U.S. Courts Should ‘Download’ International Law into Domestic Law, Obama Nominee Says

May 19, 2009 - 6:49 PM
Harold Koh, nominated by President Barack Obama to be the State Department's top legal adviser, once argued that U.S. federal court judges – including the Supreme Court – are the "critical link" between international and domestic law and play a critical role in bringing international norms into force as domestic law.

Harold Koh, dean of Yale Law School and President Obama's nominee to be legal adviser to the State Department (Public domain photo)

(CNSNews.com) – Harold Koh, nominated by President Barack Obama to be the State Department’s top legal adviser, once argued that U.S. federal court judges – including the Supreme Court – are the “critical link” between international and domestic law and play a critical role in bringing international norms into force as domestic law.
 
Koh, currently dean of the Yale Law School, explained that his concept of “transnationalism” was the “downloading” of international laws and customs into domestic law, whether through the legislative process or through federal courts’ use of international law in interpreting the Constitution of the United States.
 
Transnational law, according to Koh is “(1) law that is ‘downloaded’ from international law: for example, a law that is domesticated or internalized into municipal law … 2) law that is ‘uploaded then downloaded’: for example, a rule that originates in a domestic legal system … which then becomes part of international law … and from there becomes internalized into nearly every legal system in the world; and 3) law that is borrowed or ‘horizontally transplanted’ from one national system to another.”
 
Writing in the Penn State International Law Review (Vol. 24, No. 4, 2006), Koh argued that federal judges were the linchpin in transnational law due to their ability to unilaterally read international or foreign legal standards into their interpretations of the U.S. Constitution.
 
“[F]ederal judges have become an increasingly critical link between the international and the domestic legal spheres,” Koh wrote. “Over the decades, American judges have helped internalize international legal norms into U.S. domestic law through a range of interpretive techniques.”
 
Among these techniques are “(1) constitutional interpretation, (2) treaty interpretation, (3) incorporation of customary international law into domestic law [and] (4) direct statutory interpretation of statutes [laws] that expressly incorporate international law.”
 
Koh said that federal judges, along with government agencies and non-governmental organizations (NGOs) – a type of international interest group – were part of a network of “agents of internalization,” who should all be working together to turn international law into domestic law.
 
“[K]ey agents in promoting this process of internalization include transnational norm entrepreneurs (NGOs), governmental norm sponsors (government agencies), transnational issue networks, and interpretive communities (courts).”
 
Transnational networks, according to Koh, are created when governments and NGOs – groups such as Amnesty International and Human Rights Watch – work together to create international norms. Courts – Koh’s “interpretive communities” – then incorporate these norms into domestic law.
 
“Through these ‘agents of internalization,’ these international law rules trickle down from the international level and become domesticated into national law,” wrote Koh.
 
He even divided the U.S. Supreme Court into “transnationalist” and “nationalist” camps, saying that unlike the transnationalists, the court’s nationalist justices favored “yesterday’s issues” such as federalism, abortion, and religion.
 
“The transnationalist faction – which includes Justices Breyer, Souter Stevens, Ginsburg, and at times, Justice Kennedy – tends to follow an approach suggested by Justice Blackmun in the late 1980s: that U.S. courts must look beyond national interest” and instead “consider if there is a course that furthers, rather than impedes, the development of an ordered international system.”
 
Koh outlined precisely what transnationalist judges look for when forming their opinions, namely the “blending” of international and domestic law. Nationalists, he said, follow a more conservative path.
 
“The transnationalists believe in and promote the blending of international and domestic law, while nationalists continue to maintain a rigid separation of domestic law from foreign law,” he wrote. “The transnationalists view domestic courts as having a critical role to play in domesticating international law, while nationalists argue instead that only the political branches can internalize international law.”
 
“The transnationalists believe that U.S. courts can and should use their interpretive powers to promote the development of a global legal system, while the nationalists tend to claim that U.S. courts should limit their attention to the development of a national system,” said Koh.
 
Frank Gaffney, president of the Center for Security Policy, a conservative group, told CNSNews.com that Koh’s views mean that the Constitution is no longer the highest standard by which federal judges examine U.S. laws.
 
“He espouses a fairly radical theory that the U.S. Constitution, and the laws that flow from it, must only be one source of jurisprudence for American courts as they seek to decide cases,” said Gaffney.
 
“This is a staggering departure from the view that we have a system of laws and they’re made by people who are elected by the people of this country to represent them, and that they are signed into law by a president of the United Sates who is elected,” said Gaffney. “This is a radical idea, a radical agenda.”