Catherine Powell at HuffPo on Koh and Customary International Law

by Chris Borgen

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.

5 Responses

  1. 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 – against the legal implementation of the new policy.  On top of which are the federalism issues.

    So, to say that the Law of Nations has always held the status of common law ignores the substantive distinction between traditional CIL concerns, such as diplomatic immunity, and modern human rights CIL concerns, such as state funding of daycare.  And to say that the democratic deficit is satisfied by the potential for a congressional overide is to ignore that in a democracy the weight of legislative inertia properly leans against the proponents of a new law or policy.

    Powell’s defense of Koh is disappointing.  In fact, I don’t see any of Koh’s defenders meaningfully addressing the human rights CIL concerns, rather than implying that CIL today is only about things like diplomatic immunity.  I don’t seen anyone seriously disputing that, if CIL operated in the US as Koh seems to want, domestic policy concerns would be implicated.  And I don’t see anyone publicly defending these implications of Koh’s views on the merits.

    Altogether this is very disappointing.  Are Koh’s defenders afraid of an open public acknowledgement of what his views would mean if they prevailed?

  2. 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 commands nothing like the requisite number of states acting out of a sense of legal obligation to be a candidate for CIL status in the foreseeable future.
    Now consider the relationship of CIL and democracy.  As Powell points out, US policymakers in both the Executive and Legislative branches help shape the nation’s participation in evolving CIL norms through their considered policies.  But CIL is also democratic in another sense that Powell doesn’t mention.  Under the “persistent timely objector” doctrine, a state may opt out of an evolving CIL norm by so stating publicly and consistently – not a demanding requirement, especially considering the few fundamental rights that have a genuine prospect of commanding an overwhelming majority of the some 190 nations in the world.  To be clear, this doctrine cannot be used to trump jus cogens norms such as torture or slavery, but then under bedrock international law principles (see the Vienna Convention on the Law of Treaties), neither can treaties.  In the end, the US as any other nation participates in the formation in CIL both actively, through its affirmative recognition of rights, and passively, by not opting out by objecting to rights that the rest of the world is obviously adopting.
    Nor was the law of nations exclusively concerned with the relationship between nations states as opposed to how nations treated individuals.  To take one example, in Brown v. United States 8 Cranch 110 (1814), Chief Justice Marshall considered whether the President could seize goods from British enemy aliens resident in the United States pursuant to a declaration of war against the UK.  The Court held such a seizure could not be deemed authorized.  Why?  It violated the law of nations.  Individual rights were similarly at stake in the famous case of the Pacquete Habana 175 U.S. 677 (1900), which held that customary international law is part of “our law.”  It is of course true that since World War III, international law in general has greatly eroded sovereignty in the name of international human rights.  Given that the development was a response to such atrocities as the Holocaust, and given further that it has played no small part in the fall of authoritarian regimes right and left, this would seem to be a development to be welcomed more than derided.
    So there you have it.  Human Rights under CIL are few and compelling.  They have a double democratic pedigree.  And they have historical roots that go back centuries.  Nor does any of these points speak to the status that CIL has in the US.  Here the mainstream answer, adhered to by both conservative and liberal justices, as well as Republican and Democratic administrations, is that Federal courts may use their common lawmaking power under Article III to fashion rules derived from those few standards that command something close to an international consensus.
    In adhering to these doctrines, Harold Koh is simply not the agent of dark international forces bent on forcing upon the US the scourge of funded daycare.  Rather, his support of CIL reflects a tradition that includes Alexander Hamilton, John Marshall, John Marshall Harlan (grandson), and Byron White.  If Harold Koh is not supremely qualified, judicious, rigorous, and moderate enough to be the Legal Advisor to the State Department, then – quite simply – no one is.  

  3. Correction and apologies for the typo with regard to Nathan Wagner’s name.

  4. 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 power previously within the sovereign domestic democratic prerogative will be transferred to international entities and to the courts.  Not to worry says Mr. Flaherty:

    “[T]he mainstream view is that the list of fundamental rights that have clearly met the requirements of generality and opinion juris [necessary to become CIL] are few and compelling.”

    Well and good, but is this Koh’s view?  When responding to Bradley and Goldsmith’s objections on the potential breadth of intrusion modern human rights CIL seems poised to make into traditional domestic political prerogatives, Koh did not deny the breath of modern CIL but rather defended the process of judicial lawmaking and disparaged legislative democracy:

    “Bradley and Goldsmith nowhere explain why explicit federal legislation – a process notoriously dominated by committees, strong-willed individiuals, collective action problesm, and private rent-seeking – is invariabley more democratic than the judge-driven process they criticize.”

    Need it really be explained that the political legislative process is democratic, whereas “the judge-driven process” is not, because in the political legislative process the actors who collectively have the power to make law represent portions of the polity that they have faced in elections and must soon face again?  For all its flaws, that and only that is representative democracy.

    Mr. Flaherty’s “persistent timely objector” doctrine is at best a feeble democratic veto over law already made, not the democratic legislative power itself. 

    Mr. Flaherty mocks “the scourge of funded daycare” as if to say the issue is too mundane for anyone to worry too much about who gets to make the law surrounding it.  But the very mundanity of the matter is point: it demonstrates the depth of the potential intrusion into domestic democratic sovereignty.  Human rights law that makes into an international matter something so mundane has departed far from the limited set of moral outrages previously thought to justify international intervention in a nation’s domestic affairs. 

    Every member of the UN save the United States and Somalia has ratified the Convention on the Rights of the Child.  Mr. Flaherty, are you really prepared to assure me that the convention is nowhere near attaining the status of CIL?  That similar conventions are nowhere near becoming CIL? Are you prepared to assure me that Dean Koh shares your views as to the limited scope of human rights CIL?

    If you can do so convincingly, then I’ll withdraw my disappointment in Koh’s defenders.  But if not, then I’ll continue to  be disappointed that the most substantive objection against Koh’s views – their potential implications for American democractic sovereignty – has not been meaningfully acknowledged by his defenders.

  5. 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.

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