Tuesday, June 17, 2003

The Courts: Defining "International Law"

I despise Robert Bork's political philosophy, but he makes a good argument against the proliferation of "international law" in today's Wall Street Journal:
Courts also look to the writings of scholars for evidence of what international law is. Compared with 1789, we now have a plethora, one might say a surfeit, of professors of international law, and they, by and large, support the notion that the law of nations deals with individuals and corporations as well as nations. They also seek aggressively to expand what international law covers, everything from the right to a healthy environment to the right to organize and bargain collectively in all countries. So much for sovereignty.

There could be no more anti-democratic way to make international law than to rest it upon the opinions of professors. That process is not only anti-constitutional and undemocratic, it is class oriented. The professoriat in social matters is well to the left of the American public; the international law they claim exists is not one Congress would define under its constitutional power. Judge Robb, concurring in Tel-Oren, put it well: courts "ought not to serve as debating clubs for professors willing to argue over what is or what is not an accepted violation of international law."

That is not the worst of it. When American courts undertake to decide what is lawful and what is unlawful in foreign countries, they risk interfering with the foreign relations of the U.S. There is certain to be resentment when a foreign nation is told by an American court that actions their courts allow are nevertheless illegal. In many of these cases, of course, there is no possibility that damages will be paid, though there may be when American corporations are held liable under a vague and constantly evolving customary international law. But a judgment that international law has been violated constitutes a propaganda victory for one view of appropriate world-wide social policy. That is a misuse of our courts to award professors and advocacy groups a moral and legal legitimacy that is not rightly theirs.
As leftist groups find their objectives thwarted at the ballot box and in traditional American common law, they are more frequently seeking refuge behind "international law," a term which practically speaking means the socialist policies of European elitists.

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