International law exists -- which is why we need Harold Koh

Yale legal scholar Harold Koh understands foreign legal systems -- that doesn't mean he's going to implement them here.

By Ronald Slye

U.S. President Barack Obama's nomination of Harold Hongju Koh, the dean of Yale Law School, for the position of legal advisor to the State Department spurred uproarious criticism. A number of media commentators argued that his espousal of a transnationalist legal perspective makes him a dangerous choice. The New York Post branded him a member of the "axis of disobedience." The National Review reprinted a letter castigating Koh for saying he could imagine precepts of sharia law at work in the United States.

These critics argue that a transnationalist approach subordinates U.S. national interests to global or foreign ones (an especially timely issue given the global legal wrangling over the United States' "enhanced interrogations" policy). But this view is incorrect and based upon a lack of understanding of this dynamic legal approach.

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law's traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law -- that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach -- in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether "liberal" or "conservative," concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms -- and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.

Finally, since the founding of the republic, international law has influenced U.S. law and vice versa. All three branches of the U.S. government have incorporated, interpreted, resisted, and responded to international law. And, especially since World War II, the United States has played a proud and instrumental role in developing it and ensuring its enforcement. Those interactions are the focus of a transnationalist legal approach to law, and why Koh must understand transnationalism to act as the State Department's legal advisor.

Ultimately, legal transnationalism, particularly as articulated by Koh, falls squarely within the mainstream. Koh himself is a moderate, having worked for both the Republican Reagan and Democratic Clinton administrations. Everyone from Laurence Tribe of Harvard Law School to Dean Kenneth Starr at Pepperdine University School of Law, as well as half the country's law school deans, supports him. This is not surprising. We are, of course, talking about the legal office that most directly engages with issues of international law. Why would we not want one of the foremost international law experts in the country in that position?

Ronald Slye is an associate professor of law at Seattle University and the director of its international and comparative law program.

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