In “The War of Law” (July/August 2013), Jon Kyl, Douglas Feith, and John Fonte purport to explain the state of international law and how it “undermines democratic sovereignty.” Their portrayal, however, hardly rises above caricature. Their legal prescriptions ignore constitutional history and, if followed, would drastically weaken U.S. foreign policy. The authors may not like the contemporary practice of international law, but their own ideas are painfully antiquated, better suited to an insular nineteenth-century nation than the great power the United States has become.
The authors mount a wide-ranging attack on enemies of their own imagining: dangerous “transnationalists” (including one of us) who are out to undermine “basic American principles” by promoting U.S. compliance with international law. Such compliance, they argue, comes at the expense of the constitutional system, democratic accountability, and U.S. sovereignty. But their hodgepodge of examples proves nothing of the kind.
AMERICAN AS APPLE PIE
First of all, what “basic American principles” are being violated by the United States’ adherence to international law? After all, the very first paragraph of the Declaration of Independence calls for “a decent respect to the opinions of mankind.” The founders plainly understood that the nation could not flourish, or even survive, without giving due respect to the laws that governed peaceable relations among sovereign states.
Nor is it clear what constitutional values Kyl, Feith, and Fonte think are threatened by adherence to international law. The founders rejected the right of other countries to hijack the United States’ foreign relations: they granted clear supremacy to the Constitution, which no treaty can override, and to Congress, which can supersede any treaty by later legislation. But the framers of the Constitution clearly viewed international law as an essential part of the country’s legal order, accountable to and reflective of the will of the American people. Indeed, they set a stringent condition under which international treaties would be considered lawful: passage by a two-thirds supermajority of the Senate.
The authors are particularly incensed by the allegedly novel role of “activist judges” in applying customary international law. Kyl, Feith, and Fonte complain that certain judges cannot be trusted to interpret the law fairly in contested cases. This is an affront to U.S. judges, who swear to uphold the laws of the land, as well as to the Senate, which painstakingly confirms each one of them. What is equally important, from the days of Chief Justice John Marshall, U.S. courts have repeatedly interpreted and applied customary international law. So this is a judicial tradition at least as American as apple pie.
The authors claim that only elected officials can make international law part of U.S. law. They blame former Secretary of State Hillary Clinton for in effect deeming, on behalf of President Barack Obama, “parts of a treaty binding on the United States, presumably as customary international law, even if that treaty has never been ratified according to the U.S. Constitution, and even if the president has expressly rejected that treaty, as [President Ronald] Reagan did with Additional Protocol I [of the 1949 Geneva Conventions].” But the authors conveniently ignore that in 1987, the Reagan administration accepted much of the very same treaty as the customary international law of armed conflict. After all, U.S. presidents (who surely must qualify as elected officials) have long had the responsibility of recognizing customary international law as part of domestic law. Indeed, one president who regularly did so was Reagan, who in 1982 chose to deem large parts of the UN Convention on the Law of the Sea binding on the United States as customary international law.
Kyl, Feith, and Fonte further argue that Belgian, British, and other European courts have lacked “democratic accountability” when investigating U.S. and Israeli officials for alleged war crimes. But although opinions may differ regarding the wisdom of such prosecutions, there is no denying that they were produced by democratic decision-making; they are the products of prosecutorial decisions that flowed from the elected governments and elected legislatures of close democratic allies. Ironically, if U.S. government officials were ever sued in these countries, their strongest defense would come from the very international laws that the authors decry: in this case, rules that strongly protect foreign officials from criminal suits abroad.
While broadly attacking international law, the authors never acknowledge the costs of failing to endorse international law. They celebrate, for example, the Senate’s recent failure to ratify the Convention on the Rights of Persons With Disabilities as a stalwart defense of U.S. national interests. Yet this is a treaty based on decades of settled U.S. law, and it had just received endorsements not just from the Obama administration but also from the former Republican presidential candidates Bob Dole and John McCain. And as a consequence of the Senate’s failure to ratify it, Americans with disabilities -- including wounded service members -- will now enjoy fewer protections when they travel abroad.
The authors similarly suggest that the Senate’s repeated refusal to ratify the UN Convention on the Law of the Sea -- despite the support of the U.S. business community, the U.S. military, and nearly every president, secretary of state, and secretary of defense from both parties for the last three decades -- has been a brave defense of U.S. sovereignty. Again, they never acknowledge the political costs of nonratification: that by staying outside the treaty system, the United States has effectively ceded maritime influence to the Russians in the Arctic and to the Chinese in the South China Sea.
Kyl, Feith, and Fonte are careless in accusing international lawyers of abusing international law to limit U.S. power. The authors chide the former chief prosecutor of the International Criminal Tribunal for the Former Yugoslavia for investigating the bombing of a Belgrade television station by U.S. planes as a potential criminal violation of Additional Protocol I of the Geneva Conventions (which prohibits attacks without warning on such facilities); they suggest that such an investigation violated the sovereignty of the United States, as a nonsignatory to that protocol. But it was NATO, not the United States, that authorized that attack -- and 16 of the 19 members of NATO at the time were signatories to Additional Protocol I. By choosing to fight as part of the NATO coalition, the United States could reasonably be held accountable to the international legal rules that bound its coalition partners.
To cure the ills they identify, the authors suggest that Congress pass legislation declaring that various rules of customary international law will no longer be legally binding on the United States. But how would such legislation help the United States, or the world, in any way? While demonizing customary international law, the authors never mention the many ways that customary international law plainly benefits U.S. national interests, from requiring other countries to deny safe haven to terrorists to enforcing intellectual property laws to protecting local Christian populations against religious persecution. Nor do they suggest how the United States should advance its interests in addressing the many global problems -- including climate change, pandemic disease, terrorism, and cybersecurity -- that it cannot tackle on its own.