So Ed Whelan over at NRO has started what he says will be a series of posts (first one here) on my former boss Harold Hongju Koh and what he regards as the “threat” of something he calls “transnationalism.” Whelan:
Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government. . . . What transnationalism, at bottom, is all about is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.
So what are these dangerous European ideas that Whelan finds so threatening? What are the radical concepts that will undermine the foundations of American government, law, and jurisprudence? According to Whelan, they include customary international law; the treaty power of the Constitution; and the Supreme Court using ruling from other courts, including those operating internationally (such as the International Court of Justice).
I’ll leave questions of treaty law and international courts to others, but let me take a crack at the supposed danger of customary international law.
If understand Whelan correctly (and God knows that’s not easy to do), we’re talking about the unwritten (hence customary) laws that have governed relations between states since the Treaty of Westphalia ended the 30 years war and established (but did not codify) the principle of national sovereignty — and the idea of non-interference in the internal affairs of other nations.
Oh wait, national sovereignty and non-interference — aren’t they what Whelan is arguing is paramount? But they’re customary international law! Whelan can’t use it! But his whole argument is based on sovereignty and non-interference! But it’s customary international law! If Whelan keeps this up, he’s going to go into brain lock like one of those fembots on the original Star Trek.
Customary international law is not a conspiracy to steal your rights. In fact, if it’s anything, it’s an extension of American principles so that others may enjoy the same rights we do. Take for example Article One of the Universal Declaration of Human Rights, which is widely regarded as customary international law:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Oh. My. God. Lock up your children! Those transnationalists are insisting that other people have rights! — and dignity!! — and a conscience!!!
Those bastards. Have they no shame?
At this point, permit me to offer my standard disclaimer: I’m not a lawyer. Maybe I’m missing something here. Maybe there’s a whole branch of secret customary law that I don’t know about. Maybe the Illuminati are flying around in Trilateral Commission-owned black helicopters injecting customary international law fairy dust into our water supplies.
But somehow I doubt it.
Customary international law is just what it sounds like — a set of standards and practices which are not formally codified but which everyone agrees should be recognized. As a society, we have lots of names for it: the golden rule; good manners; consensus; rules of the road; and. . . wait for it. . . common law. It’s not like Koh or others started making this stuff up just to attack the Bush Administration.
In addition, the whole idea that international law is somehow pernicious and dangerous is just utter nonsense. As Rosa Brooks noted back in 2005,
Although many Americans associate “international law” with controversial issues such as disarmament treaties or the International Criminal Court, the overwhelming bulk of international law has to do with the mundane but essential ways in which nations cooperate to make life possible in our interconnected world.
The postal system, civil aviation, telecommunications, visas, and maritime law all are based on mutually agreed-upon international standards. No one questions their wisdom or value — except maybe Ed Whelan.
But don’t take my word for it. Let’s hear from another profoundly dangerous transnationalist, writing back in 1983 about the Universal Declaration of Human Rights (emphasis mine):
When the Universal Declaration of Human Rights was adopted by the United Nations General Assembly in 1948, Americans hoped that the Jeffersonian vision was about to be realized at last. The Universal Declaration, it was believed, would embody the consensus of the international community in favor of human rights and individual liberty. . . .
Thirty-five years after the adoption of the Universal Declaration, it is clear that these hopes have been fulfilled only in part. Nevertheless, the Universal Declaration remains an international standard against which the human rights practices of all governments can be measured. Its principles have become the basis of a number of binding international covenants and conventions. At the United Nations, it has served to strengthen the arguments of those governments which are genuinely interested in promoting human rights.
Oh man, that’s just one step away from Bolshevism. Talk about your Eurotrash latte drinking lefties punks. I mean really, why isn’t Whelan going after this guy as well?
The good news (at least for Whelan) is that the author of this statement never got confirmed by the Senate. He did, however, get elected the 40th President of the United States. You may have heard of him — a guy by the name of Ronald Reagan.
As Publius over at Obsidian Wings notes, Whelan ignores a long and storied tradition in this country of respecting and integrating international law (including, yes, international customary law) into court rulings. In fact, the founding fathers regarded the “law of nations” as a core principle. Federalist No. 3 (Jay):
It is of high importance to the peace of America that she observe the laws of nations towards all these powers, and to me it appears evident that this will be more perfectly and punctually done by one national government than it could be either by thirteen separate States or by three or four distinct confederacies.
For Whelan to suggest that it’s suddenly un-American to believe that certain international principles are relevant to decisions being made by U.S. federal courts — particularly the Supreme Court — defies reality, reason, and even American history. The real radical here isn’t Harold Koh. It’s Ed Whelan.