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Is Resistance to International Law Futile?

Over at Opinio Juris, prominent international law scholar Peter Spiro criticizes Eugene Volokh's and (by implication) my claim that U.S. should try to block the overriding of domestic law by international law norms. He argues that such resistance is futile, and that we should instead work to improve the substantive content of international law norms themselves:

I think this is a lost cause over the long run, which is to say nothing about the merits of hate-speech bans or any other particular international norm. There are too many ways in which international law now insinuates itself to mount this sort of centralized defense. For instance, if the states start to pick up on an international norm, it will eventually be indigenized, making its way upwards to the organs of the national government (think what's happening now with Kyoto). Ditto for non-state actors (think universities and hate-speech codes). I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won't stop justices from incorporating IL norms under cover. Over the long run resistance will be futile.

Which all might be by way of a call to arms of a different sort: to try to influence international norms at the international level, rather than wasting time trying to shut them at the border. The US is obviously a powerful actor in the making of international law. It won't win every battle (and this particular one may be a loss) but over the long run that will present the better strategy for protecting (and projecting) our conception of constitutional liberties.

I think that Spiro's conclusion is, at the very least, overdrawn. At most, he shows that we cannot stop all overriding of domestic law by international law. That doesn't mean that we can't stop at least some of it, perhaps even succeed in the vast majority of cases. Over the last several decades, the US has successfully resisted the domestic imposition of numerous international law norms, including "hate speech" laws, the 1977 Protocols to the Geneva Convention [which I originally mislabeled as the "Third Protocol"], the New World Information Order (mentioned in my last post), the Law of the Sea Treaty (which was eventually revamped as a result of US objections and the Reagan Administration's refusal to sign and follow the original version) and others.

Furthermore, Spiro's examples conflate two very different modes of incorporation of international law into domestic law: what John McGinnis and I call "raw international law" and the domestic incorporation of international law through ordinary domestic legislative processes. Raw international law consists of international law norms (e.g. - customary international law) that we have not ratified through congressional or state legislation or through the treaty ratification process. It is this kind of international law that McGinnis and I argue is likely to be systematically inferior to domestic law. By contrast, international law that has passed through the domestic lawmaking process is likely to be no worse, on average, than other domestic legislation. It is only the domestic incorporation of raw international law that should be categorically rejected. There is as yet no reason to believe that we can't resist successfully, and indeed we have done so on numerous past occasions.

Finally, I agree with Spiro that we should use our leverage to improve the substance of international law norms. Indeed, in my last post I suggested one possible strategy for doing so: denying funding to the UN Human Rights Council and other international organizations that promote international law norms that violate civil liberties.

However, the two strategies are not mutually exclusive. The United States should work to improve the content of international law, while simultaneously doing all we can to prevent the overriding of domestic law by harmful international law norms that may be enacted by others over our opposition. The two strategies may even be mutually reinforcing: international organizations and foreign powers may be less likely to try to create harmful new international law norms if they know that the US will refuse to follow them. Our chances of succeeding in both endeavors will, of course, increase if other liberal democracies adopt similar policies.

UPDATE: Peter Spiro briefly replies to this post here. He writes:

I want sometime soon to set out more detailed thoughts on the piece he's co-authored with John McGuinness on the incorporation of international law. For the moment, I'd just say that unlike Ilya and John I would take account of the many non-formal (or at least non-federal) channels through which IL is making itself felt in the US. Just because it's not working its way through the federal government doesn't make it illegitimate. Is there a process problem with California adopting Kyoto's standards? With a university adopting international standards on hate speech (again, leaving the merits aside)? My point is that this is where the action is. Formal incorporation (political or judicial) comes in the way of a mopping-up exercise or as an afterthought, after the real battles have been fought in the trenches.

Just to clarify, John McGinnis and I have no process objection to state legislatures incorporating international law norms into statutes, except in cases where doing so violates the US Constitution; such legislation is, on average, likely to be no worse than other state legislation. Our critique is directed at the claim that raw international law should override domestic law even in cases where no domestic legislation has been passed incorporating it and (as Professor Spiro has argued) even where the international law in question violates the US Constitution. Also, I do not agree that "formal incorporation" is just a "mopping-up exercise or . . . an afterthought." Passing legislation is costly and difficult and requires the support of key political actors and (often) of the general public. Ratifying a treaty or passing a constitutional amendment requires even broader support. Raw international law, by contrast, is often created with the support of only a coalition of relatively unaccountable international elites and authoritarian rulers of foreign states.

Armen (mail) (www):
The United States should work to improve the content of international law, while simultaneously doing all we can to prevent the overriding of domestic law by harmful international law norms that may be enacted by others over our opposition.

Like when we resisted UN GA calls to do something about the equal treatment of races when segregation was raging? Not saying the US norms are the wrong one here...but still.
2.7.2007 11:33pm
Duncan Frissell (mail):
We also stopped the UN Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women cold because of their hard-core-left-wing provisions.

And William Jefferson Blythe Clinton didn't even submit Kyoto for Senate ratification because he knew it was DOA.

As an advocate of poltical species diversification I think that it's important to preserve differring polities on Earth. Commie monoculture would be dangerous.
2.7.2007 11:44pm
Ilya Somin:
Like when we resisted UN GA calls to do something about the equal treatment of races when segregation was raging? Not saying the US norms are the wrong one here...but still.

To my knowledge, the UN General Assembly did not pass any resolutions condemning US racial segregation. Even if it had, my argument is not that we should resist all international law, but rather resist what I have called "raw international law." The proper way to abolish racial segregation was through enforcement of the US domestic Constitution and the enactment of appropriate domestic legislation - which is what in fact happened.
2.7.2007 11:47pm
andy (mail) (www):
So, time to kiss the exclusionary rule goodbye, I guess.
2.7.2007 11:50pm
Truth Seeker:
He really said "resistance will be futile." It's like a bad science fiction story or a bumper sticker slogan.

But we must not allow international norms to trump local rights. That's one of the beauties of our own country even. If you don't like a state income tax or gun laws or other regulations you can move to another state. Only the most dictatorial among us wants pervasive international legal norms.
2.8.2007 12:30am
Kevin Jon Heller:
Not to be picky, but there is no "1977 Third Protocol to the Geneva Conventions" that the U.S. somehow resisted. A Third Additional Protocol to the 1949 Geneva Conventions was adopted in 2005, but the U.S. did not resist it. On the contrary, the U.S. welcomed it -- because it created a new distinctive emblem for the Geneva Conventions (in addition to the red cross and red crescent) and laid the groundwork for Magen David Adom, Israel's national society, to become full members in the International Red Cross and Red Crescent Movement.
2.8.2007 12:44am
Malvolio:
So, time to kiss the exclusionary rule goodbye, I guess.
And good riddance. It's a remedy that only inures to guilty people.

Cops bust down your door and tear up your house. If they find (say) Jimmy Hoffa's skull, you're handed a Get-Out-Of-Jail-Free card. If they find nothing, you get bupkis, except maybe a lesson about sovereign immunity.
2.8.2007 12:47am
Ilya Somin:
there is no "1977 Third Protocol to the Geneva Conventions" that the U.S. somehow resisted.

Actually, there is. See here.. However, it is true that I was confused in labeling as the "Third Protocol." I will correct that mistake.
2.8.2007 12:53am
Kevin Jon Heller:
The U.S. has, of course, signed but not ratified either Additional Protocol I or Additional Protocol II, putting it in elite company. Four other States have signed but not ratified Protocol I: Iran, Morocco, Pakistan, and the Philippines. Three other States have signed but not ratified Protocol II: Iran, Morocco, and Pakistan.
2.8.2007 12:53am
Kevin Jon Heller:
Ilya,

You have linked to the First Additional Protocol, not the Third. As I said in my comment, the Third Additional Protocol recognizes the Red Crystal as an official emblem of the Geneva Conventions.

How are we going to resist international law if we don't know what international laws we are talking about?
2.8.2007 12:55am
A. Zarkov (mail):
Resistance will be futile if the Comprehensive Immigration Reform Act (CIR, S.2611) passes. This act allows for an additional 103 million new legal immigrants over the next 20 years. How can you increase the population by a 1/3 and not profoundly change the nature of the leadership and laws in the US? Especially when this increase occurs over such a short period of time, and adds to an already existing immigrant base. People are not magically transformed when they cross the border. How can you not expect our domestic laws not to change to international norms under such a drastic population change?
2.8.2007 1:44am
Ken Arromdee:
We also stopped the UN Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women cold because of their hard-core-left-wing provisions.

Stating a truth using sarcasm and exaggeration does not make it false.
2.8.2007 2:08am
Zoe1 (mail):
Resistance will be futile if all the Justices in the future are nominated by Democrats. But what are the chances that will happen?
2.8.2007 2:11am
martinned (mail) (www):
"That's one of the beauties of our own country even. If you don't like a state income tax or gun laws or other regulations you can move to another state. Only the most dictatorial among us wants pervasive international legal norms."

As a foreigner, I can only wonder: would one really move to another state because one does not like one's state's gun laws? The closest thing I have to experience with this kind of problem is Ireland. It's a wonderful country, don't get me wrong, but they have a few laws that are a bit outdated (abortion, divorce, etc.). Nevertheless, I can't think of anyone I've heard of ever moving to the UK just to get away from these laws. Moving for economic reasons, sure, but to vote with your feet???
2.8.2007 8:21am
jack (mail):
It happens all the time in our federal system, martinned; but moving from one state to another is a little less drastic than moving from one nation to another. Personally, I'm very happy Ireland has been able to maintain at least some of its traditional laws, even in the face of intense scrutiny by the ECJ etc. It would be a sad day if Ireland's divorce laws are changed as a result of international fiat rather than domestic legislation (if, indeed, they are 'outdated').
2.8.2007 8:42am
martinned (mail) (www):
Their being outdated is not the problem. But the fact is that people's opinions on this issue are quite clearly linked to age and social position. The vast majority of the young college students I knew when I lived there would favour legalising abortion, but at the moment there is no majority. The competition of laws approach would suggest that they move to the UK, but I don't see them doing that. And if competition of laws doesn't work, and I don't think that it does, there is no inherent reason why having rules that are the same accross the world is a bad thing. In any event, such laws would have to be democratically legitimised. For treaties, this is done by ratification, and for customary international law, this is done by both the requirement that the custom exist for some time and by the requirement of opinio iuris. Therefore, the suggestion that international law is somehow undemocratic is a non-starter. (In fairness, I haven't read the McGinnis &Somin article yet. Maybe they'll convince me.)
2.8.2007 9:00am
PersonFromPorlock:
I'm probably just a bit slow this morning, but why should the US want to adopt international norms? Even 'enlightened' Europe was the scene of endemic political malpractice and brutality in the last century and still is, if we go by the former Yugoslavia. Moreover, Europe's economy is arguably in poor shape, its public services only spottily (if at all) better than ours and its civil culture moving towards the "pleasantly authoritarian."

The rest of the world doesn't even come up to European standards.

So why the absolutely unthinking acceptance by so many American intellectuals that 'international norms' are an improvement on our own?
2.8.2007 9:01am
martinned (mail) (www):
1. Because if they weren't an improvement, there wouldn't be any point in signing up to them. (Pick and choose)

2. Because in many fields of law, having legal uniformity increases legal certainty and reduces transaction costs. (UNCLOS, International Private Law)
2.8.2007 9:06am
Ken Arromdee:
In any event, such laws would have to be democratically legitimised. For treaties, this is done by ratification,

Consider a treaty which, say, declares that free speech does not exist. Are you seriously saying that ratifying such a treaty, as opposed to passing a Constitutional amendment actually taking away the right to free speech, would democratically legitimize that treaty?
2.8.2007 9:47am
martinned (mail) (www):
The ratification of such a treaty would be, or purport to be, an amendment of the constitution. In most countries I know of, such a treaty would have to be ratified using the same procedure as a constitutional amendment. Cf. art. 79 German Basic Law or art. 54 of the French constitution. In the US, because you have a dualist system, this is not the case. This means that, as far as I can see, the ratification of such a treaty would be either meaningless, or unconstitutional, or both.
2.8.2007 9:56am
xxx:
There is no such thing as international law. The constitution is supreme. International law is unamerican.
2.8.2007 12:16pm
martinned (mail) (www):
Luckily I'm in a forgiving mood today...

Article. VI. [ Annotations ]

(...)

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

(...)
2.8.2007 12:44pm
Truth Seeker:
Article VI deals with state versus federal law. The big question is whether a treaty passed by the senate could overrule the constitution. Since the constitution can only be amended when the state legislatures agree, it makes absolutely no sense to allow a senate-ratified treaty to overrule constitutional rights.
2.8.2007 2:04pm
lszabo (mail):
What about Art. I of the US C making reference to the law of nations, and more importantly the SCOTUS in Filartiga recognizing that "the law of nations[] has always been part of the federal common law." Doesn't this argue against Volokh in a general way?
L.
2.8.2007 6:04pm
K:
Martinned and Isazbo helpfully point out what a mess the constitution really is.

There are all sorts of phrases and amendments that are not precise. And some, like the Article VI sentence that Martinned quotes, that make almost sense at all; from reading it there is just no way to say if the Constitution, the Laws made in Pursance, or Treaties are equal or, if not, which prevails.

Indeed the final phrase can be interpreted to make the Constitution itself subordinate to itself. Or not - they probably meant state Constitutions - note the 's'.

What is 'in Pursuance?'. I would say a law passed by the procedures described in the Constitution whether they agree with the Constitution itself. That is, of course, not how courts read it. It is even less clear how to weigh Treaty v. Constitution.

My personal guess is that our government is so idiotic they probably will decide others should rule us. I look forward to the enlightened rule of the UN bureaucrats.
2.9.2007 3:03pm