Yale Law School Dean – and nominee for Legal Adviser to the State Department – Harold Koh’s answers to pre-hearing questions provide rich fodder for connoisseurs of bland and unrevealing statements. Here, for instance, is the entirety of Koh’s answer to a question about his “theory of transnational legal process”:
U.S. policymakers frequently use transnational legal process as a tool to urge other nations to obey international law. As I explain in the 2004 article, “transnational legal process” is a shorthand description for how state and nonstate actors interact in a variety of domestic and international fora to encourage nations to obey international norms as a matter of domestic law. For example, U.S. policymakers encouraged China to join the World Trade Organization and then to modify Chinese domestic law to conform with international rules on intellectual property, an objective that is important to U.S. economic and other interests. When designing legal rules, U.S. policymakers may take into account all available enforcement mechanisms, with an eye toward furthering U.S. foreign policy objectives.
I have written a good deal about Koh’s views on enforcement, both in theory and in practice. Suffice it to say that he focuses primarily on the problem of enforcement not in China, but in (or against) the United States.
“Transnationalism” is a convenient approach for the Left precisely because the U.S. is a law-abiding country. If Koh and his followers can establish that their favorite policies are inherent in an international norm, and that norms are as obligatory on the U.S. as treaties it has actually signed and ratified, then the U.S. is likely to come along, without the Left needing to face the bother of winning elections.
Koh would have been better off not bringing up China in his answer: his own record on China, when he was Assistant Secretary of State for Democracy, Human Rights, and Labor from 1998 to 2001, is one of consistent, credulous, support for ‘engagement.’ In May 2000, for instance, he urged Congress not to link improved human rights in China with trading privileges in the U.S., telling the Washington Post on May 2 that “We profoundly believe that conditionality will not advance the cause of religious freedom in China and will not improve the circumstances of any of the religious adherents about whom we are all deeply concerned.”
At the end of 1998, Koh was even attacked by Human Rights Watch, Amnesty International, and Human Rights in China for restarting an official dialogue on human rights just after China cracked down on the fledgling opposition China Democracy Party: according to a report in the South China Morning Post, the NGOs “believe[d] recent conduct by the Chinese Government makes a dialogue inappropriate and unlikely to be productive.”
The problem is not, as Koh puts it in his answer, that China has not passed the right laws: it is that the laws are not enforced because China is not a democracy. And when confronted with that fundamental reality, Koh’s answer in practice was not to use “all available enforcement mechanisms”: it was to punt.
Koh’s answer is faulty because it runs together two entirely separate matters: treaties and what Churchill described as a “terminological inexactitude.” The giveaway is how Koh slips from writing about “international law” in his first sentence to “international norms” in his second. Koh views “transnational legal process” as “a blueprint for policy makers” only in the sense that it is a way for activists like himself to achieve their aims by redefining “norms” as “law.” As Koh wrote in 2004, transnationalism is “an academic theory . . . an activist strategy . . . . [and] a blueprint for policy makers.”
Koh’s honesty on that point is commendable. But if he is unwilling to separate his work as an academic and a policy maker from his political advocacy, it is only fair for observers to treat the confirmation battle as an up or down vote not on his resume, but on the broader merits of his views.