Download Full Image
“The transnational movement has advocates in law schools across the country,” Kyl said. He added that the law school influence is now reaching the White House, citing the fact that Harold Koh, the former dean of Yale Law School who has a transnational mindset, now serves as Legal Adviser to the U.S. Department of State.
But Kyl called the phenomenon “lawfare” – a type of warfare – against American sovereignty, and pointed to the way the European Union has imposed laws on member states as an example.
“It is an end-run around the democratic process,” Kyl said.
The Willard H. Pedrick Lecture was established in 1997 by the Pedrick family in memory of the founding dean of the College of Law. The annual lecture brings to the law school outstanding legal scholars, jurists or practitioners to enrich the intellectual life of the College and the community.
“The Pedrick Lecture is one of our signature events, providing a forum for thought leaders to present important and often provocative views to our students, faculty and, more importantly, members of the general public,” said Doug Sylvester, interim dean. “This year we are exceedingly honored to have Senator Kyl provide the lecture. We could not have chosen a more important figure to deliver this address, and we look forward to hearing what Senator Kyl has to say – and we hope everyone in the community will join us.”
Kyl said that transnational law advocates attempt to create rights citizens can assert against their governments without going through the legislative process. Those rights, he said, can then be asserted in a nation’s domestic courts, as has been done in Europe.
As an example, Kyl cited Additional Protocol 1 to the Geneva Conventions, drafted in the mid-1970s, provisions of which Kyl said would permit terrorist groups to receive prisoner-of-war privileges, even if they hide among civilian populations and do not reveal themselves until just before an attack.
The United States signed the agreement, but President Ronald Reagan declined to submit it for ratification. Critics say it would hamper American combat operations and increase risks for U.S. soldiers and civilians in combat zones.
“Nevertheless, the International Criminal Court uses Protocol 1 as a standard to judge adherence to the laws of war,” Kyl said. And, Kyl added, the Obama administration has “deemed” some provisions of Protocol 1 that deal with fundamental guarantees for non-state combatants to be legally binding on the United States.
Kyl sees this as an erosion of the Constitutional responsibilities of the United States Senate, and an attack on the nation’s system of checks and balances.
“Who decides these matters is a key question,” Kyl said. “Those who are elected should make the law of the land, as well as provide advice and consent on treaties. Now we have the Secretary of State deeming a provision of a protocol to the Geneva accords as applicable to the United States, even though we’ve never ratified it.”