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31 Denv. J. Int'l L. & Pol'y 43 (2002-2003)
American Exceptionalism and the International Law of Self-Defense

handle is hein.journals/denilp31 and id is 61 raw text is: AMERICAN EXCEPTIONALISM AND THE INTERNATIONAL LAW OF SELF-DEFENSE MARY ELLEN O'CONNELL* Following the September 11 th attacks in the United States (U.S.), one could make a case for America's use of force in Afghanistan as a lawful exercise of the right of self-defense.' But the proposals to invade Iraq following September 11 th cannot be so defended. Those proposals did not concern defending the basic security of the U.S. in the sense that basic security defense is currently understood in the international community. They concerned, rather, defense of a more expansive concept of security, a concept wherein the U.S. need not tolerate antagonistic regimes with the potential to harm U.S. interests. The invasion plans represent a view that the United States is a privileged nation with more rights than others.2 Under this view, the United States may invade Iraq and remove Iraq's leader, Saddam Hussein, because he poses an indefinite future threat, the type of threat a superpower need not live with, though all other states must. The belief in American exceptionalism has been part of American thinking since the country's founding. Officials in the Reagan Administration, especially Jeanne Kirkpatrick and Allan Gerson, applied this thinking to international law rules on the use of force.4 The belief also appears in the Clinton Administration policies of Madeleine Albright and William Cohen regarding the North Atlantic Treaty Organization (NATO) and its right to use force without United Nations (U.N.) Security Council authorization.5 American exceptionalism is fully evident on the part of those who proposed invading Iraq in the aftermath of September 11 th, especially Paul Wolfowitz and Richard Cheney. The position taken by other governments - that an invasion of Iraq without Security Council authorization would be an act of aggression - has not been answered by the Bush William B. Saxbe Designated Professor of Law, The Ohio State University. 1. Marry Ellen O'Connell, The Myth of Preemptive Self-Defense, available at http://www.asil.org/taskforce/oconnell.pdf (last visited December 30, 2002) (copy on file with author); Jack M. Beard, America's New War on Terror: The Case for Self-Defense Under International Law, 25 HARV. J. L. & PUB. POL'Y 559 (2002); Thomas M. Franck, Terrorism and the Right of Self-Defense, 95 AM. J. INT'L L. 839 (2001); Mary Ellen O'Connell, Lawful Responses to Terrorism, JURIST, Sept. 18, 2001 available at http://www.jurist.law.pittedu/forum (last visited September 3, 2002). 2. See generally Detlev F. Vagts, Hegemonic International Law, 95 AM. J. INT'L L. 843 (2001). 3. See, e.g., Robert Weisberg, Values, Violence and the Second Amendment: American Character, Constitutionalism, and Crime, 39 HoUS. L. REv. 1, 9 (2002). See also Vagts supra note 2. 4. Louis HENKIN ET AL., RIGHT V. MIGHT: INTERNATIONAL LAW AND THE USE OF FORCE 2, 13 (1989). 5. Mary Ellen O'Connell, The UN, NA TO, and International Law After Kosovo, 22 HuM. RTS. Q. 57, 76-79 (2000).

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