Congress's International Legal Discourse
Kevin L. Cope
Georgetown University Law Center
March 18, 2014
113 Michigan Law Review __ (2015, Forthcoming)
Despite Congress’s important role in enforcing international law obligations, the relevant existing literature largely ignores the branch. This omission may stem partly from the belief, common among both academics and lawyers, that Congress is generally unsympathetic to or ignorant of international law. Under this conventional wisdom, members of Congress would rarely if ever imply that international law norms should impact otherwise desirable domestic legislation. Using public choice theory and an original dataset comprising thirty years of legislative histories of pertinent federal statutes, this Article questions and tests that view. The evidence refutes the conventional wisdom. It shows instead that members of Congress urge international law-compliance relatively often; in legislative discussions of bills whose enactment arguably triggers an international law violation, international law discourse is prevalent at rates and levels approaching those in debates over comparable constitutionally problematic bills. The discussions are also overwhelmingly supportive of international law and often phrased in legalistic terms. The evidence suggests, moreover, that electoral self-interest may actually encourage members to invoke such international law norms. These findings, together with existing literature and evidence from former policymakers, imply that members of Congress are incentivized to take public pro-international law positions by international law-minded executive officials. In this way, the executive uses the legislature to reinforce the national commitment to international law obligations. Through this inter-branch bargaining, the president boosts the country’s international credibility and strengthens her office’s own hand in making and enforcing future commitments.
Accepted Paper Series
Date posted: March 20, 2014 ; Last revised: September 29, 2014
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