The United States should embrace international law

It is staggering to read the backlash against President Barack’s nomination of Harold Koh as legal advisor to the US State Department. It also reveals a serious misunderstanding of what his appointment would mean.

The reason for the anger at Koh is that he is an apologist of international law. His views are that the US should embrace “transnational jurisprudence”: international law should inform the legislative process in the US and elsewhere. He is right.

His critics seem to believe that non-American laws are somehow inferior to American ones; that international law can override the American constitution; that the International Criminal Court is praying for Koh’s nomination so that they can jump into the US and arrest Americans; and that the US’s sovereignty, and thus existence, is at stake. These fears are simply unfounded.

International laws are similar to American ones. International criminal law, for instance, forbids many of the same things American law does: killing, stealing, organised crime, and so on. One big fear among conservative Americans is that international law will mean Americans can no longer carry their guns. Why would this be so? There are indeed conventions against the manufacture and trafficking of illegal arms, designed to reduce the ability of rebels and transnational criminal organisations to obtain weapons; but do law-abiding Americans need to worry about this law?

International laws stop where the rule of law at national level begins. Not all countries need to sign up to all international conventions. If someone in the United States wanted to ratify an international treaty, it would not be a simple matter of a White House legal aide’s signature: it would need to be passed by all three branches of the US government. And if there were an international convention that took away the firearms of all citizens of all states, do you seriously believe it would pass through Congress?

The International Criminal Court is also not an issue for Americans. Americans will not be tried at the Hague. The ICC statute is very clear on this: if a country lives under the rule of law, with a good, fair legal system, it will not be targeted by the Court. The ICC is for countries like Sudan and Uganda, which will not or cannot try the worst of its citizens as criminals. Because of the US’s strong legal system, though not one without flaws, the ICC has no reason to intervene into US jurisdiction.

While it is clear that many are afraid of losing the American constitution to international bodies, many more simply want to attack President Barack. Most of the people criticising his choice for legal advisor are people who rarely have a good word to say about him at any time. This is just the latest attempt at “preemptive discreditation”, in the words of Ronan Farrow of Forbes, of the president. Along with the White House, Harold Koh’s supporters include the Senate, which generally approves of him, the Senate Committee on Foreign Relations, who voted 12-5 in his favour, and 11 prominent American law professors, who wrote a letter to Congress in his favour. But how could they support a man who thinks other countries’ laws are better than America’s?

They do not. They support a man who does not dispute the supremacy of the US constitution, while acknowledging that other countries’ experiences in interpreting the US constitution just might be educational. Imagine that–the US could learn something from other countries.

Along with the educational value of someone who understands and appreciates international law, appointing Harold Koh could mean more legitimacy for the US in its international engagement. The US’s reputation abroad suffered terribly under the Bush administration, in large part due to an illegal war and illegal actions while fighting that war. Reputation counts. When a country has a good reputation, say for behaving according to accepted norms and supporting others internationally, it gets what it wants in international organisations such as the UN and the WTO. When it squanders its goodwill, as the Bush administration found out in its second term, its influence drops considerably. Power is no longer about who has the most guns: it is about influencing others, who also have guns.

If the United States wants to retain the capital it has won internationally by making the right choice for president and legal advisor, it will embrace international law, and Harold Koh.