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The Foreign Law Debate: What's At Stake? Part I.

Now that Harold Koh is on his way to confirmation, it may be possible to discuss why some people (not me) opposed his appointment while others pooh-poohed their objections and accused Koh's critics of ad hominem attacks. The foreign law debate is, in fact, an important one, with much at stake, and it deserves a better airing than it has received in the blogosphere so far. This is the first of two posts that will discuss the debate.

First, a word about Koh himself and vocabulary. Koh has called his own work "transnational legal process;" his opponents have therefore called him a "transnationalist." Peter Spiro has given the equally ugly label, "sovereigntist," to people on the other side. (Koh himself has called them "nationalists," which of course has ugly connotations.) None of these labels are any good. Koh's own work hardly exhausts or even represents well the pro-foreign law position, as I will call it (also not a good label but at least lacking pejorative overtones). Most people who take this position don't refer to themselves as transnationalists, and disagree with each other about many particulars. What is true is that two clusters of positions have emerged on either side of a divide over the question how much American law, and in particular, American judicial decisionmaking, should be influenced by foreign and international legal norms. Because of Koh's nomination to the state department, he has become a symbol of the pro-foreign law position, which he has enthusiastically celebrated throughout his career.

The current debate addresses four issues. The first concerns the extent to which American courts should "incorporate" international legal norms into domestic (non-constitutional) law. The pro-foreign law position is that courts should interpret ambiguous statutes so as to conform with international law (as reflected in the Charming Betsy doctrine, but more systematically than courts have willing to do so far); incorporate customary international law into federal common law; presume that treaties are self-executing (a part of domestic law) and are judicially enforceable; refrain from deferring to executive branch interpretations of international law; and stop ducking international law disputes on justiciability grounds. Together, these and other positions would make it easier for the political branches to create domestically enforceable international law, or (put differently) harder for those branches to avoid doing so when acting in the area of foreign relations, and harder for them to violate international law when they might otherwise want to. The skeptics prefer more limited interpretations of these doctrines and greater deference to the executive branch.

The second issue concerns the degree to which the United States should throw itself into the project of "advancing" international law and international institutions. The pro-foreign law people want the United States to enter treaties and institutions even when there may be doubts as to whether they serve U.S. interests in a narrowly defined way. They want the United States to use and support international courts like the International Criminal Court and the International Court of Justice even though skeptics point out ways that these institutions could make and, in the second case, have made trouble for American interests. The foreign law people lament the American tendency to pick and choose among multilateral treaties, and to qualify U.S. commitments with reservations, understandings, and declarations—when much of the rest of the world is less discriminating (and skeptics would say, less likely to take their commitments seriously). For the supporters of the foreign law position, American leadership on these issues will advance the (somewhat ill-defined) international rule of law, the idea that power and violence in foreign relations can be replaced with reason and argument. For skeptics, this is utopianism.

The third issue concerns one particular statute, the Alien Tort Statute, which gives federal courts jurisdiction to hear tort cases brought by aliens against violators of international law. These cases have been brought by victims of human rights abuses against security agents, former heads of state, and multinational corporations—virtually all of them involving foreigners and actions that occur on foreign territory. Many ATS cases are symbolic but the cases brought against corporations have put money at stake. Skeptics believe that these cases interfere with American foreign policy which, in the hands of presidents of both parties, has always been far more pragmatic, willing to deal with, rather than impose sanctions on, dictators and those who do business with them.

The fourth issue concerns the use of foreign and international law to interpret the U.S. Constitution. It is this issue that has received the most public attention. In a small number of recent cases, the Supreme Court has ruled that certain American practices—the juvenile death penalty, execution of retarded people—violate the U.S. Constitution, and in the course of making this argument has cited foreign and international law that suggests that most of the rest of the world disapproves of these practices. Skeptics disagree with this jurisprudential approach.

It is wrong to say—as so many bloggers have—that these issues are easy and that Koh's critics are inventing controversies that don't exist. What is true is that, so far, not much has been at stake. The juvenile death penalty did not have many defenders and the foreign and international citations in Supreme Court cases have seemed like window dressing, not drivers of outcomes; few ATS cases lead to money changing hands; and the controversies over statutory interpretation and federal common law are obscure. International institutions like the ICJ and ICC are too weak to pose a threat to American interests. But as is so often the case, relatively minor events can take on huge symbolic importance because they make especially clear or newly salient deep disagreements about principle that divide Americans. The skeptics are less concerned about the particular outcomes that have been reached so far, than what lies at the bottom of the slippery slope—which is where the foreign law advocates, by their own admission, want to take the United States.

Before I get to these disagreements, I also want to address the frequently made claim that "mainstream" legal academics take Koh's side on all these issues. This is partly true, but most mainstream legal thinkers have not contributed to the debate. For many years, the positions on the first three issues hardened as a small number of like-minded people wrote articles agreeing with each other. I don't think there was serious debate about them until Curtis Bradley and Jack Goldsmith published a major article attacking the federal common law view in 1997. On the question of America's role in international institutions, there has been a lively debate among political scientists for decades—just one that law professors never joined. On the issue of constitutional law interpretation, it's wrong to say that this debate has been settled. All of the conservatives who consider themselves originalists, and many others as well, reject the use of foreign and international law for constitutional interpretation; and although originalism remains highly controversial, it can't be simply ignored. The debate on this issue has barely begun. Finally, even if "mainstream" legal academics take a relatively uniform pro-foreign law view, it's far from clear that their view is that of the courts and other "mainstream" American institutions. Indeed, the foreign law advocates have spent a lot of time urging the courts and the executive branch and Congress to take a more positive approach to international law than they have before; Koh has always been explicit that he is an advocate, not a defender of the status quo.

In my next post, I will try to explain why these disagreements exist.

Related Posts (on one page):

  1. The Foreign Law Debate: Part II.
  2. The Foreign Law Debate: What's At Stake? Part I.
Andy Bolen (mail):
"For many years, the positions on the first three issues hardened as a small number of like-minded people wrote articles agreeing with each other."

That's an absolute gem.
6.25.2009 2:32am
martinned (mail) (www):
I mostly agree with this take. Unlike previous posts on Koh by other conspirators, this seems to be a fair analysis of the situation. My one objection is to this one:


The foreign law people lament the American tendency to pick and choose among multilateral treaties, and to qualify U.S. commitments with reservations, understandings, and declarations—when much of the rest of the world is less discriminating (and skeptics would say, less likely to take their commitments seriously).

I'm sure the skeptics would say that, but they would be wrong.

Otherwise, I'd like to direct everyone's attention to a series of posts on OJ from the last few days on this same issue: One by Chris Borgen, one by Laura Dickinson, one by Julian Ku, and another one by Chris Borgen. (Icing on the cake, Duncan Hollis had a post on Monday about Sotomayor and foreign law.)
6.25.2009 6:04am
Brett Bellmore:

The first ... executive branch.


Ok, we know which side you're on, anyway.
6.25.2009 7:13am
Ryan Waxx (mail):

and stop ducking international law disputes on justiciability grounds.


Thought we were trying to avoid loaded labels, here?
6.25.2009 7:17am
Brett Bellmore:
In fairness, when the courts start whining about "judiciability", they generally are ducking an issue, when they probably should be looking at the merits.
6.25.2009 7:41am
Brian S:
Could one of the legal historians here enlighten me on one point?

Since the Constitution in the supremacy clause makes treaties the law of the land, and since the judicial branch is given power that "shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority," why isn't it already well settled that treaties are judicially enforceable?

The only disputes listed in this post seem much more "disputable". Since specific and direct Constitutional guidance is provided on this question, how have we arrived at a situation where the executive branch can ignore treaties at will, and does not need to actually withdraw from the treaty regimes it doesn't like?
6.25.2009 8:50am
ruuffles (mail) (www):

Now that Harold Koh is on his way to confirmation

[Jeff Goldblum voice]
Wait a second ... wait a second ...
[/Jeff Goldblum voice]
If Harold Koh passed a cloture vote, that means that Senate must be in session.
If the Senate is in session, then it must no longer be in recess.
If the Senate is no longer in recess, then Obama can no longer make recess appointments.
But if Harold Koh is getting confirmed the old fashion way, that means Obama never recess appt'd him. For that matter, Dawn Johnson or anyone else.
It seems that as soon as the Senate recessed for the Memorial day break, veesee was speculating that not only would Obama make recess appointments, but how he'd go about justifying it.

So not only did Obama decline to make recess appointments, Harry Reid did his job rounding up 60 votes to break the filibuster.
6.25.2009 8:54am
geokstr (mail):
A couple questions for the lawyers here:

1) Will Koh be in a position to significantly affect decisions in US courts that empower international law here?

2) Will these then become "precedent" that will become locked into our law, which will then allow those who favor transnationalism to declare opponents in the next non-Democratic administration and judges they appoint to be labelled "activists" for trying to reverse the trend?

To me this will be just another example of how the one-way rachet towards Collectivism works that's been operating in the US for decades already.
6.25.2009 8:56am
martinned (mail) (www):
@Brian S: The short answer is that many originalists are less so when they don't like the result.

The longer answer is that it is undisputed that treaties only have direct effect when they are by their nature capable of creating directly enforcable rights, and when such direct effect is not expressly denied by the treaty itself or by a reservation made thereto. Unfortunately, over the last 200 years the courts have been very "generous" with the former, while the president and the senate have been very "generous" with the latter.

(Pretty much every treaty these days comes with the reservation that it shall not be interpreted as having direct effect, or that it shall not be interpreted as giving rights beyond those already established by the US constitution and/or US law. They even do that with human rights treaties...)
6.25.2009 8:57am
Eli Rabett (www):
As part of your discussion could you provide some of the history leading to the establishment and jurisdiction of various International Courts and the US role in setting them up.
6.25.2009 9:26am
Cato The Elder (mail):
Honestly, the Right is too accommodating in its language. You don't think those disagreements are important when the man is being appointed to a political post? I'm all for a "measured" accounting of a scholar's position, but your take is nonsensical to me, because the reach of his attitudes will matter much more when the inevitable novel and far-reaching controversies arise. Stop it, I say!
6.25.2009 9:49am
Dod:
It seems to me that if someone actively advocates for a "transnationalist legal process" it would be entirely accurate to describe them as a "transnationalist". That strikes me as standard use of the English language. If an otherwise innocuous word like "transnationalist" has pejorative overtones, perhaps that's because most people instinctively recognize the underlying ideas are distasteful.

I, for one, will happily accept the label sovereigntist. Did we not fight a war to establish our right to self-rule? Two wars, if you count 1812. I don't see any reason to think the framers would view Prof. Koh's position kindly.
6.25.2009 10:34am
MarkField (mail):

A couple questions for the lawyers here:

1) Will Koh be in a position to significantly affect decisions in US courts that empower international law here?


Only indirectly. The State Department does take legal positions, and its positions can be the official positions of the Administration. This assumes, though, that the President agrees, which means that Koh's influence rests in his power to persuade.

As for courts, that depends on how deferential they are to Executive interpretation. When it comes to treaties, that's pretty deferential but less than a delegation of their role to the Executive.


Will these then become "precedent" that will become locked into our law, which will then allow those who favor transnationalism to declare opponents in the next non-Democratic administration and judges they appoint to be labelled "activists" for trying to reverse the trend?


The only way to answer this is to say that any successful legal or political position tends to become precedent for the next round.
6.25.2009 10:42am
Just Dropping By (mail):
I'm trying to understand how "pro-foreign law" is "lacking pejorative overtones" as compared "transnationalist." To me, the latter term is far less pejorative sounding and also appears to be more accurate.
6.25.2009 10:43am
MarkField (mail):

I don't see any reason to think the framers would view Prof. Koh's position kindly.


At least some of the Framers were strong proponents of international law. It's easy to find favorable statements by, say, Jefferson to the effect that US practices should try to attain the approved international standard.
6.25.2009 10:44am
martinned (mail) (www):

I don't see any reason to think the framers would view Prof. Koh's position kindly.

That's the silliest thing I've heard all day. There are many arguments to be made for a sovereigntist position, but there's no way that side of the debate can invoke (most of) the founding fathers. Almost to a man they considered themselves part of a global discourse, a global intellectual community, in constant dialogue with the Scottish philosophers (Smith, Hume), the French revolution, etc. etc. The setting up of intellectual walls around the country couldn't be further from their philosophy.
6.25.2009 10:44am
Dod:

Almost to a man they considered themselves part of a global discourse, a global intellectual community, in constant dialogue with the Scottish philosophers (Smith, Hume), the French revolution, etc. etc. The setting up of intellectual walls around the country couldn't be further from their philosophy.


A global intellectual community is not even remotely the same as a global political community. And setting up "intellectual walls around the country" is a non-sequitor. The debate is about political self-determination not shutting down the exchange of ideas.

I decline to accept the notion that the framers risked the gallows to fight for independence only to give up the self-determination they just gained by handing off governance to an ill-defined, unaccountable and undemocratic set of entities.
6.25.2009 11:04am
[insert here] delenda est:
Me too I'm proud to be a sovereigntist. What annoys me most is that I actually have no problem using foreign law where relevant, I just find that there are fairly few cases where it is (conflict of laws is one, admiralty, UNCITRAL clauses and interpretation of international agreements generally another). I think the most significant difference is in Constitutional law. In the field of Constitutional interpretation there would seem to me to be vanishingly small scope for foreign law to be relevant, except of course foreign law predating the Constitution.

So I would consider myself an avid fan of foreign law, just repelled by its abuses at the hands of Koh and his ilk.
6.25.2009 11:04am
martinned (mail) (www):

I decline to accept the notion that the framers risked the gallows to fight for independence only to give up the self-determination they just gained by handing off governance to an ill-defined, unaccountable and undemocratic set of entities.

Did you even read prof. Posner's post? His post is a fair description of the problem exactly because he doesn't engage in such straw men.
6.25.2009 11:18am
Dod:
Martinned, of course I read it and I am not setting up a straw man. Here's an example. Prof. Posner mentions the goal of incorporating "customary international law into federal common law". I submit that customary international law rather precisely meets the description "ill-defined, unaccountable and undemocratic".

I should mention that I think delenda est's comment about being a fan of international law but being repelled by its abuses is excellent. I couldn't agree more.
6.25.2009 11:31am
martinned (mail) (www):
@Dod: Good that you bring it up, since it appears some clarification of the notion of CIL is in order anyway. Customary International Law is derived from the international law prime directive just like the rest of international law: No state can be bound by any legal rule without its consent.

Let me say that again: No state can be bound by any legal rule without its consent.

In the case of customary international law this consent to be bound is not expressed through the signing and ratifying of a treaty, but through a consistent line of behaviour, i.e. a custom, which is generally viewed as being an obligation by the states involved. In that way, CIL is essentially a treaty without the document. (Side note: obviously, with bells on, CIL can no more trump the constitution than a treaty can.)

CIL banning the death penalty is ridiculous, since there is neither custom nor opinio juris. (That's where the name of that blog comes from.) As long as the US continue to execute murderers, there is no custom and therefore no customary international law, at least not as far as the US is concerned. Like treaties, CIL does not have to extend to all states or none. A customary rule of law can exist for only a subset of states, and the way that one decides which states belong to that subset is to first examine which states have the custom in question.

It follows from all this that CIL is exeedingly unimportant in practical terms. Many areas of law that were once governed by it have since been codified, like the Law of Treaties, the Law on Consular Relations and the Law of the Seas. What CIL is left concerns international relations rather than anything that might actually turn up before a domestic court of law.

So no, it is not ill-defined. It is not unaccountable or undemocratic either, since any change in CIL is under the complete control of the President and Congress.
6.25.2009 11:53am
MarkField (mail):

Prof. Posner mentions the goal of incorporating "customary international law into federal common law". I submit that customary international law rather precisely meets the description "ill-defined, unaccountable and undemocratic".


From Republic v. DeLongchamps, 1 Dall. 111 (PA 1784): "This is a case of the first impression in the United States. It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania...."

From James Wilson, Lectures on Law:

"Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people. Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority; as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature's God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all."

There are also cases in which the law of nations was applied in US cases in the absence of any statutory authority. See, e.g., The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); Brown v. US, 8 Cranch 110 (1814); and US v. Smith, 5 Wheaton 153 (1820).
6.25.2009 12:41pm
geokstr (mail):

MarkField:

Will these then become "precedent" that will become locked into our law, which will then allow those who favor transnationalism to declare opponents in the next non-Democratic administration and judges they appoint to be labelled "activists" for trying to reverse the trend?

The only way to answer this is to say that any successful legal or political position tends to become precedent for the next round.

Thanks for the enlightenment, Mark.

Your final statement though is exactly what I have against this nearly immutable concept of "precedent" and the inevitable political use to which it is put. The direction of "...successful legal or political position..." as you call it for decades has nearly always been for expansion of state power at the expense of the individual. When it goes in this direction, it is hailed as "justice", and "activism" is apparently considered a good thing.

However, paring this back by a more conservative administration/judges is then always derided as "activism" from right-wing hypocrites that must be fought on "precedent" and railed against by the left even if it is just a return to the previously held standards.

That is one of the major reasons why there is only a one-way rachet in the law and politics.
6.25.2009 12:43pm
MarkField (mail):

However, paring this back by a more conservative administration/judges is then always derided as "activism" from right-wing hypocrites that must be fought on "precedent" and railed against by the left even if it is just a return to the previously held standards.


So-called conservatives haven't done much paring back lately. Or perhaps ever. If they did, though, that would itself become "precedent" for the next round. The ratchet doesn't have to work only one way.

I agree with you, though, that government power tends to expand over time. I support some of that expansion, but I'm opposed to lots of it too.
6.25.2009 1:25pm
martinned (mail) (www):

That is one of the major reasons why there is only a one-way rachet in the law and politics.

How else do you propose the courts work? Abolish stare decisis?
6.25.2009 1:27pm
Eli Rabett (www):
martinned observes

Let me say that again: No state can be bound by any legal rule without its consent.


Does this apply to North Korea, Iran and Iraq?
6.25.2009 1:44pm
martinned (mail) (www):
@Eli Rabett: Yes. Why would you suspect otherwise?
6.25.2009 2:30pm
Dod:
Martinned, your argument boils down to "CIL can't trump the existing laws of a nation because consent is required". But, of course, someone like Koh sees the federal judiciary as a valid source for that consent. So while CIL may not be used to overrule US law immediately, I think this is wishful thinking in the long run.
6.25.2009 2:35pm
martinned (mail) (www):
@Dod: CIL certainly can trump existing laws, such as statutes, in the same way that a treaty can.

An entirely separate question is the role of the judiciary when it comes to CIL. Because CIL comes into existence over a period of time, without an explicit moment of ratification, it will often be the courts that decide whether such a custom exists, and whether there is opinio juris.

However, the existence of a statute that conflicts with the alleged rule of customary law is always going to be problematic for the party alleging the custom, especially if that statute is actually applied/enforced. The first step of arguing CIL is always to establish that a certain custom exists, that the executive or legislature (depending) have a habit of behaving in a certain way, and that the same goes for other states. (You can't have a rule of international law on your own.)

For example, if a rule of CIL is alleged to exist in the laws of war, evidence of that will have to come from testimony as to actual practice, as well as standing orders, the UCMJ, etc.

In other words, a rule of CIL can only trump national law if the national law is dead letter, or if the national law has recently been amended in a way contrary to custom. In the latter case, it is hard to imagine how the enactment of a statute would not be taken as a repudiation of the old CIL rule. If the law under attack is a law of lower rank, like an executive order or other executive branch rule, the analysis would be more complicated.

(In the torture memos, Yoo claimed that the president has the power to withdraw the US from international law obligations without asking the Senate or Congress for permission. It is my understanding that this is something presidents have consistently claimed in recent decades, but that is not settled one way or another by SCOTUS.)

To the extent that international law poses a threat to US sovereignty, the problem isn't Customary International Law, but rather international organisations such as the UN and the WTO. Those organisations are created and governed by treaty, but they are open ended so it is not always easy to predict how things will turn out. In the UN, the US have veto power which protects them a lot of the time. (Veto power is no use if the US would like something repealed, but it's a start.) The WTO doesn't have the same teeth, but its Dispute Settlement Mechanism has already presented the US with some unpleasant surprises, if memory serves.

The ideal way to fix that, imho, isn't to make reservations on the outset, since the organisations in question tend to be fairly applaudable (free trade and world peace are good things, albeit difficult to achieve). When creating such an organisation, the US should do its best to help it succeed. The best protection is a clear and easy exit mechanism. (Cf. the way the US withdrew from certain parts of ICJ jurisdiction after it lost the Medellin case.)
6.25.2009 3:07pm
ReaderY:
I think the real question is why anyone should think judges the appropriate people to be making this sort of decisions.

I would focus the question on jurors. Why should jurors ever listen to anything American judges ever have to say to them if they like what foreign judges have to say on the subject better?

If Mr. Koh has no objections to this, well and good. I can't fault his logic. But if he does, it would appear that very same reasons why citizens have an obligation to listen to what their judges have to say rather than some other judge whose views they like better, also apply to explaining why judges have an obligation to listen to what their citizens (and representatives of those citizens) have to say rather than someone else whose substantive law thay like better.

It's a two-way street. Judges who don't respect the people's authority or perceive the people as having authority can have no reason to expect the people will pervceive or respect theirs'.
6.25.2009 7:18pm
geokstr (mail):

martinned:

That is one of the major reasons why there is only a one-way rachet in the law and politics.

How else do you propose the courts work? Abolish stare decisis?

Not being a lawyer, I had to look up "stare decisis", and in the first source in my google search said it means "...a common law doctrine under which judges are obligated to follow the precedents established in prior decisions".

However, it seems that to get liberal "precedent" established in the first place, wouldn't liberal judges have to ignore, or at least diminish "stare decisis" and "precedent" from prior decisions to do so? Then they cry "stare decisis" and yell "precedent" whenever someone of a different political bent tries to reverse them. And most conservatives, who actually have some guiding morals and ethics that they at least try to live by, will then just roll over and play dead instead of fighting back.

It's quite useless, and even counter-productive to demand that opponents who have no standards other than "the ends justify the means" actually live by their own rules and ethics when they already are. They just happen to be totally different ones.

Alinsky's RULE 4: "Make the enemy live up to its own book of rules." Thus, "stare decisis" and "precedent" appear to be rules which only your opponents must be forced to follow. It's about time we play by their rules.
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