Bench Memos

Harold Koh’s Transnationalism—Customary International Law

Let’s now turn to the vehicles that transnationalists use to implement their agenda.  In this post and the next, I will explore the first of three such vehicles, as I discuss what customary international law (CIL) is and present the transnationalist view of the domestic status of CIL.  I draw the next two paragraphs from an important law-review article (which I will discuss more fully in the next post) jointly written by Curtis A. Bradley (now of Duke) and Jack L. Goldsmith (now of Harvard), “Customary International Law as Federal Common Law:  A Critique of the Modern Position,” 110 Harv. L. Rev. 815 (1997) (“Bradley & Goldsmith”). 

CIL and treaties are the two principal sources of international law.  “The traditional conception of CIL was that it resulted from ‘a general and consistent practice of states followed by them from a sense of legal obligation’” (quoting Restatement (Third) of the Foreign Relations Law of the United States)—in short, that CIL “was grounded in state consent.”  To ensure consent (as well as, it would seem to me, to ensure that a practice was indeed “customary”), “the passage of a substantial period of time was generally required before a practice could become legally binding” as CIL.  “CIL, like international law generally, primarily governed relations among nations, not the relations between a nation and its citizens.”  (Bradley & Goldsmith, at 838-839.)

“The post-World War II era has witnessed a dramatic transformation in the nature of CIL lawmaking.”  Most significantly, the new CIL is now less tied to state practice.  It is now generated from United Nations resolutions, multilateral treaties, and other international pronouncements “without rigorous examination of whether these pronouncements reflect the actual practice of states.”  Relatedly, the new CIL “can develop very rapidly.”  And it “is now viewed as regulating many matters that were traditionally regulated by domestic law alone.”  Specifically, the “human rights” norms that seem to be the product of a rapid and never-ending process of development “regulate a state’s treatment of its own citizens.”  (Bradley & Goldsmith, at 839-841.)

If the new CIL no longer arises from a general and consistent practice of states over a sufficient period of time to manifest state consent to a norm that has become customary, then who has gained the CIL-lawmaking power that states have lost?  The very folks who are invited to take part in the formation of United Nations resolutions, multilateral treaties, and other international pronouncements.  High on that list—surprise, surprise—are left-wing law professors like Harold Koh and “progressive” NGOs.  Indeed, Koh himself (in the course of trying to defend transnational law generally against the obvious charge that it is anti-democratic) lists “academics” first and “nongovernmental organizations” second among the various parties—here’s his list:  “academics, nongovernmental organizations, judges, executive officials, Congress, and foreign governments”—who are “interacting in a variety of private and public, domestic and international fora to make, interpret, internalize, and ultimately enforce rules of transnational law.”  Koh, “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 56 (2004) (emphasis added).

Next:  The extraordinary status in domestic law that transnationalist academics in general—and Koh in particular—try to confer on the new CIL that they have been concocting.

(Third in a series.  Previous posts here and here.)

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular


The Odds Are Slim to Nunes

When the history of the 2018 midterms is written, there will be a chapter on missed opportunities for Democrats. Some may wonder if they should have spent so much money supporting Beto O’Rourke in Texas, or whether Heidi Heitkamp was doomed from the start in North Dakota. One painful question for progressives ... Read More
Politics & Policy

The Beatification of Beto

The media’s treatment of Texas Democratic candidate Beto O’Rourke wasn’t the most egregiously unfair coverage of the past year -- that would be the treatment of Brett Kavanaugh -- but it ranks among 2018’s most annoying. The endless glowing profiles of O’Rourke in every publication from Vanity Fair to ... Read More