There are few people in this world who have fought harder for human rights and dignity than Harold Koh, and I have been extremely upset to see a life of good work mischaracterized. Even before I came to know him personally as a law student in 1995, I remember walking through Yale Law School and being inspired by his work on behalf of Haitian refugees. He is a deeply ethical person who has taught me and so many others a great deal about how to effectively advocate for human rights victims, and how to work collaboratively with a wide range of people. His collaborative spirit has been evident through his effective work in Washington under both Democratic and Republic leadership, as well as in his successful deanship at Yale Law School.
My focus here, however, is not just to say how much I respect and admire Harold Koh or to reiterate the responses of so many others (such as on IntlLawGrrls, Opinio Juris, Balkinization, and Above the Law (including that of conservative Yale Law School Students)) to the smears. Rather, I would like to articulate why his theory of transnational legal process is not at all radical, but a sensible approach to dealing with the globalization that affects every aspect of the practice of law. (See too Diane's post on a similar point.)
In his 1996 Nebraska Law Review article entitled Transnational Legal Process, Harold Koh summarizes the core elements of the theory:
Transnational legal process has four distinctive features. First, it is nontraditional: it breaks down two traditional dichotomies that have historically dominated the study of international law: between domestic and international, public and private. Second, it is nonstatist: the actors in this process are not just, or even primarily, nation-states, but include nonstate actors as well. Third, transnational legal process is dynamic, not static. Transnational law transforms, mutates, and percolates up and down, from the public to the private, from the domestic to the international level and back down again. Fourth and finally, it is normative. From this process of interaction, new rules of law emerge, which are interpreted, internalized, and enforced, thus beginning the process all over again. Thus, the concept embraces not just the descriptive workings of a process, but the normativity of that process. It focuses not simply upon how international interaction among transnational actors shapes law, but also on how law shapes and guides future interactions: in short, how law influences why nations obey.This description makes clear that transnational legal process does not describe a process by which “Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government,” as Ed Whelan has suggested in his attacks. Rather, the theory describes the way in which international legal norms emerge and why nations obey them. Koh astutely recognizes that in our globalizing world, many different actors influence and are influenced by international law beyond the formal ways in which our legal system incorporates it.
Nothing in Koh’s theory attempts to change either the formal recognition of international law in the U.S. legal system or the way in which it is constituted. The U.S. Supreme Court, an institution at the core of our domestic legal system, has long recognized that:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.This famous Supreme Court case from 1900 (Paquete Habana) makes clear that our courts have been charged with the difficult process of consulting many different types of international legal sources to establish the norms to include as part of the customary international law that binds the United States.
Moreover, customary international law has long been used by both Republican and Democratic administrations to allow the United States to adhere to international legal norms in the absence of a binding treaty. For example, the United States has signed but not ratified the Vienna Convention on the Law of Treaties and the 1982 Convention on the Law of the Sea, but relies on the provisions of both of these fundamental treaties in conducting its international relations. Our democratically elected representatives need to rely upon both treaties and customary international law to make basic decisions about how we relate to other nations.
Finally, I would like to offer a more standard definition of transnational law as a mix of public international law, private international law, and comparative law. At Washington and Lee University School of Law, transnational law will be a required first-year course starting next year. This decision, unanimously endorsed by a faculty that includes a wide range of political views, reflected a recognition, as stated by our Associate Dean:
'However 'global' in scope the practice of law may be today, it seems very likely to be even more so – and for more lawyers – in the decades ahead. Law schools must acknowledge this reality and introduce students early on to the effects of globalization on the formulation, content, and practice of law and regulation in the modern world.'
This country would be lucky to have a distinguished lawyer and academic like Dean Koh as the State Department’s Legal Adviser. And as U.S. lawyers increasingly face the ways in which globalization brings transnational elements into every aspect of our legal practice (one of my first law students just emailed me, for example, about her work as in-house counsel involving an understanding of Chinese law because her company works with China), it is critical that we respond constructively.