Harold Koh: Twenty-First Century International Law Making
Earlier this week, Harold Koh gave a speech. And it wasn’t about conflicts, drones, or cyberwar, topics that have dominated the attention of international lawyers in recent years. Rather, Koh’s speech was a meditation on the processes of international law-making that confront the State Department on a daily basis. It was, simply put, a survey of the current international legal landscape from the U.S. perspective.
Koh reviewed the formal U.S. treaty-making process, citing past victories like the New START Treaty and the Obama Administration’s continued push for Senate advice and consent to the 1982 UN Convention on the Law of the Sea and the more recent Disabilities Convention. There was also a cogent defense of the use of congressional executive agreements, with reference to controversies over the Anti-Counterfeiting Trade Agreement (or ACTA), where frankly I find myself aligned with the federal government in not seeing what the fuss is all about (or, rather, if there’s a fuss, it’s one so fundamental as to put into doubt two centuries of Congressional pre-approval of U.S. treaty-making).
Beyond this survey of formal international lawmaking, Koh also emphasized compliance, including a nod to his prior scholarly work (and the C-175 process, on which I spent a good deal of my own time at the State Department):
In my academic work, I have described a pervasive phenomenon in international affairs that I call “transnational legal process:” that international law is primarily enforced not by coercion, but by a process of internalized compliance. Nations tend to obey international law, because their government bureaucracies adopt standard operating procedures and other internal mechanisms that foster default patterns of habitual compliance with international legal rules. When I became Legal Adviser, I found that this is even truer than I thought. For example, most people are unaware of the so-called “C-175” process, named after a 1955 State Department Circular setting out a standardized procedure for concluding international agreements. The few academics who have ever noticed that process often assume it is nothing more than a rubber stamp. But having now seen it from the inside, I can tell you that the process is exhaustive and designed to ensure that all proposed U.S. international agreements — even if concluded by a different agency — are subject to a rigorous legal and policy review by the State Department before an any agreement is negotiated and concluded. Through this process, the State Department plays the same kind of clearinghouse role with respect to international agreements that OMB plays with regard to federal regulations. The C-175 process ensures not only that we have the legal authority to conclude the agreement in question, but also that every agency’s lawyers fully understand the nature of the domestic and international legal obligations we will undertake, so that we can accurately evaluate whether the United States will be able to comply with its new international legal obligations.
On the subject of compliance, Koh highlighted that the Administration has not yet given up on complying with the ICJ’s Avena judgment. And in terms of customary international law (CIL), Koh reiterated the U.S. view that major parts of the Vienna Convention on the Law of Treaties and the 1982 U.N. Convention on the Law of the Sea now codify CIL.
But, Koh’s talk also went well beyond the “formal” sources of international law, exploring the range of alternatives to treaty-making. He discussed U.S. political commitments, including cooperative arrangements with the Arab League, the Copenhagen Accords, and the recent Washington Communique on nuclear security. Koh dubbed these instruments as “layered cooperation”:
In any given area of international cooperation, the choice between international agreements and non-legal alternatives is not binary. Instead, the legal and the non-legal understandings are layered, and operate on different levels. Take for example the Arctic Council, a group of eight Arctic States — Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden, and the United States — which has emerged as an impressive example of a non-legal mechanism to facilitate sustainable development and international cooperation in the Arctic. The cooperation that takes place within the Arctic Council — generally through non-binding means — is layered on top of a legal backdrop of the Law of the Sea Convention, and the customary international law it reflects, which answer important questions about sovereign rights and jurisdiction in the Arctic. Now notice that the Council is not a formal international organization; it was not set up by an international agreement, and the majority of its work is not legally binding. But this has not detracted from — and has probably even enhanced — its success in facilitating robust international cooperation among the Arctic States at all levels, ranging from foreign ministers to bench scientists.
Koh’s speech also emphasized the increasing important role assigned in international lawmaking to non-State actors. He ended, moreover, on a high note:
Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.
Now I am sure that Hugo Grotius had it good in his time. But believe me: there has never been a more challenging and exciting time to be an international lawyer or an international lawmaker. I have been lucky to spend my whole career steeped in this heady environment as a lawyer, scholar, advocate and public official. To be sure, there will always be challenges. But still, I find no belief more contagious than the simple, idealistic conviction, shared by so many, that even in a new millennium, it is still possible to aspire to help build a vibrant world order based on law.
For those who want to see the whole speech — check it out here — it’s worth the read.