The Difference Between Foreign and International Law: A Very Short Response to Kevin

by Julian Ku

It’s good to be back battling with my fellow co-bloggers.  I still owe Chris and Deborah a response on other matters, but let me just briefly respond to Kevin’s smart but still not entirely convincing post.  It’s not that I have any serious rebuttal of Kevin’s legal analysis of the Honduras Constitution (and I apologize for my boo-boo on the Law Library of Congress vs. the CRS).  Rather, the point of my post on Koh was that the Honduran constitutional legal question is pretty central – indeed, it might be absolutely central — to U.S. policy.  If the removal of Zelaya was even arguably legal, it is hard to understand why the U.S. and the OAS are taking such an aggressively interventionist approach, given that new elections are going to be held in December and especially given the Obama Administration’s relative insouciance on much less obviously legal elections going on in Iran and Afghanistan.

In any event, I agree with Kevin that the removal of Zelaya was not obviously legal, but I am unconvinced by his post that it was totally illegal.  And I think that the burden is on folks like Kevin (and Koh, for that matter), to present a slam-dunk case for the illegality of the Zelaya removal.  Why?  Because, as Kevin points out, the key domestic institutions in Honduras, including the Honduras Supreme Court, have deemed the removal legal.  This is more than just a formal point:  It’s legal because the Honduras Supreme Court says it is.  But it is also a basic conflict of laws/ comity/ act of state point.  When analyzing foreign law, due deference should be given to those foreign legal institutions that are authorized to issue binding and authoritative interpretations of that law.  Such deference is not absolute, but it should be very strong on matters where the institutions are opining on a matter that occurring entirely within their jurisdiction and does not even arguably violate international law.

Which is why I am fascinated with the yet-to-be-disclosed Koh opinion.  He may spin out the same argument that Kevin does, but he has got to meet a much higher standard.  In my view, the opinion has to show that the removal was clearly, plainly, and unmistakeably illegal under Honduras law.  It better be one hell of an opinion.

5 Responses

  1. “If the removal of Zelaya was even arguably legal, it is hard to understand why the U.S. and the OAS are taking such an aggressively interventionist approach”

    I think I can offer some insight on that.

    First of all, in pure legal terms, I think that if in absence of a formal constitutional impeachment mechanism the Supreme Court can invent one where Zelaya is removed from the country in his pajamas by armed military and without any trial, a fortiori, it could have also invented a formal impeachment mechanism where Zelaya is accused, taken to court, sentenced after careful legal analisys, disposed of his authority as President and escorted home by policemen. The actual process that took place just reeked of a coup.

    And this means that politically, the Honduran situation touched a nerve with Latin American soceties used to coups and revolutionary juntas. So after over a decade without military coups in the region, everybody just reacted in a very decided manner at even the slightest hint of ilegallity.

    So in reality, the logic for Latin American leaders would be exactly the opposite: Coups have been such a danger here that “If the removal of Zelaya was even arguably illegal, it is easy to understand why the OAS is taking such an aggressively interventionist approach”. And if Obama wants to restart relations with Latin America (as he said so in Trinidad and Tobago) he has to be able to send a signal that he is not “like other US Presidents”, who historically have been more worried in political convenience than legal correctedness in their relations with the region. Hence in my opinion this is more of a credibility test for Obama before Latin Leaders after his Port of Spain Speech than it is the consequence of a sound legal analysis by Harold Koh.

  2. I am afraid that Prof.  Ku is mistaken on a couple of points.  First, foreign law is sometimes international law.  For example, the American Convention on Human Rights (to which Honduras is a party) expressly guarantees some national constitutional rights (e.g., rights to liberty and judicial protection).  Therefore, the Inter-American Court of Human Rights does not have to give much deference to the Honduran Supreme Court’s interpretation of Honduran law because the IACtHR’s has independent authority (viz., ACHR) to interpret provisions of the ACHR, which includes national constitutionally guaranteed rights.  Second, it appears that the Honduran Constitution does not give the Honduran Supreme Court conclusive authority over the interpretation of Honduran law.  The Constitution only gives final authority to the Honduran Supreme Court, but the Honduran Constitution also incorporates the ACHR, which also gives the IACtHR final authority.

  3. I don’t really follow the link from a possible breach of Zelaya’s personal rights under the ACHR to any justiciable claim of a breach of his constitutional rights qua President..?

    I agree that it would be a step forward if he was released, but that has nothing to do with reinstatement.

  4. My posting was intended to correct Prof. Ku’s general points about national law not being international law and the appropriate level of deference given to international courts regarding their interpretation of national law.
    However, to answer delenda est’s question, article 25 of the ACHR guarantees Zelaya the right to judicial protection of his right under Honduran law to not be removed from presidential office except by the Honduran Supreme Court (see art. 316(2), Honduran Const.). He was not afforded such protection.

  5. re: AGD

    I think few argue that, as a legal matter, Zelaya’s expatriation was most questionable, and most likely illegal. But the remedy for his expulsion from the country should be congruent with the harm; meaning, a return to Honduras, not a return to the presidency. In fact, that seems to be the biggest point of contention: Honduras seems willing to let Zelaya in their country (unhappily, no doubt), but he will be subject to trial and conviction—which neither Zelaya, his allies nor the United States are willing to accept.

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