disputed. The debate about his nomination to legal advisor at State so far features a breathless New York Post article, a bland and uninformative Times article, an indignant piece in Slate, and much huffing and puffing by bloggers who, with a small number of honorable exceptions, have refrained from discussing Koh's ideas.
Koh is best known for his defense of what he calls "transnational legal process," a somewhat ill-defined concept that refers to the process by which international legal norms enter domestic law. When the president ratifies a treaty with senate consent, the treaty becomes a part of American law; if the treaty is self-executing, courts will enforce its provisions. Congress can also adopt international law by statute. Common law courts, including federal courts using their limited common law powers, are free to draw on international and foreign law for inspiration, and often do. And federal courts sometimes rely on norms of international law for the purpose of interpreting ambiguous statutes and, more controversially (because they are so hard for legislatures to change), constitutional provisions such as the eighth amendment.
The observation that courts do these things is not controversial. The significance of these practices is open to question. In Koh's work, transnational legal process explains why nation states comply with international law despite the absence of international legal enforcement mechanisms. He thinks that transnational litigation—along with other bureaucratic and diplomatic processes—causes states to "internalize" international law. Judges, bureaucrats, elected officials, and the other people who make decisions on behalf of states become habituated (by a process that Koh does not explain) into complying with international law, and so cause states to obey international law even when a cost-benefit analysis would indicate that violation of a particular international legal norm serves a state's interest.
Koh argues by example and in his hands every example turns into a homily about the wisdom of, invariably, liberal norms of international law, the futility of resisting them, and the retrograde attitude of the United States (particularly, Republican administrations). The Reagan administration junks the ABM treaty but then transnational legal process compels the United States to retreat during the Clinton administration. (Koh made this argument before Bush II tore up the treaty.) The Reagan administration mines Nicaragua's harbors and disregards an adverse judgment from the International Court of Justice, yet this judgment mobilizes popular opinion that forces Reagan to pull in his horns. (This account is largely baloney.) The U.S. government kidnaps a criminal suspect from Mexico but then pays the price in domestic litigation and backs away from this practice (except when it doesn't). The U.S. refuses to enter the Landmines treaty but nonetheless finds itself succumbing to anti-landmines pressure. Americans support the death penalty but international law frowns upon it, and eventually the Supreme Court cites foreign and international law in the course of striking down capital punishment for people who are mentally retarded or who committed capital crimes while juveniles.
For Koh, these examples and others like them show that international law does not merely influence domestic law when the U.S. government says so—something that no one doubts or objects to. International law also affects domestic law in the teeth of opposition by the elected officials of the U.S. government, often in ways that are indirect and hard to observe. That is why international law doesn't need an external enforcement mechanism to be effective. And this is a good thing, according to Koh. We should show a "decent respect to the opinions of mankind," and somehow we end up doing this even when we vote for politicians with the opposite impulse—all thanks to transnational legal process.
This brings us to the Shariah discussion at the Yale Club in New York, which started the debate. It wouldn't surprise me if someone asked that question—whether U.S. courts would have to enforce Shariah. It is the obvious sort of question that anyone who hears Koh's ideas would ask. What if the "opinions of mankind," as embodied in international or foreign law or simply international opinion, diverge from our own opinions about how we should conduct our political life?
According to the Times' account, Koh responded to the Shariah question by saying that all legal systems have common underlying concepts—in other words, we show respect for the law of another state by enforcing those principles common to it and other legal systems, including our own. If that was his answer, it was a dodge. When Koh argued in one of his articles that execution of mentally retarded people violates international law, and therefore should be stopped, he was obviously not making a lowest-common-denominator argument, a type of argument that does not have any critical force whatsoever. The United States should refrain from executing the mentally retarded because most other countries refrain from executing the mentally retarded, and that is that.
So consider now the United Nations Human Rights Council's resolution last month that defaming religion (actually, defaming Islam) violates international human rights law. The Europeans were outvoted, not that this matters, but even if it does, it does not take much effort to imagine them changing their tune in an effort to appease their restive Muslim populations, especially given that norms of freedom of expression have always been weaker in Europe than in the United States. When this happens, must Americans conclude that international law prohibits the defamation of religion? Would American politicians, judges, and bureaucrats have an obligation to incorporate this norm into American law?
The Europeans themselves don't seem to think so. Last fall, in the Kadi case the European Court of Justice implicitly repudiated Koh's notion of transnational legal process in the course of holding that international law (in the form of a UN Security Council resolution on terrorist financing) would not bind European member states because it offended European notions of procedural due process. The Europeans chose to adhere to their values rather than pay "decent respect to the opinions of mankind." Why shouldn't we?
In an article a few years back, Koh finally responded to these sorts of criticisms. He said that transnational legal process is not about "nose-counting," and so we needn't accept the bad with the good. The subtext was that we can ignore those retrograde Muslim countries—they just aren't "developed" like us in the west. Koh left it at that, giving the reader the distinct impression that international law counts only when it coincides with the norms of the Yale Law School faculty lounge.
Foreign-law opponents, take heart! Koh is not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law serves as a handy vehicle, to be used or ignored to the extent necessary to reach this goal. Obama is certainly entitled to have a mainstream liberal lawyer like Koh in his government. In case you haven't noticed, Koh won't be the only one.
For my part, I wish I were wrong, and that Koh's tenure would be a real test of legal cosmopolitanism, properly understood. I would love to be a fly on the wall when Koh explains to Hillary Clinton that customary international law prohibits the death penalty, and accordingly the United States has a legal obligation to eliminate the death penalty and should urge places like China to do the same. I would expect that Koh would soon find himself negotiating embassy lease agreements in Burkina Faso. But Koh will not be so rash. In his writings, Koh has been careful to leave this final evolution of the customary international law on capital punishment to the undefined future, a mark of prudence that should serve him well in government.