Volume 101

Address: Twenty-First-Century International Lawmaking

by Harold Hongju Koh

The last time I spoke at Georgetown University Law Center was on the occasion of the eightieth anniversary of the Legal Adviser’s Office, known affectionately at the State Department as “L.” I have now been the Legal Adviser at the State Department for more than three and a half years. During that time, at nearly every public event I attend, I find myself being asked questions about one issue: armed conflict. Nearly every question I am asked involves Guantanamo, Afghanistan, cyber war, detention, and targeting practices. While these key areas raise tremendously important legal questions, in fact, they do not occupy even half of my time. More than half of my time is spent on a completely different set of issues, which I almost never get a chance to talk about publicly.

So today, let me talk not about international conflict, but about the other side of what I do: the legal aspects of international cooperation and engagement. Specifically, let me address how we in the Obama Administration have handled a broad set of activities that can be grouped loosely under the rubric of “twenty-first-century international lawmaking.”
Now I would expect that many, if not most, of you have already studied, or even taught, this topic, whether in a constitutional law, international law, national security law, or foreign relations law class. You all know the hornbook law on this subject: the United States can make law through international cooperation via one of three domestic law devices: (1) an Article II treaty, advised and consented to by two-thirds of the Senate; (2) a congressional–executive agreement, which involves passage of a statute by a majority of both houses and signature by the President; and (3) under certain circumstances, by sole executive agreement, concluded within the scope of the President’s independent constitutional authority. Indeed, sketching this tripartite framework of Article II treaty, congressional–executive agreement, and sole executive agreement is Lesson I of Foreign Relations Law 101. Over my academic career, those core lessons constitute a law school course that I have often taught and law review articles that I have published.

But it turns out that in the real world—I have found during my time at L—it is just not that simple. In this lecture, I hope to challenge your preconceived notions of how today’s practice of international legal engagement really works. In the twenty-first century, I would argue, we are now moving to a whole host of less crystalline, more nuanced forms of international legal engagement and cooperation that do not fall neatly within any of these three pigeonholes. My message is that in the twenty-first century, our international legal engagement has become about far more than just treaties and executive agreements. We need a better way to describe the texture of the tapestry of modern international lawmaking and related activities that stays truer to reality than this procrustean construct that academics try to impose on a messy reality. To give you a fuller sense of that texture, let me describe our current international lawmaking practice with regard to entering and complying with treaties; executive agreements and customary international law; and emerging modes of international legal engagement, such as what I will call “diplomatic law-talk,” layered cooperation, and hybrid public–private arrangements.

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