Document Type

Review

Publication Date

2014

Abstract

According to Julian Ku of Hofstra University School of Law and John Yoo of the University of California, Berkeley, School of Law, globalization poses a significant threat to the U.S. constitutional system of governance. In their recent book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, they seek to reassure readers that this threat can be deflected. If their prescriptions are followed, Ku and Yoo argue, the United States can avoid constitutional problems while continuing to reap the benefits of international cooperation. Ku and Yoo insist that they are neither trying to stop globalization (a hopeless endeavor in any event) nor categorically opposed to the international community’s efforts to regulate globalization’s effects. Instead, their approach is “accommodationist” (p. 13); they offer three proposals to alleviate the “tension” between international governance and the U.S. Constitution (p. 2). First, U.S. courts should presume that treaties are not self-executing and should enforce them only if Congress has adopted implementing legislation. Second, customary international law (CIL) should have the status of federal law only if Congress has adopted legislation implementing the CIL norm. In the absence of such legislation, Congress and the courts should defer to both presidential interpretations of CIL and presidential decisions about compliance with CIL. Third, individual U.S. states ought to have more autonomy in deciding whether and how to implement international obligations, especially those that affect traditional state interests.

Comments

This article is reproduced with permission from the July 2014 issue of the American Journal of International Law © 2014 American Society of International Law. All rights reserved.

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