April 10, 2009

Ten Questions for Harold Koh

Harold Koh's nomination as Legal Advisor to the State Department has sparked a heated debate between those with a more internationalist or transnationalist legal perspective and those with, what I will call, an American exceptionalist perspective. (You can find a more detailed discussion of Koh's views and possible ramifications here.) Julian Ku at Opinio Juris tries to tone down the rhetoric and spark a substantive debate by offering 10 questions that should be asked of Koh at his confirmation hearing.

1)  The Senate may consider three important treaties in the near future:  The UN Convention on the Law of the Sea, the Convention for the Elimination of Discrimination Against Women, and the Convention on the Rights of the Child.  Do you believe that it is legal and appropriate for the U.S. government to attach statements of “non-self-execution” to these treaties such as those that were attached to the International Convention on Civil and Political Rights? Would you be willing to defend the domestic legality of such provisions in U.S. litigation? 


2)  You have argued in your writings that transnational legal processes can and should be used to develop and eventually “bring international law home” to have binding force within the U.S. legal system.  Do you think it is appropriate as Legal Advisor to support such efforts to use litigation to incorporate international legal norms within U.S. law? 


3)  The U.S. government has filed statements of interest on behalf of foreign governments, such as Indonesia and South Africa, objecting to the lawsuits brought against them or against multinational corporations who allegedly were complicit in their human rights abuses.  Do you approve of the use of such statements, such as the ones that were filed by the Legal Advisor on behalf of South Africa?  What binding force do you think they should have on the courts? What standards will you use to choose whether or not to recommend filing such a statement?


4)  You have written vigorously in defense of the view that customary international law has the status of federal common law within the U.S. legal system.  Do you therefore also believe that the President has the power to invoke CIL to preempt state law, as some scholars have suggested?


5)  You have argued for a “Constitutional Charming Betsy Canon” that would guide courts in the interpretation of the U.S. Constitution.  Does this mean that you believe courts should, whenever possible, interpret the Constitution to conform with international law and foreign law?   


6) One your predecessors, William Taft, argued that the 2003 invasion of Iraq was legal under international law and offered a number of legal opinions to that effect during his tenure.  Do you agree with his interpretation of international law governing the use of force in Iraq? 


7) According to newspaper reports, the U.S. government has been engaged in the use of covert military attacks in at least seven different countries, as part of the “global war on terrorism.”  These attacks have included missile attacks in Yemen, Syria, and Pakistan.  Such attacks, by U.S. Special Forces, were authorized by President Bush.  Do you believe these attacks are lawful, under U.S. and international law?


8 ) Do you believe the United States acted lawfully when it attacked Serbia during the 1999 Kosovo conflict despite the lack of any congressional authorization or authorization from the United Nations? 


9) To the extent that U.S. forces detain individuals associated or part of Al Qaeda, in Guantanamo or Afghanistan, do you believe that such individuals are entitled to the protection of international human rights law as well as, or instead of, the laws of war? 


10)   Recently, universal jurisdiction has been invoked in Spain to potentially prosecute six officials from the Bush administration for giving legal advice that allegedly sanctioned torture.  Universal jurisdiction has also been the basis for or potential prosecutions of Israeli officials involved in military operations in the Gaza Strip. Given your past advocacy of transnational legal processes and the invocation of universal jurisdiction  in the United States under the Alien Tort Statute, do you believe it is appropriate for Spain to open that investigation into U.S. officials?  At what point would it be appropriate for the United States to protest such an investigation? 

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