Exceptionalism

The Legal Impact of the Doctrine of American Exceptionalism

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The Legal Doctrine of American Exceptionalism

A team lead by Martha Schmidt ( ten.tsacmoc|tdimhcsitram#ten.tsacmoc|tdimhcsitram ) is developing a program on the legal doctrine of American Exceptionalism.

Organizing Meetings

  • June 21
  • July 22 (upload minutes here)
  • August 2? noon - 1 pm at WSBA in Seattle

What is "American Exceptionalism?

The origins, meaning and effect of “American Exceptionalism” have been the topic of historical scholarship for some time. Alexis de Tocqueville’s Democracy in America (1835), Frederick J. Turner’s The Frontier in American History (1921), The History of the Social Sciences, edited by Dorothy Ross, are some basic sources to consult. A recent controversial history book is A Nation Among Nations: America’s Place in the World by Professor Thomas Bender, who rejects the validity of the doctrine (2006).

Of course, other nations have exceptionalist doctrines, too. New Zealand scholar Brian Euston defines exceptionalism as a notion that one nation’s story differs qualitatively from others because of unique origins, national credo, historical evolution, and distinctive political and religious institutions. A general exceptionalist interpretation of its history; however, doesn’t address adequately why a state treats international law, and international human rights law within the field of international law, as differently as the U.S. does from all other states, including those with political and economic systems that are similar to ours (e.g., Canada, UK, France).

Because a system of international law, upon which peace through law depends, can be viable only if all states are equally bound by the same rules, the legal dimension of American Exceptionalism is particularly worth studying. We need to understand the meaning of the doctrine in the context of specific litigation, judicial decisions, Executive policies, treaty reservations, and Senatorial inaction. Especially in the area of human rights law, NGOs and the media have important roles, influencing how the doctrine of exceptionalism is interpreted and reinforced.

As applied to human rights and humanitarian law, the U.N. Charter, as well as other treaty and customary law, three strands of legal exceptionalism will be our focus at the CLE:
Exemption from treaty obligations by reservation, non-ratification and noncompliance (exemptionalism)

*Treaties to examine:
*ICCPR
*CERD
*ICESCR
*CEDAW
*UNCRC
*ILO core treaties
*Double standards for us and for friends and allies of the U.S.
*CAT, customary law against torture
*Denial of jurisprudence for enforcement of human rights in U.S. courts: deprivation of remedies; ignoring decisions of other states on international human rights law

For a longer discussion of these aspects of legal exceptionalism, see Michael Ignatieff, Ch. 1, Human Rights and American Exceptionalism [2005], and various articles in AJIL (American Journal of International Law http://www.asil.org/resources/ajil.html )

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