IT DIDN’T take long for the scare stories to hit the wires after President Obama nominated Harold Koh, Dean of the Yale Law School, to be the next Legal Advisor to the State Department. Judicial appointments are often fraught with manufactured controversy, but conservatives have opposed Koh’s nomination more ferociously than usual because he brings what they consider to be a complete Louis Vuitton set of ideological baggage: fealty and reverence for international law. An ardent transnationalist, Koh has defined his academic career by arguing for the mandatory authority of international law in domestic realm of American jurisprudence. Now, he stands in waiting to become the top counsel and sitting expert on international law for the State Department. Cue conservative panic followed by liberal enthusiasm.
Party lines aside, it’s more appropriate to look at Koh’s appointment through the lens of his actual future role. What power will he actually have? So far, the debate concerning the role of international common law in the U.S. court system remains firmly entrenched in the gilded halls of academic debate. Torrid exchanges on the topic have not yet led to significant movement in court precedent. While Koh’s arguments profoundly question the nature of American government, their full weight currently exists only in the pages of law reviews. So rather than worrying about his ideas in their theoretical vacuum, it might be more productive to try to pinpoint what actual impact he might have on American foreign policy.
First, it is important to note Koh’s incredibly impressive legal qualifications. See his Yale biography for exactly how impressive, but it goes almost without saying that critics would be remiss to ignore his leadership in the field of international law. His extensive background does tilt heavily towards legal globalization, however, which should raise a few red flags regardless of his qualifications.
Essentially, he believes American laws should be interpreted in light of international law established by treaties, declarations, tribunal decisions, and any other ancillary agreements. Taken together, these documents create “international common law” that ought to bind individual nations and guide their own bodies of common law precedent. Such authority takes two forms: the explicit obligations imposed by treaties, and the implicit obligations imposed by the decisions of judicial bodies such as the International Criminal Court or the European Court of Human Rights. Koh argues that international common law runs parallels with American domestic law and should trump state and federal statutes when they conflict with international precedent. He draws from a few phrases of the American Constitution to support this claim: the Supremacy Clause (Article 6, section 2), defining treaties as the “supreme law of the land,” and Article I, section 8, clause 10, giving the Congress the power to define and punish “offenses against law of nations.”
Koh has argued passionately against America’s legal isolationism by invoking international influence on standards for civil liberties. He cites Supreme Court decisions that have expanded the “evolving standards of decency” that define constitutional liberties. Such decisions, he claims, demonstrate that American values are no longer the sole measure of our rights. What is “cruel and unusual punishment” in Texas should ultimately be subject to what the international community deems “cruel and unusual punishment.” His conception of binding international common law governs both the relationships between countries and the relationship between a country and its citizens.
In the past, scholars have distinguished between international agreements as “self-executing” or “non-self-executing” pacts. When the U.S. agrees to a self-executing treaty, its tenets are mandatory authority as a matter of federal law. For example, the U.S. has ratified agreements requiring sovereign immunity for visiting dignitaries of state. Because this is an issue of foreign policy and has become a “supreme law of the land,” federal courts are authorized to strike down both state and federal laws that conflict. In contrast, international common law (non-ratified treaties and international judicial decisions) is generally classified as non-self-executing law. It can act as persuasive authority in cases, but courts are not constitutionally required to strike down domestic laws that may conflict with it. In the same way, the U.S. also treats any non-ratified treaty or treaty of limited application to be non-self-executing.
Koh views the self-executing vs. non-self-executing as a false dichotomy. He argues that both ratified and un-ratified treaties as well as international common law should be deemed self-executing and thus mandatory authority under federal law. Koh seems to suggest that if the Reagan Doctrine is correct and America does not hold a monopoly on natural rights, then we ought to submit our laws to how the world defines natural rights. This, ideally, creates an even playing field for the international community and provides accountability for the world’s only superpower.
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There are two major flaws in this philosophy. First, Koh’s passion for the power of global common law trades the security of national sovereignty for the effervescence of international consensus. Such logic closely resembles the manifestations of the “general will” heralded as the new political order of the French Revolution. As Edmund Burke noted then and as it applies now, a government or community cannot simply declare the rights of the people without a foundation in historical political tradition. A constitution, no matter how lofty its ideals, cannot stand on the slippery skids of public opinion and governmental interpretation. It will inevitably fall at the hand of demagogues, who hold both the power and the justification to siphon away inconvenient liberties. This is not a matter of humbly bowing to the values of other cultures—it is in fact a surrender of national sovereignty to the wafting sentiment of international opinion.
In her foreign policy manual, Statecraft, Margaret Thatcher looks closely at the impact of the “internationalization of justice.” She cites law professor Jeremy Rabkin, who describes the results of an international “general will” in his book Why Sovereignty Matters:
International human rights law is not the product of court rulings, but of international conferences. Abstract pronouncements are enough. At that, they need not even be the authoritative pronouncements of supreme governmental authorities. Words spoken by diplomats at conferences are given much weight, and then the reconfiguring of those words by commentators is supposed to give more weight… Soon there is a towering edifice of words, which is then treated as a secure marker of “customary international law.”
Thatcher identifies this “towering edifice of words” as a recipe for confusion and an open door for biased interpretations. And she’s right. Much like the fledgling French republic, international common law imposes a procrustean framework for rights subject to the whims of a few rather than democratic will of individual sovereign nations.
Koh’s transnationalist approach also throws lighter fluid on the fabric of American constitutional law. The constitution framed the rights of citizens to arise from limitation on state power. Wherever government power is limited, the people’s rights reign. This allows citizens to operate in society with a presumption of freedom to act and believe as they please, limited only by what the state may regulate according to its enumerated powers. In contrast, many international agreements (the U.N. Declaration on Human Rights, for example) create “positive liberties” that citizens “deserve”—including education, health care, and even vacation time. While such liberties seem to scatter more largesse among the populace, they ultimately cede greater power to states without the accountability of limits, checks, and enumerations.
As other commentators have more eloquently suggested, binding international common law also undercuts American democracy. If U.S. domestic law must bend to the dictates of international consensus, then Americans will face new statutory rubrics that their representatives had no hand in creating. The judiciary could actually supplant the legislative branch as court interpretations pull in international common law to shape legislation by judicial review. There isn’t enough tea in the British Isles to protest such blatant revocation of our democratic principles.
Keep in mind that many of Koh’s principles are still in the embryonic stages of application. To date, the Supreme Court has not incorporated international common law as mandatory authority for state or federal law. Un-ratified treaties are not yet considered self-executing. Yet despite the academic nature of the debate, those working in international affairs often consider the State Department to bridge the gap between foreign policy theory and diplomatic application. As Legal Advisor to the State Department, Koh will wield significant influence on American foreign policy.
Judging by their indignant shock at his appointment, some conservative commentators seem to be suffering from short-term memory loss. From 1998 to 2001, Mr. Koh served as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor and also served on the Secretary of State’s Advisory Committee on Public International Law. Did we miss something or is the Constitution still standing? By definition, diplomacy is the science of suggestion. Koh’s perspective on international law may be academically radical, but his power to make changes in the system will be incremental. Hysterical doomsday predictions at his appointment are neither warranted nor helpful.
On the other hand, the Office of Legal Advisor is not some smoke-filled backroom. Take a look at some of the roles played by State Department attorneys: negotiating, drafting, interpreting international agreements; advising on legislative initiative, domestic statutes, regulations, and Executive Orders; representing or assisting representatives in international organizations; and representing the U.S. before international tribunals and arbitrations.
Within these roles lies the real danger of Koh’s appointment. The State Department should represent the American government and American interests within the international community. Koh has already demonstrated that his priorities lie in a different direction. As he sets the agenda for his office, the public will likely see a shift towards deference to international law and away from traditional defenses of national sovereignty. If the State Department no longer acts as a gatekeeper for self-executing treaties, then the burden for protecting American sovereignty will fall on an already over-burdened and under-prepared Congress.
American submission to international precedent may placate some voices against American imperialism, but the cost far outweighs the benefit. No international organization can interpret the world’s “general will.” The global community addresses human rights in broad, grandiose terms, and can never effectively replace the judgment of our own legislature. A government’s relationship with its citizens may begin according to foundational principles but must always tailor to the practical needs of the community. Without the foundations of tradition or precedent, American incorporation of international law cannot help but confuse our freedoms and empower government intrusion. That should be the content of our critical discussion.
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