Slye on Koh

by Peggy McGuinness

Professor Ron Slye has a helpful defense of the Koh nomination up at Foreign Policy.  His post includes this very useful description of “transnational legal process” noting, importantly, that TLP is a descriptive theory of how law crosses borders.  Somehow this fact has eluded much of the MSM discussion:

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law’s traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law — that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach — in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether “liberal” or “conservative,” concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms — and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.

http://opiniojuris.org/2009/04/21/slye-on-koh/

One Response

  1. “All transnationalism does [...] is [...] describe [...].  It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law.”

    In its theoretical accounts of behavior, yes, transnationalism is descriptive.  But when one questions – as Koh has – whether US reservations declaring that a treaty is not self-executing have any legal effect, and when one argues – as Koh does – that unratified treaties, though they may deal with matters traditionally within the domestic prerogative, are nevertheless automatically binding as federal common law if they attain the status of CIL, then one has left the realm of pure description and gone over precisely to prescriptively “say[ing] how international law and domestic law [...] should interact.”

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