This month, President Barack Obama declared he has a "legal obligation" to treat wartime detainees according to provisions of a treaty that the United States has never ratified. The maneuver raises a basic question: Who makes law for Americans?
The standard answer, drawing on the Constitution, is Congress. One of American democracy's quaint conceits, after all, is that laws should be made by the people American voters have elected.
But that old-school answer doesn't satisfy those in the progressive "transnational legal norms" movement. Frustrated that elected officials often refuse to enact the measures they favor, these reformers aim to persuade judges that progressive ideas on war crimes, arms control, the death penalty and other matters should be accepted as rights. They encourage judges to ground these rights not in local statutes produced by legislators, but in treaties, laws and court decisions of other countries, in academic writing, and in customary international law.
This legal movement, potent in Europe, has had less success in this country, where citizens fervently safeguard democratic accountability and national sovereignty. But Mr. Obama has brought some eminent transnational law supporters into his administration, including the chief lawyer at the State Department, Harold Koh. And the president's announcement about the proper way to treat wartime detainees is a precedent-setting endorsement of transnational legal theory.
The move hasn't gone unnoticed. Sen. Jon Kyl (R., Ariz.) has already criticized the announcement, and more opposition can be expected from senators protective of their advice-and-consent authority on treaties.
The treaty Mr. Obama cited is Protocol 1 to the Geneva Conventions on the laws of war. Drafted in the mid-1970s, the Carter administration signed Protocol 1, but President Ronald Reagan, after years of interagency review, concluded that it is "fundamentally and irreconcilably flawed," because it contains provisions that would "undermine humanitarian law and endanger civilians in war."
Read more here: Douglas J. Feith: Obama Embraces 'Transnational' Law - WSJ.com