Eric Posner on the Koh Nomination

by Kenneth Anderson

Over at Volokh, Eric Posner has a very interesting post today on the Koh nomination.  Here is a snippet:

Foreign-law opponents, take heart! Koh is not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law serves as a handy vehicle, to be used or ignored to the extent necessary to reach this goal. Obama is certainly entitled to have a mainstream liberal lawyer like Koh in his government. In case you haven’t noticed, Koh won’t be the only one.

For my part, I wish I were wrong, and that Koh’s tenure would be a real test of legal cosmopolitanism, properly understood. I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same. I would expect that Koh would soon find himself negotiating embassy lease agreements in Burkina Faso. But Koh will not be so rash. In his writings, Koh has been careful to leave this final evolution of the customary international law on capital punishment to the undefined future, a mark of prudence that should serve him well in government.

I agree with Eric about this, and also what he says in the rest of that post.  And I’m a foreign law opponent!  In general, I find the Obama administration’s foreign policy to be shifting, sometimes abruptly, between liberal internationalism and what I have called the ‘new liberal realism’.  Dean Koh exemplifies the former, while Hillary Clinton’s brusque de-coupling of human rights from relations with America’s once-and-future creditor, China, exemplifies the latter.  Those two tendencies are at this moment reconciled by a policy of strategic ambiguity called ‘engagement’.  Engagement – being a process, not a substantive result; an affect, not an outcome – can be seen to serve either an agenda of liberal internationalism or liberal realism.  Over the long run, though – and the reason I agree with Eric’s post re what Dean Koh is really interested in – I suspect the Obama administration will undertake a sort of division of labor, in which the ‘new liberal realism’ deals with the world out there, both security and increasingly economic issues, while erstwhile liberal ‘internationalism’ gets the terrain it was always, at least among Americans, most interested in – the US internally.  (I lay this out (in general, not discussing Dean Koh’s nomination) in more detail here.)

Of course, this is all speculative, as it is still early days.  The reaction of the Obama administration to the North Korean launch (call the Security Council so it can disagree into deadlock, and then announce that the United States should respond to this provocation, not by moving to stand with most-at-risk Japan, but instead by diplomacy to finally, at some suitable moment of hope down the road … reduce its nuclear arsenal) is not exactly the ‘new liberal realism’. Unless however you had decided you weren’t planning on any real response anyway, in which case maybe it is.

http://opiniojuris.org/2009/04/06/eric-posner-on-the-koh-nomination/

One Response

  1. “I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same.”

    Somewhat offpoint I realise, but the problem with this is that customary international law does not prohibit the death penalty. It is certainly true – as Posner writes earlier in his full post – that international law “frowns” upon it, but this is of little significance when it comes to conclusions regarding a state’s “legal obligation” to amend its domestic law.  

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