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May|June 2002
Bum Rap By Christopher Hawthorne
Shoddy Construction By Benjamin Wittes
Kenneth Starr Responds By Kenneth Starr
Chains of Command By Beth Hillman
Silence! By David Luban
No Exceptions? By Michael Ignatieff

No Exceptions?

The United States' pick-and-choose approach to human rights is hypocritical. But that's not a good reason to condemn it.

By Michael Ignatieff

Americans don't see it this way, but the country with the most puzzling human rights record in the world is their own. The global ascendancy of human rights would not have happened without American leadership, yet the United States refuses to comply with important international rights covenants. Even as it criticizes the human rights records of dozens of countries, the United States resists when its own human rights performance—on capital punishment, for example—is called into question.

This is the hypocrisy that America is often accused of, by its foes and sometimes by its friends. For most Americans the charge is insulting: Why should the land of Thomas Jefferson and Abraham Lincoln allow others to lecture it about rights? Others dismiss the charge as irrelevant: As long as the United States is the sole superpower and can impose its will on notorious human rights violators, what does it matter if critics say it doesn't practice what it preaches? To most of its citizens, America is exceptional, and it's only natural that it should take exception to certain international standards.

Yet the question of whether hypocrisy actually costs the United States something needs to be addressed. And, since America's relationship to human rights is at the core of much of the foreign critique of its behavior abroad, it is important for America to explain why it is exceptional, first to itself and then to the rest of the world.

We need a clear sense of just how different America is. The United States exempts itself from international rights standards in several important ways.

First, the government refuses to sign some international agreements, like the Mine Ban Treaty, that have been signed by Canada; Australia; almost all of the countries of the European Union; and Latin American democracies like Chile, Brazil, and Colombia.

Then, the U.S. Senate refuses to ratify other agreements like the Rome Statute—which created the International Criminal Court and is supported by most of its allies—and the Convention on the Rights of the Child, which every other country besides Somalia has agreed to.

Next, even when the United States does sign and ratify agreements, it fails to pass the legislation that would give them the force of law. Or the United States imposes so many caveats about particular provisions that the treaties' effect on American law is nil. One example is the International Covenant on Civil and Political Rights, which the United States ratified with reservations to shield its laws allowing for the death penalty and protecting free speech under the First Amendment.

In addition, the United States has refused to comply with obligations that it has agreed to under the United Nations Charter requiring payment of U.N. dues, under the Vienna treaty mandating that police inform foreign prisoners (including those accused of capital crimes) that they have a right to seek help from their consulates, and under the Geneva Convention governing the status of wartime prisoners like those at Guantanamo Bay in Cuba.

Finally, the United States is indifferent to legal decisions of other countries. In the words of the Supreme Court Justice Antonin Scalia, "We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one."

America's European allies, by contrast, have signed on to the European Convention on Human Rights and a European court with power to review national legislation under that convention. While most American judges look inward, the judiciaries of other countries increasingly look to each other: Israeli judges survey Canadian precedents on cases about the rights of linguistic and religious minorities, and the South African Constitutional Court studies German cases to interpret claims.

As international rights conventions proliferate and states like South Africa and Canada create new human rights charters, the Bill of Rights in the U.S. Constitution stands out in ever sharper relief as a late-l8th-century model surrounded by late-20th-century ones—a grandfather clock in a shop window of Swatches. As the metaphor implies, newer is not necessarily better, and the grandfather clock is still keeping good time. But what once was a symbol of America's eminence as a rights protector is now out of sync with the constitutions of other states.

The roots of America's exceptionalism lie in the United States' distinctive history and legal tradition—a mix of democratic principles from the Enlightenment and the struggle for self-determination against British colonialism, which left in its wake a lingering distrust of the state as guardian of individual rights.

The Bill of Rights makes no reference to socioeconomic rights—the entitlements to food, shelter, health care, and unemployment insurance that are standard in international agreements and in the laws of post-World War II European states and emerging democracies like Poland and the Czech Republic.

Instead of defining rights as positive entitlements, the Constitution defines them as negative protections against government intrusion, for example by ordering that "Congress shall make no law" limiting free speech. And it protects rights, like the right to bear arms, that other modern constitutions don't mention at all. American rights are distinctive, then, both for what they include and what they exclude.

American law is also distinctive in how it interprets rights that other countries try to protect as well. Consider three examples: free speech, protection against cruel and unusual punishment, and the right to life. First Amendment law affords more protection to the rights of speakers than the laws of most other liberal democratic states. Canada, France, Germany, and Switzerland permit the punishment of Holocaust deniers. New Zealand treats inciting racial hatred as a crime. The International Covenant on Civil and Political Rights, supported by 147 countries, says that free speech may be trumped if the speech threatens public order; defames a religious or racial group and thus incites discrimination, hostility, or violence; or promotes war propaganda. In almost all cases, U.S. law does none of these things.

At the same time, 110 nations around the world have abolished the death penalty, while in the United States, 38 states and the federal government continue to execute adults (23 states also execute juveniles) despite the constitutional ban on cruel and unusual punishment. This is the example of American exceptionalism most criticized in Europe. Finally, other countries like Canada, Britain, and France give a woman's right to choose some legal priority, providing for at least early-term abortion, while in the United States fetal rights are more contested because of the right-to-life movement.

In other words, America is an exception in most cases because its politics is significantly to the right of its allies in other liberal democracies. Americans are more conservative on issues like the death penalty, abortion, and welfare, and their human rights culture reflects this.

And there is the weight of racial segregation in America's past. After World War II, the chief opposition to American approval of international human rights covenants came from conservative southern senators who feared that ratification would weaken states' rights and strengthen the power of the federal government to strike down segregation. Meanwhile, leaders like Dr. Martin Luther King Jr. explicitly linked their national struggle for racial equality to the battle of colonized peoples for freedom.

Where American conservatives once resisted human rights because of race, they now fight the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women as threats to traditional ideas about gender roles and family.

On the other side, liberals who want the U.S. to abolish the death penalty and promote women's and gay rights also want the government to ratify international accords. The force of American exceptionalism is a consequence of the weakness of American liberalism since the 1960s.

As Andrew Moravcsik, a political scientist at Harvard University, has shown, no international rights agreement has a chance of Senate ratification unless that body has a hefty Democratic majority. Since the '60s, this has rarely happened. Quirks of the American political system also come into play here—the United States requires the votes of two-thirds of senators present for ratification of international treaties, a fact that all by itself gives conservative senators leverage disproportionate to their electoral power.

America's unique nationalism also helps explain its lack of attention to international standards. No other country, with the possible exception of France, defines its identity so exclusively in terms of the rights and freedoms that its own constitution provides. At the same time, the U.S. doesn't share the historic or geographic incentives that propel other countries to embrace international rights.

Postwar West Germany adopted new basic laws and the European Convention on Human Rights out of shame about Nazism. The United States, by contrast, feels no need to cleanse its shameful past by signing international covenants. France and Britain have allowed the European Court of Human Rights power to review their own national legislation at least in part to anchor European stability in an institution with transnational authority that is strong enough to prevent the recurrence of German fascism. Meanwhile, the United States' position as a continental empire, safe between two oceans and with friendly neighbors to the north and south, gives it no strategic reason to seek such covenants.

Instead, American history and geography have created a strong link among self-sufficiency, national pride, and democratic self-government. Paul W. Kahn, a Yale Law School professor, has identified the core of American exceptionalism: deep attachment to popular sovereignty. Behind American suspicion of international human rights law is the belief that Americans should obey only laws that their own representatives have written. What strikes Europeans and Canadians as arrogance, narcissism, or isolationism may be a commitment to law as an expression of national sovereignty. Other countries may care as much about their national sovereignty, but again with the exception of France, they do not believe that their democracy is the best in the world.

The most controversial issue at stake, the death penalty, illustrates this point. If the people of Texas conscientiously believe that the death penalty deters crime, eliminates dangerous offenders, and expresses the values that ought to hold Texas society together—as polls indicate they do, though recently with reservations—then why, Texans might ask, should international preferences trump domestic ones? Rights created by a society's own founders, and interpreted by its own judges, are more legitimate than those written by the unelected legal experts who seek to make abolition of the death penalty universal.

Americans are also sometimes reluctant to embrace international human rights because they are not convinced that these guarantees are superior to their own. The obvious example is free speech: It is not obvious that the International Covenant on Civil and Political Rights favoring public order over free-speech rights is better than American First Amendment law. The issue of how much free speech to allow is infinitely contestable, and is best resolved through national courts and politics. So when the United States ratified the ICCPR, it was wise to exempt itself from the provisions that could require it to pass laws that would conflict with American court decisions.

If American rights may sometimes be superior to international ones, and if they have the legitimacy of national sovereignty though they may not be superior, is it really a problem for America to exempt itself from international standards when it chooses? American exceptionalism may not hinder the United States in promoting human rights abroad. By signing on to international human rights pacts with reservations and exemptions, or by refusing to be bound by some agreements at all, the U.S. manages to maintain leadership in global human rights with the least possible restraint on its own margin of maneuver as the world's sole superpower.

Exceptionalism, then, achieves a balance: The United States remains within the framework of international human rights law, but on its own terms. The choice for the rest of the world is to concede or reckon with these exceptional terms, or see the United States stand aside, becoming ever more unilateralist and isolationist.

This defense of the United States does not, however, address the charge of hypocrisy. If America wants to be a human rights leader, the argument goes, it must obey the rules it seeks to champion. Leadership depends on legitimacy, and legitimacy requires consistency. But it's not clear that the effective use of American power in fact depends on being consistent, or on being seen by others as legitimate. Perceived legitimacy eases but it isn't essential to the exercise of power.

Being seen as hypocritical or double-dealing may impose some costs on a superpower, but these costs are rarely prohibitive. America has faced a storm of protest about its treatment of the Guantanamo Bay prisoners—a storm that has led the Bush Administration to concede that the Geneva Convention should determine which protections Taliban prisoners (though not Al Qaeda ones) receive. At the same time, the prisoners remain, and are likely to remain, in American custody and subject to American justice.

In another example, Slobodan Milosevic is in detention in The Hague, thanks in large measure to the pressure of the United States on the Serbian government. America could exert that pressure despite resisting the creation of a permanent criminal court with the power to try American citizens. (Milosevic will make much of this resistance to demonstrate that he is the casualty of victor's justice.) And again, as a matter of equity and ethics, it may be undesirable for the United States to support international tribunals for others but not for its own citizens. It is less clear, however, that this prevents American support for these tribunals from being effective.

If the hypocrisy of exceptionalism doesn't prevent the U.S. from promoting human rights abroad, then what's really at stake is American identity. Those who wish that America didn't except itself, or excepted itself less often, want the United States to be a certain kind of good international citizen. They want it to be bound, despite its unique power, by international definitions of a state's responsibility to its own people. This identity is supposed to make the U.S. more effective by winning over more friends. But it's really about making America more attractive to itself, a benevolent empire that voluntarily restricts its own sovereignty for the sake of the greater global good.

The problem here is that this benevolent ideal has limited appeal to the American electorate. To most voters, it makes little sense to say, "Why can't you be more like the Europeans?" or less plausibly, "Why can't you be more like the Canadians?" In addition, the identity that internationalists envision is decidedly more liberal than most Americans are comfortable with: against the death penalty, in favor of a woman's right to choose, in favor of allowing American citizens to be tried in international courts.

The point here is not to regard the conservative character of American culture as a fixed feature of the political landscape. Defining the right wing as the permanent center of gravity leaves out fundamental moments in recent history like Franklin Delano Roosevelt's New Deal and Lyndon Johnson's Great Society, both of them national commitments to help the disadvantaged. If we know anything about American politics, it is that the landscape of possibility shifts, sometimes rapidly.

Views on capital punishment are a good example. In the 1960s, only a minority of Americans supported the death penalty—a 1966 Gallup poll showed 42 percent in favor, a 50-year low—and the number of executions dropped sharply. But a complex set of causes, including sharply rising crime rates, reversed the trend by the end of the decade. Now a moratorium on the death penalty in Illinois, along with rising evidence that capital punishment is sometimes inflicted arbitrarily and with racial bias, may again shift American opinion away from executions.

There is an important message here for American human rights activists who are troubled by the hypocrisy of the United States' exceptionalism. Domestic debate and politics, not international pressures, will have much greater impact on America's relationship to international standards. Instead of insisting that the U.S. subscribe to values because most of the world endorses them, human rights activists need to win favor by engaging directly in American politics. They need to focus on the support that America's own traditions about rights lend to the adoption of international standards and to mass that support for the cause of human rights.

Just as it was the authentic American language of freedom—civil rights and blacks' religious faith—that struck down Jim Crow in the South, so it will be national discussion of fair process and legal equality that will change America's standards of punishment. Americans will not believe any truths to be self-evident to which their own men and women of greatness haven't committed themselves. International human rights will have its place, as it had in Martin Luther King Jr.'s strikingly international conception of his own struggle, but these rights will become strong in America only when their advocates speak in the American vein.


Michael Ignatieff is the Carr professor of human rights at the Kennedy School of Government, Harvard University.

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