The Administration’s nominee for Legal Adviser to the State Department, Harold Koh, has explained – in his 1998 Frankel Lecture, later published in the Houston Law Review – that one of the Adviser’s roles is to “help maintain . . . habitual compliance with internalized international norms.” He has also praised what he describes as “sympathetic people from within government,” who take it upon themselves not only to ensure compliance with previous norms, but to promote new ones. It is therefore relevant to examine Koh’s views on the origin and legal validity of those norms.
According to Koh, who in 2002 summarized and refined his 1998 lecture, the process of norm creation has five stages. First, “understanding the nature of the global problem.” Second, the rise of networks of NGOs and civil society organizations to campaign against the problem as they have defined it. Third, these networks develop norms of behavior related to the problem. Here, both the “government norm sponsors” (those “sympathetic people” in government) and “transnational norm entrepreneurs” (famous and sympathetic people not in government) drive the process.
The fourth step is particularly interesting. Koh calls it the “horizontal process”: it is a “legal process” that transpires at the intergovernmental level. The goal of the “horizontal process” is to “creat[e] a law-declaring forum that can operate at the global level” and “declare an international norm.” To quote Koh:
This horizontal process can transpire either at a formal intergovernmental level or at informal state-to-state gatherings, anywhere that the governments of say, the United States, the United Kingdom, France, Russia, and China, for example, might all gather to talk about arms control or the development of international law.
No one would argue that formal intergovernmental negotiations carry no weight: this is the process that creates treaties. But it is remarkable that Koh gives the same weight to “informal state-to-state gatherings” as he does to the negotiation of treaties. To take only the most obvious point, treaties require the advice and consent of the Senate. On the other hand, the government of the U.S. – personified, one must presume, in the President, or his representatives – can talk informally to anyone about arms control, or international law, or any other subject, at any time they chose, with no oversight at all. If “informal state-to-state gatherings” are a “legal process,” this implies that the informal, international word of the President or his representatives is law, and therefore incumbent upon the State Department’s Legal Adviser to enforce. This is a radical claim.
And Koh makes it regularly. In 1998, for instance, he argued that “law-declaring fora thus include treaty regimes; domestic, regional, and international courts; ad hoc tribunals; domestic and regional legislatures; executive entities; commission of international publicists; and nongovernmental organizations.” Thus, for Koh, treaties do count. But the Congress of the United States, the U.S.’s domestic legislature, receives the same weight as the European Parliament, a foreign and regional one. NGOs become a “law-declaring” forum, just like the Supreme Court. And “executive entities” – any entity belonging to the Executive Branch – also have the power to create norms, which are law. If confirmed, those entities would include Harold Koh, as Legal Adviser to the State Department.
The slipperiness here revolves around Koh’s use of the term “norm.” By giving equal weight to treaties and norms, Koh simultaneously elevates the importance of NGOs and those “sympathetic people” in government, while taking a casual attitude towards both the legal validity of “informal state-to-state gatherings” and the Constitutional role of the Senate. The purpose of this, ultimately, is to get to Koh’s fifth stage, “vertical process.”
This is “the process by whereby rules” – notice that Koh does not write “treaties” – “negotiated among governments . . . and interpreted through the interaction of transnational actors . . . [are] internalized into domestic statutes, executive practice, and judicial systems . . . .” In other words, governments talk. That declares a norm. This norm is interpreted by sympathetic scholars and NGOs around the world, and finally used by “those seeking to create and embed certain human rights principles . . . into the domestic law of even skeptical nation-states.”
Koh here is writing, among others, of himself; the skeptical nation-state is, of course, the United States. He is defining a process that he believes can and should be used to evade and overcome what he regards as a serious problem: the refusal of consecutive U.S. administrations, and the U.S. Senate, to give favorable consideration to the treaties he supports and the policies he favors. Under his process, the U.S. can be driven into compliance with whatever he supports without the need to procure the advice and consent of the Senate. When his confirmation hearing begins, let us hope that the Senate will not be as casual in their treatment of him.