U.S. Courts Should ‘Download’ International Law into Domestic Law, Obama Nominee Says

Transnational networks, according to Koh, are created when governments and NGOs – groups such as Amnesty International and Human Rights Watch – work together to create international norms. Courts – Koh’s “interpretive communities” – then incorporate these norms into domestic law.

clipped from www.cnsnews.com (CNSNews.com) – Harold Koh, nominated by President Barack Obama to be the State Department’s top legal adviser, once argued that U.S. federal court judges – including the Supreme Court – are the “critical link” between international and domestic law and play a critical role in bringing international norms into force as domestic law. Koh, currently dean of the Yale Law School, explained that his concept of “transnationalism” was the “downloading” of international laws and customs into domestic law, whether through the legislative process or through federal courts’ use of international law in interpreting the Constitution of the United States. Writing in the Penn State International Law Review (Vol. 24, No. 4, 2006), Koh argued that federal judges were the linchpin in transnational law due to their ability to unilaterally read international or foreign legal standards into their interpretations of the U.S. Constitution.