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The Story of US Exceptionalism in Human Rights Policy

The story of US exceptionalism in human rights policy has often been reiterated. The state conditions US financial and military aid on recipient states’ human rights commitments in line with quite strict American guidelines. In contrast to this proactive policy of enforcing human rights abroad, America itself has a modest record of international human rights acceptance. It has up to now ratified only some universal international human rights instruments. Moreover, the US makes ample use of reservations, and often formulates declarations and understandings ensuring that the respective treaties are a mere dédoublement of already existing domestic law. The domestic impact of human rights covenants is further curtailed by the accompanying declaration that they are not self-executing before the US Courts. One of the most prominent examples of disdain for international human rights is the US reservation to Article 6(5) of the ICCPR which prohibits the imposition of the death sentence for crimes committed by persons below eighteen years of age. That reservation is arguably incompatible with the object and purpose of the treaty and therefore inadmissible under Article 19(1.c) of the Vienna Convention on the Law of Treaties.

As a general matter, the US ranks all international treaty law below American domestic law. The government routinely subjects international treaties to eventually conflicting constitutional provisions. Moreover, the US applies the later-in-time rule to international treaties, which are consequently superseded even by subsequent ordinary domestic legislation. In the context of double taxation, the US pursues an official policy of “treaty override”. This means that new American tax laws are applied with disregard to existing double taxation agreements concluded with foreign nations.

The most important example in this context is the American doctrine of pre-emptive strikes, which does not appear to be covered by Article 51 UN Charter. Consequently, the American military attack on Iraq in the spring of 2003 violated core principles of international law. I will come back to this issue later. Here, I merely wish to point out that during the entire Iraq crisis of 2002/2003, the USA constantly exercised pressure on other states. From November 2002 to March 2003, the American government tried to win over the non-permanent members of the Security Council, striving for an authorization of a military intervention. In particular, the African Council members (Angola, Cameroon, Guinea), who are receiving US economic and military aid and grants, voted under heavy diplomatic and economic pressure by the United States, as well as by Britain and France. When it turned out that a UN mandate was not attainable, the USA forged a “coalition of the willing”, supporting unilateral military strikes against Iraq. This coalition (USA, Britain and 48 other states) was built with considerable pressure and money. A closer study of the facts by a Washington based multi-issue think tank, the Institute for Policy Studies, revealed “evidence of coercion, of bullying and acts tantamount to bribery” which led the Institute to label the coalition a “coalition of the coerced”. After the war, Turkey was granted a loan of 8.5 Billion US Dollars, which was conditional on cooperating with the US in Iraq.

There are, of course, also instances in which the United States coerced other states in order to further the cause of international law. A well-known example of this is the considerable, and ultimately successful pressure on Serbia to surrender the former Yugoslav President Slobodan Milosevic to the ICTY. And of course America is not the only state to practice checkbook diplomacy. However, the United States is, due to its overwhelming military and economic power, in a unique position to reach its policy goals with carrots and sticks, regardless of what the international law says. This is highly frustrating for international lawyers and for less powerful states. However, the recent events have neither led to a fundamental change of basic legal principles, nor do they recommend one for the future. This will be explained in the following sections.

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