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June 23, 2009

Defining Transnational Legal Process

Much of the criticism of the nomination of Dean Harold Koh for the position of Legal Advisor to the State Department has been directed at Dean Koh’s views of the relationship between international law and domestic law.  Much of this criticism has been based on a misunderstanding of the concept of “transnational” law. Unfortunately, popular media accounts have contributed to this error.

The New York Times “Opinionator” blog defined “transnationalism” on April 14, 2009 by relying on a blog post by Ed Whelan on the National Review Online website. Whelan states, and the New York Times repeats: “Transnationalists aim in particular to use American courts to import international law to override the policies adopted through the processes of representative government.” This characterization of the transnationalist scholars’ objective is wrong, as I will explain below. Ed Whelan, it should be noted, is hardly a neutral observer: a former law clerk for Justice Scalia, Whelan served as the principal deputy in the Office of Legal Counsel in the Bush Administration from 2001 to 2004. This is of course the office that produced the infamous torture memos, thought by many to flout international and domestic law. Whelan offers that, while he was at the Justice Department, “[h]is portfolio did not include national security matters.” Justice Scalia, Whelan’s former boss, has long complained that his fellow Justices have undermined the democratic process by reference to international or foreign law.

The Wall Street Journal blog entry on transnational law also mistakenly suggests that transnationalism threatens democracy: 

Let us introduce you to a new phrase in international law (or at least one that’s new to us): “transnational juri[]sprudence.” In regard to Koh, it’s this theory that apparently has conservatives worried.

“Harold Koh has a reputation as being the leading scholar on transnationalist jurisprudence,” said Robert Alt, deputy director of legal and judicial studies at the Heritage Foundation, a conservative think tank. “Particularly among conservatives, that school of thought is disturbing insofar as it seems to suggest transnational law trumps constitutional rights, and thereby may be a threat to American sovereignty.”

In other words, if Koh becomes the chief legal adviser to American diplomats, he would give undue influence to foreign legal opinions, perhaps limiting American options in matters of national security.

Indeed, as the Globe chronicles, Koh has repeatedly contended that such activities as “helping forge international agreements, participating in the United Nations, and supporting international war crime tribunals are in the best interests of the United States.”

Both the New York Times and the Wall Street Journal thus unwittingly repeat the right wing attack on international law.

            But what is the transnational legal process? The term refers to the process where a variety of actors interact in various fora to interpret and internalize rules of international law. (To hear Koh himself describe transnationalism, watch Koh’s lecture a few years ago titled “Transnational Legal Process After September 11,” available on YouTube.)

Does this threaten democracy? Transnationalists do not seek deference to some kind of global nose count. The transnational legal process ultimately remains democratic exactly because of the “norm internalization” process, which transforms a rule from an “external sanction” to an “internal imperative.” “That,” Justice Breyer observes, “is the democratic process in action.” Transnational norm entrepreneurs and issue networks frequently have no more power than that of persuasion and the authority that comes from moral standing and cogent argument. Even authoritarian states often observe this process, internalizing international law norms that they find necessary to participate in the international political and economic process.” Anupam Chander, Globalization and Distrust, 114 Yale L.J. 1193, 1229-30 (2005) (citing Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1400 (1999); Stephen Breyer, Keynote Address, 97 Am. Soc’y Int’l L. Proc. 265, 268 (2003)).

 

As Koh explains:

 

There is nothing antidemocratic about academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law. To the contrary, it is precisely through this transnational legal process that interlinked rules of domestic and international law develop, and that interlinked processes of domestic and international compliance come about. In this transnational legal process, the several states, foreign governments, and international bodies do not represent competing sovereigns, all vying for the right to control America's judicial destiny. Rather, a transnationalist jurisprudence suggests, the United States expresses its national sovereignty not by blocking out all foreign influence but by vigorous ‘participation in the various regimes that regulate and order the international system.’

 

Id. 

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Posted by Anupam Chander on June 23, 2009 at 09:46 AM in Globalization | Permalink | Comments (4) | TrackBack