul and Tokyo, while still holding three or more weapons in reserve as
bargaining chips in case serious talks ever do begin. n47 And President Bush has
found himself in precisely the same position as his father in 1989 and President
Clinton in 1993, concluding reluctantly that America has no real option but to
reengage diplomatically, with soft power, having lost both critical time and
After months of nonengagement, in
April 2003, the Bush Administration, aided by Chinese intervention, finally
dropped its demand that North Korea dismantle its uranium enrichment program as
a precondition for talks. North Korea, in exchange, dropped its insistence on
two-way talks and agreed to a [*1494] tripartite meeting in Beijing
with the United States and China. n48 The challenge has now become how the
United States can use these talks to create a new, enforceable Agreed Framework:
negotiating directly in a multilateral setting with the North Koreans (a setting
that should include South Korea and Japan) without rewarding North Korea's bad
behavior. In my own judgment, the United States should suggest a standstill on
nuclear building and a phaseout of existing North Korean "loose nukes" in
exchange for a tougher inspections regime, even while putting more incentives on
the table for the North in the form of a U.S. nonaggression pact, sanctions
phasedown, food aid, resumed construction of light-water reactors, foreign aid
and investment, cultural exchange, and the long-term possibility of political
In each of these cases, my historical
account and policy prescription may be controversial, but my broader point
should not be. American exceptionalism has both good and bad faces, and we
should be acutely aware of both. On the Korean peninsula, in Afghanistan, in the
Middle East, the United States cannot disengage, and the world simply cannot
afford to let the United States disengage. Rather, the United States must
reengage in each of these areas, not with hard power - which has limited
resolving power in these delicate diplomatic situations - but with "soft"
diplomatic power backed by carrots and sticks. In each of these cases, American
passivity is not an acceptable option and has demonstrably made matters worse.
By constantly stressing the ways in which America is the problem, single-minded
critics of American exceptionalism may perversely encourage dangerous passivity
in places where the United States presents the only viable solution to a
festering global problem.
As important, in all three
cases, the best face of American exceptionalism proves to be the face that
promotes the rule of law. In each case, American exceptionalism should be
channeled not through blunt military force, but through diplomatic engagement
designed to create broader legal frameworks: orderly, reasonable sets of
expectations rooted in mutual consent. In each case, the broader goal of
American power should be the creation of new, constraining and facilitating
legal orders - a democratic constitutional government in Afghanistan; a new
domestic and international order among Israel and the Palestinians; and a new
set of international legal norms to govern North Korea's behavior. In the end,
American exceptionalism succeeds best when it seeks not simply to coerce, but
rather, to promote sustainable solutions through the generation of legal process
and internalizable legal rules.
III. Responding to American Exceptionalism: The Bush
Doctrine After September 11
A. Four Responses
Given my analysis thus far, how should we respond to
American exceptionalism? In recent months, four distinct approaches have emerged
to answering this question, which for thumbnail purposes I call: triumphalism;
criticizing the critics; blaming American culture; and my preferred solution,
triggering transnational legal process. What do I mean by each of these?
First, triumphalism, or "getting used to it." A
speechwriter to a prominent conservative Senator once said to me, "American
exceptionalism is a reality. The rest of the world should get used to it. The
world should accept it and the U.S. should trumpet it. In a one-superpower
world, American exceptionalism is not just inevitable, it is good." To me, such
a blindered response ignores a simple reality: that triumphalism alone does
nothing to address the most negative aspects of American exceptionalism,
particularly the growing problem of promoting double standards.
A second counterproductive course is to criticize the critics of
American overreaching, and to lay the blame on "the human rights discourse." n49
Under this view, the human rights era is ending, but human rights advocates fail
to recognize that the way that they talk about human rights is dated. The
solution, these critics suggest, is to change our rhetoric. n50 Yet I see no
need to change America's human rights rhetoric, which has been remarkably
consistent from Wilson to Bush, but rather, to change the way we act upon our
rhetoric. As Jonathan Greenberg's paper for this Symposium points out, over the
decades, America's rhetoric has consistently been human rights-oriented and
progressive; what has varied is its willingness to act on this rhetoric in a
consistent way that promotes universal values without sacrificing American
national interests. n51
A third possible response,
often expressed by European critics, is to locate the causes of American
exceptionalism within a deeply rooted American culture of unilateralism and
parochialism. n52 But the problem with this response is that it does not
acknowledge that every American is not equally well- [*1496]
positioned to provoke an incident of American exceptionalism. It should be
self-evident that some people are better placed than others. For example, in
recent years, Secretary of Defense Donald Rumsfeld, former Chair of the Senate
Foreign Relations Committee Jesse Helms, and Supreme Court Justice Antonin
Scalia have each, in his own way, prevailed over other participants within their
chosen institutional environment who were pressing for less exceptionalist
outcomes. As Tino Cuellar's contribution to this Symposium illustrates, the
American discourse of opposition to the International Criminal Court has arisen
less from broadly entrenched American cultural beliefs than from the skill and
maneuvering of particular well-positioned individuals, who, by serving as key
institutional chokepoints, have successfully promoted particular well-publicized
acts of American exceptionalism. n53
the onset of the second Gulf War with Iraq in March 2003, one cannot escape the
feeling that the phenomenon of American exceptionalism and the debate over it
has reached a new watershed. n54 In large measure, this is because an
exceptionalist strategy seems to have become America's dominant response to the
horrendous terrorist attacks of September 11. As my Yale colleague John Lewis
Gaddis has observed, "The post-Cold War era began with the collapse of one
structure, the Berlin Wall in November 1989, and that era ended with the
collapse of another structure, the World Trade Center on September 11, 2001."
n55 Looking back, we can now see that September 11 created a cleft in the age of
globalization that began with the fall of the Berlin Wall.
On the one hand, the immediate post-Cold War era now looms as a time of
"global optimism," when many commentators were exuberantly optimistic about the
constructive possibilities posed by the globalization of transport, commerce,
finance, and communications. In the age of global optimism, we marveled at the
potential of the growing global network of information, trade, and
transportation to create genuinely global solutions to global problems. But then
we learned that the same coin has a dark side: that terrorists can exploit that
same interconnectedness to turn airplanes into missiles, to use the global
financial system to move money across borders, to turn ordinary mail into a
delivery system for biological weapons, and to plant viruses into email as a
tool for cyberterrorism. Since September 11, we have almost literally left the
light and entered the shadows of a new age of global pessimism, in which we have
realized with alarm that all of the interdependent dimensions of the age of
globalization could be equally turned against us.
B. The Emerging Bush
The Bush Administration's response to
this startling challenge has not been interstitial, but architectural. The
emerging platform of response - the Bush Doctrine, if you will - now has five
. First, Achilles and his heel.
September 11 brought upon the United States, like Achilles, a schizophrenic
sense of its exceptional power, coupled with its exceptional vulnerability.
Never has a superpower seemed so powerful and vulnerable at the same time. Given
that we have already suffered some 3,000 civilian casualties in the war against
terrorism, the question fundamentally posed by the Bush Doctrine is how best to
use our superpower resources to protect our vulnerability?
. The answer given has been Homeland Security, in both the defensive
and preemptive senses of that term. In the name of preserving American power and
forestalling future attack, the United States government has instituted sweeping
strategies of domestic security, law enforcement, immigration control, security
detention, governmental secrecy and information awareness at home, n56 even
while asserting a novel right under international law to forced disarmament of
any country that poses a gathering threat, through strategies of preemptive
self-defense if necessary. n57
. Third, the
administration has justified this claimed sovereign right under international
law by a shift in emphasis in human rights. In 1941, when Franklin Delano
Roosevelt summoned the allies to arms against an earlier "Axis of Evil," he did
not simply call America to war. Instead, he painted a positive vision of the
world we were trying to make: a postwar world of four fundamental freedoms:
freedom of speech, freedom of religion, freedom from want, freedom from fear.
n58 Since 1941, U.S. human rights policy in both Democratic and Republican
administrations has followed the broad contours of the "Four Freedoms" speech.
This framework foreshadowed a postwar human rights construct - eventually
embedded in Eleanor Roosevelt's [*1498] Universal Declaration of
Human Rights n59 and subsequent international covenants - that would emphasize
comprehensive protection of civil and political rights (freedom of speech and
religion), economic, social, and cultural rights (freedom from want), and
freedom from gross violations and persecution (e.g., the Refugee Convention, the
Genocide Convention, and the Torture Convention). But after September 11,
administration officials have reprioritized "freedom from fear" as the number
one freedom the American people need to preserve. Yet instead of declaring a
state of emergency, or announcing broadscale changes in the rules by which the
United States had previously accepted and internalized international human
rights standards, the administration has opted instead for a two-pronged
strategy of creating extralegal zones, most prominently the U.S. Naval Base at
Guantanamo Bay, Cuba, where scores of security detainees are held without legal
recourse, and extralegal persons - particularly those detainees labeled "enemy
combatants," who, even if American citizens on American soil, are effectively
accorded no recognized legal avenue to assert either substantive or procedural
. Fourth, beginning with Afghanistan and now
continuing with Iraq, the administration has asserted a new strategy toward
democracy-promotion. From Ronald Reagan's famous 1982 Westminister speech until
September 11, successive administrations had supported the promotion of
democracy as a fundamental goal of U.S. foreign policy. n60 President Reagan's
address to the Houses of Parliament called for a broad public-private effort "to
foster the infrastructure of democracy - the system of a free press, unions,
political parties, universities - which allows a people to choose their own way,
their own culture, to reconcile their own differences through peaceful means."
n61 During the Bush-Clinton years, the democracy-promotion strategy developed
into a broader aspiration, captured by President [*1499] George
Bush's January 29, 1991 State of the Union message, for "a new world order -
where diverse nations are drawn together in common cause, to achieve the
universal aspirations of mankind: peace and security, freedom and the rule of
law." n62 But the consistent theme during these years was "democracy promotion
from the bottom up," not imposed from the top down. Since the U.S. invasion of
Afghanistan, democracy-promotion efforts have shifted toward militarily imposed
democracy, characterized by United States led military attack, prolonged
occupation, restored opposition leaders and the creation of resource-needy
postconflict protectorates. n63 At this writing, a new, four-pronged strategy
seems to be emerging: "Hard," militarily imposed democracy promotion in Iraq and
Afghanistan; "soft," diplomatic democracy promotion in Palestine; optimistic
predictions of "domino democratization" elsewhere in the Middle East; and
reduced democracy-promotion efforts elsewhere. But if extended globally, as was
done during the Cold War, such a U.S. strategy of making "the world safe through
imposed democracy" could soon transform into an unsustainable strategy requiring
near-unilateral military interventionism, extended support for client
governments and imperial overstretch. n64
. Fifth and
finally, as Strobe Talbott has observed, to implement the various elements of
this emerging doctrine, the Bush Administration has opted for "strategic
unilateralism and tactical multilateralism." By its nature, such a strategy
resists enforced obedience with international treaties and institutions as
dangerously constraining on U.S. national sovereignty. n65 But as with the
"flying buttress" [*1500] mentality described above, to win the
illusion of unfettered sovereignty, the United States surrenders its reputation
for being law-abiding. This loss of rectitude diminishes America's moral
authority and reduces the soft power American needs to mobilize multilateral
responses in a post-September 11 world.
If these are
the elements of the emerging Bush Doctrine, what makes it so troubling? Because
such a doctrine makes double standards - the most virulent strain of American
exceptionalism - not just the exception, but the rule. Each element of the
emerging Bush Doctrine places the United States in the position of promoting
genuine double standards, one for itself, and another for the rest of the world.
The exclusive focus on American vulnerability ignores the far greater
vulnerability of such countries as, for example, Israel and Turkey (which, being
a neighbor of Iraq, surely had more to fear from Saddam Hussein than did the
United States, yet still denied American soldiers the right to stage ground
operations from Turkish bases). Even while asserting its own right of preemptive
self-defense, the United States has properly hesitated to recognize any other
country's claim to engage in forced disarmament or preemptive self-defense in
the name of homeland security. n66 The technique of creating extralegal
"rights-free" zones and individuals under U.S. jurisdiction necessarily erects a
double standard within American jurisprudence, by separating those places and
people to whom America must accord rights from those it may treat effectively as
human beings without human rights.
oxymoronic concept of "imposed democracy" authorizes top-down regime change in
the name of democracy. Yet the United States has always argued that genuine
democracy must flow from the will of the people, not from military occupation.
n67 Finally, a policy of strategic unilateralism seems unsustainable in an
interdependent world. For over the past two centuries, the United States has
become party not just to a few treaties, but to a global network of closely
interconnected treaties enmeshed in multiple frameworks of international
institutions. Unilateral administration decisions to break or bend one treaty
commitment thus rarely end the matter, but more usually trigger vicious cycles
of treaty violation. In an interdependent world, [*1501] the United
States simply cannot afford to ignore its treaty obligations while at the same
time expecting its treaty partners to help it solve the myriad global problems
that extend far beyond any one nation's control: the global AIDS and SARS
crises, climate change, international debt, drug smuggling, trade imbalances,
currency coordination, and trafficking in human beings, to name just a few.
Repeated incidents of American treaty-breaking create the damaging impression of
a United States contemptuous of both its treaty obligations and treaty partners.
That impression undermines American soft power at the exact moment that the
United States is trying to use that soft power to mobilize those same partners
to help it solve problems it simply cannot solve alone: most obviously, the war
against global terrorism, but also the postwar construction of Iraq, the Middle
East crisis, or the renewed nuclear militarization of North Korea.
If the emerging Bush Doctrine takes hold, the United
States may well emerge from the post-9/11 era still powerful, but deeply
committed to double standards as a means of preserving U.S. hegemony. Promoting
standards that apply to others but not to us represents the very antithesis of
America's claim, since the end of World War II, to apply universal legal and
human rights standards. The real danger of the Bush Doctrine is thus that it
will turn the United States, which since 1945 has been the major architect and
buttress of the global system of international law and human rights, into its
major outlier, weakening that system and reducing its capacity to promote
universal values and protect American interests. More fundamentally, it raises
ghosts of renewed "American exceptionalism" in the most messianic sense of that
term. As Louis Hartz recognized nearly half a century ago, "Embodying an
absolute moral ethos, "Americanism,' once it is driven on to the world stage by
events, is inspired willy-nilly to reconstruct the very alien things it tries to
avoid... . An absolute national morality is inspired either to withdraw from
"alien' things or to transform them: it cannot live in comfort constantly by
their side." n68
C. Addressing Exceptionalism Through
Transnational Legal Process
Under this argument,
the real cost of American exceptionalism comes when U.S. insistence upon double
standards (in crude terms, "bad exceptionalism") diminishes or inhibits its
capacity to display exceptional leadership in a post-Cold War world ("good
exceptionalism"). Given this [*1502] diagnosis, what do we do about
it? My answer: trigger transnational legal process. As American lawyers,
scholars and activists, we should make better use of transnational legal process
to press our own government to avoid the most negative and damaging features of
What is transnational legal
process? While most legal scholars agree that most nations obey most rules of
international law most of the time, they disagree dramatically as to why they do
so. As I have explained elsewhere, I believe that nations obey international law
for a variety of reasons: power, self-interest, liberal theories, communitarian
theories, and what I call "legal process" theories. n69 While all of these
approaches contribute to compliance with international law, the most overlooked
determinant of compliance is what I call "vertical process": when international
law norms are internalized into domestic legal systems through a variety of
legal, political, and social channels and obeyed as domestic law. In the
international realm, as in the domestic realm, most compliance with law comes
from obedience, or norm-internalization, the process by which domestic legal
systems incorporate international rules into domestic law or norms.
Under this view, the key to understanding whether nations
will obey international law, I have argued, is transnational legal process: the
process by which public and private actors - namely, nation states,
corporations, international organizations, and nongovernmental organizations -
interact in a variety of fora to make, interpret, enforce, and ultimately
internalize rules of international law. n70 The key elements of this approach
are interaction, interpretation, and internalization. Those seeking to create
and embed certain human rights principles into international and domestic law
should trigger transnational interactions, that generate legal interpretations,
that can in turn be internalized into the domestic law of even resistant nation
In my view, "transnational legal process" is
not simply an academic explanation of why nations do or do not comply with
international law, but, more fundamentally, a bridging exercise between the
worlds of international legal theory and practice. My time in government
confirmed what I had suspected as a professor - that too often, in the world of
policymaking, those with ideas have no influence, while those with influence
have no ideas. Decisionmakers react to crises, often without any theory of what
they are trying to accomplish, and without time to consult academic literature,
which, even [*1503] when consulted, turns out to be so abstract and
impenetrable that it cannot be applied to the problem at hand. On the other
hand, activists too often agitate without a clear strategy regarding what
pressure points they are trying to push or why they are trying to push them.
Scholars have ideas, but often lack practical understanding of how to make them
useful to either decisionmakers or activists.
And so it
is with American exceptionalism. Like so many aspects of international
relations, this phenomenon has generated a tragic triangle: Decisionmakers
promote policy without theory; activists implement tactics without strategy; and
scholars generate ideas without influence. If transnational legal process is to
bridge this triangle, how can we use that concept to press our government to
preserve its capacity for positive exceptionalism by avoiding the most negative
features of American exceptionalism?
Let me illustrate
my approach with respect to three examples from the September 11 context: first,
America and the global justice system; second, the rights of 9/11 detainees; and
third, America's use of force in Iraq.
1. The global
First, consider the global
justice system. In retrospect, the early post-Cold War years revived and
rejuvenated the Nuremberg concept of adjudication of international crimes. That
rejuvenation found particular expression during this period of global optimism I
have described, from 1989 to 2001. The revival could be seen in the
International Criminal Tribunals for the Former Yugoslavia and Rwanda, the
Lockerbie trial, the move to create mixed international-domestic tribunals in
Cambodia and Sierra Leone, the Pinochet prosecution in Spain and Chile, and the
civil adjudication of international human rights violations in U.S. courts under
the Alien Tort Claims Act. From the U.S. perspective, the symbolic high-water
mark came on December 31, 2000, when President Clinton signed the International
Criminal Court Treaty during his last days in office, a treaty that entered into
force in July 2002. n71
But in the wake of September
11, every one of these hallmarks of the age of optimism about global justice has
been placed under stress. With the trial of Slobodan Milosevic, the Yugoslav
Tribunal faces its make-or-break case. The Rwanda Tribunal has been singularly
unsuccessful, n72 and the Lockerbie result disappointed Western governments. For
a time, the United Nations pulled out of the Cambodia tribunal, n73 and the
Sierra Leone tribunal has yet to decide any [*1504] case. Pinochet
was never tried and a follow-on effort to try Chadian dictator Hissene Habre in
Senegal stalled. Academic commentators and some judges have started to challenge
the rise of human rights litigation in U.S. courts.
With the global justice system teetering, enter the Bush
Administration. The new administration faced four options: first, supporting the
growth and development of the global justice system; second, constructive
engagement with that system, to try selectively to encourage it to develop in a
manner that served long-term American accountability interests; third, benign
neglect - to leave the system alone to evolve its own way; or fourth, declaring
hostility to that system and placing the United States outside of it, in effect
adopting a double standard toward global adjudication.
Although Colin Powell initially signaled his preference for benign
neglect, n74 the Bush Administration has now opted, with four decisive measures,
to pursue a hostile course. First, the United States announced that it would
cease funding the Yugoslav and Rwanda tribunals by 2008, but failed to specify
clearly that this defunding would be conditioned upon participating countries
cooperating fully with those tribunals, thus potentially encouraging defendants
to pursue foot-dragging measures that would wait out the tribunals. n75 In
effect, this decision gave every defendant currently before the tribunal an
incentive to stall until 2008 to avoid getting tried. Second, in May 2002, Under
Secretary of State John Bolton sent U.N. Secretary-General Kofi Annan a letter
seeking to undo President Clinton's December 2000 signature of the International
Criminal Court Treaty. n76 Third, the administration initially vetoed extension
of the U.N. law enforcement assistance mission in Bosnia. The United States
objected because the Security Council would not grant an indefinite and
universal exemption from ICC jurisdiction for all U.S. officials engaged in
peacekeeping operations, but ultimately consented to continuation of the mission
in exchange for a one-year exemption (the maximum the Security Council could
provide under the Rome Statute). Fourth, the much-criticized U.S. proposal to
try certain foreign terrorist suspects for war crimes before ad hoc domestic
military commissions has signaled a symbolic [*1505] decoupling from
international criminal adjudication. n77 The military commission proposal de
facto "unsigns" our commitment to a global adjudication system by declaring that
claims involving international crimes of terrorism should henceforth be heard
not in international court, or even in U.S. civilian or military courts, but
rather, in ad hoc military commissions under the control of the U.S. military,
and set up (most likely) at the U.S. Naval Base in Guantanamo Bay, Cuba.
Each of these decisions ignores two realities. First, for
more than half a century, the United States has promoted international criminal
adjudication as being in our long-run national interest. This policy has stemmed
from a sensible prediction that, on balance, the United States is far more
likely to act as a plaintiff than as a defendant before these tribunals, and
thus, has much more to gain than to lose from their effective functioning.
Bosnia, for example, taught that indictment alone can be a valuable political
tool. Although two of the leading architects of ethnic cleansing in Bosnia,
Radovan Karadzic and Ratko Mladic, have not yet been brought to trial, their
indictment before the International Criminal Tribunal for the former Yugoslavia
(ICTY) has effectively removed them from political life, creating space for more
moderate political forces to emerge.
Second, in many
cases, supporting global adjudication has served U.S. national interests by
sparing us from far more costly military interventions. Without the Yugoslav
Tribunal, it would have been hard for the United States to avoid sending troops
to Belgrade to seize and oust Slobodan Milosevic. It is precisely because we
supported global criminal adjudication that the United States is not occupying
Belgrade now. The ICTY both helped create the conditions that allowed
Milosevic's removal and served as a tool for his removal from political life.
Without the tribunal's indictment, the Clinton Administration would have faced
difficulty isolating Milosevic internationally, and his domestic opposition
would have had trouble persuading Serbian voters that Milosevic was weak enough
to be worth challenging. Nor is it likely that the Bush Administration, openly
disdainful of U.S. involvement in the Balkans, would have maintained pressure on
Belgrade but for the clear, independent signal from the tribunal. Absent that
pressure, Milosevic might have regained power or retained his freedom, remaining
a divisive force threatening Kosovo, Europe's newest democracy. Instead, his
removal was accomplished in a way that advanced democracy, spilled no blood, and
reinforced U.S. support for a people working to rid itself of a violent
The second Gulf War has already underscored
America's shortsightedness in rejecting a permanent standing international
criminal court. As the war began, both President Bush and Secretary of Defense
Rumsfeld announced that high-ranking Iraqi war criminals, including Saddam
Hussein, would be [*1506] prosecuted. Yet their announcement only
raised the obvious question: "Where?" n78 Neither the United States nor Iraq
have ratified the ICC, eliminating that as a possible venue. Nor, given the
intense misgivings that Security Council permanent members France and Russia
expressed about the war, can the United States now easily persuade the Security
Council to create an ad hoc tribunal under chapter VII, as it did in
spearheading the movements to create international tribunals to try war
criminals from the former Yugoslavia and Rwanda. n79 Unlike ad hoc courts, a
permanent criminal court cannot be so easily dismissed as dispensing "victor's
justice." Moreover, states reluctant to extradite their citizens to national
courts will find it far easier to hand suspects over to an ICC that is perceived
as politically balanced and not inclined to tailor its procedures for particular
defendants. Once again, the United States failed to see that accountability
flows best not from American military power, but from using global
accountability mechanisms as a modulated instrument of American soft power.
In these circumstances, how could transnational legal
process help? In three ways. First, those who support eventual U.S.
participation in the ICC can seek to internalize recognition of the legitimacy
and usefulness of that court within the relevant community of U.S. officials,
legislators, and opinion elites. n80 Supporters should provoke interactions
between the United States government and the ICC with an eye toward persuading
U.S. officials that the ICC actually serves U.S. interests. Although the United
States was neither a member of the League of Nations nor a party to the statute
of the Permanent Court of International Justice (PCIJ), an eminent American
participated in the drafting of the Permanent Court's statute, Americans
regularly nominated candidates to be judges, and four Americans were
successively elected as PCIJ [*1507] judges. n81 Over time, growing
familiarity gradually demystified the court's processes and helped to facilitate
the United States's eventual participation in the PCIJ's successor tribunal, the
International Court of Justice.
The Rome Treaty has now
entered into force, eighty-nine countries have ratified it, and an impressive
initial complement of eighteen judges has been elected. Given that the ICC is
now a fait accompli, America's wisest course would be to return to the strategy
of constructive engagement: to work with this tribunal to make its functioning
more fair. The United States should seek to ensure the selection of able and
unbiased prosecutors, to provide their office with resources, and to encourage
the court as a whole to develop a balanced, respectable jurisprudence of war
crimes and crimes against humanity. n82 By snubbing the ICC, the United States
has perversely enhanced the chances that it will take on an anti-American focus,
thus turning the administration's hostility toward the Court into a
Second, human rights groups
should recognize that the ICC is far more likely to survive if the United States
sees it as helpful, rather than hostile, to its foreign policy interests. ICC
supporters should therefore seek to identify cases that the new Prosecutor, Luis
Moreno Ocampo, could bring before the International Criminal Court as a way of
illustrating both the Court's responsibility and its political usefulness: for
example, for offenses recently committed in the Congo or Cote d'Ivoire.
Similarly, as the war against Iraq proceeds, nongovernmental advocates should
identify issues upon which Saddam Hussein or his leading subordinates could be
tried if a tribunal were set up to try Iraqi war crimes under chapter VII of the
U.N. Charter. As Allison Danner has suggested, by identifying appropriate cases,
human rights groups would in effect be suggesting the contours of prosecutorial
guidelines that the Prosecutor's office could internalize to preserve
independence, enhance public credibility, and constrain discretionary decisions.
n83 By winning convictions and obtaining domestic compliance, the prosecutor
would also begin the process of internalizing ICC decisions into the domestic
law of various target nations, in the same way as European Court of Human Rights
rulings have now become deeply internalized into the law of member states.
[*1508] Third, transnational legal process
could be used to erode the force of the novel U.S. tactic of unsigning the Rome
Treaty. n84 Under international law, it is unclear what the precise legal force
of "unsigning" a previously signed treaty should be. At present, the U.S. letter
of unsigning is simply lodged with the U.N. depositary of treaties, along with a
notation of President Clinton's prior signature. n85 Nor is the matter
automatically controlled by the administration's stated desire to reject the
ICC. In 1994, for example, the United States attempted to modify its acceptance
of the compulsory jurisdiction of the International Court of Justice to avoid a
suit by Nicaragua, but the court itself eventually rejected that attempt as
legally ineffective and proceeded to judgment against the United States. n86
As a policy matter, it is by no means clear that
governments should be allowed to enter and exit their human rights obligations
with equal ease. If that were so, other countries could invoke the U.S.
"unsigning" precedent to justify backing out of other international commitments
of importance to the United States. n87 In each case, the goal should not be to
give these nations an easy way out of their commitments, but to enmesh them
within the global treaty system to encourage them to internalize those norms
over time. Nor can the United States so forthrightly protest North Korea's
acknowledged violation of the 1994 Agreed Framework, when the United States
itself is unsigning solemn commitments it previously made.
Rather than taking America's unsignature at face value, a transnational
legal process approach would recognize that the unsigning actually marks the
[*1509] beginning, not the end, of the United States's relationship
with an ongoing International Criminal Court. Henceforth, every act of American
cooperation with the court will constitute a de facto repudiation of the
categorical, but theoretical, act of unsignature. Thus, in a well-chosen case, a
state party to the court could request that the United States provide evidence
to support an ICC prosecution - as was done, for example, when the United States
made classified evidence available to the International Criminal Tribunal for
the former Yugoslavia (ICTY) to support the indictment of Slobodan Milosevic.
Alternatively, another State could seek to extradite to the ICC a suspect
located on U.S. soil. If the United States were to cooperate - as it well might
in a case that served U.S. interests - the incident could reduce American
exceptionalism, undermine the force of the May 2002 unsigning, and help shift
the United States toward a new, more pragmatic long-term policy of cooperating
with the court on a case-by-case basis.
A similar transnational legal process
strategy is currently being applied with regard to post-September 11 detainees.
Three issues are currently driving a wedge between the United States and its
allies: first, the U.S. refusal to accord full Geneva Convention rights to
Taliban detainees being held on Guantanamo; second, the U.S. insistence upon
labeling suspected terrorists as "enemy combatants," a term which, under
international law, does not relieve the United States of its Geneva Convention
obligations; and third, the death penalty, which the United States insists on
preserving as an option for punishing convicted terrorists. Again, each
illustrates a U.S. effort to create a double standard.
Although the United States may want its own exceptional "rights-free
zone" on Guantanamo, it surely does not want the Russians to create a similar
offshore facility for their Chechen terrorists or the Chinese to erect offshore
prisons for their Uighur Muslims. Second, even while the United States has been
holding Taliban detainees in the exceptional legal category of "enemy
combatants" without Geneva Convention hearings, it has been ferociously
protesting the denial of Geneva Convention rights to American prisoners of war
captured during the Iraq war. And while the United States has insisted upon
preserving the death penalty option for any terrorists it captures, it has
joined the European Union and the Council of Europe in encouraging Turkey to
foreswear execution as an option to punish the captive Kurdish terrorist leader
So how to use transnational legal
process to mitigate American exceptionalism in these three areas? Human rights
advocates are currently litigating all three issues, not just in domestic
courts, but simultaneously before [*1510] foreign and international
arenas. In Al Odah v. United States, n88 the D.C. Circuit has already rejected
the legal claims of Australian, British, and Kuwaiti detainees on Guantanamo, in
a ruling that may yet go to the United States Supreme Court. That decision held,
erroneously in my view, that Guantanamo detainees have no procedural avenues to
challenge their American captivity, because they are being held outside the
United States on territory over which the United States is not sovereign. n89 In
so holding, the panel relied heavily on Johnson v. Eisentrager, a United States
Supreme Court decision rejecting similar rights for German prisoners being held
in Germany, after having been taken into custody in China after World War II.
n90 Yet what the D.C. Circuit misunderstood is that Guantanamo's location
outside the United States does not automatically extinguish the procedural
rights of all foreign detainees being held there. n91 As the Second Circuit
recognized in the Haitian refugee litigation, detainees being held on Guantanamo
are subject to exclusive U.S. jurisdiction and control, and thus are subject
only to U.S. law. n92 It is of no moment that the Guantanamo detainees are
subject to nominal Cuban sovereignty, as they clearly will find no legal relief
in Cuban courts. The relevant question is whether the United States can subject
them to punishment exclusively under [*1511] U.S. law, yet
simultaneously afford them no avenue under that law to object to that
punishment, to challenge their nontreatment as prisoners of war, to speak to
legal counsel, or even to assert claims of mistaken capture.
To clarify that challenge, human rights lawyers are also litigating the
status of Guantanamo detainees in parallel settings: before the Inter-American
Human Rights Commission, n93 as well as before the British courts, with regard
to a habeas petition brought there by a British citizen detained on Guantanamo.
n94 In generating these legal interactions, these advocates are pursuing a
three-fold goal: to win in non-U.S. fora different legal interpretations from
those being asserted by the Bush Administration and accepted by U.S. courts; to
discourage the administration from bringing new detainees from Iraq and
elsewhere to Guantanamo; and particularly with respect to prisoners whose
countries are close American allies in the Iraq war, to generate enough media
and political pressure to promote the release of Guantanamo detainees not by
court order, but through diplomatic means. n95 A similar pattern is developing
with regard to the status of "enemy combatant." The contours and means of
proving that status are currently being litigated by criminal defense attorneys
in two cases: before the Southern District of New York and the Second Circuit in
the case of Jose Padilla (the so-called "dirty bomber") n96 and before the
Fourth Circuit (and potentially the United States Supreme Court), in the case of
Yasser Hamdi, a Louisiana-born soldier captured in Afghanistan, brought to
Guantanamo, and now being held on U.S. soil in a military brig. n97 Both cases
raise two questions: whether the U.S. courts should permit U.S. citizens to be
held indefinitely and without counsel on U.S. soil based on ambiguous statutory
authority, and whether such citizens can be placed in the essentially
rights-free status of "enemy combatant," as distinct from the statuses of
"prisoner of war" or "criminal defendant," both of which carry well-recognized
procedural rights. Significantly, when Richard Reid, the so-called "sneaker
bomber," was sentenced, the federal judge took pains to punish him with full
recognition of his procedural rights. The judge [*1512] told Reid,
"I will not dignify you by calling you an enemy combatant. You are a terrorist.
You are a criminal." n98
A transnational legal process
approach would suggest that foreign governments and nongovernmental
organizations should seek opinions from recognized interpreters of international
humanitarian law interested in the global, rather than the parochial,
implications of the "enemy combatant" label. Such interpreters could include the
International Committee on the Red Cross, the European Court of Human Rights, or
foreign courts. In appropriate cases, the issue could even be raised before U.S.
courts of military justice, which have deeply internalized the Geneva
Conventions as operating rules and display a strong incentive not to promote
legal interpretations that would leave American soldiers abroad without legal
protections. In short, to reduce American exceptionalism in this area, as in
others, it makes sense to pursue legal interactions that provoke interpretations
that promote internalization of universal, rather than unilateralist,
interpretations of the Geneva Conventions.
area of contest - the availability of the death penalty for terrorism suspects -
is currently being litigated in multiple fora as part of a broad
international-law assault on the U.S. death penalty. n99 Mexico has brought suit
against the United States before the International Court of Justice, challenging
the execution of Mexican nationals without consular rights. n100 Last year, in
Atkins v. Virginia, a majority of the United States Supreme Court finally
invalidated the execution of persons with mental retardation under the Eighth
Amendment Cruel and Unusual Punishment Clause, taking note of the views of the
world community. n101 But this Term, in In re Stanford, four Justices voted to
apply similar reasoning to invalidate the execution of juvenile offenders, but
clearly lacked a fifth vote to abolish current U.S. practice, which still
permits the execution of offenders under the age of sixteen. n102 As a political
matter, the question has been further complicated by the presence on Guantanamo
of a sixteen-year-old Canadian captured on the battlefield in Afghanistan, n103
and the [*1513] recent indictment by a Virginia grand jury of John
Lee Malvo, a seventeen-year-old juvenile, one of the alleged "D.C. sniper
terrorists" as a death-eligible adult defendant. n104
To reduce U.S. exceptionalism, opponents of the death penalty are
likely to pursue channels of both political internalization and judicial
internalization. In the World Court case, Mexico's President Vicente Fox will
certainly engage directly with the White House political staff as well as with
Counsel to the President Alberto Gonzales (a Mexican-American and former Texas
appellate judge). To forestall execution of extradited terrorist defendants,
European justice ministries will likely seek the support of senior career
prosecutors in the Criminal Division of the Justice Department, who would
probably value the convictions, leads, and information to be obtained from
suspects more than the value of executing any particular suspect.
To address America's judicial exceptionalism, we can apply
methods of reducing judicial dissonance, as described in Gerry Neuman's article
for this Symposium. n105 But more fundamentally, we must recognize that two
distinct approaches have emerged within our own Supreme Court's jurisprudence
toward America's role in the world. The first is a "nationalist jurisprudence,"
exemplified by opinions of Justices Scalia and Thomas, which is characterized by
commitments to territoriality, national politics, deference to executive power,
and resistance to comity or international law as meaningful constraints on
national prerogative. n106 The second and more venerable strand of
"transnationalist jurisprudence" began with John Jay and John Marshall, was
carried forward by Justice Gray in the The Paquete Habana case, n107 and was
articulated in the Warren and Burger Courts by Justices Douglas n108 and White
n109 and in the numerous opinions of Justice Blackmun. n110 The transnationalist
banner is now being carried forward by Justices Stephen Breyer and Ruth Bader
Ginsburg. Unlike the nationalist jurisprudence, which for guidance looks
backward to territory and sideways toward executive power, [*1514]
transnational jurisprudence looks forward toward political and economic
interdependence and outward toward rules of international law and comity as
necessary means to coordinate international system interests and to promote the
development of a well-functioning international judicial system. n111 The
nationalist/transnationalist debate now consumes much of the recent scholarship
on international law in U.S. courts, and indeed, runs through many of the
articles in this Symposium. n112 As in other areas of Supreme Court
jurisprudence, two swing Justices - Anthony Kennedy and Sandra Day O'Connor -
have not yet firmly committed themselves to one side or another of the
Significantly, Chief Justice Rehnquist has
announced that "now that constitutional law is solidly grounded in so many
[foreign] countries, it is time that the United States courts begin looking to
the decisions of other constitutional courts to aid in their own deliberative
process." n113 In addition, nearly every member of the current Court has, at one
time or another, looked to foreign or international practice or precedent to
illuminate interpretations of the U.S. Constitution. n114 Pending Supreme Court
litigation, in such diverse areas [*1515] as international business,
cyberspace, the death penalty, immigration, gay and lesbian rights, as well as
post-9/11 controversies, will most likely determine the future direction of
America's judicial exceptionalism. n115
3. Use of force
Finally, let me turn to the use of force
in Iraq. At the dawn of the post-Cold War era, the international law rules for
using force seemed pretty clear: One state could lawfully breach another's
territorial sovereignty only if one or more of three conditions obtained:
response to aggression, self-defense, or an explicit U.N. Security Council
resolution. The 1991 Gulf War epitomized all three: The United States led a
coalition authorized by a U.N. Security Council resolution to respond to Saddam
Hussein's aggression to come to the defense of Kuwait. But two questions
lingered. First, when may force be used in defense of human rights or
humanitarian concerns without a Security Council resolution (the doctrine of
"humanitarian intervention")? Second, when may force be [*1516] used
in "preemptive self-defense," to head off an attack that seems imminent, but has
not yet occurred?
For much of the decade after the Gulf
War, the United States explored the contours of the humanitarian intervention
doctrine: from Somalia, to Bosnia, to Kosovo, to East Timor, to Sierra Leone.
But September 11 - the most vicious of a series of brutal attacks on civilians -
suddenly posed a crisis at the crossroads of humanitarian intervention and
preemptive self-defense. When and where, international lawyers asked, could the
United States now justify using force collectively, without a Security Council
resolution, to minimize human rights abuse against innocent civilians and to
prevent future attacks on our citizens and territory? When the post-September 11
Security Council resolutions stopped short of explicitly authorizing military
attacks on any particular country, the United States invoked a mixed
humanitarian/self-defense rationale to strike back at Afghanistan. Having
achieved impressive military success in the Afghanistan phase of the campaign,
the Bush Administration increasingly invoked arguments based on preemptive
self-defense to put troops into the Philippines, to gear up for its military
campaign against Iraq, and to assert, as it did in its national security
strategy paper, that it has a customary right of preemptive self-defense to
protect itself from threats posed by other countries, most notably Iraq. n116
Preemptive self-defense arguments cannot clearly
distinguish between permitted defensive measures and forbidden assaults. n117
Witness, for example, Israel's recent sweep into the West Bank, which could
similarly be rationalized as preemptive self-defense against future terrorist
attacks. Unlike the preemptive-self-defense claim, which knows few limits, the
humanitarian/human rights argument at least has the advantage that the United
States cannot logically invoke human rights as its justification for force
without simultaneously accepting human rights constraints as a measure of the
rectitude of its actions.
In January 1991, through an
impressive diplomatic effort that led then-Secretary of State James Baker to
more than forty nations, the United States [*1517] obtained a U.N.
Security Council resolution authorizing member nations to "use all necessary
means" after January 15, 1991 to drive Iraq from Kuwait. n118 Soon thereafter,
the first President Bush announced his commitment to "a new world order - where
diverse nations are drawn together in common cause, to achieve the universal
aspirations of mankind: peace and security, freedom and the rule of law."
This time, the Bush Administration first secured
sweeping congressional authorization to use force, then bluffed down the
unilateralist path. n120 Pressed principally by Secretary of State Colin Powell
and British Prime Minister Tony Blair, however, the United States eventually
brought the use of force issue back into the U.N. Security Council framework.
With United Nations Security Council Resolution 1441, the United States achieved
a significant and unanimous diplomatic success. n121 Resolution 1441: (1)
decided that "Iraq has been and remains in material breach of its obligations"
through its failure to cooperate with inspectors and its failure to disarm; (2)
afforded Iraq "a final opportunity to comply with its disarmament obligations
under relevant resolutions" by setting up an enhanced inspection regime and
ordering Iraq to submit an accurate and complete declaration of its chemical,
biological, and nuclear weapons programs; and (3) "warned Iraq that it will face
serious consequences as a result of its continued violations of its
obligations." Seven days after, Iraq reluctantly confirmed its intent to comply
with the resolution.
Thereafter ensued a four-month
public "trial" of disarmament facts a la the Cuban Missile Crisis. During these
months, U.N. inspectors combed through Iraq, even while Iraq was supposedly
developing a "currently accurate, full and [*1518] complete
declaration of all aspects of its programmes" to develop chemical, biological,
and nuclear weapons and long-range missile programs. n122 Throughout this
period, the administration waffled on three points: whether it would seek a
second Security Council resolution before using military force; whether its real
goal in Iraq was disarmament, regime change, or democracy-promotion; and whether
its ultimate rationale for use of force would be breach of past Security Council
resolutions, the continuing threat posed by Saddam Hussein to peace and
security, preemptive self-defense, or human rights.
the same time, however, the transnational legal process framework clearly pushed
the administration further than it preferred down a U.N. path. First, the
President's advisers said they didn't need any new Security Council resolution,
but then they got resolution 1441. Then they said they didn't need any
inspections, but for four months they pursued inspections. Then they said they
didn't need a second resolution, but in March 2003, at Tony Blair's urging, they
pursued a second one.
By March 2003, however, the
administration was feeling the pinch of its own military timetable, which called
for any invasion to begin before late spring. After initial wrangling over the
second resolution, President Bush and French President Chirac issued
incompatible pronouncements. Chirac announced that the French would veto any
resolution calling for force; Bush retorted that the United States would go to
war, along with the United Kingdom, whether it secured a second resolution or
not. The two announcements unnecessarily created a zero-sum situation in which
the only second resolution the United States deemed relevant (one supporting
rapid attack) was one that the French were precommitted to veto. n123 By framing
the issue this way, the United States also virtually guaranteed its own
inability to secure the nine votes necessary to pass a second resolution in the
absence of a veto. For even close U.S. allies, such as Mexico and Chile, were
not willing to subject their citizens to a controversial vote for war, when both
the United States and the French had made it clear that that vote would not
Diplomatic historians will long revisit the
missed steps that led to the messy start of the second Gulf War. My view is that
a transnational legal process solution - the exercise of multilateral coercive
power, led by the United States through the U.N. mechanism - was available, but
tragically bungled. [*1519] Saddam's venality, Chirac's obstinacy,
and the United Nations's fecklessness all deserve a good share of the blame.
Perversely, Chirac's overbroad veto threat virtually ensured the future
weakening of the Security Council, the only U.N. organ in which his country
holds disproportionate power.
Some of the blame surely
belongs to Congress, which did not follow its Gulf War precedent of demanding
first that the President obtain nuanced Security Council authorization for
force, and only then authorizing the President to use force to the extent
necessary to enforce Security Council resolutions. n124 Such an approach would
have forced Congress to clarify whether America's real goal in going to war with
Iraq was promoting inspections, ensuring disarmament, promoting regime change,
or imposing democracy by military force. Instead, Congress avoided these nuances
and gave the President a virtual blank check to use force with or without U.N.
approval, giving the President carte blanche to abandon his search for a second
Security Council resolution at the eleventh hour. n125
But much of the blame must also go to the Bush Administration's
decision to frame the issue in bipolar terms - either attack, or accept a status
quo in which Saddam builds unconventional weapons and brutalizes his own
citizens without sanction. By flattening the issue in this way, the Bush
Administration discouraged examination of a meaningful third way: to disarm Iraq
without attack through a multilateral strategy of disarmament plus enhanced
containment plus more aggressive human rights intervention. That strategy would
have supported continuation of the initial Bush approach of diplomacy backed by
threat of force: restoring effective U.N. weapons inspections, disarming and
destroying Iraqi weapons of mass destruction, and cutting off the flow of
weapons and weapons-related goods into Iraq. At the same time, however, this
strategy would have also pressed more aggressively for the insertion of human
rights monitors, supporting the forces of peaceful democratic opposition in
Iraq, as well as developing the "Milosevic-type" possibility of diplomatically
driving Saddam and his top lieutenants into exile and bringing them to justice
before an appropriate international tribunal. n126 [*1520] That
strategy would have pursued disarmament and regime change not simply through
coercion, but rather, through a transnational legal process solution, whereby
the United States would have used the threat of U.N.-authorized force to demand
that Saddam and his sons leave Iraq to face prosecution before either the
International Criminal Court or an ad hoc tribunal. n127 Although the Bush
Administration ultimately offered this option on the eve of war, it was not a
credible one, because the United States had rejected the International Criminal
Court and had not invested enough in an alternative legal process solution to
make coerced departure plus prosecution a realistic means of regime change.
Such a strategy would have had obvious advantages: It
would have avoided a bloody war, the financial and symbolic costs of that war,
and the thousands of combatant and civilian deaths that war has entailed. More
fundamentally, it would have secured Iraq's compliance with international law at
no cost to the United States's own appearance of compliance. It would have
strengthened the United States's capacity to return to the U.N. Security Council
for the lifting of Iraqi sanctions, n128 to secure the support of the United
Nations in identifying and destroying any unconventional weapons still in Iraq,
n129 to secure a United Nations-supervised civilian reconstruction mission in
Iraq, and to create an ad hoc criminal tribunal to prosecute apprehended Iraqi
war criminals. But that strategy would have required genuine strategic
[*1521] multilateralism. It would have required the United States to
work with other global democracies to fight global terrorism. Instead, the
United States chose to ignore the very global partners who had helped it create
the postwar system of international law and institutions precisely to provide
nonmilitary multilateral options that did not exist during World War II.
Hot debate still rages over the legal justification of the
Iraq war. At this writing, the U.S. government has yet to issue its own
definitive legal justification for the war. n130 Although some American
officials have suggested preemptive self-defense as an additional legal basis
for the war, the core U.S. claim rests not on that murky ground, but on the much
narrower claim that Iraq was in material breach of U.N. Security Council
Resolutions 678, 687, and 1441. n131 Similarly, the contested British legal
opinion justifying the war relies [*1522] at bottom not on broad
customary law arguments about preemptive self-defense or humanitarian
intervention, but on two narrow resolution-based arguments. n132
[*1523] First, the opinion argues, the U.N. Security Council's
explicit authorization of force in resolution 678, which was suspended by the
cease-fire of April 1991 that ended the first Gulf War, "revived" upon Iraq's
recent failures to meet its disarmament obligations. Second, the opinion
suggests resolution 1441 was effectively self-executing, with individual U.N.
members entitled to determine whether to use force against Iraq as part of the
"serious consequences" Iraq should face for noncompliance.
In my view, the Iraq invasion was illegal under international law. n133
While justifying the war through narrow parsing of U.N. Security Council
resolutions is far preferable to unmoored claims of "preemptive self-defense,"
the legal arguments based on "revived force" under resolution 678 and "serious
consequences" under resolution 1441 still strike me as unpersuasive. n134 The
problem with both arguments is that they disdain the need for political
legitimacy in a strained quest for legal authority. The "revived force" argument
relies on twelve-year-old resolutions passed by earlier Security Councils at a
time when the United States demonstrably cannot muster nine votes for war in the
current Security Council. Invoking that argument to justify force tells current
U.N. members that their current votes and opinions don't really matter. The only
Security Council resolution explicitly authorizing the use of force against Iraq
was resolution 678, passed in November 1990 shortly after the invasion of
Kuwait. The only military action it explicitly authorized was such force as was
necessary to restore Kuwait's sovereignty and to restore peace and security to
the region (as was later done, for example, through the creation of northern and
southern "no-fly zones"). Similarly, U.N. Security Council Resolution 687, which
declared the 1991 ceasefire to the Gulf War, required Iraq to destroy its
weapons of mass destruction. But at this writing, the United [*1524]
States still has not demonstrated that such destruction was not finally
occurring under the U.N. inspections regime in operation at the time when the
United States launched its invasion.
resolution 1441 gave Iraq "a final opportunity to comply with its disarmament
obligations" and warned Iraq of "serious consequences" if it did not comply. But
by choosing the words "serious consequences," not authorizing the member states
to use "all necessary means" - the term of art used to authorize the use of
force under Security Council resolutions authorizing intervention in Rwanda,
Bosnia, Somalia, Haiti, and Iraq itself - resolution 1441 deliberately avoided
authorizing force, apparently hoping that, when the time came, there would be a
clearer political consensus to do so. It seems highly unlikely that the Security
Council members who voted unanimously for resolution 1441, including permanent
members France and Russia and such other members as Syria, intended by so voting
to authorize a future use of force without further explicit U.N. action. n135 It
is thus disingenous to pretend that these past legal instruments somehow created
a present political consensus within the United Nations that legally authorized
the war, when recent events had made manifestly clear that in fact, there was
As the second Gulf War wound down, the growing
discrepancy between America's hard power and soft power had become painfully
clear. At the same time as the United States was using stunning military
technology to bomb Baghdad, it could not diplomatically secure the votes even of
its closest allies on a matter that the President deemed of highest national
importance. Administration officials railed against egregious Iraqi violations
of the Geneva Conventions against U.S. soldiers, seemingly oblivious to the fact
that much of the world had already concluded that the United States was flouting
the Geneva Conventions on Guantanamo. The President called for prosecution of
Iraqi war criminals, without relenting in his opposition to the International
Criminal Court. And U.S. officials who spoke only days before about the
irrelevance of the United Nations to launching our attack, spoke confidently
about their expectation that the United Nations would authorize the lifting of
sanctions and support the massive effort necessary to clean up and build a
democratic, postwar Iraq.
In a remarkably brief time,
the war against Iraq has turned into a new global debate about American
exceptionalism. As Fareed Zakaria recently put it:
America is virtually alone. Never will it have waged
a war in such isolation. Never have so many of its allies been so firmly opposed
to its policies... . In [*1525] fact, the debate is not about Saddam
anymore. It is about America and its role in the new world... . A war with Iraq,
even if successful, might solve the Iraq problem. It doesn't solve the America
problem. What worries people around the world is living in a world shaped and
dominated by one country - the United States. n136
Given this posture, what role is left for transnational legal process?
Left unrestrained, it seems clear, a continuing impulse to double standards will
continue to weaken American soft power and damage the rule-of-law structures
that postwar America helped put in place. Bad exceptionalism will diminish
American sovereignty, in Abe and Toni Chayes's sense of "membership in
reasonably good standing in the regimes that make up the substance of
international law." n137 Yet at the same time, an array of institutions -
Congress, the courts, the executive bureaucracy, the media, intergovernmental
organizations, the American public, as well as foreign governments,
nongovernmental organizations, and publics - can work together to mitigate these
In the wake of the disastrous Vietnam War,
Congress reawakened and reasserted legislative controls on foreign policymaking,
conditioning executive decisions on legality and human rights standards. n138
There is still time for the United States Supreme Court to place limits upon
executive overreaching in the name of national security, and to tip more
decisively toward a transnationalist jurisprudence. Even if this Court does not
do so immediately, it should be clear that, increasingly, U.S. courts are not
the last word even on the legality of U.S. executive branch decisions. n139
Executive branch agencies, which have deeply internalized standards on
prosecuting terrorists in domestic courts n140 or observing the Geneva
Conventions, should resist political pressure to bend these rules. n141 The
domestic and foreign media are quick to expose hypocrisy, and CNN and the
Internet now spread global word of U.S. legal violations almost instantaneously.
The global information explosion has permitted "social internalization" of norms
to occur at unprecedented speed, as illustrated by the simultaneous coordinated
marching of millions of people worldwide to protest [*1526] the war.
n142 These same factors now allow foreign leaders, publics, and nongovernmental
organizations to participate in domestic U.S. political debate more directly
than ever before. n143 Leading international bureaucrats, such as Kofi Annan,
and transnational norm entrepreneurs, like the Pope, Mary Robinson, Jimmy
Carter, or Nelson Mandela, can use their public profiles to speak out against
U.S. double standards. n144 In short, by invoking transnational legal process,
opponents of American double standards can provoke myriad interactions, and
generate multiple interpretations that can continue to promote U.S. respect for
universal human rights standards and the rule of law.
In short, the diplomatic missteps that led to the Iraq War need not
signal the demise of international law. Transnational legal process may still
chart a way forward. But in the end, the greatest danger America faces will not
abate even after it secures control of the palaces of Baghdad or the oilfields
of Rumeila. The norm internalization I fear most will not occur in the United
States, a liberal polity with a vibrant civil society, regular electoral cycles,
and a robust culture of dissent. What I fear most is the norm that will be
internalized throughout the Middle East because of the war against Iraq. I fear
that that norm will not be a commitment to American-style democracy or the Bush
Doctrine, but rather, to a regional ethos of anti-Americanism. Left unanswered,
in the decades ahead, that norm may produce far more resentment, suicide
bombers, and terrorists than all of America's hard power could ever handle.
In closing, my
message is this: The question is not how do we feel about American
exceptionalism, but do we have a strategy to encourage the right kinds of
exceptionalism, namely, exceptional American leadership, while discouraging
double standards? I have argued that there are many faces of American
exceptionalism, and that our goal should be to reduce double standards while
expanding our capacity for global leadership. My preferred channel to pursue
both goals is transnational legal process.
As this war
on terror wears on, a transcendent issue in the debate over U.S. foreign policy
will be what kind of world order is emerging, and what America's role in it will
be. After September 11, the United States does not have the option of
isolationism. Like it or not, Americans must be internationalists, but we do
have a choice. America's choice is not isolationism versus internationalism, but
what version of internationalism will we pursue? Will it be power-based
internationalism, in which the United States gets its way [*1527]
because of its willingness to exercise power whatever the rules? Or will it be
norm-based internationalism, in which American power derives not just from hard
power, but from perceived fidelity to universal values of democracy, human
rights, and the rule of law?
As a nation conceived in
liberty and dedicated to certain inalienable rights, the United States has
strong primal impulses to respond to crisis not just with power alone, but with
power coupled with principle. After September 11, our challenge, as American
lawyers, academics and activists, is not to condone double standards or to
declare the human rights era over, but to use process to prod the country we
love to follow the better angels of its national nature.
n1. Abram Chayes & Antonia Handler Chayes, The New
Sovereignty: Compliance with International Regulatory Agreements 27 (1995).
Sovereignty no longer
consists in the freedom of states to act independently, in their perceived
self-interest, but in membership in reasonably good standing in the regimes that
make up the substance of international life... . In today's setting, the only
way most states can realize and express their sovereignty is through
participation in the various regimes that regulate and order the international
n2. See Joseph S. Nye, Jr., The Paradox of American Power:
Why the World's Only Superpower Can't Go It Alone 9 (2002) ("Soft power rests on
the ability to set the agenda in a way that shapes the preferences of others...
. If I can get you to want to do what I want, then I do not have to force you to
do what you do not want to do. If the United States represents values that
others want to follow, it will cost us less to lead.").
n3. Margaret MacMillan, Peacemakers: The
Paris Conference of 1919 and Its Attempt to End War 22 (2001) (describing
Woodrow Wilson's efforts to create a League of Nations).
n4. The term "American Exceptionalism," said
to have been coined by Alexis de Tocqueville in 1831, has historically referred
to the perception that the United States differs qualitatively from other
developed nations, because of its unique origins, national credo, historical
evolution, and distinctive political and religious institutions. See generally
Is America Different?: A New Look at American Exceptionalism (Byron E. Shafer
ed., 1991); John W. Kingdon, America the Unusual (1999); Seymour M. Lipset,
American Exceptionalism: A Double-Edged Sword (1996); 2 Alexis de Tocqueville,
Democracy in America 36-37 (Phillips Bradley ed., Henry Reeve trans., A.A. Knopf
1948) (1835). The phrase sometimes also connotes the notion that America's
canonical commitments to liberty, equality, individualism, populism, and
laissez-faire somehow exempt it from the historical forces that have led to the
corruption of other societies. In American political life, the concept flows
through the rhetoric of nearly every American President, from Washington's
Farewell Speech, to Lincoln's Gettysburg Address, to Reagan's image of a shining
city on the hill, to nearly every post-September 11 speech of George W. Bush. In
the academic realm, the phrase has been variously used to explain America's
distinctive cultural traditions, see, e.g., Deborah L. Madsen, American
Exceptionalism (1998); the evolution of the American Labor movement, see, e.g.,
Jonathan A. Glickstein, American Exceptionalism, American Anxiety: Wages,
Competition, and Degraded Labor in the Antebellum United States (2002); but see
Sean Wilentz, Against Exceptionalism: Class Consciousness and the American Labor
Movement, 1790-1820, 26 Int'l Lab. &Working Class Hist. 1 (1984); America's
differences from Europe, see, e.g., Robert Kagan, Of Paradise and Power: America
vs. Europe in the New World Order (2003); the failure of socialism in America,
see, e.g., Seymour M. Lipset & Gary Marks, It Didn't Happen Here: Why
Socialism Failed in the United States (2001); America's peculiar approach to
social welfare policy, see, e.g., Jacob S. Hacker, The Divided Welfare State:
The Battle over Public and Private Social Benefits in the United States 5-28
(2002); and America's "frontier anxiety," see, e.g., David M. Wrobel, The End of
American Exceptionalism: Frontier Anxiety from the Old West to the New Deal
(1996); Frederick Jackson Turner, The Significance of the Frontier in American
History, in Does the Frontier Experience Make America Exceptional? 18 (Richard
W. Etulain ed., 1999).
In foreign policy, the notion of
American exceptionalism generally "holds that Americans deprecate power politics
and old-fashioned diplomacy, mistrust powerful standing armies and entangling
peacetime commitments, make moralistic judgments about other people's domestic
systems, and believe that liberal values transfer readily to foreign affairs."
Joseph Lepgold & Timothy McKeown, Is American Foreign Policy Exceptional? An
Empirical Analysis, 110 Pol. Sci. Q. 369, 369 (1995); Stanley Hoffmann, The
American Style: Our Past and Our Principles, 46 Foreign Aff. 362 (1968).
n5. See, e.g., Harold Hongju
Koh, America's Offshore Refugee Camps, 29 U. Rich. L. Rev. 139 (1994) (Allen
Chair issue) (reviewing litigation); Harold Hongju Koh, The Haitian Centers
Council Case: Reflections on Refoulement and Haitian Centers Council, 35 Harv.
Int'l L.J. 1 (1994).
Michael Ignatieff, American Exceptionalism and Human Rights (Feb. 12, 2002)
(unpublished manuscript, on file with author).
n7. 492 U.S. 361, 369 n.1 (1989) (emphasis in original).
n8. Ignatieff treats
noncompliance and nonratification as separate categories of American
exceptionalism, but for present purposes, I also group these phenomena under the
"exemptionalism" heading. See Ignatieff, supra note 6.
n9. See Edward T. Swaine, Unsigning, 55 Stan.
L. Rev. 2061 (2003).
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
n11. New York Times v. Sullivan, 376 U.S. 254, 269 (1964).
Communications, Inc. v. Virginia, 435 U.S. 829 (1978).
n13. N.Y. Times Co. v. United States, 403
U.S. 713 (1971).
generally Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher & David W.
Leebron, Human Rights 564 (1999). Admittedly, in a globalizing world, our
exceptional free speech tradition can cause problems abroad, as, for example,
may occur when hate speech is disseminated over the Internet. In my view,
however, our Supreme Court can moderate these conflicts by applying more
consistently the transnationalist approach to judicial interpretation discussed
infra Part III.C.
Harold Hongju Koh, U.S. Assistant Secretary of State, Democracy, Human Rights
& Labor, & William R. Yeomans, Chief of Staff, Civil Rights Division,
U.S. Dep't of Justice, Reply to Questions from the U.N. Committee Against
Torture 3 (May 11, 2000) (on file with author).
n16. But see Jonathan Alter, Time to Think About Torture,
Newsweek, Nov. 5, 2001, at 45; Dana Priest & Barton Gellman, U.S. Decries
Abuse but Defends Interrogations: "Stress and Duress' Tactics Used on Terrorism
Suspects Held in Secret Overseas Facilities, Wash. Post, Dec. 26, 2002, at A1
(describing potential violations of the Torture Convention occurring in overseas
n17. By "Swiss
cheese ratification," I mean U.S. ratification of multilateral treaties with so
many reservations, understandings, and declarations that these conditions
substantially limit the U.S. acceptance of these treaties.
n18. Oona A. Hathaway, Do Human Rights
Treaties Make a Difference?, 111 Yale L.J. 1935, 1977, 1980 (2002).
n19. Convention on the
Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S.
277 (approved by Senate on Feb. 19, 1986).
n20. See Harold Hongju Koh, The 1998 Frankel Lecture:
Bringing International Law Home, 35 Hous. L. Rev. 623, 626-32 (1998) (describing
difference between compliance and obedience).
n21. The glaring exception, of course, is article 37(a) of
the Childrens' Rights Convention, which says that "capital punishment ... shall
[not] be imposed for offences committed by persons below eighteen years of age."
Convention on the Rights of the Child, G.A. Res. 44/25, annex, U.N. GAOR, 44th
Sess., Supp. No. 49, art. 37(a), U.N. Doc. A/44/49 (1989) (entered into force
Sept. 2, 1990). But see Stanford v. Kentucky, 492 U.S. 361 (1989) (holding, by a
five-to-four vote, that the Eighth Amendment does not prohibit execution of
juvenile offenders who committed their offenses at age sixteen).
n22. David M. Smolin, A Tale of
Two Treaties: Furthering Social Justice Through the Redemptive Myths of
Childhood (unpublished manuscript, on file with author).
n23. Although the United States initially
refused to accede to the Rome Statute of the International Criminal Court,
President Clinton signed the treaty on December 31, 2000, without submitting it
to the Senate. See Clinton's Words: "The Right Action," N.Y. Times, Jan. 1,
2001, at A6. In May 2002, however, the Bush Administration purported to unsign
the treaty and notified the United Nations that it did not intend to become a
party to the Rome Statute. See Letter from John R. Bolton, Under Secretary of
State for Arms Control and International Security, to Kofi Annan, U.N. Secretary
General (May 6, 2002), available at
n24. See Kyoto Protocol to the Framework Convention on
Climate Change, U.N. FCCC, 3d Sess., U.N. Doc. FCCC/CP/1997/7/Add.2 (1997),
reprinted in 37 I.L.M. 22 (1998).
n25. See Atkins v. Virginia, 536 U.S. 304 (2002) (persons with mental
retardation); In re Stanford, 123 S. Ct. 472 (2002) (Stevens, J., dissenting)
(juvenile offenders). See generally Harold Hongju Koh, Paying "Decent Respect"
to World Opinion on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002)
(arguing for internalization of international standards regarding the execution
of persons with mental disabilities).
n26. In the LaGrand Case (F.R.G. v. U.S.), 2001 I.C.J. 104 (June 27),
Germany sued the United States in the World Court for threatening to execute two
German nationals without according them rights pursuant to the Vienna Convention
on Consular Relations. Although the ICJ issued provisional measures enjoining
the execution of Karl LaGrand, American officials ignored the orders, the United
States Supreme Court declined to intervene, and LaGrand was executed. The World
Court finally found that the United States had violated the Vienna Convention,
but, subsequently, American courts have essentially ignored the ICJ's holding.
See generally Symposium, Reflections on the ICJ's LaGrand Decision: Foreword, 27
Yale J. Int'l L. 423, 424 (2002); Harold Hongju Koh, Paying Decent Respect to
International Tribunal Rulings, 2002 Proc. Am. Soc'y of Int'l L. 45 (discussing
post-LaGrand U.S. cases).
n27. See John R. Bolton, Statement to the Plenary Session of the U.N.
Conference on the Illicit Trade in Small Arms and Light Weapons in all its
Aspects (July 9, 2001), available at
http://www.un.int/usa/01<uscore>104.htm ("The United States will not join
consensus on a final document that contains measures abrogating the
Constitutional right to bear arms."). For a critique of this argument, see
Harold Hongju Koh, A World Drowning in Guns, 71 Fordham L. Rev. 2333 (2003).
n28. According to Amnesty
International, the United States has executed 70% of the juvenile offenders
executed worldwide since 1998, and, in 2002, the state of Texas (with three
executions) was the only known jurisdiction in the world to execute a juvenile
offender. See Amnesty Int'l, Indecent and Internationally Illegal: The Death
Penalty Against Child Offenders (abridged ed. 2002), available at
n29. See, e.g., Tom
Malinowski, Overlooking Chechen Terror, Wash. Post, Mar. 1, 2003, at A19 (noting
that the United States has added three Chechen organizations to the State
Department list of terrorist groups, apparently to avoid Moscow's veto of the
Iraq resolution before the U.N. Security Council).
n30. See, e.g., the discussion of the International
Criminal Court and the Security Council, infra notes 78-79, 128-29 and
compelling discussions of how the United States failed to intervene in time in
Bosnia and Rwanda, see Richard C. Holbrooke, To End A War (1998); Samantha
Power, A Problem from Hell: America and the Age of Genocide (2002).
n32. Through Walt Rostow's
intervention with his brother, Eugene, then Dean of Yale Law School, my parents
later received positions teaching East Asian Law and Society at Yale Law School.
Recently, the two great Rostow brothers died within three months of one another.
See Todd S. Purdum, Eugene Rostow, 89, Official At State Dept. and Law Dean,
N.Y. Times, Nov. 26, 2002, at C19; Todd S. Purdum, Walt Rostow, Adviser to
Kennedy and Johnson, Dies at 86, N.Y. Times, Feb. 15, 2003, at A23. It is
through their great humanity-one of countless acts of generosity committed in
their lifetimes - that my family and I found our home both in New Haven and at
Yale Law School.
historical accounts of this period in South Korean political life, see Sungjoo
Han, The Failure of Democracy in South Korea (1974); Gregory Henderson, Korea:
The Politics of the Vortex 177-91 (1968).
n34. For a probing analysis, see Stephen Biddle,
Afghanistan and the Future of Warfare, Foreign Aff., Mar.-Apr. 2003, at 31.
n35. See Ann Devroy & Dana
Priest, Clinton Aides Debate Size of U.S. Peacekeeping Force for Bosnia, Wash.
Post., Sept. 21, 1995, at A24.
n36. See Carlotta Gall, Threats and Responses: Karzai's Progress, N.Y.
Times, Dec. 25, 2002, at A1.
n37. See Dexter Filkins, The Anxiety of Postwar Afghans, N.Y. Times,
Mar. 31, 2002, at D5; Carlotta Gall, Afghan Leader Swears In 5 Deputies With an
Eye to Balance, N.Y. Times, June 28, 2002, at A6 (explaining Hamid Karzai's
attempts to negotiate a political alliance with powerful regional-ethnic
warlords and Rashid Dostum's ongoing resistance to a centralized Afghan state);
Press Release, Human Rights Watch, Anti-Pashtun Violence Widespread In
Afghanistan, Human Rights News (Mar. 3, 2002), available at
http://www.hrw.org/press/2002/03/afghanistan0303.htm. For an account of
competing hegemonic influences in postwar Afghanistan, see Michael Ignatieff,
Nation-Building Lite, N.Y. Times, July 28, 2002, at F26.
n38. Paul Krugman, The Martial Plan, N.Y.
Times, Feb. 21, 2003, at A27.
n39. In the Clinton Administration, that group included President
Clinton; Vice-President Gore; Secretary of State Madeleine Albright; National
Security Adviser Sandy Berger; U.S. Ambassador to the United Nations Richard
Holbrooke; Assistant Secretary for Near Eastern Affairs Martin Indyk; and Dennis
Ross, who served as Special Middle East Envoy for both Republican and Democratic
General Anthony Zinni, Vice President Cheney, and Secretary of State Powell all
belatedly made unsuccessful visits to the Middle East in the spring of 2002.
n41. In March 2003, President
Bush finally announced his intent to publish a diplomatic "road map," devised
jointly by the United States, the European Union, and Russia, aimed at
establishing a Palestinian state within three years. At this writing, the peace
talks have finally made some progress, but only because the United States has
finally committed itself to direct involvement in negotiating a settlement
between Israel and the Palestinians - the exact kind of involvement the Bush
Administration had previously criticized when pursued by President Clinton. See
Steven R. Weisman, The Mideast Thicket, N.Y. Times, May 27, 2003, at A1.
n42. See, e.g., Ian Fisher, Free
to Protest, Iraqis Complain About the United States, N.Y. Times, Apr. 16, 2003,
at A1 ("Protests against the American forces here are rising by the day as
Iraqis exercise their new right to complain ... .").
n43. As Deputy Secretary of State Richard
Armitage acknowledged recently, in testimony before the Senate Foreign Relations
I think it's
quite clear that from 1994 to now, Yongbyon itself did not produce more
plutonium, which could be turned into nuclear weapons. And so, there are dozens
of nuclear weapons that North Korea doesn't have because of the framework
agreement, and we have to acknowledge that, I believe.
Testimony of Deputy Secretary of State Richard Armitage Before the
Senate Foreign Relations Committee on North Korea, Fed. News Service, Feb. 4,
n44. See James T.
Laney & Jason T. Shaplen, How to Deal with North Korea, Foreign Aff.,
Mar.-Apr. 2003, at 16.
Whether by desire or by necessity, the North finally appeared to be
responding to the long-standing concerns of the United States, South Korea, and
Japan. Equally important, Pyongyang seemed to have abandoned its policy of
playing Washington, Seoul, and Tokyo off one another by addressing the concerns
of one while ignoring those of the other two. For the first time, the North was
actively (even aggressively) engaging all three capitals simultaneously.
n45. Remarkably, the actual semifinal match pitted South Korea against
a reunited Germany before a wildly exuberant Korean audience. Had that match
been played in Pyongyang, with global media attention, and South Korean and
North Korean fans cheering together for the South, it would have had a cultural
impact upon North Korea's isolation many times greater than U.S.-Chinese
"ping-pong diplomacy" of the 1970s.
n46. My personal observation of Kim Jong Il convinces me that however
strange, isolated, and maladjusted he may be, he is neither uninformed nor
unintelligent. When President Bush suddenly announced in January 2002 that North
Korea is part of an "Axis of Evil" with Iraq, when nothing had really changed on
the ground, Kim surely concluded that he needed to shift his own policy to
counter the new American hostility. See Paul Krugman, Games Nations Play, N.Y.
Times, Jan. 3, 2003, at A21.
n47. James Dao, Korean Issue Shapes Powell's Asia Agenda, N.Y. Times,
Feb. 21, 2003, at A17; Robert J. Einhorn, Talk Therapy, N.Y. Times, Feb. 12,
2003, at A37; An Agreed Framework for Dialogue with North Korea: Hearings Before
the Senate Comm. on Foreign Relations, 108th Cong. (2003) (testimony of Ashton
B. Carter, Co-Director, Preventive Defense Project, John F. Kennedy School of
Government, Harvard University), available at
http://foreign.senate.gov/hearings/CarterTestimony030306.pdf; see also Jae-Suk
Yoo, N. Korea Says It's Extracting Plutonium from Fuel Rods, Associated Press,
Apr. 18, 2003 (reporting that North Korea claims it is "successfully
reprocessing 8,000 spent fuel rods" in order to extract plutonium for use in
Daniel Cooney, North Korea Changes Stance on Nuclear Talks, Miami Herald, Apr.
15, 2003, at A9; Karen DeYoung & Doug Struck, Beijing's Help Led to Talks:
U.S. Cuts Demands on North Korea, Wash. Post, Apr. 17, 2003, at A1.
n49. Those who have recently
asserted some version of this view include Michael Ignatieff, David Rieff, and
Michael Ignatieff, Is the Human Rights Era Ending?, N.Y. Times, Feb. 5, 2002, at
n51. Jonathan D.
Greenberg, Does Power Trump Law?, 55 Stan. L. Rev. 1789 (2003).
n52. For a powerful statement of this
position, see Jed Rubenfeld, Unilateralism and Constitutionalism (unpublished
manuscript, on file with author). See also Bowling for Columbine (Dog Eat Dog
Films 2002) (seeking cultural explanation for American devotion to guns).
n53. Mariano-Florentino Cuellar,
The International Criminal Court and the Political Economy of Antitreaty
Discourse, 55 Stan. L. Rev. 1597 (2003).
n54. See, e.g., Fareed Zakaria, The Arrogant Empire,
Newsweek, Mar. 24, 2003, at 18.
n55. See John Lewis Gaddis, And Now This, Lessons from the Old Era for
the New One, in The Age of Terror: America and the World After September 11, at
1 (Strobe Talbott & Nayan Chanda eds., 2001).
n56. See generally; Lawyers Comm. for Human Rights,
Imbalance of Powers: How Changes to U.S. Law and Security Since 9/11 Erode Human
Rights and Civil Liberties (2003), available at
Committee for Human Rights, A Year of Loss: Reexamining Civil Liberties Since
September 11 (2002), available at
n57. See President of the United
States, The National Security Strategy of the United States of America 34
(2002), available at http://www.whitehouse.gov/nsc/nss.pdf; Bill Keller, The
I-Can't-Believe-I'm-a-Hawk Club, N.Y. Times, Feb. 8, 2003, at A17 (noting claim
of right of forced disarmament).
n58. Franklin Delano Roosevelt, Eighth Annual Message to Congress (Jan.
6, 1941), in 3 The State of the Union Messages of the Presidents, 1790-1966, at
2855 (Fred L. Israel ed., 1966).
n59. See generally Mary Ann Glendon, A World Made New: Eleanor
Roosevelt and the Universal Declaration of Human Rights (2001).
n60. For history, see Thomas Carothers,
Aiding Democracy Abroad: The Learning Curve 30-32 (1999); Tony Smith, America's
Mission: The United States and the Worldwide Struggle for Democracy in the
Twentieth Century (1994); Harold Hongju Koh, A United States Human Rights Policy
for the 21st Century, 46 St. Louis U. L.J. 293 (2002).
n61. President Ronald Reagan, Promoting
Democracy and Peace (June 8, 1982), available at
http://www.iri.org/reaganspeech.asp. At that time, Congress approved the
National Endowment for Democracy - a government-financed, private nonprofit fund
which has continued to this day to make significant grants to business and labor
- and effectively gave birth to the two political party institutes that now give
support for the development of political parties and electoral processes
overseas - the National Democratic Institute, of which former Secretary of State
Madeleine Albright is now the chair, and the International Republican Institute,
of which Senator John McCain is now the chair.
n62. In his successful campaign for President, Bill
Clinton criticized George H.W. Bush, by arguing "our nation has a higher purpose
than to coddle dictators and stand aside from the global movement toward
democracies ... . President Bush seems too often to prefer a foreign policy that
embraces stability at the expense of freedom." Harold Hongju Koh, The "Haiti
Paradigm" in United States Human Rights Policy, 103 Yale L.J. 2391, 2427 n.206
(quoting Governor Bill Clinton, Remarks to the University of Wisconsin Institute
of World Affairs (Oct. 1, 1992)).
n63. See Chibli Mallat, Focus on Human Rights Offers Hope of
Reconciliation, Times (London), Mar. 29, 2003, at A13.
Welcome to the post-modern war. Even
before it started, this war appeared surreal, not least for the idea that the
United States and Britain were "liberating Iraq" while refusing to involve any
Iraqi in the process of change... . Even [hawkish Iraqis] are uneasy about
American plans to rule Iraq "directly," echoing a universal rejection in the
Arab world of American or British occupation.
n64. Even the successful
impositions of top-down democracy in Germany and Japan were accomplished after a
single conflict, not pursuant to the laborious and expensive "seriatim strategy"
that Afghanistan and Iraq may now portend.
n65. Talbott argues that, by contrast, the Clinton
Administration, in which he served as Deputy Secretary of State, pursued a
foreign policy based on strategic multilateralism and tactical unilateralism.
n66. See Mary-Ellen
O'Connell, The Myth of Preemptive Self-Defense 3 (2002) (stating "the United
States as a government has consistently supported the prohibition on such
preemptive use of force"), at http://www.asil.org/taskforce/oconnell.pdf.
n67. See U.S.-Sponsored
Resolutions on the "Right to Democracy," C.H.R. Res. 1999/57, U.N. CHR, 55th
Sess., U.N. Doc. E/CN.4/RES/1999/57 (1999) (51-0, with two abstentions); C.H.R.
Res. 2000/62, U.N. CHR, 56th Sess., U.N. Doc. E/CN.4/RES/2000/62 (2000) (30-17,
with six abstentions). In so arguing, the United States explicitly invoked legal
scholarship asserting the existence of a right to democratic governance under
international law. See, e.g., Democratic Governance and International Law
(Gregory H. Fox & Brad R. Roth eds., 2000); Gregory H. Fox, The Right to
Political Participation in International Law, 17 Yale J. Int'l L. 539 (1992);
Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int'l
L. 46 (1992); Henry J. Steiner, Political Participation as a Human Right, 1
Harv. Hum. Rts. Y.B. 77 (1988).
n68. Louis Hartz, The Liberal Tradition in America: An Interpretation
of American Political Thought Since the Revolution 286 (1955); see also Lepgold
& McKeown, supra note 4, at 369 (observing "America's oft-noted
all-or-nothing approach to foreign commitments [and that] the country has a more
messianic, erratic style abroad than has been typical of other great powers").
For a compelling argument that the United States can and should promote the
development of Islamic democracy, without necessarily resorting to force, see
Noah Feldman, After Jihad: America and the Struggle for Islamic Democracy
n69. For elaboration
of this point, see Harold Hongju Koh, Why Do Nations Obey International Law?,
106 Yale L.J. 2599 (1997).
n70. This argument is presented more fully in Harold Hongju Koh, Why
Nations Obey: A Theory of Compliance With International Law (forthcoming). The
pieces of the argument may be found in Koh, supra note 69; Koh, supra note 27;
Koh, supra note 20; Koh, supra note 62; Harold Hongju Koh, How Is International
Human Rights Law Enforced?, 74 Ind. L. J. 1397 (1999); Harold Hongju Koh,
Transnational Legal Process, 75 Neb. L. Rev. 181 (1996); Harold Hongju Koh,
Transnational Public Law Litigation, 100 Yale L. J. 2347, 2358-75 (1991).
n71. See supra note 23.
n72. Victor Peskin, Rwandan
Ghosts, Legal Aff., Sept.-Oct. 2002, at 20.
n73. As of March 2003, however, the United Nations and
Cambodia reached an new agreement on the establishment of a mixed tribunal. See
Seth Mydans, U.N. and Cambodia Reach an Accord for Khmer Rouge Trial, N.Y.
Times, Mar. 18, 2003, at A5.
n74. See Statement and Testimony of Secretary of State-Designate Colin
L. Powell Before the U.S. Senate Committee on Foreign Relations, Jan. 17,
Take note of the
fact, though, that once America signs a treaty such as this, we are in some ways
expected not to defeat its purpose, intended purpose. And the expectation is
that we would ultimately ratify it. But in this case I don't think it likely
you'll see this administration send it up for ratification.
n75. Paul Richter, U.S. Calls International Court a Waste, Chi. Trib.,
Mar. 1, 2002, at 6.
Bolton, supra note 23. Less than a week after President Clinton first signed the
ICC Treaty, Bolton urged its "unsignature." See John R. Bolton, Unsign That
Treaty, Wash. Post, Jan. 4, 2001, at A21.
n77. Harold Hongju Koh, The Case Against Military
Commissions, 96 Am. J. Int'l L. 337 (2002).
n78. See Press Release, The White House, President Says
Saddam Hussein Must Leave Iraq Within 48 Hours (Mar. 17, 2003), available at
http://www.whitehouse.gov/news/releases/2003/03/20030317-7.html ("All Iraqi
military and civilian personnel should listen carefully to this warning. In any
conflict, your fate will depend on your action... . War crimes will be
prosecuted. War criminals will be punished. And it will be no defense to say, "I
was just following orders."); Secretary Rumsfeld & General Myers, Department
of Defense News Briefing (Mar. 20, 2003), available at
If Saddam Hussein or his
generals issue orders to use weapons of mass destruction, ... those who follow
orders to commit such crimes will be found and they will be punished. War crimes
will be prosecuted, and it will be no excuse to say, "I was just following
orders." Any official involved in such crimes will forfeit hope of amnesty or
leniency with respect to past actions.
n79. Even if the United Nations
were to create a tribunal, no U.N. court would be authorized to sentence a war
criminal to death, which would likely bring it into conflict with the United
States, for reasons discussed below.
n80. This is what I elsewhere call "political internalization." See
Koh, supra note 20, at 642.
n81. See Manley O. Hudson, International Tribunals: Past and Future
155-56 (1994); Henry J. Steiner, Detlev F. Vagts & Harold Hongju Koh,
Transnational Legal Problems 173 (4th ed. 1994).
n82. For a description of how the United States and other
states have the power to influence the work of the International Criminal
Court's prosecutor, see Allison Marston Danner, Navigating Law and Politics: The
Prosecutor of the International Criminal Court and the Independent Counsel, 55
Stan. L. Rev 1633 (2003); Allison Marston Danner, Enhancing the Legitimacy and
Accountability of Prosecutorial Discretion at the International Criminal Court,
97 Am. J. Int'l. L. (forthcoming 2003) [hereinafter Danner, Enhancing Legitimacy
See Danner, Enhancing Legitimacy and Accountability, supra note 82.
n84. For background, see Swaine,
supra note 9.
n85. Under the
Vienna Convention on the Law of Treaties, art. 18, opened for signature May 23,
1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 (1969), "[a] State is obliged to refrain
from acts which would defeat the object and purpose of a treaty when ... it has
signed the treaty ... until it shall have made its intention clear not to become
a party to the treaty." The Bolton letter says "that the United States does not
intend to become a party to the [International Criminal Court] Treaty.
Accordingly, the United States has no legal obligations arising from its
signature on December 31, 2000. The United States requests that its intention
not to become a party, as expressed in this letter, be reflected in the
depositary's status lists relating to this treaty." Bolton, supra note 23. The
Bolton letter may absolve the United States of responsibility under the Vienna
Convention for post-unsigning steps it may take to oppose the operation of the
court. But as I argue in the text, nothing in the Bolton letter bars the United
States from future cooperation with the court on a case-by-case basis,
cooperation that would effectively repudiate the juridical act of "unsignature"
through subsequent state practice.
n86. See Steiner et al., supra note 81, at 182-86. Similarly, many
international lawyers and judges have never accepted the legality of the United
States's Connolly Reservation to the ICJ's jurisdiction. See Interhandel Case
(Switz. v. U.S.), 1959 I.C.J. 6 (Mar. 21) (separate opinion of Judge
Lauterpacht) (Preliminary Objections).
n87. Iraq, for example, has signed but not ratified a
convention on hostage taking. China and Turkey have signed but not ratified the
International Covenant on Civil and Political Rights. Yugoslavia has signed but
not ratified the International Convention for the Suppression of the Financing
of Terrorism; and Afghanistan has signed but not ratified the Convention on the
Elimination of All Forms of Discrimination Against Women.
n88. 321 F.3d 1134 (D.C. Cir. 2003).
n89. Id. at 1142.
n90. Johnson v. Eisentrager, 339
U.S. 763 (1950).
Professors Katyal and Tribe have noted,
The [Eisentrager] opinion is unclear about which of
two rationales justified its holding that no habeas review was permissible: (1)
that the petitioners were enemies in a declared war, or (2) that they were
imprisoned outside the United States on the basis of conduct committed outside
the United States. The Court mentioned both factors and did not get into the
tricky business of which was doing the work.
K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the
Military Tribunals, 111 Yale L.J. 1259, 1306 n.174 (2002).
n92. Haitian Ctrs. Council v. McNary, 969
F.2d 1326, 1343 (2d Cir. 1992)
It does not appear to us to be incongruous or overreaching to conclude
that the United States Constitution limits the conduct of United States
personnel with respect to officially authorized interactions with aliens brought
to and detained by such personnel on a land mass exclusively controlled by the
United States... . We note that, in the present case, applying the fifth
amendment would not appear to be either "impracticable" or "anomalous" since the
United States has exclusive control over Guantanamo Bay, and given the
undisputed applicability of federal criminal laws to incidents that occur there
and the apparent familiarity of the governmental personnel at the base with the
guarantees of due process, fundamental fairness and humane treatment that this
country purports to afford to all persons.
(citation omitted). See Haitian Ctrs. Council v. Sale, 823 F. Supp. 1028, 1041
U.S. Naval Base at Guantanamo Bay, Cuba, is subject to the exclusive
jurisdiction and control of the United States where the criminal and civil laws
of the United States apply. The courts have protected the fundamental
constitutional rights of noncitizens in other territories subject to exclusive
U.S. jurisdiction and control, including the former American Sector of Berlin,
the Canal Zone, and the Pacific Trust Territories.
Id. (citations omitted). When the Haitian detainees on Guantanamo were
ultimately released into the United States in mid-1993, this litigation was
settled, and these decisions vacated by party agreement, leaving the Second
Circuit (and other courts) free now to reassert this position on similar facts.
n93. Jess Bravin, Panel Says
U.S. Policy on Detainees in Cuba Breaks International Law, Wall St. J., Mar. 14,
2002, at B2; Inter-Am. Comm'n on Human Rights, Request for Precautionary
Measures, Detainees in Guantanamo Bay, Cuba (Mar. 12, 2002), available at
n94. Regina ex rel. Abbasi v.
Sec'y of State for Foreign & Commonwealth Affairs, 2002 E.W.C.A. Civ. 1598.
n95. Such political
objectives are usually the goal of what I have elsewhere called "transnational
public law litigation." See Koh, supra note 70, at 2368-72.
n96. Padilla ex rel. Newman v. Rumsfeld, 233
F. Supp. 2d 564 (S.D.N.Y. 2002). At this writing, the U.S. government has
petitioned for, and the District Court has certified, interlocutory appellate
review of District Judge Mukasey's order requiring that Padilla meet with his
counsel. See Padilla ex rel. Newman v. Rumsfeld, No. 02 Civ. 4445 (MBM)
(S.D.N.Y. Apr. 9, 2003), available at
n97. Hamdi v. Rumsfeld, 316 F.3d
450 (4th Cir. 2003).
Lawyers Comm. for Human Rights, supra note 56, at 68.
n99. David Sloss, International Agreements
and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963 (2003).
n100. See Marlise Simons, World
Court Tells U.S. to Delay Executing Three, N.Y. Times, Feb. 6, 2003, at A13.
n101. Atkins v. Virginia, 536
U.S. 304, 316 n.20 (2002).
n102. 123 S. Ct. 472 (2002) (Stevens, J., dissenting). In Stanford, the
defendant who brought Stanford v. Kentucky, 492 U.S. 361 (1989), filed a
petition for an original writ of habeas corpus before the Supreme Court, arguing
that his execution would be unconstitutional because he was under 18 at the time
of the offense. Five justices denied that petition, but Justices Stevens,
Souter, Ginsburg, and Breyer dissented, saying that they would have granted the
writ and invalidated the practice in light of Atkins v. Virginia.
n103. See Carol Rosenberg,
Canadian-Born Teen Held By U.S. as a Terror Suspect, Miami Herald, Nov. 2, 2002,
at 12A ("Omar Khadr [a Canadian], 16, was captured in July in Khost,
Afghanistan, after a four-hour firefight described by U.S. officials as an al
Qaeda ambush of an American patrol.").
n104. See Maria Glod and Tom Jackman, Malvo Indicted as an
Adult; Teen Sniper Suspect Eligible for Execution, Wash. Post, Jan. 23, 2003, at
n105. Gerald L. Neuman,
Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan. L. Rev.
elaboration of this theme, see Harold Hongju Koh, International Business
Transactions in United States Courts, 261 Recueil des Cours 226-34 (1996);
Harold Hongju Koh, Justice Blackmun and the World Out There, 104 Yale L.J. 23,
28-31 (1994); Koh, Transnational Public Law Litigation, supra note 70.
n107. 175 U.S. 677, 700 (1900)
("International law is part of our law ... .").
n108. See Harold Hongju Koh, The Liberal Constitutional
Internationalism of Justice Douglas, in "He Shall Not Pass This Way Again": The
Legacy of Justice William O. Douglas 297 (S. Wasby ed., 1990).
n109. See, e.g., Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 439 (1964) (White, J., dissenting).
n110. See Koh, Justice Blackmun and the World
Out There, supra note 106, at 28-31 (collecting cases).
n111. See, e.g., Societe Nationale
Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522, 555, 567
(1987) (Blackmun, J., concurring in part) (arguing that courts must look beyond
U.S. interests to the "mutual interests of all nations in a smoothly functioning
international legal regime" and "consider if there is a course that furthers,
rather than impedes, the development of an ordered international system"); see
also Jenny Martinez, Towards an International Judicial System, 56 Stan. L. Rev.
the authors represented in this Symposium, Curt Bradley, Eric Posner, and Ed
Swaine line up roughly on the nationalist side; Gerry Neuman, Judith Resnik,
Derek Jinks, Ryan Goodman, Oona Hathaway, David Golove, and I line up on the
The Hon. William H. Rehnquist, Constitutional Court - Comparative Remarks
(1989), reprinted in Germany and Its Basic Law: Past, Present and Future - a
German-American Symposium 411, 412 (Paul Kirchhof & Donald P. Kommers eds.,
1993) (emphasis added). As the Chief Justice explained:
For nearly a century and a half, courts
in the United States exercising the power of judicial review had no precedents
to look to save their own, because our courts alone exercised this sort of
authority. When many new constitutional courts were created after the Second
World War, these courts naturally looked to decisions of the Supreme Court of
the United States, among other sources, for developing their own law. But now
that constitutional law is solidly grounded in so many countries, it is time
that the United States courts begin looking to the decisions of other
constitutional courts to aid in their own deliberative process.
Id.; see also Raines v. Byrd, 521 U.S. 811, 828
(1997) (Rehnquist, C.J.) (noting European law on legislative standing but
declining to find it in U.S. constitutional regime); Washington v. Glucksberg,
521 U.S. 702, 710, 718 n.16, 785-87 (1997) (Rehnquist, C.J.) (declaring that "in
almost every State - indeed, in almost every western democracy - it is a crime
to assist a suicide" and noting that "other countries are embroiled in similar
debates" concerning physician-assisted suicide, citing Canadian Supreme Court,
British House of Lords Select Committee, New Zealand's Parliament, Australian
Senate, and Colombian Constitutional Court).
n114. See, e.g., Planned Parenthood v. Casey, 505 U.S.
833, 945 n.1 (1992) (Rehnquist, C.J., concurring in part and dissenting in part)
(citing abortion decisions by West German Constitutional Court and Canadian
Supreme Court); Thompson v. Oklahoma, 487 U.S. 815, 830, 851 (1988) (Stevens,
J.) (finding that execution of juveniles violates norms shared "by other nations
that share our Anglo-American heritage, and by the leading members of the
Western European community"); id. at 851 (O'Connor, J., concurring) (noting that
U.S. had agreed by ratifying Article 68 of the Geneva Convention to set a
minimum age of 18 for capital punishment in certain circumstances); Enmund v.
Florida, 458 U.S. 782, 796-97 n.22 (1982) (O'Connor, J.) (noting elimination or
restriction of felony murder in England, India, Canada, and a "number of other
Commonwealth countries"); United States v. Stanley, 483 U.S. 669, 710 (1987)
(O'Connor, J., concurring in part and dissenting in part) (relying on Nuremberg
Military Tribunals in arguing against nonconsensual medical experimentation on
humans); McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 381 (1995) (Scalia,
J., dissenting) (arguing that Australian, Canadian, and English legislation
banning anonymous campaign speech suggest that such bans need not impair
democracy); Zadvydas v. Davis, 533 U.S. 678, 721 (2001) (Kennedy, J.,
dissenting) (stating that particular detention of aliens "accords with
international views" and referencing Report of U.N. Working Group on Arbitrary
Detention & U.N. High Comm'r for Refugees, Guidelines on Detention of
Asylum-Seekers); Glucksberg, 521 U.S. at 785-87 (Souter, J., concurring)
(examining Dutch constitutional practice on physician-assisted suicide); Holder
v. Hall, 512 U.S. 874, 906 n.14 (1994) (Thomas, J., concurring) (mentioning
voting systems of Belgium, Cyprus, Lebanon, New Zealand, West Germany, and
Zimbabwe in assessing race consciousness in U.S. voting system); Nixon v. Shrink
Mo. Gov't PAC, 528 U.S. 377, 403 (2000) (Breyer, J., concurring) (finding
Court's First Amendment jurisprudence consistent with decisions of European
Court of Human Rights and Canadian Supreme Court); Knight v. Florida, 528 U.S.
990, 995-98 (Breyer, J., dissenting from denial of certiorari) (finding
instructive decisions of Privy Council, Supreme Court of India, Supreme Court of
Zimbabwe, European Court of Human Rights, Canadian Supreme Court, and U.N. Human
Rights Committee on whether lengthy delay in execution renders it inhumane).
n115. In an important case this
Term, the Court may consider this question in deciding whether same-sex sodomy
laws, which are forbidden throughout Europe, should be invalidated in the United
States. See, e.g., Brief Amici Curiae of Mary Robinson, Amnesty International
U.S.A., Human Rights Watch, Interights, the Lawyers Committee for Human Rights,
and Minnesota Advocates for Human Rights, Lawrence v. Texas (U.S. No. 02-102)
(arguing that statutes criminalizing same-sex sodomy offend concept of "ordered
liberty" in Due Process and Equal Protection Clauses).
n116. In its national security strategy white
paper, issued in September 2002, the White House declared,
To forestall or prevent such hostile
acts by our adversaries, the United States will, if necessary, act
United States will not use force in all cases to preempt emerging threats, nor
should nations use preemption as a pretext for aggression. Yet in an age where
the enemies of civilization openly and actively seek the world's most
destructive technologies, the United States cannot remain idle while dangers
always proceed deliberately, weighing the consequences of our actions.
President of the United States, supra note 57, at
n117. For that
reason, the United States had not previously accepted the idea that any country
can unilaterally attack another in the name of preemptive self-defense,
recognizing that such reasoning could authorize China to attack Taiwan, North
Korea to attack South Korea, or many countries in the Middle East to attack
Israel. See O'Connell, supra note 66.
n118. S.C. Res. 678, U.N. SCOR, 45th Sess., at 28, U.N. Doc. S/RES/678
(1990), reprinted in 29 I.L.M. 1565 (1990).
n119. Joel Achenbach, "New World Order": What's It Mean
Anyway?, Wash. Post, Feb. 2, 1991, at D1.
n120. Under the congressional resolution passed on October
10, 2002, the
is authorized to use the Armed Forces of the United States as he determines to
be necessary and appropriate in order to (1) defend the national security of the
United States against the continuing threat posed by Iraq; and (2) enforce all
relevant United Nations Security Council resolutions regarding Iraq.
H.R.J. Res. 114, 107th Cong. (2002) (enacted). The
President can say he deems military force necessary and appropriate to defend
U.S. national security against a continuing Iraqi threat so long as he certifies
to Congress, no later than 48 hours after exercising such authority, that
(1) reliance by the United
States on further diplomatic or other peaceful means alone either (A) will not
adequately protect the national security of the United States against the
continuing threat posed by Iraq or (B) is not likely to lead to enforcement of
all relevant United Nations Security Council resolutions regarding Iraq; and
that (2) acting pursuant to this joint resolution is consistent with the United
States and other countries continuing to take the necessary actions against
international terrorist and terrorist organizations, including those nations,
organizations, or persons who planned, authorized, committed or aided the
terrorist attacks that occurred on September 11, 2001, and so long as he
continues to obey the War Powers Resolution's durational and reporting
Because resolution 1441 made clear that "false statements or omissions in the
declarations submitted by Iraq ... will constitute a further material breach of
Iraq's obligations," id. (emphasis added), the Bush Administration read the
resolution to require the Iraqis to "Lead and Make Available," i.e., not only to
grant U.N. inspectors access, but actually to lead inspectors to sites and make
available scientists knowledgeable about Iraqi weapons construction.
n123. If, as in the first Gulf
War, the United States had negotiated with the French to set a firm deadline -
of perhaps one month or six weeks - after which the use of force would have been
authorized, the deadline itself would have maintained pressure on Saddam Hussein
to continue destroying unconventional weapons.
n124. See Harold Hongju Koh, Presidential War and
Congressional Consent: The Law Professors' Memorandum in Dellums v. Bush, 27
Stan. J. Int'l L. 247 (1991) (reviewing resolutions that led to the first Gulf
n125. See Bruce
Ackerman, Never Again, Am. Prospect, May 1, 2003, at 24.
The premature congressional decision
has distorted the process by which the nation made the choice for war.
For starters, it
endowed the congressional debate with an Orwellian quality. The authorization of
war typically raises a profound but straightforward question: Are you for it or
suddenly lawmakers could vote for war and say they were voting for peace - they
were merely providing the president with a much-needed bargaining chip. Rather
than a solemn act of accountability, the vote turned into a buck-passing
n126. As the former head of Human Rights Watch recently
recalled, in May 1992, Human Rights Watch arranged for a U.S. Air Force
transport plane to fly 18 tons of Iraqi secret police documents - which had been
captured by Kurdish guerilla fighters - from Iraqi Kurdistan to the United
States, which massively documented Saddam Hussein's and Hassan al-Majid's
("Chemical Ali's") "Anfal campaign," which murdered some 100,000 Kurds and
gassed entire Kurdish villages over a six-month period in 1988. Aryeh Neier,
Taking Liberties: Four Decades in the Struggle for Rights 163-64 (2003). For a
full account, see Human Rights Watch, Genocide in Iraq: The Anfal Campaign
Against the Kurds (1993), available at
http://www.hrw.org/reports/1993/iraqanfal. Long before the most recent war,
Human Rights Watch led the call for states parties to the International Court of
Justice to sue Iraq under the ICJ dispute-settlement provision of the Genocide
Convention or for the Security Council to create an ad hoc tribunal to indict
and try Saddam and his leading lieutenants. See, e.g., Kenneth Roth, Indict
Saddam, Wall St. J., Mar. 22, 2002, at A14.
n127. Indeed, a Milosevic-type solution was available even
at the end of the first Gulf War, when the United States could have concluded
that Saddam Hussein's continuation in power was a continuing threat to peace and
security in the region. Had it done so, the first Bush Administration could have
refused to endorse U.N. Security Council Resolution 687 of April 3, 1991, which
declared a formal cease-fire in effect, until Saddam and his sons had actually
left Iraq. With hundreds of thousands of U.S. troops still in Iraq, and Saddam's
forces in shambles, it seems likely that Saddam would have eventually complied.
n128. Compare Mike Allen,
Bush Urges U.N. to Lift Sanctions on Iraq: New Way of War Will Help U.S. Target
Threats, Wash. Post, Apr. 17, 2003, at A1 ("Baghdad's road out of sanctions is
likely to be one of the first tests of whether Security Council members can work
together after the bitterness that led the United States and Britain to launch
the war without the imprimatur of the United Nations."), with Felicity
Barringer, U.N. Vote on Iraq Ends Sanctions and Grants U.S. Wide Authority, N.Y.
Times, May 23, 2003, at A1 (describing "critical concessions" Washington and
London had to offer to secure a Security Council resolution lifting Iraq
William J. Broad, U.S. May Have to Allow Others to Inspect Iraqi Arms, N.Y.
Times, Apr. 14, 2003, at B4.
n130. The United States has provided its most complete legal
justification for the Iraqi war in a letter from U.N. Ambassador John Negroponte
to the President of the Security Council. See Letter from U.N. Ambassador John
Negroponte to Ambassador Mamady Traore, President of the Security Council (Mar.
20, 2003), available at
http://www.usembassy.it/file2003<uscore>03/alia/A3032109.htm; see also
infra note 131. The Legal Adviser of the U.S. State Department, William Howard
Taft IV, seems to have made a similar argument in a recent speech before the
National Association of Attorneys General. See Peter Slevin, U.S. Says War Has
Legal Basis: Reliance on Gulf War Resolutions Is Questioned by Others, Wash.
Post, Mar. 21, 2003, at A14.
William Howard Taft IV, the department's legal adviser ... said Iraq's
failure to comply with three council orders nearly 13 years apart was the
principal legal justification for war. "The basis in international law for the
use of force in Iraq today is clear... . There is clear authorization from the
Security Council to use force to disarm Iraq," Taft said. "The president may
also, of course, always use force under international law in self-defense."
Meanwhile, a National Security Council staffer, John
Bellinger III, has published a short paper asserting that "the United States has
clear authority under international law to use force against Iraq under present
circumstances," including the notion that, "in the modern age in which terrorism
and the proliferation of WMD [weapons of mass destruction] pose grave risks to
global security, states cannot be required to wait for an attack before they can
lawfully use force to defend themselves against forces that present a clear and
present danger of attack." See John Bellinger III, Authority for the Use of
Force by the United States Against Iraq Under International Law (Apr. 10, 2003),
n131. U.N. Ambassador Negroponte's letter to the Security
Council, supra note 130, states in relevant part that:
The actions being taken are authorized
under existing Council resolutions, including resolution 678 (1990) and
resolution 687 (1991). Resolution 687 imposed a series of obligations on Iraq,
including, most importantly, extensive disarmament obligations, that were
conditions of the cease-fire established under it. It has long been recognized
and understood that a material breach of these obligations removes the basis of
the ceasefire and revives the authority to use force under resolution 678. This
has been the basis for coalition use of force in the past and has been accepted
by the Council, as evidenced, for example, by the Secretary General's public
announcement in January 1993 following Iraq's material breach of resolution 687
that coalition forces had received a mandate from the Council to use force
according to resolution 678.
Iraq continues to be in material breach of its
disarmament obligations under resolution 687, as the Council affirmed in
resolution 1441. Acting under the authority of Chapter VII of the UN Charter,
the Council unanimously decided that Iraq has been and remained in material
breach of its obligations and recalled its repeated warnings to Iraq that it
will face serious consequences as a result of its continued violations of its
obligations. The resolution then provided Iraq a "final opportunity" to comply,
but stated specifically that violations by Iraq of its obligations under
resolution 1441 to present a currently accurate, full and complete declaration
of all aspects of its weapons of mass destruction programs and to comply with
and cooperate fully in the resolution's implementation would constitute a
further material breach.
The government of Iraq decided not to avail itself of its final
opportunity under resolution 1441 and has clearly committed additional
violations. In view of Iraq's material breaches, the basis for the cease-fire
has been removed, and use of force is authorized under resolution 678.
Iraq repeatedly has
refused, over a protracted period of time, to respond to diplomatic overtures,
economic sanctions, and other peaceful means designed to help bring about Iraqi
compliance with its obligations to disarm and to permit full inspection of its
WMD and related programs. The actions that coalition forces are undertaking are
an appropriate response. They are necessary steps to defend the United States
and the international community from the threat posed by Iraq and to restore
international peace and security in the area. Further delay would simply allow
Iraq to continue its unlawful and threatening conduct.
Letter from U.N. Ambassador John Negroponte, supra note 130.
n132. Lord Goldsmith, the
Attorney General, placed the following parliamentary answer into The Times
use force against Iraq exists from the combined effect of resolutions 678, 687
and 1441. All of these resolutions were adopted under Chapter VII of the UN
Charter which allows the use of force for the express purpose of restoring
international peace and security:
1. In resolution 678 the Security Council authorised
force against Iraq, to eject it from Kuwait and to restore peace and security in
resolution 687, which set out the ceasefire conditions after Operation Desert
Storm, the Security Council imposed continuing obligations on Iraq to eliminate
its weapons of mass destruction in order to restore international peace and
security in the area. Resolution 687 suspended but did not terminate the
authority to use force under resolution 678.
3. A material breach of resolution 687 revives the
authority to use force under resolution 678.
4. In resolution 1441 the Security Council
determined that Iraq has been and remains in material breach of resolution 687,
because it has not fully complied with its obligations to disarm under that
The Security Council in resolution 1441 gave Iraq "a final opportunity to comply
with its disarmament obligations" and warned Iraq of the "serious consequences"
if it did not.
The Security Council also decided in resolution 1441 that, if Iraq failed at any
time to comply with and cooperate fully in the implementation of resolution
1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so
to comply and therefore Iraq was at the time of resolution 1441 and continues to
be in material breach.
8. Thus, the authority to use force under resolution 678 has revived
and so continues today.
9. Resolution 1441 would in terms have provided that a further decision
of the Security Council to sanction force was required if that had been
intended. Thus, all that resolution 1441 requires is reporting to and discussion
by the Security Council of Iraq's failures, but not an express further decision
to authorise force.
I have lodged a copy of this answer, together with resolutions 678, 687
and 1441 in the Library of both Houses.
Goldsmith's Statement, Times (London), Mar. 18, 2003, at A2. In response to that
assertion, the Deputy Legal Adviser to the Foreign Secretary, Elizabeth
Wilmhurst, resigned from the Foreign Office. See Ewen MacAskill, Adviser Quits
Foreign Office over Legality of War, Guardian, Mar. 23, 2003, at 1; see also
Letter to the Editor, War Would Be Illegal, Guardian, Mar. 7, 2003, at 13
(letter signed by sixteen professors of international law at Oxford, Cambridge,
London, and Paris asserting the illegality of a war convened without a second
Security Council resolution).
n133. To the extent that the military action exceeded the authorization
provided by the U.N. Charter and existing Security Council resolutions, it also
ran afoul of Article II of the Constitution's directive that the President "take
Care that the Laws be faithfully executed" and enforce the United Nations
Charter, a treaty duly approved by the Senate, as the "supreme Law of the Land."
U.S. Const. art. II, 3; id. art. IV. As a matter of domestic law, however, the
President's decision is almost certainly immunized from legal challenge by the
sweeping terms of the Congressional resolution cited supra note 120.
n134. Nor do I believe that the
multilateral use of military force by 17 NATO nations in response to ethnic
cleansing in Kosovo, which was expressly premised on customary "humanitarian
intervention" grounds, somehow justified the Iraq invasion, which lacked
similarly broad multilateral support and explicitly invoked no such customary
rationale. See also Ivo Daalder, Bush's Coalition Doesn't Add Up Where It
Counts, Newsday (Melville, Long Island, N.Y.), Mar. 24, 2003, at A16 (noting
that, besides the United Kingdom, the United States's only genuine military
partners in the Iraq war are Australia, which has contributed 2000 troops;
Denmark, which has contributed a submarine and naval escort; and Poland, which
has contributed 200 troops and a refueling ship, "all in all, less than one
percent of the total number of troops in the region"; and reporting that, by
contrast, in the first Gulf War, "32 countries joined the United States in
combat, providing 160,000 troops, more than 500 combat aircraft, and more than
60 naval vessels").
Indeed, Syria's foreign minister later claimed that his country voted in favor
of resolution 1441, rather than abstaining, because of a letter from U.S.
Secretary of State Colin Powell "in which he stressed that there is nothing in
... resolution  to allow it to be used as a pretext to launch a war on
Iraq." Patrick Wintour & Brian Whitaker, UK Expects Iraq to Fail Arms Tests,
Guardian (London), Nov. 11, 2002, at 1.
n136. Zakaria, supra note 54, at 22-23.
n137. See supra note 1.
n138. See Harold Hongju Koh, The National
Security Constitution: Sharing Power After The Iran-Contra Affair (1991).
n139. See Koh, The "Haiti
Paradigm," supra note 62.
n140. See Bill Keller, Trials and Tribulations, N.Y. Times, Dec. 15,
2001, at A31 ("Over the past eight years, the U.S. attorney [for the Southern
District of New York] ... has successfully prosecuted 26 jihad conspirators, in
six major trials and some minor ones... . Neither the Justice Department nor
prosecutors in New York could recall for me a single specific instance when
national security was actually compromised during the trials in New York.").
n141. Bernard Weinraub, Failing
to Heed Warning, 7 Iraqi Women and Children Die, N.Y. Times, Apr. 1, 2003, at
n142. See Koh, supra
note 20 (discussing social internalization).
n143. Tony Blair and Amnesty International are two obvious
n144. See Koh,
supra note 20 (discussing role of transnational norm entrepreneurs in mobilizing
transnational legal process).