Bench Memos

Harold Koh’s Transnationalism—What “Transnationalism” Is

What is “transnationalism” generally?  Well, let’s start by considering how two academics—one a critic of transnationalism, the other an ardent proponent—have described it.

Our first academic contrasts a “nationalist jurisprudence” with a “transnationalist jurisprudence.”  A nationalist jurisprudence “is characterized by commitments to territoriality, extreme deference to national executive power and political institutions, and resistance to comity or international law as meaningful constraints on national prerogatives.”  A nationalist jurisprudence “largely refuses to look beyond U.S. national interests when assessing the legality of extraterritorial action,” has “largely rejected international comity as a reason unilaterally to restrain the scope of U.S. regulation,” and “dismiss[es] treaty or customary international law rules as meaningful restraints upon U.S. action.”  Proponents of a nationalist jurisprudence view “foreign legal precedents” as “an impermissible imposition on the exercise of American sovereignty.”

“Unlike nationalist jurisprudence, which rejects foreign and international precedents,” continues this first academic, a “transnational jurisprudence assumes America’s political and economic interdependence with other nations operating within the international legal system.”  Distinguishing between domestic and international law makes no sense, since “[d]omestic and international processes and events will soon become so integrated that we will no longer know whether to characterize certain concepts as local or global in nature.”  Transnational judges also don’t “distinguish sharply between the relevance of foreign and international law, recognizing that one prominent feature of a globalizing world is the emergence of a transnational law, particularly in the area of human rights, that merges the national and the international.”  For transnationalists, “domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law, not simply to promote American aims, but to advance the broader development of a well-functioning international judicial system.”

Yes, that first academic is actually the ardent proponent of transnationalism, even though some of his statements might seem designed to persuade you that transnationalism is hooey.  In fact, the academic is State Department nominee (and Yale law school dean) Harold Koh himself (in “International Law as Part of Our Law,” 98 Am. J. Int’l L. 43, 52-54 (2004) (emphasis added) and “The Globalization of Freedom,” 26 Yale L.J. 305 (2001)). 

Let’s also consider the account provided by law professor Curtis A. Bradley (now of Duke), a prominent critic of transnationalism.  (Bradley’s 1999 article, “Breard, Our Dualist Constitution, and the Internationalist Conception,” 51 Stan. L. Rev. 529, 530-531, uses the terms “monist” (or “internationalist”) and “dualist” for “transnationalist” and “nationalist,” respectively.)

As Bradley puts it, the pure transnationalist model is that “international and domestic law are part of the same legal order, international law [both treaties and customary international law] is automatically incorporated into each nation’s legal system, and international law is supreme over domestic law.”  (Bradley acknowledges that most transnationalists in practice don’t entirely embrace—not yet, at least—the pure version of the second and third features of this model.)   In determining the domestic status of international law, transnationalism “looks outward to the structure and content of international law.”  By contrast, under the nationalist view, “international and domestic law are distinct, [the United States] determines for itself [through its political branches] when and to what extent international law is incorporated into its legal system, and the status of international law in the domestic system is determined by domestic law.”

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

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