Supreme Court nominee Brett Kavanaugh has nothing but contempt for international law. But he has shown uncritical deference to executive power, particularly in the so-called war on terror cases, argues Marjorie Cohn.
By Marjorie Cohn
The two primary sources of international law are treaties, and what’s known as “customary international law.” Ratified treaties are part of domestic U.S. law under the supremacy clause of the Constitution, which says treaties “shall be the supreme law of the land.” Furthermore, it has long been established that customary international law, which arises from the consistent and general practice of nations, is also part of U.S. law.
Although he professes to interpret the Constitution as written by the founders, Kavanaugh has apparently overlooked the supremacy clause and simply scorns customary international law.
Jordan Paust, international law scholar and professor emeritus at University of Houston Law Center, told me in an email, “The unanimous views of the Founders, Framers, and Supreme Court Justice opinions is that the President and all members of the Executive Branch are bound by international law.” Paust also referenced a 2016 article he wrote in the Houston Journal of International Law documenting this fact.
Kavanaugh, however, erroneously conflates international law with foreign law. The U.S. agrees to the terms of treaties it ratifies. And in most instances, the United States can opt out of a customary international law norm if the U.S. objected while the norm was being developed. Foreign law, on the other hand, is the law of other countries — such as French law, German law, etc.
In the 2016 case of Al Bahlul v. United States, a Guantánamo detainee argued that since “conspiracy” was not an offense under the international laws of war, he should not be tried for conspiracy before a military commission.
Kavanaugh’s concurrence in that case characterized al-Bahlul’s argument as “extraordinary” because “it would incorporate international law into the U.S. Constitution as a judicially enforceable…