Taming international law, three proposals

No aspect of the modern leftist project poses more danger than the left’s approach to international law. By definition, international law is in tension with national sovereignty, but the “transnationalist” approach to international law advanced by leftists threatens to run roughshod over sovereignty. And, in the case of the United States, a threat to sovereignty means a threat to democracy — to the ability of Americans to govern themselves.

In their new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, Julian Ku and John Yoo, propose three devices through which the threat posed by international law can be moderated. These devices are: (1) eliminating self-execution of treaties, (2) recognizing the president’s ability to interpret international law, and (3) relying on state implementation of international law and agreements. Through each of these devices, as I see it, Ku and Yoo are trying to place one or more of our democratic institutions in a position to mitigate the anti-democratic intrusion of international law on our sovereignty.

Before briefly discussing these three devices, it seems worthwhile to ask whether, instead of mitigating the intrusion of international law, the U.S. should take a stand against the entire internationalist project. Ku and Yoo argue that this is unrealistic and probably not desirable. In their view, “globalization” is here to stay and it requires that, or at a minimum makes it prudent for, the U.S. to accrue the benefits of international cooperation. Accruing these benefits, the authors say, entails acknowledging the force of international law. The trick is to find ways to ensure that international law does not undermine American self-government. This is where their three devices come into play.

The non-self-execution of treaties doctrine means that treaties and other international agreements are not law within the United States unless or until some other domestic institution (usually Congress) decides to implement them. Although the Constitution makes treaties the law of the land, Ku and Yoo argue that our courts should not give domestic legal effect to treaties until Congress passes implementing legislation. Courts would presume that treaties are not self-executing.

I like the result. For one thing, it provides a role for the House of Representatives, which has none in the treaty ratification process. However, the authors’ proposal seems like cheating to me. If a treaty is the law of the land, shouldn’t it be enforced without more? Ku and Yoo seem to be adding another step not contemplated by the Constitution. The decision to “cut out” the House was made by the Framers in Philadelphia.

Perhaps a better way to obtain the benefit the authors are looking for is for the Senate, when ratifying a treaty, to stipulate that the treaty is not self-executing. Because treaty ratification requires a two-thirds vote, and because Congress is now well aware of how aggressive certain parties can be in using general treaty language to attack specific American practices, the Senate probably can be trusted to stipulate that particular treaties are not self-executing. No presumption should be required.

The second device proposed by the authors addresses the threat posed by “customary international law,” which is not contained in treaties and other agreements. This is a massive threat, in my opinion. Ku and Yoo propose that the president, not the courts, control the interpretation of international law. They argue that the Constitution does not recognize customary international rules as federal law unless the politically accountable branches actively incorporate them. In the absence of congressional codification, implementation of customary international law thus becomes “a policy choice,” and one best made by the president.

I agree with the authors here. Of course, the usefulness of this device in “taming” international law will depend to a significant degree on who the president is at any particular time.

The final device gives a “limited but important role” to the states in implementing international law on matters that impact areas of their traditional control. The authors describe this proposal as their most radical, and this assessment is correct. I find their approach troubling because I believe that we must act as one nation when it comes to our international dealings.

Ku and Yoo also have a chapter on the judicial practice of looking to foreign sources for guidance in interpretating our Constitution. They argue, and I agree, that to the extent foreign nations’ opinions help determine the outcomes of cases interpreting the Constitution, this practice conflicts with our constitutional structure and with the basic underpinnings of popular sovereignty.

To find out more, read the book. I recommend it to anyone with an interest in the subject matter.