Exemptionalism

From the perspective of international law and politics it is Ignatieff’s exemptionalism and his and Koh’s double standards which have raised most concerns. Exemptionalism would mean that generally the United States would support multilateral agreements and regimes, ‘but only if they permit exemptions for American citizens or U.S. practices’.^{Footnote 19} Examples would include the non-ratification of the Rome Statute creating the International Criminal Court even after successful attempts by the US to have various guarantees built into the regime that US citizens could not face prosecution^{Footnote 20} or US absence from the Kyoto Protocol or the Land Mines Treaty.

From a strictly legal point of view, exemptionalism in this sense of seeking built-in exceptions for oneself is a typical feature of international relations.^{Footnote 21} The European Union has also sometimes pursued this goal, mostly successfully.^{Footnote 22} The most obvious examples are perhaps the so-called ‘disconnecting clauses’ by which the European Union receives the agreement of third state parties that a multilateral treaty, in the relations between EU member states inter se, remains subordinate to contrary EU legislation.^{Footnote 23} This practice has been compared with the well-known federalism feature of US treaty exemptionalism.^{Footnote 24}

From a narrow legal perspective the difference between the US exemptionalist practice and the European Union‘s ‘disconnecting clause’ practice is a matter of degree. As long as an exemption is agreed to by all sides it is legal and can only be criticized from a moral or a political point of view. Thus, there is more than a kernel of truth in the proposition that the debate about (American) exemptionalism is (or was) ‘an attempt to transform the debate about international morality … into a debate about formal legal compliance with the law, which can at least in principle be resolved with legal methods’.^{Footnote 25}

But if exemptionalist tendencies are part of a larger pattern with other forms of unilateral or self-centred conduct, they may well be called exceptionalist in the stronger sense. The political – or moral – question of how to qualify exemptions may well find parts of its answer within the law. It then depends on whether the reasons for seeking an exemption are plausible and considered to be compatible with the general thrust of a given treaty^{Footnote 26}, and whether the exemption-seeking entity is thereby trying to secure an otherwise illegitimate role for itself. So far, the EU’s efforts to have disconnecting clauses included in its treaties have not been perceived as being driven by an effort to have a freer hand for itself or for the pursuit of hegemonic interests.^{Footnote 27} On balance, they have rather been accepted as being an effort to reconcile the European acceptance of international standards with the EU’s own pursuit of achieving ‘stricter’ standards among its member states.^{Footnote 28} US exemptionalism, on the other hand, has often been seen as being driven by an effort to see others bound by rules and to remain free itself for the purpose of securing a special role in global affairs.

One could also postulate an EU exemptionalism with respect to some recent decisions of the European Court of Justice which seemed to close the EU legal order in part against international legal influences.^{Footnote 29} In the MOX Plant case^{Footnote 30}, for example, the ECJ defended its own competences vis-à-vis dispute settlement mechanisms which originated from other international regimes. There the Court found a violation of the EC treaty by Ireland for going to an Arbitral Tribunal under the provisions of the United Nations Convention on the Law of the Sea (UNCLOS^{Footnote 31}).^{Footnote 32} An emerging EU exemptionalism might also be detected in the jurisprudence of the ECJ on the relationship between certain bilateral investment treaties (BITs) between EU member states and non-member states. Since 2009 the ECJ has repeatedly held that member states can be required to have certain of their BITs with third states modified on the grounds of a possible conflict with not yet enacted EC secondary legislation^{Footnote 33} because those BITs might stand in the way of effective application of EC measures restricting the free movement of capital.^{Footnote 34}

Are we faced here with two examples for European exceptionalism in the form of exemptionalism? The jurisprudence in the MOX Plant case does not directly affect non-member states. In a certain sense the EU is undermining the original competence of the institutions charged with dispute settlement under UNCLOS, but the step can also be described as a necessary implication of the relegation of member states by EU integration to an intermediary status. In the cases involving the BITs, the EU is not exempting itself or its members from any agreed commitments. However, the EU has imposed an obligation upon them to withdraw from previous agreements. This is unobjectionable as long as the respective member states do so according to the international rules on the termination of treaties. Of course, politically this means that the EU, under the new competences of the Lisbon treaty, now has a greater bargaining power to negotiate new BITs with the third states in question.^{Footnote 35}

These developments in the case law of the ECJ do not make the EU ‘exemptionalist’ in the sense of how Ignatieff and Koh have described the United States. We are only faced with certain consequences of the amorphous state of the EU. Despite various steps of reform, the EU is still in the process of sorting out its internal division of competences and has not, as far as we can see, used this process to pursue other specific goals at the international level.

Double standards

Political criticism of US exemptionalism overlaps with Ignatieff’s and Koh’s double standards category of US exceptionalism. Double standards is both a political and a legal variant of exemptionalism. In its legal variant, double standards means that a rule, or a system of rules, which are, in principle, applicable to all actors, need not be followed by one particular actor. The form which legal double standards may take are, however, not limited to formally accepted exemptions, but may also include informal practices which result in the discriminatory application of vague legal concepts. The classical instance during the past decade of such a double standards approach is the Bush doctrine of preventive self-defense.^{Footnote 36} This doctrine is/was^{Footnote 37} couched in general language which permitted to interpret it ambiguously both as a general legal claim and as a special political entitlement of the United States.^{Footnote 38} The US has, for example, protested against Russian bombardments in Georgia in 2002 which the Russian Federation justified as acts of self-defence against terrorist organizations^{Footnote 39} which has led commentators to conclude that in this case ‘we see the USA claiming rights for itself that it is unwilling to see exercised by others.’^{Footnote 40} It has also been argued, more generally, that the US decision to attack Iraq in 2003 represented ‘a view that the United States is a privileged nation with more rights than others’.^{Footnote 41}

It appears that there is no comparable practice of the European Union, or of European states acting in concert, by which a claim has been formulated that a European entity was free from certain obligations, or occupies a special position with respect to obligations which arose from general international law or from a generally applicable treaty regime.^{Footnote 42} It might, however, be objected that the jurisprudence of the ECJ in Kadi is such a case.^{Footnote 43} The difference, however, between the Kadi jurisprudence and what has been described as US double standards policy and practice, is that Kadi accepts, in principle, that the international rules and decisions are binding and that the limits pronounced with respect to the implementation of certain EU legislation entail no claim to affect the position of other subjects of international law.^{Footnote 44} It is still another question whether Kadi is an expression of a new European rights narcissism (see below).

Bradford and Posner identify European double standards in the European support for the International Criminal Court. They argue that European reluctance to send soldiers abroad would mean that Europeans would rarely, if ever, face the risk of prosecution before the ICC.^{Footnote 45} It is, however, questionable whether the factual premise of their critique is correct. European states are fairly active in terms of participation in UN peacekeeping missions,^{Footnote 46} and the regular deployment of British and French soldiers abroad should in particular not be underestimated. It is true that European political elites see little reason to be concerned about ICC prosecutions. The French negotiator Marc de Brichambaut is said to have remarked to his US counterpart David Scheffer during the Rome Conference on the Statute of the International Criminal Court: ‘David, I’m going to sign this treaty tomorrow because we know that no French national will ever appear before the International Criminal Court. We will ensure that our courts take the case first … .’^{Footnote 47} While there may indeed be an expectation that Europeans will never have to stand trial before the ICC it rests on a more self-confident understanding of the principle of complementarity.

It is another question whether European states and/or the EU from time to time violate international law. Commentators which refer to ‘double standards’ followed by European states point to the implication of European states in the fight against terrorism or in the questionable conduct of EU border controls which would result in various violations of human rights and refugee law.^{Footnote 48} It is, of course, entirely possible that such violations of international law have occurred and keep occurring, maybe even on a regular basis. The relevant question for our analysis, however, is whether these violations also imply ‘double standards’ in the sense that European states and/or the EU would claim special privileges for themselves which they would deny other states. The critical feature of the ‘double standards’ claimed by the United States was that the US sought to establish different standards for themselves and for other states at a normative level. Many states violate international law from time to time. States then try to argue that their conduct was nonetheless in accordance with the law.^{Footnote 49} This does not imply, however, that these states claim special privileges.

This is also true if we look more closely at the example of the EU border policy where the EU agency ‘FRONTEX’ is trying to secure the EU’s external borders. In the context of ‘FRONTEX’, the EU and its member states are apparently cooperating with neighbouring states in Europe as well as North Africa.^{Footnote 50} These states take back refugees which have been stopped on their way to the EU at the High Sea. It is fair to assume that human rights violations as well as breaches of refugee law occur in this process.^{Footnote 51} In fact, Italy has recently been found to be responsible for violations of the European Convention on Human Rights for an incident in which it handed over refugees to the Libyan authorities which it previously intercepted on the High Sea.^{Footnote 52} However, does the EU advance the claim that it and its member states are not bound by the relevant international standards? We have not come across such a claim. Rather, the EU is trying to justify its conduct within the framework of existing law. The Heads of State of the EU member states have affirmed that all FRONTEX operations have to be concluded within the framework of international law.^{Footnote 53} The legal mandate for FRONTEX explicitly requires participating member states to respect international law.^{Footnote 54} The EU has also established a framework for cooperation with UNHCHR to see to it that the requirements of international refugee law are respected during the operations of FRONTEX.^{Footnote 55} AQ1: AQ1: Fn 55: Is there an up-to-date URL for this?In March 2012, the European Ombudsperson has initiated an investigation into the fundamental rights compliance of FRONTEX.^{Footnote 56} Is it apologetic to refuse to acknowledge European exceptionalism in this case? We think not. This does not make human rights violations any less serious. But it is another matter whether this element of European practice is testimony to a form of ‘European exceptionalism’. Not every pattern of – even systematic – violations of international law makes for ‘exceptionalism’.

‘Flying buttress mentality’

A milder variant of double standards exceptionalism is what Koh has described as ‘flying buttress’ mentality.^{Footnote 57} This expression was originally coined by Louis Henkin who remarked that ‘the United States has not been a pillar of human rights, only a ‘flying buttress’ – supporting them from the side.’^{Footnote 58}

It is difficult to identify European parallels which could give rise to a flying buttress mentality reproach. European states have generally ratified the relevant universal human rights instruments. They have also established a system of human rights protection^{Footnote 59} which was conceived as a regional implementation of universal standards.^{Footnote 60} This system is still today being implemented in conformity with universal standards and is providing itself, vice-versa, influential impulses for the concretization of those standards and for other regional systems of human rights protection.^{Footnote 61}

The fact that the European Union itself has so far not ratified any human rights treaties, universal or regional, is not the result of a flying buttress mentality. The most obvious reason for this lack of ratification is rather technical: the limitation of the possibility to ratify such treaties to states.^{Footnote 62} It is not certain whether this is the only and ultimately the most important reason for the non-submission, so far, of the EU itself to outside human rights supervisory mechanisms.^{Footnote 63} However, the general willingness of the member states to submit to such mechanisms, the efforts to enable the Union to accede to the European Convention of Human Rights,^{Footnote 64} and the jurisprudence of the European Courts (ECJ and ECtHR) to hold the Union and the member states to account (for acts of the Union) according to regional and universal human rights standards,^{Footnote 65} are all strong indications that ‘Europe’ plays the role of a pillar in the cathedral of international human rights, and not merely that of a flying buttress.

Insofar as ‘Europe’ is roughly comparable to the Latin American and African states,^{Footnote 66} it is certainly not exceptionalist or even exceptional. Perhaps, however, the EU or the member states of the Council of Europe have in their human rights policy towards third states on occasion demanded respect for higher standards than what they were prepared to respect themselves.^{Footnote 67} Especially when the European Union acts on the international plane, questions arise as to how it can be subjected to meaningful control of its own respect for human rights. A case in point is the presence of the EU mission EULEX in Kosovo after the unilateral declaration of independence in February 2008.^{Footnote 68} Whereas EULEX has less significant executive powers than previously the UNMIK mission,^{Footnote 69} it retains certain operative powers.^{Footnote 70} These powers are mainly correctional and they concern the investigation and prosecution of serious and sensitive crimes.^{Footnote 71} To review compliance of the exercise of these powers with human rights, the EU has instituted a ‘Human Rights Review Panel’ (HRRP). The ‘accountability concept’ of the HRRP is a restricted document which raises questions with respect to transparency and legal certainty.^{Footnote 72} The HRRP cannot take binding decisions against acts of EULEX, but merely ‘submits its findings to the Head of Mission and, where necessary, makes non-binding recommendations for remedial action’. It is also noteworthy that ‘recommendations may not result in monetary compensation’.^{Footnote 73}

Although the executive competences of EULEX are rather limited, the symbolic dimension of the arrangement appears to be that the EU is not prepared to subject itself to the same standards of binding judicial review which it requires, for example, of candidates as a condition for joining the Union.

But what does this mean for our enquiry into a possible European exceptionalism? Again, it seems that we are faced here not so much with a particular European feature but rather with the general reluctance of states and international organizations to subject themselves to strict human rights scrutiny in the context of ‘nation-building’ or ‘post-conflict administration’.^{Footnote 74} The concern in the case of EULEX in Kosovo is rather that the EU is missing the point at which an (exceptional) post-conflict peacekeeping situation has stabilized to such an extent that it becomes imperative to apply peacetime standards. It is this point which the Venice Commission of the Council of Europe has carefully insisted upon in its 2010 Opinion concerning this arrangement:

Distinctive labels

It is trivial that different terms do not necessarily denote different substantive concepts. And it is both understandable and legitimate that different constitutions use different terminology to express similar principles or rules. Koh is therefore obviously correct when he remarks that the use of different labels may be ‘more of an annoyance than a philosophical attack on the rest of the world’.^{Footnote 76}

But it is equally trivial that terminology can be important and that terminology can denote relevant differences. Without going into detail, the jurisprudence of the European Court of Human Rights has led not only to a regionalization of national constitutional rights terminology^{Footnote 77}, but, thanks to the character of the European Convention of Human Rights as the regional implementation mechanism of universal human rights, also to a universalization of rights terminology in Europe.^{Footnote 78} This common universal language of human rights excludes ab initio that a European exceptionalism could be grounded on ‘different labels’. It may well be that ‘cruel and unusual punishment’ is basically the same as ‘torture’,^{Footnote 79} but reservations by the United States according to which torture must be interpreted in the way in which ‘cruel and unusual punishment’ is understood in the United States^{Footnote 80} do not reinforce such assumptions and smack of exceptionalist claims. As far as we are aware, there are no comparable efforts to secure a specific European understanding of rights at the universal level. At a deeper level, the reason for the different labels used in US constitutional law may be related to the understanding of the ‘human rights revolution’ which took place after the Second World War as the result of the United States ‘bestowing on the world the gift of American law and the American way’. Jed Rubenfeld has argued that ‘Europe might use a different phrase – ‘‘human rights’’ – to describe them, but the fundamental rights guaranteed by international law were nothing other than rights already enshrined in the United States Constitution.’^{Footnote 81} This emphasis of the American origin of international human rights law is another form of underlining the exceptionality of the United States.

What comes closest to this form of identity politics in Europe is probably the importance of the Déclaration des droits de l’homme et du citoyen of 1789 which arguably continues to legitimize elements of French foreign policy. There nevertheless appear to be less problems in accommodating French doctrine and terminology of human rights with their international counterparts.

Distinctive and narcissistic rights culture

A more important aspect of American exceptionalism concerns the substance of fundamental rights.^{Footnote 82} Although most rights which are recognized by the US Constitution, in particular in its several amendments, have been reformulated and reaffirmed by most other constitutions and international human rights treaties, they have nevertheless often been held, on closer inspection, to be distinctive, and to be part of a narcissistic legal culture which gives them, alone and in combination, an exceptionalist character.^{Footnote 83} For Koh, distinctiveness refers to specificities of the American rights culture which would follow from its peculiar, political and economic history. Because of history, some rights would have received more attention in the US than in Europe or in Asia, which would hold particularly true for the US First Amendment with its more robust protection of free speech.^{Footnote 84} In the same vein, Ignatieff adds that US constitutional law provides less protection in some areas than other Western states and international human rights. This would be true, in particular, for socioeconomic and welfare rights.^{Footnote 85}

Put in such terms, the description has become almost a cliché. On closer inspection, however, such distinctiveness of American rights culture tends to dissolve: in most areas the United States does not seem to overstep the margin provided for states by human rights treaties. But what about the European side of the equation?

In particular: social and economic rights

The protection required by the International Covenant on Social, Economic and Cultural Rights is not constitutionally mandated by a good number of European countries either.^{Footnote 86} Even where social and economic rights are laid down in a given constitution, their effects are often mitigated either by language in the constitutional text itself or by judicial practice.^{Footnote 87}

However, specific cases show that significant differences may arise in the field of judicial review of measures of social welfare. In February 2010, the German Federal Constitutional Court struck down legislation on individual rights to social welfare (the so-called ‘Hartz Legislation’),^{Footnote 88} mainly on grounds of irrational and intransparent standards for the calculation of the needs of the persons on the receiving end. The Court based its judgment on the fundamental individual right to a minimum of subsistence which it deduced from the provision on human dignity (Article 1, paragraph 1 of the German Basic Law) and the principle of the social state (Article 20, paragraph 1). The Court held that this right was not fully to the disposition of the legislature^{Footnote 89} and considerably reduced the legislative discretion in this area. The decision intervened in a political question of major importance and has a significant financial impact.

Does this decision testify to a particularly European belief in social and economic rights? In this context, we can note that the struggles in US courts – both federal and state courts – over the constitutional law implications of ‘Obamacare’ have shown that highly sensitive issues of social policy are not immune from judicial scrutiny.^{Footnote 90} It is, of course, true that these court proceedings have a different momentum: the challenges against federal legislation are not directed at obtaining more support from the public authorities, but rather aim to underscore the limits of government to impose on all citizens and in a binding manner an obligation to contract into a scheme of social security. The court proceedings thus have a different focus as compared to the German ‘Hartz’ example. Nonetheless, they show that it is not ‘exceptional’ for constitutional courts to turn into arenas of negotiation for issues of social policy. At the same time, it is difficult to conceive of a decision by the US Supreme Court which would be as wide-ranging in its financial consequences as the German decision was.^{Footnote 91} But it is equally difficult to conceive of a similar judgment by one of the courts on the European level – if not in form then at least in substance.

But be that as it may, it is difficult to make a case with respect to a distinctive, or even a narcissistic European rights culture. This is not only because the European rights formulations are younger and therefore terminologically more closely tied to the universal standards. So far, the European entities have also made considerable efforts to maintain and cultivate this tie to the universal level. An important recent example derives from the EU Charter of Fundamental Rights and its section on ‘Solidarity’ (Articles 27–38) which includes a number of social rights. The inclusion of social rights in the EU Charter was controversial. During the difficult negotiations the UN Committee on Economic, Social and Cultural Rights addressed the drafters:

While there is no conclusive evidence that the eventual incorporation of social rights in the EU Charter of Fundamental Rights can be attributed to this intervention, it is nevertheless noteworthy how the universal body argued and that the drafters of the Charter finally reached an agreement which allowed for a compromise which is in line with the universal standards. While the official explanations to the finally adopted articles contain only sparse references to universal human rights instruments^{Footnote 93}, it has been noted that the inclusion of social rights in the Charter was a process which mirrored universal experiences.^{Footnote 94} In this respect, the EU Charter can also be seen as a form of consolidation. The extent to which social rights are recognized in the constitutional law of the EU member states varies greatly. The EU Charter can be seen as an attempt to reconcile these diverging approaches with broader tendencies on the international level.^{Footnote 95}

Thus, while the EU Charter of Fundamental Rights has recognized a few ‘new’ rights, it has also incorporated more rights from the universal level than had been received into the European Convention of Human Rights. These rights bear a close resemblance to the social and economic rights which are recognized in international human rights law, such as in the International Covenant on Social and Economic Rights, and they reflect a convergence between developments on the European and the universal level.

General trends in European rights culture vis-à-vis the universal level

The picture is even clearer in the field of civil and political rights. As far as we can see, the European Court of Human Rights has not interpreted the Convention rights in a way which would set them significantly apart from the universal level, as expressed in particular by the UN Human Rights Committee under the ICCPR.^{Footnote 96} To the contrary, the European case law seems to be a most important source of inspiration for the interpretation of rights at the universal level by bodies on the universal level. A characteristic example of the level of acceptance which the European rights culture enjoys at the universal level can be observed in the current practice of the UN International Law Commission. Having put the sensitive topic of expulsion of aliens on its agenda, the Commission appointed a distinguished jurist from Cameroon, Maurice Kamto, as its Special Rapporteur. In his reports, the Special Rapporteur has mainly relied on the jurisprudence of the European Court of Human Rights in his quest to identify universal standards.^{Footnote 97} This approach has been generally accepted by the members of the Commission, mindful that the pertinent European standards have their source in the Universal Declaration of Human Rights and that they have been reaffirmed in the ICCPR and, to a certain extent, by the views of the Human Rights Committee.

It has, however, been argued that there are signs of a developing distinctive and even narcissistic European rights culture turning inward. Gráinne de Búrca has noted that ‘(t)he striking similarity between the reasoning and interpretive approach of the U.S. Supreme Court in Medellin and that of the ECJ in Kadi regarding the relationship between international law and the ‘‘domestic constitutional order’’ at the very least calls into question the conventional wisdom of the United States and the EU as standing at opposite ends of the spectrum in their embrace of or resistance to international law and institutions.’^{Footnote 98} But a closer look reveals that the ECJ has certainly not interpreted the substance of the rights at issue in a distinctive manner, to the contrary. It has ‘only’ refused to recognize the legitimizing effect of the resolutions of the Security Council and the institutional rules of the UN Charter in the internal EU legal order. It tried to answer the question – as yet still unresolved at the universal level – of the limits of the powers of the Security Council, in particular the role of human rights in this context.^{Footnote 99}

The Kadi case may well be part of a development by which the jurisprudence of the ECJ has recently become less ‘international law-friendly’ (völkerrechtsfreundlich).^{Footnote 100} Besides the Kadi case, the already mentioned case law on the availability of UNCLOS dispute settlement procedures for EU member states^{Footnote 101} and the requirement to terminate member states’ BITs may be mentioned.^{Footnote 102} One could also point to the Intertanko case in which the direct applicability of UNCLOS was denied^{Footnote 103} – a finding which the ECJ had until then confined to the field of WTO obligations which it consistently held to lack direct effect in the EC/EU legal order.^{Footnote 104} These may be signs that we are in the presence of an ongoing closure of the EU legal order towards the influence of public international law. It is, however, questionable whether this is really the case. The various cases all concern different situations and no overarching judicial policy can be identified which the ECJ would follow. In effect, it is also possible to identify recent case law of the ECJ which is more open towards international law than before.^{Footnote 105} This holds true, for example, for the Brita case in which the Court had to determine the influence of public international law on the EU customs regime with Israel and the Palestinian authority respectively.^{Footnote 106} In this respect, mention can also be made of the recent decision of the ECJ on the EU’s emissions trading scheme for airlines. The Court carefully reviewed whether the introduction of this scheme would violate applicable international agreements and customary international law. The Court did not find a contradiction between the EU’s scheme and international law and repeatedly affirmed the requirement that all EU conduct remain within the boundaries of international law.^{Footnote 107}

Judicial exceptionalism/isolationalism

The softest but not least relevant aspect of American exceptionalism has been identified as judicial exceptionalism or isolationism. It would characterize ‘the attitude of the U.S. courts toward the rights jurisprudence of other liberal democratic countries’.^{Footnote 108} American judges would be exceptionally resistant to use international and foreign materials.^{Footnote 109} Most prominent is the opposition of Justice Scalia towards the influence of these materials on the interpretation of the US constitution – an endeavour which would result in ‘dangerous dicta’, spurring the consideration of ‘foreign views’ which would be irrelevant to the task before the Justices of the Supreme Court.^{Footnote 110} Here again, the verdict on this form of American exceptionalism must be nuanced. Justice Scalia’s position is by no means generally accepted within the US judiciary, but is under serious and sometimes successful challenge.^{Footnote 111} But regardless of where exactly the battle lines of the internal US debate are drawn, it is characteristic that, so far, there seems to be no equivalent of this discussion in Europe. The European Court of Human Rights regularly quotes pertinent jurisprudence from countries which are not members of the Council of Europe^{Footnote 112}, as well as from international courts^{Footnote 113} and other bodies.^{Footnote 114} While the European Court of Justice rarely quotes any source except its own jurisprudence, the Advocates-General do provide it with comparative overviews and references from international courts and courts of foreign countries.^{Footnote 115} National courts in Europe quote sources according to their respective national tradition and style and, to our knowledge, there has been no serious debate anywhere in Europe about the legitimacy of taking judicial notice of foreign precedents.^{Footnote 116} To the contrary, it seems that the comparative method has become not only an accepted, but also internalized as a de facto indispensable method for certain cases.^{Footnote 117}

Assuming for a moment, however, that the approach by US Courts would consist of not taking note of foreign sources, and that the European approach would be the contrary one, the question could be asked which of the two approaches would be exceptional from a global perspective. Perhaps the European approach could be described in this scenario as being exceptional in quantitative terms (if it is indeed the case that the judiciary in most countries outside of Europe and the United States does not engage in comparative research – which is itself an open question^{Footnote 118}), but certainly neither exceptional within the group of established constitutional states nor exceptionalist in the sense of seeing this approach as a distinguishing normative factor.