Background briefing on Harold Koh
Who is Harold Koh?
Harold Koh is the former Dean of Yale Law School. He was nominated by Barack Obama on March 23 to serve in the position of Legal Advisor to the State Department.
Why is the position of legal advisor to the State Department important?
The Legal Adviser position is, due to its international scope, unlike other legal positions in the federal government. He “furnishes advice on all legal issues, domestic and international, arising in the course of the Department’s work” including “formulating and implementing the foreign policies of the United States, and promoting the development of international law and its institutions as a fundamental element of those policies.”
If confirmed, Koh will travel worldwide for the next four years to “negotiate, draft and interpret international agreements involving … peace initiatives, arms control discussions … and private law conventions on subjects such as judicial cooperation and recognition of foreign judgments.” He would also represent the U.S. at treaty negotiations and international legal conferences, and will be involved in drafting U.N. Security Council resolutions.
What is the process that Harold Koh must go through in order to become the legal advisor to the State Department?
Koh has been through his confirmation hearing (April 28) and was successfully voted on at the Senate Committee on Foreign Affairs (May 12), but has not yet been confirmed by the full U.S. Senate. A floor debate and vote is expected to take place in early to mid June, after Congress returns from the Memorial Day recess.
Why are some people concerned about this nomination?
Here are a few representative legal opinions held by Koh regarding international law:
- That the congressionally authorized 2003 U.S. invasion of Iraq “violate[d] international law” because the U.S. had not received “explicit United Nations authorization” (“A Better Way To Deal With Iraq,” Hartford Courant, October 20, 2002);
- That pursuant to the Vienna Convention on Consular Relations the decisions of the International Court of Justice in The Hague, Netherlands, trump the legal rulings and decisions of domestic state criminal courts (Brief of Former United States Diplomats as Amicus Curiae in Support of Petitioner Jose Ernesto Medellin, Case No. 06-984 in the U.S. Supreme Court, Medellin v. The State of Texas, June 28, 2007);
- That the decisions of the U.S. Supreme Court should “tip more decisively toward a transnationalist jurisprudence” (“On American Exceptionalism,” Stanford Law Review, Vol. 55, No. 5, p. 1525, May 2003);
- That the U.S. should ratify the Rome Statute on the International Criminal Court, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child regardless of the implications for American sovereignty and federalism (Change for America; A Progressive Blueprint for the 44th President, p. 497, New York, 2009); and,
- That America is such a major violator of international law that it belongs in an “axis of disobedience” with nations such as North Korea and Saddam Hussein’s Iraq (“Transnational Legal Process After September 11th,” Berkeley Journal of International Law, Vol. 22, p. 337, 2004).
What does “legal transnationalism” mean?
In Koh’s own words: “Unlike nationalist jurisprudence, which rejects foreign and international precedents, 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.” For more, see Ed Whelan’s work on Koh at http://www.eppc.org/news/newsid.3810/news_detail.asp.