A Response to Anu Bradford and Eric A. Posner by Robert Ahdieh

by Harvard International Law Journal

[Robert Ahdieh, the Associate Dean of the Faculty, Professor of Law, and Director of the Center on Federalism and Intersystemic Governance at Emory University School of Law, responds to Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law]

In Universal Exceptionalism in International Law, Professors Anu Bradford and Eric Posner help to advance our understanding of international order in at least two respects.

To begin, there is the distinction they draw (if sometimes imperfectly) between the familiar trope of “exceptionalism” – a term most commonly found with “American” in front of it – and the distinct concept of “exemptionalism.” As I will suggest below, I have some doubt about the definitional premise on which the Article is based. The notion that we should distinguish between a desire to have one’s values reflected in international law and a desire to operate beyond its strictures, however, has the potential to offer valuable leverage in the discourse of international law and relations.

I was also struck by their systematic analysis of each of the states/regions of relevant interest – Europe, China, and the United States. It is beyond my expertise to assess the substantive accuracy of their review of distinct patterns of exceptionalism in each locale. Their embrace of what I would cast as a “microanalytic” approach to the question presented, however, holds great promise – perhaps especially when played out within a broader framework, such as the exceptionalism versus exemptionalism approach they advance.

Notwithstanding these contributions, I have significant doubts about the conclusion that Bradford and Posner would have us take away from their Article. The target of their critique, as I understand it, is those who would condemn the United States for its exceptionalist approach to international law. Bradford and Posner reject this familiar claim, arguing that all strong states work to have their political and economic values enacted into (international) law.

But the insight that all strong states desire to advance their views and interests in international affairs – and seek to do so by means of law – hardly seems surprising. What else would we expect of them?

How, then, do we reconcile the admittedly widespread critique of U.S. exceptionalism, with the authors’ seemingly self-evident claim that strong states tend to behave strongly? For Bradford and Posner, the answer is simple: The critics are wrong. Or more precisely, they are wrong to place emphasis on U.S. exceptionalism. For the United States is no different than Europe or China, in that regard.

I would offer a different, more charitable, and (I suspect) more accurate explanation: The critics may simply mean something different.

Bradford and Posner may thus have effectively vanquished the argument that only the United States seeks to advance its values by way of international law. The critics of U.S. exceptionalism, however, may have no dog in that fight.

Considering the critics’ arguments in the most favorable light, thus, we might imagine at least three possible accounts of U.S. exceptionalism that do not depend on the particular notion of exceptionalism Bradford and Posner refute:

Perhaps most importantly, the concerns of those who critique U.S. exceptionalism may turn on issues of efficacy and power. Early in the Article – if only in passing – Bradford and Posner assert their disagreement with the premise “that Europeans, unlike Americans, do not have the power to pursue their values in international law because they are too weak.”

It is not entirely clear, however, why the authors reject this premise. Surely, it would be difficult to prove the proposition asserted – or its converse, for that matter. As a matter of conjecture, though, it seems at least plausible that the United States’ relative power ensures that it can get its way in the design of international law – and surely to go its own way, when it does not (i.e., engage in exemptionalism) – more so than either Europe or China.

The latter and former may be very much like the United States in wanting to enact their values, thus, and perhaps even in achieving that goal quite often. Yet that need not undermine an assertion of a distinctly U.S. exceptionalism. At least to the extent that the United States almost always gets its way, it remains unique. Bluntly put, that would make it a self-evident exception.

A second possible claim of U.S. exceptionalism – likewise consistent with Bradford and Posner’s claim of a universal desire among great states to enact their values into law – concerns how the United States presents itself, and perhaps even perceives itself. Europe, China, and the United States may all engage in the same conduct. It may be, however, that the United States’ presentation and/or perception of its behavior is distinct (or exceptional) in one way or another.

Some of this may be a question of asserted altruism, versus a reality of self-interest. In U.S. behavior, thus, one might plausibly see a stronger aura, of even claim, of ‘doing it for the good of others.’ Related to this may be claims of the United States to be principled in its policy decisions, as opposed to realist, or even simply opportunistic. Some exceptionalism might also be seen in the reality, perception, and even presentation of U.S. conduct in international affairs as that of ‘leader of the free world.’ Behind the latter, in turn, may lie some primal sense of ‘manifest destiny.’

In the latter manifestations of U.S. exceptionalism, the claim is not that the United States acts differently than Europe or China. Rather, it is that it presents itself as acting differently. And, at least in some respects, that it sees itself differently.

The wars in Kosovo and Iraq, referenced throughout the Article, may be telling in this regard. It may be true, as Bradford and Posner suggest, that Europeans joined the United States in much of its assertedly illegal conduct. In that regard, there might appear to be little exceptionalism worth considering.

The operative indicia of U.S. exceptionalism, however, may lie elsewhere. Rather than in the conduct itself, it may lie in distinct European versus U.S. approaches to questions of the legality of said conduct. Each jurisdiction, of course, responded differently to efforts at international review of the legality of the relevant interventions. Even more telling, however, might be the response to domestic challenges to the legality of each conflict. Recall, thus, then-Prime Minister Tony Blair’s lengthy testimony (and examination) before the Parliament’s Iraq Inquiry, in which he offered a vigorous defense of British participation in the Iraq War. By comparison, it would be difficult – if not impossible – to imagine either President Clinton or President Bush doing the same. The most fundamental indicia of U.S. exceptionalism to be drawn from the Kosovo and Iraq wars, however, may not be the tangible U.S. versus European response to such challenges. Rather, it may be the baseline view of the United States concerning the relevance – or more precisely, the irrelevance – of such questions of international legality to U.S. policy-making.

Finally, even if (as I suspect) all strong states seek to advance their values in international law, the conduct of some might remain exceptional, if others have already gotten their way. This possibility can be seen in Bradford and Posner’s account of international law scholars as having embraced a European account of international law – and as relying on the latter to condemn the United States. That surely is one plausible account of the dynamic at work. Another, however, is that the European “account” has (over time) become law. If so, then Europe and the United States can longer be seen to be similarly situated. The latter is distinct, in acting in violation of international law.

Bradford and Posner correctly point out, of course, that the United States is far from unique in its selective violation of international law norms. One need not slide down a slippery slope, however, to recognize that degree may matter here. (The recipient of ten moving violations a month is surely exceptional, even if every one of us has ventured across the speed limit at least once or twice.) Be that as it may, to the extent the European account has prevailed as law, continued U.S. (or Chinese) actions in contravention of it – and perhaps even efforts push back against it – can plausibly be cast as distinctly “exceptionalist.”

Naturally, Bradford and Posner take no explicit position on whether what they cast as the European account may have come to constitute the substance of international law today. In part, this is for the obvious reason that this was not their subject. (And I will not be the reviewer who condemns them for failing to write the article I wanted, rather than the one they wanted!)

But another reason turns out to be far more critical: Both early and late in the paper, Bradford and Posner offer versions of the following assertion: “[I]nternational law is best understood as an overlapping consensus of the otherwise ‘exceptional’ views of the great powers.”

This, of course, is a serious normative claim, and one that deserves – no, requires – more justification, authority, or at least explication than it gets in the Article. Minimally, if true, this would undermine the third account of U.S. exceptionalism I am offering – that the United States is exceptional, by contrast with Europe, because the views of the latter have come to be law.

More fundamentally, this account of international law, if accepted, nullifies the entire category of exceptionalist conduct – at least among great states. If international law consists of no more than what the great powers agree on, thus, no great power could ever be “exceptionalist” in its approach to international law.

I might ultimately be convinced of the latter, but Bradford and Posner make no effort to do so in this Article. Their proposed re-definition, meanwhile, would appear to sit uneasily with the core claim that their Article seeks to advance. If international law is no more than what the great powers collectively agree to, the incentive of any great power to promote their particular values would seem limited – and perhaps futile. Yet the reality of such efforts stands at the heart of the argument they offer.

If we bracket the authors’ too cursory attempt to redefine international law, however, we are back where we started. In that case, Bradford and Posner cannot avoid the third account of exceptionalism I suggest, and must address whether the United States is resisting a European account of international law, or is instead resisting international law. If the latter, I would suggest, the critics may be right after all: The U.S. may be exceptionalist.

http://opiniojuris.org/2011/02/11/hilj_ahdieh-response-to-bradford-posner/

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