Aim globally.

• Author: Flaherty, Martin S.

INTRODUCTION

Recently, the Hong Kong judiciary dealt with a case that could not be more foreign nor more familiar. In HKSAR v. Ng Kung Siu, two dissidents were convicted of, among other things, desecrating the national flag in violation of local and Chinese law.(1) The two challenged their convictions, arguing that the ban violated the Hong Kong Basic Law, which effectively serves as the city's constitution within the People's Republic of China. The intermediate Court of Appeal invalidated the flag desecration ban on two grounds. It held first that the Basic Law incorporated the International Covenant on Civil and Political Rights, including "the fight to freedom of expression."(2) It then concluded that this general concept protected even the defacing of sacred national symbols. For this proposition the court cited no English precedents from Hong Kong's colonial past and still less any Chinese principles from its uncertain present. Instead it staked its claim squarely and almost exclusively on Texas v. Johnson(3) and United States v. Eichman.(4) Hong Kong's highest tribunal, the Court of Final Appeal, reversed.(5) Yet here too, the American cases made an appearance. In a careful concurrence, Justice Bokhary noted how both Supreme Court decisions had been decided by a single vote, in part to justify the Court of Final Appeal coming out the other way, but also to declare that the local flag desecration laws "lie just within the outer limits of constitutionality."(6)

Ng Kung Siu demonstrates the ongoing power of the U.S. legal canon abroad. This may not be a new story, but the narrative is picking up speed. National and transnational courts--especially constitutional tribunals--have long invoked U.S. decisions even as our judiciary seems bent on repudiating them. Just months before deciding the flag case, Hong Kong's first venture into judicial review self-consciously tracked Marbury.(7) Outside courtrooms popular movements, too, have drawn upon U.S. staples, as witness South Africa and Eastern Europe. One need not be a crit to figure out that this sort of thing will only increase as law follows power in a world facing globalization under the aegis of a lone superpower. Not for nothing does China's new national contract law discard much of the German civil law tradition to borrow instead upon the Uniform Commercial Code.

Yet Ng Kung Siu by comparison also shows the U.S. legal culture at its worst, and not just because Johnson and Eichman might well not come out the same way today. It has long been an international truism that the United States is exceptionally parochial, especially for a great power. This too is an old story, one with unfortunately little narrative development. In failing his (admittedly unfair) pop quiz on world leaders, George W. Bush may at the time have gained more votes than he lost. Next to American jurists, however, "W." seemed a cosmopolite worthy of the Hong Kong bench. Those rare counsel who do cite non-U.S. law typically do not get very far. Here think of the Supreme Court's almost sneering dismissal of Justice Breyer's suggestion that the European Union's actual practice belied what the majority had said was all but a logical impossibility in a multi-sovereign federal system.(8) With incentives like this, it is small wonder that the vast majority of U.S. law students graduate without having the least idea about the status of U.S. treaties in domestic law, the basics of a civil law system, or the applicability of international custom.

Nowhere is this problem worse than the canon, especially its constitutional division. U.S. casebooks and law reviews grace the shelves of underfunded law schools in Beijing and are requested from less fortunate institutions in Bosnia, Haiti, and (in exile) Burma. More and more these materials cover not just case law, but history, economics, philosophy and the contributions of the previously voiceless. But, to a one, they have next to nothing to say about how the world's last superpower engages with the law beyond its borders. The balance of this Essay will first consider the scope of the problem in two essential areas: the constitutional law of foreign affairs and international law applicable to the United States.(9) It will then suggest at least certain essentials without which no casebook, course, or hornbook in U.S. constitutional law can be considered complete. On the theory that we must crawl before we can run, these basics will be mainly but not entirely confined to old time case law. For foreign affairs law, the short list includes Foster v. Neilson,(10) Reid v. Covert,(11) The Paquete Habana,(12) and Missouri v. Holland.(13) For applicable international law the candidates include UN Charter, the ICCPR, Soering v. United Kingdom,(14) and Filartiga v. Pena-Irala.(15)

1. TERRA INCOGNITA

   Wherever else they get it, law students do not encounter the world outside our borders through American constitutional law casebooks. This at any rate is how things look from a quick, unscientific, yet almost certainly representative survey of the free volumes that publishers annually add to a typical professor's shelf. As Louis Henkin points out, "This was not always so. In earlier days, the constitutional law of foreign affairs was one, important, integral part of constitutional debate and study."(16) It is not so now. Specialization, national hubris, and fixation with the Supreme Court all have something to do with this. Regardless of the cause, casebooks indicate that international concerns are almost entirely outside the canon. With regard to constitutional foreign affairs law, the coverage ranges from the pretextual to the non-existent. With regard to international standards that bind the United States, the coverage is less than that.

   Turn first to foreign affairs law. As noted, the term as used here simply refers to the often complex ways in which the Constitution mediates between international law and the domestic legal order. How are treaties made? More importantly, what is a self-executing vs. a non-self-executing treaty? What are reservations, understandings, and declarations? Can a treaty extend federal power not otherwise delegated in the Constitution? Can a treaty abridge individual rights? "States'" rights? Not long ago, assembling material on these matters would have been no easy task. Yet readily available scholarship has filled this gap for at least a generation. Henkin's Foreign Affairs and the Constitution, first published in 1972, recently went into its second edition. Likewise, the Restatement (Third) of the Foreign Relations Law of the United States appeared in 1987. At nearly the same time any number of casebooks in public international law, international human rights, even international business transactions also came out addressing some or all of these matters. Debate on almost all these questions, moreover, has freshly arisen as a "new foreign affairs law" school seeks to challenge the "orthodoxy" on these matters that has stood for most of the century.(17)

   That said, it would be difficult to discover any of this in an introductory constitutional law course. Many casebooks begin promisingly enough, offering sections or subsections devoted in some way to "foreign affairs." Yet nearly all of these turn out to serve mainly as adjuncts to domestic concerns, typically separation of powers or federalism. Many "foreign affairs" sections accordingly spotlight material such as the...