Monday evening, Harold Hongju Koh, dean of the Yale Law School presented, "On Law and Globalization," a lecture on the growing importance of international law. The event was part of the Law School's 75th anniversary celebration speaker series.
Koh began his presentation with a brief family background. Both his parents were immigrants to the United States from Seoul, Korea. Koh's father, Dr. Kwan Lim Koh, immigrated to the States in 1949 and pursued a career in law. Eventually, he went on to serve as a Korean ambassador to the United States.
Dr. Hesung Chun Koh, Dean Koh's mother, emigrated in 1948 and pursued a career in sociology and anthropology. She also founded the East Rock Institute (ERI), and has served as its founding president for over 50 years. The ERI works to celebrate Korean culture and improve Korean-American relationships. Both of Koh's parents set high standards for their six children.
Koh then went on to describe his suggested approach to international law and globalism, which he described as "pragmatic idealism."
He indicated the importance of maintaining an idealistic vision, but being practical in the exercise of transnational law.
Koh defined "transnational" in the words of the late Philip Jessup as, "All law which regulates actions or events that transcend international frontiers." He explained how international law defies traditional dichotomies of the law into international and domestic, public and private. He described transnational as a hybrid law, citing the historical example of the lex mercatoria.
The lex mercatoria, Koh explained, developed in Mediterranean bazaars as a series of transnational customs for commerce and was eventually brought to Europe by English merchants. It became part of the common law in England and eventually part of American general law set by the precedent in Swift v. Tyson.
Koh delineated other ways in which laws are shared among countries, including the "uploading" of a law into the international arena, the horizontal borrowing of a law from another country, and the internalization of a law held by the international community.
With growth of interactions between nations, Koh pointed out the increasing influence of international law in different realms of American law including immigration and refugee law, national security law, cyberspace law, and environmental law, among others. "Global standards have been recognized and internalized into the U.S. system," he said.
Koh illustrated the growing importance of international law on American law, explaining that in the past two years alone, 22 of the Supreme Court's cases have dealt with some facet of international law, including terrorism, immigration, and trade policy.
Furthermore, he also indicated the growing influence of international law on the executive office and legislation, such as the current McCain Amendment on Interrogation.
"U.S. courts should not simply look to whether something furthers the U.S. system," he said. "Now we are asking the question whether the U.S. should look to the promotion of an international system."
Koh drew from his own experience to emphasize the growing influence of international law on state law as well. He was on a team of lawyers that assessed the capital punishment law in the United States, which still applies to people who are mentally challenged in 12 states. Koh indicated that the only two other countries with similar punishment for mentally challenged people were Japan and Kyrgyzstan, and Japan had only invoked this law once. Koh pointed out that such deviations from laws held in other nations is shaping American domestic policy.
Koh also analyzed the current Supreme Court Justices, indicating a rift between two major factions: the transnationalists, who emphasize United States interdependence in their interpretation of the Constitution, and the nationalists, who emphasize U.S. autonomy.
He expressed interest in the future decisions of Judge Samuel Alito, as the court currently favors a transnational approach to law.
After the lecture, Law School Dean John Garvey honored Koh, presenting him with the BC Law School 75th anniversary distinguished service award. "You've truly provided a model for students embarking in a legal career," said Garvey.
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