Drawing on my four preceding posts on treaties (on the scope of the treaty power, the domestic legal status of treaties, CEDAW, and Harold Koh’s, er, less than forthright testimony on CEDAW), let’s bring the pieces of the puzzle together to expose Harold Koh’s transnationalist game on treaties. (I will not repeat in this summary the supporting material for my propositions, but anyone who wishes to take issue with them should look to my underlying posts.)
The expansive use of “human rights” treaties—treaties that regulate a nation’s treatment of its own citizens—to impose domestic social and economic policies is at odds with the basic system of representative government that the Constitution creates. That conflict is all the starker when “human rights” treaties are self-executing (i.e., have automatic effect as domestic law). Harold Koh is an ardent champion of the use of “human rights” treaties, and he is hostile to the very notion that such treaties might or can be non-self-executing.
American transnationalists like Koh use a bait-and-switch game on “human rights” treaties. In urging that the United States adopt the treaties, they hide behind the treaty’s grand and sweeping statement of a seemingly unobjectionable principle. Focused on the supposed concerns of a hypothetical world community, they trumpet the need for the United States to make an “important global statement” and to show that “our national practices fully satisfy or exceed international standards.” Meanwhile, at the same time as the supervisory committee established by the treaty is interpreting the treaty to advance a radical agenda, American transnationalists obscure or dissemble about what the treaty committee is doing when they are speaking to the Senate and the American public—and then they turn around and use its interpretations to advance their agenda in courts.
If Koh’s transnationalist game on treaties were followed, the United States would blindly embrace “human rights” treaties, and the Senate would consent to those treaties without declaring them to be non-self-executing. As the treaty committee and other international bodies interpret those treaties in radical ways, activists would then run to American and international courts to have those interpretations imposed on the American government. Rather than having policy made through our representatives in the national and state legislatures, American citizens would have forfeited their powers of representative government to international lawyers and American and foreign judges.
The interaction between the transnationalist misuse of treaties and the two other leading transnationalist mechanisms—customary international law and American constitutional law—makes matters even worse. Even if the United States doesn’t ratify a treaty, transnationalists will see in the widespread international adoption of a treaty the emergence of new norms of customary international law that, they will argue to American courts, are binding on the United States as federal common law. And (as my next posts will explain) transnationalist judges, at the urging of transnationalist activists, will rely on unratified treaties to reinvent what provisions of the Constitution mean.
[Ninth in a series focused on the domestic effect of Harold Koh’s transnationalism. The series does not address the additional dangers that Koh poses on national-security matters (which I’ve touched on here and here). Below is an outline of the series. With this post, I’ve completed the entries through heading 4.
1. Overview of series
2. What “transnationalism” is
3. Customary international law
a. What customary international law is
b. The transnationalist game on customary international law
a. The scope of the treaty power
b. The domestic legal status of treaties
c. CEDAW as a case study
(1) CEDAW and the CEDAW committee
(2) Koh’s remarkable testimony about CEDAW
d. The treaty game
5. Constitutional law
6. The role of the State Department legal adviser]