13 Apr Catherine Powell at HuffPo on Koh and Customary International Law
Catherine Powell has an essay at Huffington Post responding to those criticizing Harold Koh for his views on customary international law. She writes:
Harold Koh’s position that customary international law is a form of federal common law reflects the conventional view since the founding of the nation. For over 200 years, Congress, the courts, and the Executive Branch have recognized that each branch has authority to observe customary international law (or, the law of nations) as part of federal law. Such customary norms include basic rules governing international business transactions, forms of immunity, and the treatment of POWs. They are well-established norms that are so widely shared that they attain the status of custom.
Courts perform common law adjudication simply to resolve ambiguities or gaps in the law. In the area of international law, this federal common law making power has survived over the years because customary international law involves unique and distinctive national foreign policy interests, including the United States’ relationships with other nations, which, of course, is reserved to the federal government.
A little further on, she responds to the concern that customary international law is anti-democratic:
Indeed, customary international law bears the hallmark of democratic legitimacy. The U.S. is a key participant in the consensus-building process inherent in the creation of customary norms. Thus, these legal norms are fashioned with the input of U.S. elected and appointed officials, who represent and answer to their constituents at home. As Dean Koh acknowledges, Congress may override a customary international law norm where Congress’s intent is clear, thereby addressing any concern regarding democratic oversight.
Across party lines, the Executive Branch has provided ongoing support for this time-honored conception of customary international law. During the Nixon Administration, the Carter Administration, and the Clinton Administration, the United States has filed amicus briefs embracing the bi-partisan perspective that customary international law is enforceable federal law. This well-established formulation of customary international law has shaped judicial precedent and federal policy since our nation’s founding. While one of the torture memos issued under George W. Bush called some of these basic tenants into question, this memo was later repudiated even by the Bush Administration.
This should give you a sense how far outside the mainstream Koh’s critics are!
Indeed, during his time in office, President Bush’s own Legal Advisor, John Bellinger, embraced the more conventional view shared by Dean Koh.
Her whole post is well worth the read.
Catherine Powell does not meaningfully address, and I have not really seen anyone address, what the prime concern about modern CIL is – that in its ever-expanding human rights manifestations it threatens to intrude on questions traditionally seen as wholly within the domestic prerogative, to do so on questions not having the moral weight of (for example) genocide that might justify such an intrusion, and to do so absent ordinary democratic consent. The UN Convention on the Rights of the Child, for example, can easily be read to require state funding of daycare (Article 18). Surely the question of whether to do this is properly left to political democratic processes. But if the Convention becomes CIL binding in the US as federal common law even absent ratification, or binding even if ratified with a non self-executing reservation – positions Koh takes concerning CIL – then the states could be required to fund daycare unless given dispensation by a specific federal law to the contrary. To say, as Powell does, that democracy is satisfied because Congress could override CIL ignores the fact that this places the weight of legislative inertia against such an override, instead of where it democratically belongs –… Read more »
Contrary to Nathan Waggoner’s response to Catherine Powell, striking in the curious assaults on Harold Koh is the unwillingness of his critics not just to accurately characterize Dean Koh’s views, but their rush to portray these views in an exaggerated fashion. As witness Kenneth Starr’s endorsement of Koh’s nomination, happily there are conservative lawyers and legal scholars for whom rigor and fair-mindedness matter more than ideology. Take the various claims with regard to the customary international law of human rights. Mischaracterizations notwithstanding, the mainstream view is that the list of fundamental rights that have clearly met the requirements of generality and opinion juris are few and compelling. Section 702 of the Restatement (Third) of the Foreign Relations Law of the United States, whose principal reporter was no less a human rights advocate than Louis Henkin, lists such norms as: genocide, slavery, torture and cruel and inhuman treatment, apartheid, prolonged arbitrary detention, and extra-judicial murder. This is hardly a list to strike fear into any concerned about domestic sovereignty, except perhaps those running a dictatorial, fascist, communist, or otherwise authoritarian regime. By contrast, funded daycare, which Mr. Waggoner derives from a treaty rather than by directly engaging CIL analysis, simply… Read more »
Correction and apologies for the typo with regard to Nathan Wagner’s name.
Thanks to Martin Flaherty for his substantive reply. Mr. Flaherty suggests, as do most of Koh’s defenders, that modern human rights CIL is of a piece with the law of nations recognized as law throughout US history. But the two cases he cites as “individual rights” cases do not prove the point. Both Brown v. United States and Pacquete Habana dealt with the validity of wartime seizures of the property of enemy nationals in the absence of congressional authorization. They are fundamentally law of war cases, not individual rights cases – they do not impose an international obligation on a state to recognize its own citizens’ title to particular rights or priviledges – and therefore they are fundamentally different from modern human rights treaties and human rights CIL. This difference denies Koh legitimate claim to follow the “tradition [of recognizing CIL] that includes Alexander Hamilton, John Marshall, John Marshall Harlan (grandson), and Byron White” – for the first two would have found wholly unrecognizable the scope of authority Koh appears to claim for CIL. And this brings us to the crux of the matter. Those opposed to Koh’s CIL views fear that, if they prevail, vast swaths of lawmaking… Read more »
By way of clarification to my horribly typo-filled comment above, let me add this.
Martin Flaherty argues something I have seen none of the other defenders of Koh’s views argue: that Koh adheres to a fairly narrow conception of the scope of human rights CIL. If this is true, then it should settle the debate. If human rights CIL as understood by Koh really is limited to prohibiting moral outrages such as “genocide, slavery, torture and cruel and inhuman treatment, apartheid, prolonged arbitrary detention, and extra-judicial murder,” then there is no material risk of infringement of American democratic sovereignty, and Koh’s opponents really don’t have a case against him on the CIL issue.
More to the point of my original comment, if the above is true, then Koh’s defenders are not evading public acknowledgment and defense of positions that, if generally adopted, would meaningfully infringe democratic sovereignty.
What I have seen of the evidence so far, however, suggests that Koh’s views are much more expansive.