Internationalists of Convenience

There has been some brief discussion of the use of international law in U.S. courts over at the Volokh Conspiracy and Opinio Juris. My view of the issue is that there are very few people who are actually "internationalists" here. I see three general groups out there:

(1) Those who cite international law when it supports their views and ignore it where it does not

(2) Those who think international law should either trump domestic law or play an important role in its interpretation and formation, regardless of whether they agree with the substance

( 3) Those who think international law should play at most a minor role in the interpretation and formation of domestic law, regardless of whether they agree with the substance

Most of what I read, in both the popular press and from legal experts, falls into (1). People in (2) are true internationalists who believe, for various reasons, that the international is inherently good. People in (3) are true sovereigntists who believe, for various reasons, that the international is inherently bad. But people in (1) really only care about the particular issue they are interested in (e.g. prohibiting gay marriage or allowing it) and cite to international/foreign sources of law that support their view. They don't care about the proper role of internatinoal law in U.S. law. Thus, to me, they are only "internationalists of convenience."

Abortion in International Law

At Opinio Juris, Peter Spiro writes:

Meanwhile, 74 House lawmakers have sent a letter to Amnesty International USA urging it to oppose a proposed AI policy deeming abortion to be a human right in limited circumstances. (That's an interesting turn of the table: legislators lobbying NGOs, rather than the other way around.) See the respectful acknowledgment by AIUSA here. The matter will be taken up at an AI summit this summer in Mexico City. Of course there are now also international NGOs (leaving the Vatican aside) pressing a pro-life agenda as well.

One could imagine that over the next twenty years or so there will emerge an international norm protecting a right to abortion in some cases, which is not of course to say that it will be an easy agenda to advance.

I suppose that last bit is possible if he is referring to a right to an abortion in the case of the mother's health. On the other hand, one could also imagine that over the next twenty years or so there will emerge an international norm protecting a right to life in certain cases. (Also, one could imagine that the concept of "international norm" would become important and relevant.)

Mass v. EPA Global Warming Case

Jonathan Adler points to a NY Times editorial that argues the Bush administration is in the wrong in the Mass. v. EPA case:

A group of 12 states, including New York and Massachusetts, is suing the Environmental Protection Agency for failing to properly do its job. These states, backed by environmental groups and scientists, say that the Clean Air Act requires the E.P.A. to impose limits on carbon dioxide and other greenhouse gases emitted by new cars. These gases are a major contributor to the “greenhouse effect” that is dangerously heating up the planet.

The Bush administration insists that the E.P.A. does not have the power to limit these gases. It argues that they are not “air pollutants” under the Clean Air Act. Alternatively, it contends that the court should dismiss the case because the states do not have “standing,” since they cannot show that they will be specifically harmed by the agency’s failure to regulate greenhouse gases.

A plain reading of the Clean Air Act shows that the states are right. The act says that the E.P.A. “shall” set standards for “any air pollutant” that in its judgment causes or contributes to air pollution that “may reasonably be anticipated to endanger public health or welfare.” The word “welfare,” the law says, includes “climate” and “weather.” The E.P.A. makes an array of specious arguments about why the act does not mean what it expressly says. But it has no right to refuse to do what Congress said it “shall” do.

Their "plain reading" argument is hard to take seriously. Do they really believe that? Remember, the act refers to "clean air" not "warm air." And is "air pollution" really at issue in the global warming debate? I understand they are desperate for some action to be taken, but it seems to have affected their reading ability. Whatever your view on the appropriate result, the interpretive issues are certainly not "plain."

Deep Sea Fishing Treaty

An effort to establish a UN treaty regulating deep sea fishing has been scuttled, and Greenpeace is hopping mad. The are particularly mad at Iceland: "The international community should be outraged that Iceland could almost single-handedly sink deep-sea protection and the food security of future generations," said Karen Sack of Greenpeace International." (Canada appears to be happy with the failure of the talks as well.)

I can see why some folks want the treaty, as they are concerned that the practice "can cause damage to extremely slow growing ecosystems, particularly coral reefs, and also depletes other marine life that is captured by the nets." But I wonder if the treaty approach is really the best way. You have a few countries, including Iceland, that have powerful fishing groups who want to maintain the practice. Is a treaty really going to be effective in these circumstances?

This situation reminds me somewhat of whaling, where there is a ban but nevertheless some countries are able to take advantage of exceptions to keep catching whales. Furthermore, these same countries continue to lobby to get rid of the ban, and