If you haven’t already done so — and even if you have — you should make your way over to Bench Memos for more of Ed Whelan’s invaluable series on Harold Koh’s transnationalist jurisprudence (“transnationalist,” as Ed points out, is Dean Koh’s own descriptive — as some of Ed’s, er, academic critics would know if they actually read the posts before attacking them).
Today, Ed turns to the crucial issue of treaties and whether they should be, as the leagle-beagles say, “self-executing” — simply stated, that means enforceable by courts as rights that belong to individual people (as opposed to the traditional understanding, which is that treaties are compacts between sovereign states that create no judicially enforceable individual rights — treaties disputes and violations, instead, are resolved diplomatically between governments). The Supreme Court gave us a taste of a brave new world in the 2006 Hamdan case, when it treated Common Article 3 of the Geneva Conventions as creating judicially enforceable rights for enemy combatants in U.S. courts. (The Geneva Conventions actually say that alleged violations are supposed to be resolved by a diplomatic process; I doubt they’d ever have been signed or ratified if it had been thought they were creating enemy lawfare rights.) Once you become familiar with some of the terms of treaties the Left would like us to ratify — a Leftist wish-list that would never be democratically enacted by the American people – you realize how fundamentally Koh would change American society.
Ed’s post contains links to all the posts in his Koh series. In addition, Ed notes in a second post today some refreshing commentary at Opinio Juris (a very fine international-law site) from Julian Ku and Kevin John Heller, a pair of thoughtful academics (i.e., hardly raving right-wingers). Professors Ku and Heller acknowledge that Ed has raised serious substantive issues and they merit serious response — and Julian even proposes some questions he’d like to see Dean Koh asked. That is a call for the kind of informed debate one wishes was the rule rather than the rare exception.