Harold Koh Delivers Ryan Lecture
October 18, 2012 — International law is “about much, much, more than treaties and executive agreements,” said Department of State Legal Adviser Harold Hongju Koh as he delivered the 33rd annual Thomas F. Ryan Lecture here on October 17. This is “not your grandfather’s international law.”
The way in which the government historically carried out international lawmaking could be described in three neat categories appropriate to a law school lecture, said Koh, the former dean of Yale Law School.
The United States might enter into an international treaty with the advice and consent of two-thirds of the Senate; create a congressional-executive agreement through a statute passed by a majority of both houses and signed by the president; or carry out an executive agreement within the scope of the president’s independent constitutional authority.
And while these tools — especially treaties — remain an integral part of lawmaking practice, they aren’t the only options today. Take, for example, what Koh called “diplomatic law talk.”
“We are urging compliance with international legal norms through Facebook and Twitter,” he said. “The United States Supreme Court is not the only mechanism to achieve an outcome; there is more than one way, as they say, to skin a cat.”
And then there’s what Koh termed “layered cooperation”— where legally nonbinding guidelines and principles are added to existing treaties, for example, with respect to space. Third, private-public initiatives might establish norms for human rights among non-state actors like security contractors.
“Twenty-first century lawmaking is not limited to drafting codes…” he said. “It is a living, breathing, human tapestry of meetings, relationships, communications personal and virtual — all focused on the broader task of promoting cooperation.”
The annual lecture is named for the late Thomas F. Ryan (L’76). Ryan’s family attended the event, which was opened by Dean William M. Treanor.