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Harold Koh’s Transnationalism—CIL as Federal Common Law


Let’s now explore the transnationalist position on the domestic status of “customary international law” (CIL).  (For the short version, see the last long paragraph of this post.)

The Supremacy Clause of the Constitution states that the Constitution itself “and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.”  So while the Constitution specifically addresses the domestic status of treaties (a topic of a post to come), it doesn’t do so for CIL.  Indeed, the only provision of the Constitution that addresses CIL is the Article I provision (section 8, clause 10) that states that Congress has the power to “define and punish … Offenses against the Law of Nations.”  So that provision invites the sensible reading that it’s up to Congress to decide which rules of CIL to import into domestic law.

As law professors Curtis Bradley and Jack Goldsmith explain in their joint law-review article, “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”), CIL was long understood not to have the status of federal law.  But, they argue, as “the result of a combination of troubling developments, including mistaken interpretations of history, doctrinal bootstrapping by the Restatement (Third) of Foreign Relations Law, and academic fiat, CIL has since the 1980s come to be regarded as “federal common law.”  (Bradley & Goldsmith, at 821.)  Bradley and Goldsmith offer an extended critique of this “modern position.”

The Bradley/Goldsmith article triggered a vigorous response by Harold Koh, titled (bizarrely) “Is International Law Really State Law?,” 111 Harv. L. Rev. 1824 (1998), to which Bradley and Goldsmith replied (in “Federal Courts and the Incorporation of International Law,” 111 Harv. L. Rev. 2260 (1998) (“Bradley & Goldsmith Reply”)).  I won’t try the impossible task of presenting a full summary of the competing positions set forth over more than 100 pages (and more than 600 footnotes), and I instead refer interested readers to the articles.  But I’ll highlight key aspects here.

Remarkably, this new status as federal common law has been conferred on CIL at the very time that the traditional CIL has transmogrified from its derivation in state consent reflected in a general and consistent practice of states and from its governance of relations among nations to the new CIL, which flows rapidly from various international pronouncements and heavily regulates a state’s treatment of its own citizens.  (Bradley & Goldsmith, at 838-842; see my previous post for more.) 

Bradley and Goldsmith spell out the logical, but largely overlooked, implications of the position that CIL is federal common law, including: 

*  If CIL is federal common law, it would be part of the “Laws of the United States” under the Supremacy Clause (as the Supreme Court has previously understood federal common law).  As such, it would trump all inconsistent state law and lead to a “dramatic transfer of constitutional authority from the states to the world community and to the federal judiciary.”  (Bradley & Goldsmith, at 846-847.)

*  If CIL is federal common law, it would seem to follow that the president, under his Article II obligation to “take Care that the Laws be faithfully executed,” is bound by judicial interpretations of CIL and vulnerable to having CIL judicially enforced against him.  (Bradley & Goldsmith, at 844-846.)

Tellingly, in his 37-page article responding to Bradley and Goldsmith, Koh does not dispute the implications of CIL as federal common law for inconsistent state law.  On the contrary, insisting that “[i]nternational law is federal law,” he argues that “the capacity of the federal courts to incorporate customary international law into federal law—unless ousted by contrary [and subsequent] federal directive—is absolutely critical to maintaining the coherence of federal law in areas of international concern.”  (Koh, at 1838, 1861; see Koh, at 1835 n. 61.) 

Koh himself reveals the stark consequences of his position as he complains that the Bradley/Goldsmith position that CIL is not federal common law would mean that “a treaty that is not ratified [by the United States], but that nevertheless announces important customary international law rules … need not be applied or respected by state courts or legislatures unless expressly executed by a statute or order emanating from the federal political branches.”  (Koh, at 1840.)  As Bradley and Goldsmith put it in reply to various passages of Koh’s like this, Koh is making the “extraordinary claim that if human rights treaty norms are accepted by much of the world community, the norms become CIL that is self-executing, supreme federal common law both before the United States has ratified the treaty and after it has ratified the treaty on the condition that the treaty norms will not apply as domestic federal law.”  (Bradley & Goldsmith Reply, at 2274.)  In other words, in Koh’s view, CIL applies as domestic American law even before the United States has ratified a treaty embodying CIL, even if the ratification is conditioned on the treaty’s not being self-executing (i.e., not having any domestic effect)—and even, as the logic flows, if the United States rejects the treaty.

Koh also does not clearly dispute that CIL, as federal common law, binds the president and may be judicially enforced against him.  In question-begging terms, he asserts that “controlling and valid presidential acts may supersede the application of customary international law rules” and refers neutrally to “the substantial scholarly debate that has raged over whether the President may or may not violate customary international law on the President’s own authority.”  (Koh, at 1835-1836 n. 61.)

So let’s look at the overall transnationalist game on customary international law:  The left-wing academics and NGO activists who populate international conferences will work together to generate and popularize supposed new norms of CIL on matters of interest to them—for example, hate speech, health care, and various other economic, social, and cultural “rights.”  Activist judges appointed by Presidents Obama and Clinton (and, alas, some appointed by Republican presidents) will hasten to recognize these new norms as rules of federal common law that (whether or not Congress would have had the constitutional authority to enact them) override inconsistent state laws and that the judges will be ready to enforce against non-compliant presidents.  The only available recourse for pesky citizens who still believe in the system of representative government that our Constitution creates will be congressional action to override the new CIL norms, action that would require a veto-proof majority in both houses of Congress while President Obama or any Europeanist successors of his are in office.  Such action will be made all the more difficult as the cultural elites clamor for Americans to show proper deference to international law and the federal judiciary. 

Anyone perceive a threat to American principles of representative government?

P.S.:  For my carefully documented exposition of what Koh and other transnationalists are up to (with heavy reliance on their own words), I am now accused of “bringing the full crazy on Harold Koh,” of “nativist paranoia,” of supposedly ignoring the “difference between descriptive and normative arguments”—oh, sure, Koh is just being “descriptive”! and he’d just do a lot of describing at the State Department—of “pretty shameful attacks,” and much more.  Never mind that the name-caller hasn’t identified a single thing that I’ve gotten wrong, or that my positions are drawn from, and largely identical to, those of Professors Bradley and Goldsmith.  Such accusations sure are easier than engaging in actual argument.

(Fourth in a series.  Previous posts here, here, and here.  See also my post on Koh and the First Amendment.  Next:  Treaties.)

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