U.S. Courts Should ‘Download’ International Law into Domestic Law, Obama Nominee Says
Wednesday, May 20, 2009
By Matt Cover
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.”
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NoParty at 12:41 PM - May 20, 2009
Mr. Koh should realize that the American system of laws, while not perfect, is far superior to anything Europe practices, regardless of what he or Justice Ginsberg thinks. Are there any Obama appointees who actually like the Country they are being asked to serve? Why do they all seem to be against that which makes this Country great?
searcher at 12:37 PM - May 20, 2009
Why would we want to "internalize" foreign/international law into our legal system or into our courts interpretation of the constitution. As I recall getting away from that type of law was one of the reasons for our nation to form in the first place. Our Constitution and the Bill of Rights are pretty simple and straight forward and I believe would work just fine for us if the judges would stop trying to get inside the minds of men who have been dead for nearly 200 years and try to interpret what they were thinking, instead of what they actually said. "These truths to be self evident". Stop trying to "bend" the laws and the Constitution to fit your plan or mind set. It is our bible just as the "Bible" is the moral law for most of the civilized world. We get all up on arms about "torture" of Quantanamo (sp) prisoners but I don't recall ever seeing anything from the "international law Community" with regard to major atrocities around the world. The last I heard of was Neurenburg (sp) afte
ryter at 12:19 PM - May 20, 2009
I agree with Mr. Gaffney our Constitution is what governs our country. Other countries have their laws they abide by. Our Constitution is strong and is capable of standing on its own. The problem is when people bend it and shape it to fit their agenda is when we get off track. Yes this is a radical idea and I don't see it benefitting the people of the United States. Thank you, Art Fahy
EDWARD at 07:35 AM - May 20, 2009
Alex Jones is being proved correct by this New World Order Progressive Liberal Government. I always took Alex Jones with grain of salt but this Government is steering so hard left that the wheels have come off ground and we are about to roll over and crash. Bill Clinton and Jimmy Carter look like conservatives compared to BHO. Republicans need to win congress back or the next three and half years will see the fall of America. It maybe too late with the poison they have feed the economy. God Help US!!!
I weep for the whole western hemisphere.
The language alone is enough to cause nausea for anyone possession any skills of cognative thinking.
if all thats left is a turd, does it matter what flowery language we attribute to it?
This is what they will be left argueing about, long after it is gone.
Amazing, stupifyingly amazing.
A politician can do only that which the law provides,but,
a private citizen can do anything that the law does not prohibit. -AR.
No time to weep for our nation, how about we fight for it instead?
Pardon me, but I tend to get weary of defeatism. That attitude is just as contagious as a winning attitude.
I am not defeated...........I am angry, and intend to be as politically active as I can be. That means opening my mouth to politicians, media, and people who are ignorant to the reality of socialism and government control.
We need a 'conservative' third party.........forget the democrats and republicans......they are becoming the same.
For anyone who chooses to sulk only, I find a quote from Samuel Adams relative:
"If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen".
History is much like an endless waltz. The three beats of war, peace, and revolution continue on forever.
Inter Arma Enim Silent Leges - Cicero
If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen. - Samuel Adams
Thanks for the headsup. This kind of info is hard to dig up. It gives some input to confront our Senators. When I lived in La. a very objectional candidate for Fed. Judge was nominated and I made several calls to my Senators. The one (Dem.) who voted for it had a staff member who in exasperation told me, 'we (the Senators) get reccommendations from reliable sources and we don't go against them'.
Last edited by Trouble 45-70; 05-21-2009 at 09:04 PM..