The Non-Contest Over Koh: Sovereigntism’s Last Stand?

by Peter Spiro

For a while there, it looked as if there might be a real fight over Harold Koh’s nomination as State Department Legal Adviser. The Republicans have been casting about for a nomination that they could defeat on some issue of principle (that is, over something not involving a nominee’s tax returns), along the lines of Lani Guinier’s failed nomination to the Clinton Justice Department. It might also be useful for them to pick up a rallying call. Anti-internationalism has looked pretty promising. As fringe elements started taking shots at Koh, it looked like they might get some traction with more mainstream voices.

Not to be. Yesterday’s hearing wasn’t exactly a love fest, but the gloves were on. Further evidence that his confirmation is assured: there appears to have been no major media coverage of the hearing. Harold Koh will be the next legal adviser.

Beyond the fact that Koh supporters put together an effective response to blogosphere detractors, and that Koh has ideal qualifications for the position (then again, so did Guinier), there are two explanations for his sailing through.

The first is that he’s not really a transnationalist, “transnational legal process” notwithstanding. Efforts to paint Koh as someone who believes in the primacy of international law (in the sense of trumping US law) failed for the simple reason that he doesn’t. Koh buys into American exceptionalism, the good version in which the United States should stand at the head of the human-rights-advancing pack. Anyone who has heard him speak of his family history (including in his opening statement to the committee) will know that he is patriotic, in the way of a liberal nationalist. Koh’s positions are hardly radical. (He did a really nice job in his testimony of playing up “cooperation,” “interdependence,” and “managing” the relationship between US and international law.) On this view, Koh just wasn’t the right target for a sovereigntist ambush.

On the other hand, if Koh wasn’t the right target, then nobody is. No nominee will ever acknowledge the superiority of international law in that trumping sense. Koh is (obviously) favorably disposed to international law. In a response to Senator Corker, Koh forthrightly asserted that the US has been “lawless” in the sense of having “fallen below international standards” with respect for example to detainee treatment and the invasion of Iraq. That might seem an obvious characterization to many of us, but it takes some guts for a prospective high-level official to go there; I’m sure for Corker and other red-meat Americans the proposition just doesn’t compute. If the sovereigntists couldn’t muster the troops for this one, then they don’t comprise a very potent political force.

So what’s the upshot, beyond the confirmation? Maybe Obama will be a little more inclined to push on various IL-related fronts, law of the sea, the women’s and children’s conventions, and the ICC (with Koh as legal adviser leading the charge), on the probability that they’ll require less in the way of political capital. Maybe the Supreme Court will get back on its internationalist tracks. As some conservative elements begin to see IL as a valuable tool for advancing their own agenda, anti-internationalism won’t even work as a unifying agenda item within the rump Republican party. Maybe we’ll witness Bricker’s final interment and a shift in the political culture towards broad support for international law and institutions.

13 Responses

  1. Response…Harold Koh was the best possible candidate in the United States to be the Legal Adviser.  Indeed, he is considerably overqualified for the position.  It is a tribute to his patriotism that he agreed to take the position.  Nowadays most US Senators are careful not to waste time on efforts that are unlikely to succeed.  Given the political makeup of the Senate and the enormous respect for Koh among practitioners, policymakers, the media, and academia, an effort to stall or oppose this nomination was unlikely to gain traction.  I was pleased to see how smoothly the confirmation hearing went and hope that the Senate will soon consent to the nomination.

  2. I’ve enjoyed Opinio Juris’s coverage of Koh’s nomination very much. I also thought Duncan’s and Chris’s op-ed (covered in an earlier post) was nicely done.

    Peter, as to this post, I share your views on the nomination.  I also agree with your concluding suggestion that support for international law and its institutions benefit both the right and the left of the U.S. political spectrum.  Yet, I would not equate international law with transnational law. Many sovereigntists and conservative pundits lump the two together.  But that seems a mistake. There seems to be important differences. And the value of transnational law — which I agree was not really at issue in the Koh nomination — may well be worth debating.

    If Sovereigntists are opposed to international law, I agree that it’s unlikely that they will, over the long-term, muster much support.  The world has global challenges. The world will attempt to address many of them, with or without the U.S.  The issue is whether the U.S. wants to be a part of developing that international law or not.  I suspect it’s much better for the U.S. over the long-term to have a hand in developing international law through supporting and developing those international treaties and institutions which support American interests. In many ways, history has shown that international law preserves and sustains American ideals, and projects those ideals globally. International law seems often a way to reclaim national sovereignty, not to undermine it.

    I take transnational law to be something different.  Although perhaps not what Koh’s critics have it mind, I would view transnational law as where the lines between the domestic and the international blur. Transnational law seems focused on the actions of domestic, nonstate actors and their attempts to address global challenges.  When I think of transnational law, I do not think of international treaties or even customary international law, but rather the acts of domestic actors and domestic courts, exercising universal jurisdiction or applying extraterritorial domestic laws, in an attempt to exert international influence.  That sort of transnational law seems much more troubling, and its value worth debating.  Viewed in this light, transnational law is not a threat to American sovereignty because it reflects international principles; it is a threat to American sovereignty because it allows international law to develop in the domestic courts of other countries.

    In some ways then, transnationalism seems a threat to international law.  That is not to attack the descriptive aspects of Koh’s transnational legal process as an explanatory tool for why nations obey international law. But it is to question whether all aspects of transnationalism should be embraced. Said differently, I would not be concerned that transnational law subordinates American national interests to perceived global interests (as Koh’s critics suggested).  It’s hardly an attack on U.S. sovereignty when U.S. actors choose to cite or use international law when it reflects U.S. values. The concern should be that transnational law — if embraced globally as a better way than international law to solve international challenges — subordinates global interests to various national and sub-state interests, some of which may not reflect our values.

    Perhaps you agree?  In any case, thanks for the interesting posts.

  3. As the world gets a little smaller, it wouldn’t be a bad thing to cooperate with the laws in other countries a little more. 

  4. I wonder if Ed Whelan will apologize for his shameless fearmongering when Koh’s term is over and our laws somehow survived intact.

  5. Austen, thanks for the thoughtful comment.  I agree that transnational law can be distinguished from international law along the lines you suggest.  As I say, Koh is not genuinely a transnationalist, at least not in these terms.  This came through very clearly in his testimony, which hewed to a national interests baseline.  He even turned “sovereignty” around to his advantage, in the way that you suggest.

    But I’m not sure that I’m board with your implication a) genuinely transnational law is undemocratic and b) that it can somehow be stopped through action of the policymakers.  As for the former, transnational law is the product of many forces, including national and substate ones.  Some of these inputs may be more democratic/representative than states, some less. 

    As for the latter, precisely because transnational law is happening outside traditional central governmental channels they are to some extent uncontrollable.  What the Obama administration does can affect the course of transnational law but it can’t put a lid on it.  The Bush administration supplied the ideal control test for that — if they couldn’t resist IL than nobody can.  So the battlefield is sprawling: the turf of a confirmation episode is only a minute part of the landscape.  But if the sovereigntists can’t even deliver there, it’s evidence that they are hardly in a position to deliver on the many other fronts that transnational law is insinuating itself.

  6. With respect, I think the policy battles over the proper relation of international law to US democratic sovereignty have hardly begun.  Though Koh’s more absurd adversaries eschewed substantive critique and smeared him as ready to incorporate sharia into US law, his academic supporters have scarcely been more direct: by avoiding acknowledgment, much less defense, of his more controversial views, and by choosing to portray his transnationalism as merely descriptive theory or old hat commonsense, they certainly give the impression that they are afraid to defend these views before the general public.  And if you are afraid of public reaction to an open statement of your positions, you haven’t won.

    It’s hardly surprising that the public did not “come out”: the issues in question are still largely theoretical and have not really touched everyday life or laid too visible fetters on American action – yet.  But should IL begin to interfere with popular preference in some tangible way, and especially should it do so by court decision, then it is a good bet that US public opinion will be aroused.  Bricker had his moment  largely because a number of courts had applied the UN charter as domestic law.

    But even outside questions of public opinion, conflicts are likely to continue because the structure of American representative democracy is somewhat ill suited to interface with the expansive scope of modern international law.  Federalism, stronger in the US than elsewhere, tends to limit the power of the US government to implement treaties to which it assents.  Bicameralism is one of the reasons for the American habit of ratifying treaties subject to the understanding that they are not self-executing.

    I wish the debate would have focused more on the actual points of contention.  Let’s attempt to list a few of them.  As concerns the relation of international law to democratic sovereignty, we can perhaps distinguish three types of IL:

    Type A International Law – Concerns affairs between nations such as war, blockade, arms agreements, tariffs, sanctions, diplomatic immunity, protocol, and admiralty law, namely, matters not affecting a nation’s internal affairs other than incidentally.

    Type B International Law – Forbids to states the authority to commit gross moral outrages such as genocide, even if only against their own citizens or subjects, and grants to external powers (usually multinational) a prerogative of legal or physical intervention in such cases.

    Type C International Law – Limits agricultural and industrial subsidies, regulates standards of manufacture, curbs emissions affecting the environment, and – especially – creates an obligation for states to recognize human rights (or grants such rights to the people directly), etc.

    The US Constitution may be said to assume IL is limited to type A.  Types B and C can be awkward to implement in the American system, but type B is distinguishable from type C because its focus is relatively narrow, its support is broad-based, and its invocation is (thankfully) rarely necessary.

    Here, then, are a number of the substantive points of contention:

    -Whether the US can ratify a treaty with the understanding that it is not self-executing (essentially whether American courts should respect such a reservation)

    -Whether US reservations limiting the interpretation of provisions of a treaty have domestic legal effect in the face of the consensus of other signatories for a contrary interpretation

    -Whether the US may or ought to ratify treaties with the now traditional reservation recognizing the limitations of the federal system

    -Whether the US government may accrue powers pursuant to type C IL implementation where such powers traditionally reside with the states

    -Whether type B and (especially) type C customary international law is federal common law

    -Whether provisions of a treaty to which the US has objected in reservations attached to the ratification may nevertheless come to hold domestic force as CIL

    These a few of the more serious points of disagreement. One can hardly argue that they do not have meaningful implications for US democratic sovereignty – not in the crass we-want-to-prentend-IL-doesn’t-exist sort of way, but on the legitimate concern that they make an end-around of US democratic consent as constitutionally structured.  Current caselaw is frequently against the transnationalist position.  But on all of these questions, Dean Koh, at least in his academic writings, appears inclined to resolve things in favor of international law, global authorities, or (seeming) foreign consensus – and against US representative democracy. 

    Ulimately, were Koh’s academic views to prevail, significant legislative power would be transferred from US representative legislatures to international bodies and (especially) to the courts.  I doubt, should this become evident by implementation, that the American public will remain unconcerned.

  7. Response…i am not a lawyer and only vaguely understand the nuances of the arguments pro and con that are put forth here. but this brief excerpt from the newsweek article concerns me:“In his writings, Koh has campaigned to expand some rights guaranteed by the U.S. Constitution—and perhaps shrink some others, including the First Amendment’s guarantee of free speech—to better conform to the laws of other nations.”

  8. “he is patriotic, in the way of a liberal nationalist. Koh’s positions are hardly radical”

    In other words, he lied.

    You know, kind of like Holder lied. And Obama lied.

    Or maybe they just changed their minds. Whatever.

    If the point is to give them a pass, then please don’t pretend that you’re having great luck jerking us around. Just give these people a pass and let’s all go have several beers.

    We’re so screwed.

  9. I wonder why “South Florida Lawyers” has accused me of  “shameless fearmongering” without mustering a single alleged example.  I wonder why none of Koh’s defenders have actually engaged my detailed arguments.

  10. I’ve been practicing law for 27 years and IMHO, Prof. Koh, notwithstanding his obvious brilliance and sterling resume, is a terrible choice for this position.  In his written responses to one Senator’s questions, he failed to register even the slightest objection to the prospect of foreign Governments choosing to influence American foreign policy by asserting the power to try criminally current and or former American Government officials for their conduct while in office.  It may be that Prof. Koh thinks the development and recognition of such “universal jurisdiction,” removed from the unpleasant necessity of negotiating treaties that are approved by the Governments willing to be bound thereby, will lead to a better world.  In my opinion, his failure to assert American sovereignty, power and independence against the claims of  foreign powers indicates his unfitness for the job as chief legal advisor to the State Department. 

  11. I don’t see the issues here gaining any significant traction until they are attached to compelling  constitutional specifics.  “International Law” is an elastic concept, embraced in the public domain largely by those for whom an equally vague internationalism holds political and emotional appeal.  The legal nature and practical implications of sovereignty barely cross the public radar — although the appearance of movements aimed at state sovereignty amendments is an interesting, and potentially useful, phenomenon in that regard.
    The real battle will, hopefully, commence when it comes to issues like signing on to the ICC.  Can executive and legislature commit us to international jurisprudence which requires ceding U.S. citizens’ constitutional protections?  Are we willing to submit ourselves, and our own adversarial system, to a court which can expand its own purview, which is unchecked and unbalanced by any other entity, and from which there is no recourse or appeal?  
    So too, the issue of conforming U.S. law to international norms posed in constitutional particulars, as richard monahan’s comment above suggests, is more fertile ground for public disputation than the putative cost/benefits of esoteric transnationalism.
    Until such questions can be posed in terms of easily understood, alarming, hypotheticals, this conversation will not extend beyond the sphere of academics and specialiist practitioners.  When you can juxtapose distinctive features of international law to our own and communicate the essentials of sovereignty at risk in under 700 words, you may finally be able to make public, and thus legislative, headway.  It is critically important to keep that political objective in mind. I only wish I had the expertise to undertake achieving it myself.

  12. Thanks for the response, Peter.  I share your view that Koh does not necessarily embrace a strong form of transnationalism with his transnational legal process.

    I don’t think all instances of transnational law is undemocratic, just that, on balance, transnational law poses a greater risk to democratic sovereignty than international law over the long haul. I also agree that it can’t be stopped.  There’s too many actors and forces in play, as you say. 

    But I do believe that commentators from both the right and the left of the political spectrum have spurred the move towards transnationalism.  A greater willingness to use international law and institutions when, in the long-term, the international law and institutions benefit the U.S., might well retard and take the pressure off of groups viewing international challenges as best solved through transnational (rather than international) processes. 

    It’s more then a point of emphasis, and what policymakers should view as the primary tool for solving global challenges. I tend to believe international law — in the long-term — serves American interests better. 

    Thanks for the nice exchange. I suspect there will more to discuss at the SHAFR conference this summer.  I see we’re on the same panel and I’m looking forward to it.

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