The Big Picture on Koh

by publius

The war against Koh is heating up, as David Weigel reports.  It’s going to get ugly, and the attacks thus far have been both misleading and steeped in nationalist paranoia and conspiracy theory. 

Anyway, before things really heat up, I want to try to present a big picture of some of the various diverse strands of Koh’s writings.  Don’t get me wrong – I’m going to further address in detail why I think Ed Whelan’s posts have been misleading and unfair.  But for tonight, let’s stick to the big picture.

Koh is a highly-respected international law scholar.  And he’s written a ton of stuff – roughly 175 law review articles and 8 books.  When you write that much, it’s very easy for people to cut and paste snippets here and there that don’t sound good out of context.  Of course, there’s nothing wrong with using snippets to attack someone – but those snippets must fairly represent the consistent themes of one’s scholarship.

So let’s unpack some of those themes, because they’re quite distinct:

First, Koh supports looking to international law to help inform legal decisions.  If you’re ok with courts using Webster’s Dictionaries, then this shouldn’t be too deeply unsettling.  Courts look at external sources all the time when construing federal statutes and constitutional text – things like dictionaries; state law; policy; precedent; Blackstone’s Commentaries, etc. 

No one is saying that international law dictates what the Eighth Amendment means.  Koh is merely saying that we can look at other stuff to help us make good decisions.  It’s almost laughably banal.

Second, we have “transnationalism,” for which Koh is best known.  Whelan and others demagogue the very word – but at heart, it’s fundamentally a descriptive theory about the interaction between international and domestic law.  (There are normative elements too, and I’ll get to those).

Transnationalism responds to well-known questions in the literature – why do nations follow international law?  How does international law become incorporated into domestic law?  There are many schools of thought on this – e.g, self-interest, coercion by powerful states. 

Koh’s innovation was to argue that “transnational legal process” plays a role too.  Essentially, the idea is that various interactions among various diverse parties (e.g., grassroots efforts, legislation, litigation, persuasion) can create norms that are eventually internalized by various institutional actors.

Norm internalization is a fancy word for “changing people’s minds” or “persuading” them.  For instance, the reason you follow the speed limit even if no cops are around is because you’ve internalized that norm.  Similarly, most countries have voluntarily adopted the Geneva Convention because, at some point, they internalized the norm that killing prisoners is bad.

Koh’s work describes how these developments came about – e.g., how these norms form, and how they get internalized.  The descriptive aspect of his work is his most interesting contribution – and it’s what people like Whelan wholly ignore.  From reading his posts, you’d think transnationalism is one big normative proposal to illegally supplant domestic law.

There are, however, normative aspects to Koh’s transnationalism – but they follow quite humbly from his descriptive theories.  In short, Koh is simply arguing that we should work to try to change people’s minds.  By engaging the world – e.g., advocating for human rights; filing habeas claims; volunteering in other countries, etc. – we can help change norms.  The hope is that these changed attitudes will eventually be reflected in law.

For instance, in one article (the Stanford article Whelan cites), Koh explains how transnational legal process might be applied to help the US come to terms with the ICC. 

In plain English, he proposes ways to help the US change its mind about the ICC.  For instance, he suggests that the ICC prosecutor might bring cases that the United States would be very willing to support (maybe a prosecution of Saddam’s peeps).  After the United States saw the court act properly and in a helpful way over a period of time, the “process” could eventually help Americans internalize the legitimacy of the court.

That’s how it works.  There’s nothing nefarious here.  There’s no attempt to force anything down anyone’s throat.  Actually, his theory displays a reaffirming and even Romantic faith in the ability of grassroots action to bring real change – there’s a real beauty and aesthetic to the idea after you get beyond the caricatures.  It’s the spirit of the Obama "roll up your sleeves" campaign applied to international law.

A third aspect of Koh’s writings refers to a fairly complicated academic debate about a legal concept called “customary international law” (CIL).  It’s this strand that’s got Whelan in a tizzy. 

I’ll elaborate on this in a future post.  But needless to say, there’s no nefarious plot here either.  As we’ll see, a big part of CIL is simply that federal courts can and do refer to customary international law to help them interpret other laws such as treaties and statutes.  In short, it helps inform courts' interpretations.

To be sure, there’s a legitimate academic debate about what “CIL” is, and some liberals offer excessively expansive definitions.  But Whelan transforms this debate into an international conspiracy to implement a “revolution.”  But anyway, more on this last point to come.

In short, there are various strands of Koh’s work that need to be kept distinct.  It’s very easy, for instance, to take snippets from #3 (CIL) and use them to distort his true views about #1 (that international law should inform us).

More broadly, it’s easy to lose sight of the big picture in the weeds.  In some ways, posts like mine actually serve conservatives’ purpose.  The very act of defending Koh’s writing in the detail that is required makes it seems like there’s actually something to be ashamed of.  There’s not.

To be clear, this is an ideologically-charged smear campaign that is relying on pulling quotes out of context and presenting them in inflammatory ways.  It’s nativist world-hating at its worst – but it’s a serious threat.  And it needs to be met head-on.  And Obama can’t cave.  Caving on Koh would create the worst sort of incentives – and would signal that these types of attacks can successfully wound the President’s agenda. 

Obama can either smack it down now, or he can keep fighting this battle for the rest of his term.

Comments

[Gary Farber]

Publius, it would be informative if you'd respond to the comments on your last post on this topic, particularly this one.

Thanks.

[Gary Farber]

"Similarly, most countries have voluntarily adopted the Geneva Convention"

IANAL, but it's rather startling to read this locution, given that there is no "the Geneva Convention." There are, famously, four Geneva Conventions. This is basic to discussing any of them.

I find it unnerving when a lawyer is so imprecise. When you get something wrong that I know about, and is so simple, it makes me wonder what you might be getting wrong that I don't know about.

[byrningman]

I hear he's in bed with the Saudis too!

[CharleyCarp]

I agree that the President shouldn't back down, but am not under any illusion that his will avoid having to fight this battle over and over.

[rea]

Publius, it would be informative if you'd respond to the comments on your last post on this topic, particularly this one.

Well, I'm not Pulius, of course. But it seems to me that the questions to which you linked are put at a level of abstraction which makes discussion difficult.

For example, should a treaty that the US did not ratify be used to show international norms that ought to be enforceable in US courts as a matter of federal common law? Well, give me a concrete fact situation in which the issue arises, and I might be able to answer the question. Talking about it in the abstract lends itself to undue wankery.

Maybe another example would show what I mean. Should a US court sometimes apply Sharia law? Koh has been acccused of saying that there are cases in which Sharia ought to be applied, although the evidence of him actually saying that is highly dubious. But imagine a case in which a US Court has to interpret a contract made in Yemen. Application of Sharia contract rules to such a case is rather obviously correct, as long as it does not lead to some result that a US court would find repugnant . . .

[Jonathan H. Adler]

Publius -

The looking-at-international-law-equals-looking-at-dictionaries argument is beneath you. Based on your prior writings, I would have thought you recognized that different sorts of external sources are consulted for different types of purposes, and that accepting one does not entail accepting others for the same purpose.

So, for instance, dictionaries, in some cases, may provide insight on what a text actually means and was understood to mean when written. The same could be said for foreign law in a limited set of circumstances (e.g. pre-founding English common law can inform common law notions here). But, in many cases, looking to international law involves something quite distinct from trying to ascertain the original public meaning of a text. Whether this is good or bad is a separate question, but I would have thought it an obvious point.

JHA

I would have thought this was obvious

[publius]

"In many cases" - well, not in the case of how it's actually been used by the Supreme Court. I do think it's a bit rich though that the "limited set of circumstances" means "it's ok to help with originalism, but nothing else."

In all seriousness, i don't think the distinction works at all. If you're looking at external sources like these, it's perfectly fine to LOOK AT international law in informing judgments. again, this is laughably non-controversial.

Now that said, I'm sure you can find some more extreme int'l law academics that actually believe the more extreme theories that you're implying. but that's not koh. and i suspect you know this quite well

[rea]

pre-founding English common law can inform common law notions here

Well, but it was (and is) very common to look to post-founding English common law to inform decisions about what US common law is, or ought to be.

Every L1 contract class studies Hadley v Baxendale (1854) 9 Exch 341, for example, which sets forth a basic common law rule regarding damages recoverable for breach of contract.