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