John Kyl, Douglas Feith, and John Fonte have this offering in the July/August edition of Foreign Affairs. It’s a strong restatement of the sovereigntist position on the incorporation of international law from a powerful trio – Kyl, the sovereigntist legislator par excellence; Feith, the veteran executive branch point-man; and Fonte, the house intellectual. But the piece feels tired from the title (“The War of Law”) on down.
If there’s anything new, it’s in a more explicit rhetorical acknowledgement that international law isn’t all bad, to the extent it supplies “useful rules of the road” (an “accommodationist” move also made by Julian Ku and John Yoo in their recent book Taming Globalization). Beyond that, the anti-internationalist tone plays along familiar chords. Though the piece concedes that treaties can sometimes become part of domestic law (“After all, the U.S. Constitution specifies that treaties, together with the Constitution itself and federal statutes, are ‘the supreme law of the land’”), it doesn’t cite a single specific example of a “good” one.
The UN treaty committees are now clearly on the sovereigntist threat list (mandating day care in Slovenia!). Down with universal jurisdiction (Dick Cheney in a foreign dock)! “[T]he transnational law movement is creative, determined, and championed by prestigious figures. It has already altered the legal landscape and could inflict further harm on federalism and democratic accountability.” Cue attack on Harold Koh as ringleader.
Customary international law remains the prime target, in its “new” and “instant” versions, as incorporated not only by activist judges but also by the transnationalist Obama Administration (taken particularly to task for accepting the CIL status of Additional Protocol I). The piece calls on Congress to “counter this affront to the Constitution” with new legislation that “could help ensure that there are authoritative, proper, and constitutional means in place to incorporate new norms or new customary international law into U.S. law.”
I don’t see that bill getting very far (how would it be framed?). The proposal shows a nagging insecurity among the sovereigntists. At one level, what have they got to worry about? If a disabled rights convention can’t get through the Senate, nothing can. Contrary to the activist judge trope, the Supreme Court is resisting international law at every turn.
But international law is more insinuating than that. Chapter 3 of Katerina Linos’ book on policy diffusion, the subject of our excellent symposium this week, supplies some interesting support: even — perhaps especially — Republicans are more inclined to support policies endorsed by the United Nations. That points to a socio-cultural shift on international law, one that sovereigntists are powerless to stop.