Catherine Powell at HuffPo on Koh and Customary International Law
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.