A Response to Robert Ahdieh by Eric A. Posner

by Harvard International Law Journal

[Eric A. Posner, co-author of Universal Exceptionalism in International Law with Anu Bradford, responds to Robert Ahdieh]

I am grateful for Professor Ahdieh’s illuminating comments on my paper with Anu Bradford. Ahdieh offers three interpretations of the charge of U.S. exceptionalism:

Degreeism: The United States does not always win, but it wins more often than Europe and China do. Exceptionalism is a matter of degree, but it still exists. I don’t think that the traditional notion of American exceptionalism permits this interpretation, but it is possible that people misuse the word “exceptionalism” in the way that Ahdieh describes. Still, our purpose was to cast doubt on the appropriateness of exceptionalism (and, a fortiori, degreeism) as a moral category. Rather than criticizing states for being exceptionalist, we should focus on the relative normative appeal of the competing exceptionalist visions. An exceptionalist country that always gets its way, or a country that merely gets its way more often than other countries, may be a good country. Such country may also be “better” than the others, which is why we don’t sympathize with North Korea and Myanmar, which rarely get their way, and we retrospectively cheer on the British when they abolished the international slave trade. Everything depends on whether getting its way helps or hurts others—not whether a country is exceptionalist or not or the degree to which it can enforce its exceptionalist view.

Presentationism: The United States may act like any other power but it presents itself differently. In advancing its exceptionalist views, the United States claims that it is acting altruistically. We acknowledge that the US often presents itself as a power with the unique capacity and destiny to lead the free world, a practice that can be deeply irritating to foreigners and embarrassing for those of us who take a more jaundiced view of international politics. But we do not think that the United States is unusual in this respect. All exceptionalist states resort to the rhetoric of altruism when it helps them to accomplish their goals. The EU likes to portray itself as a “normative power” that pursues a righteous view of international law that leaves the entire world better off, on the basis of unique wisdom gained from its experience in World War II, as though no one else had suffered devastation in the war. China claims to lead the developing world, on whose behalf it selflessly acts. Like the United States, the EU and China are accused of hypocrisy when their behavior does not match the rhetoric—in the case of the EU, when it supports the invasion of countries or plays hardball in trade regulation; in the case of China, most recently when its climate obstructionism brought it into conflict with developing nations concerned about climate change.

Europeanism: The American perspective on international law is wrong because it is not the European perspective, which has become law and is therefore right. But how do we know the Europeans got it right? International law is, roughly, based on consent, and so if the Americans, Chinese, and others reject certain European interpretations of international law, why do those interpretations get to prevail? One possibility is that everyone but the Europeans just get the law wrong—that is, they misinterpret the treaties and norms that they have agreed on. I say the burden of proof must lie on those who make this claim, if anyone really does. The other possibility is a natural law view that international law is really just whatever is right, and the Europeans have cornered the market on rightness. I don’t think anyone would publicly defend this view either, though I suspect many people secretly hold it.

http://opiniojuris.org/2011/02/11/hilj_posner-responds-to-ahdieh/

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