an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Not Benjamin Franklin or, indeed, any of America’s Founding Fathers. They were learned men who well understood international law and its importance for our new nation. They understood that independent sovereign statehood is founded in international law. International law does not “attack” sovereignty: it establishes sovereignty!
Once independent, the Founders also understood that to maintain independence, to continue to enjoy sovereignty in the international community means asserting rights and fulfilling duties under international law in relation to other states and individuals.
They drafted a Constitution reflecting this knowledge: our international agreements—treaties—are the “supreme law of the land”. The Constitution has many other references to the “law of nations,” which today we call “international law”. And the Founders engaged in the practice of international law for the new United States: John Jay negotiated a treaty with Great Britain to settle outstanding disputes by arbitration under international law. Benjamin Franklin negotiated a treaty with Prussia containing the first codified promises for the humane treatment of wartime detainees. Thomas Jefferson demanded U.S. rights be respected in the War of 1812.
These great men knew that international law is the law governing relations at the international level. International law has its proper uses and purposes just as law generated entirely within Canada, South Africa, the United States, Indiana, or South Bend has its proper uses and purposes. The key is recognizing the right law for the right purpose.
So why does Glen Beck seem to fear international law? Why is he and decrying strong international lawyers in America’s top international law jobs? As with so many things we fear, the critics seem to be speaking against something they do not understand. At times they appear to be confusing international law with communism or other ideologies against which Americans have had to struggle in war and peace.
International law is not an ideology. It is a system of law. It is almost 400 years old. The United States today may claim credit for some of the most important developments in international law. Since the Founding, our leaders have consistently understood the importance of international law to American goals and values. It is true that beginning in the 1960s, misinformation and misunderstanding about international law began to emerge political science departments, then apparently even crept into some law schools. We now have a knowledge gap respecting international law in the United States and it is becoming a handicap in our relations with other nations. It is time to return to our roots and become learned again in this area of law.
President Obama spoke eloquently on election night of getting America back on track—international law can help with that enormous task in a way no other resource can.
International law uniquely holds the key to securing peace, prosperity, respect for human rights, and protection of the natural environment for our nation and the world. The greatest challenges we face are global problems:
On the economy: President Obama made clear in London, we need the world; we need international financial regulation; we need an end to poverty suffered by a third of the world;
On peace and security: we need repression of terrorism; an end to Iranian and North Korean nuclear programs, an end to violent conflicts in Asia, Africa and the Middle East;
On human rights: we need respect for religious and cultural rights in China, protection for the people of Darfur, an end to human trafficking, and
On the environment: emergency action to save the world’s oceans, its last wild habitats, and, of course, the climate.
We are one world now as never before and for Americans to enjoy security, prosperity, human dignity, and a healthy environment means working so that all people enjoy them. Since the 1960s with our rise in power, prominent intellectuals have been telling our leaders that we are above international law. They have argued that we are exceptional and do not need international law’s tools or restraints. But by narrowly focusing on amassing military might, we have been failing to take full advantage of the wisdom and ways of international law.
This worldview reached its crescendo with the “torture memos”. Some of President Bush’s lawyers advised against respecting international law in important areas, such as defining combatants, interrogation, detention, targeted killing, the resort to armed force, and the conduct of military occupation. Following this advice lead our country into some of the gravest challenges we have ever faced.
Respecting international law was part of our founding and our tradition: Abraham Lincoln commissioned the first codification of the law of land warfare. Theodore Roosevelt’s Secretary of State Elihu Root helped draft the treaty that established the International Court of Justice. Calvin Coolidge’s Secretary of State Frank Kellogg negotiated the first treaty-based prohibition on war as an instrument of foreign policy. Eleanor Roosevelt shepherded the Universal Declaration of Human Rights in 1948.
This is America’s tradition: leadership in international law. It is also the way forward.
But returning to this tradition may not be a simple matter given our declining expertise. President Obama has asked one of the leading experts on international law in the United States to take on the top international law job: Dean Harold Koh will give the President accurate advice on what international law requires and the advantages it offers our country and the world.
Mary Ellen O’Connell is Professor of International Law, University of Notre Dame. Her latest book is The Power and Purpose of International Law (OUP 2008).