O’Connell’s “Who’s Afraid of International Law?” and the Koh Nomination

by Chris Borgen

Mary Ellen O’Connell (whose recent book The Power and the Purpose of International Law was the subject of one of our book discussions) has a post at Balkinization called “Who’s Afraid of International Law?” that considers the fear-mongering by some in the media concerning international law.   After briefly discussing the views of the Founders,  she writes:

So why does Glen Beck seem to fear international law? Why is he and decrying strong international lawyers in America’s top international law jobs? As with so many things we fear, the critics seem to be speaking against something they do not understand. At times they appear to be confusing international law with communism or other ideologies against which Americans have had to struggle in war and peace.

International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.

I think the point that international law is not an ideology but simply the obligations to which we are bound is a point worthy of emphasis. One of the reasons the debate over the Koh nomination is so important is because it is shaping public opinion not only about Koh but also about international law itself. And the problem is that, from the fevered ramblings of Glenn Beck to the calmer insinuations of Ed Whelan, there’s a good deal of misinformation being bandied about. Unfortunately, this may be the first time many of their readers or listeners hear about “customary international law” or “transnational legal process” (and, in any case, neither Beck nor Whelan call it that, but turn it into an ideological “-ism”: transnationalism).

There will be plenty to say in the coming days on the specific substantive points of the debate. For now, I just was struck by this observation that arguments that “international law is part of our law” (to quote the Supreme Court) are being spun by the punditocracy to seem radical and against our Constitutional traditions.

However, in regards to the Koh nomination, I am heartened by the push-back in the blogosphere (such as: 1, 2, 3, 4, 5, 6, 7), by conservative students at Yale, and also by prominent officials from across party lines. A few days ago, Ted Olson defended Koh from the right-wing criticism. A letter in support of the Koh nomination that has been recently delivered to the Senate Foreign Relations Committee includes signatories such as former Republican State Department Legal Advisers John Bellinger, William Taft, and Davis Robinson as well as former Democratic Legal Advisers David Andrews, Conrad Harper, Roberts Owen and Herbert Hansell. If I had to throw in my lot with Glenn Beck and Ed Whelan or with this list of signatories, I would choose the latter. (And I did, and signed the letter of endorsement as well.)

I hope Glenn Beck doesn’t start crying again.

[Note: post slightly updated to include some more links.]


5 Responses

  1. Is it perhaps better to conceptualize the fight about Koh as between those who believe that the U.S. can be bound by international law only through its consent vs. those who believe the U.S. can be bound through, to borrow a phrase from Prof. Helfer, non-consensual lawmaking?

  2. I would be delighted if the fight were, as Mr Dream wonders, about whether the customs of other nations and the tut-tutting of high-minded professors are the law of the land in the United States. It’s an honest and important question.

    But the arguments against Koh range from the silly to the shamelessly dishonest.

    On the other hand, portraying the arguments as “fear’ is equally silly and dishonest — an ugly form of the ad hominem fallacy.

  3. To International Lawyer: Have you watched Glenn Beck’s pieces on Koh?  Saying that he wants to use shari’a law in the U.S.? That he wants to abolish Mother’s Day?  Calling that fear mongering is neither silly nor dishonest.  Nor is characterizing an argument an ad hominem.
    By the way, the answer to the question of whether “the customs of other nations” is the “law of the United States” is “no.”  I don’t know of anyone who says it is.

  4. By the way, to expand on my pevious answer, the reason that the short answer is “no” is because “custom” in and of itself is not customary international law.

    And, as for customary international law, the U.S. can either object to an emerging norm of customary international law or, if a norm of customary international law already exists, Congress can overrule domestic application by statute.  

    Too often, people arguing about foreign custom don’t distinguish foreign customs from customary international law.

  5. Chris Borgen said, “I think the point that international law is not an ideology but simply the obligations to which we are bound is a point worthy of emphasis.”

    I like this statement, because I think it illuminates the dispute.  The sentiment/argument expressed in Borgen’s statement is oft-repeated by proponents of International law (“proponents”) and used to parry attacks on IL.  
    To skeptics of International Law (“skeptics”), however, this statement is misdirection at best.  While skeptics do tussle with proponents over what obligation, if any, is owed to a particular type of IL, the more fundamental problem that skeptics have with IL is how IL develops.  Borgen’s statement is an attempt sweep away most debate and assert that IL is merely descriptive.
    The skeptics’ problem with IL is that the manner in which IL develops is fairly undemocratic and much less sensitive to democratic overrides than law in a modern developed democracy.  IL develops through these mostly undemocratic processes and then is foisted upon others with the statement that “IL is.”  And because it “is,” it is a set of obligations, not ideology.  Of course, it is purely by chance that what is now IL just happened to be the ideological preferences of largely undemocratic actors acting through undemocratically accountable processes.   But, that is the brilliance of IL and why skeptics despise it. 
    The proponents control (or heavily influence) both how a policy becomes IL and what policies become IL. And, with that the undemocratically propounded policy moves beyond ideology to simply an obligation, devoid of ideology and just “is.” 
    I think not. 

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