I have been asked to reflect on the significance of the range of new visions of global public order now circulating in the United States, and to consider, in particular, what has happened to the liberal consensus of twenty years ago. There are, of course, many directions that a response might take. One could question whether there really was a liberal consensus twenty years ago and, if there was a seeming consensus, what underlying concerns and tensions it attempted to mediate. One could focus on political science, economics, history, critical theory, postcolonial theory, or feminist theory and discuss how one or all of those has played a role in various challenges to liberal legal internationalism inside the United States. One could attempt to understand liberal legal internationalism in relationship to U.S. foreign relations and question the extent to which it emerged and coalesced around a particular view of the United States’ role in the global order. One might consider what, if any, causal relationship exists between the dissolution of the apparent consensus and the rise of what many consider to be a new American exceptionalism. And one might even consider whether liberal legal internationalism has unwittingly participated in constructing a new American exceptionalism.
I will not explore all of these questions here. Yet I will attempt to touch upon many of them through the consideration of a couple of recent examples of the Bush administration’s deployment of international legal rhetoric and process to protect women’s rights, and by examining the various critiques they have and have not engendered. In particular, I will look at the Bush administration’s intervention in Afghanistan and its support of international efforts to end sex trafficking.
I have chosen these case studies to understand contemporary views of international law within the United Sates for a variety of reasons. Since September 11, it seems that almost every international legal scholar in the United States has felt the need to write something about the war on terrorism, often specifically challenging or defending U.S. responses to September 11. As a result, it is more difficult today than it has been for some time to separate visions of public order circulating within the United States from visions of public order about the United States. Moreover, with the rise of a real right within the discipline of international law in the United States over the past decade and its manifestation in at least some of the Bush administration’s interpretations of international law, proponents and even designers of parts of the war against Iraq and the war on terrorism have effectively participated in and even altered the terms of much of the debate within the international legal academy. While liberal internationalists often contend that the Bush administration opposes international law, I would suggest instead that the administration is in many instances pursuing a vision of international law that does not accord with the liberal internationalist version that has dominated the past few decades. That is, the administration is often promoting a classical view of international law that is based on sovereign consent, at least on the sovereign consent of the United States.
The case studies suggest, however, that the Bush administration policies also contain a liberal internationalist streak. With regard to Afghanistan, the administration has appealed to liberal internationalist and feminist rhetoric about respecting human rights. In the context of trafficking, it has appealed to a liberal internationalist process that favors international cooperation. Thus, by offering examples where the United States claims to be protecting international human rights and even does so through a rhetorical, and in one instance procedural, commitment to international cooperation, these case studies question the characterization of U.S. foreign policy as an example of American exceptionalism. In addition, they show how the assertion of acting in the name of international human rights, particularly women’s rights, serves to silence much of the opposition that the substantive positions themselves might otherwise invoke.