Harold Koh International Law-Making.doc

7/18/2019 Harold Koh International Law-Making.doc

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Twenty-First Century International Lawmaking

Remarks Harold Hongju KohLegal Advisor U.S. Department of State

Georgetown University Law CenterWashington, DCOto!er "#, $%"$

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Tank you! Dean Treanor! for tat most generous introdu"tion. #ou are a very greatfriend and a very great Dean. And tank you too! Dean $reg %lass and te &yanLe"ture "ommittee! for all you ave done to make tis event possi'le.

It is wonderful to 'e 'a"k ere at $eorgetown! and to see so many old friends and"olleagues. I ave so many memories of $eorgetown Law over te years! dating'a"k to te franti" days more tan tree de"ades ago wen I studied for te DC (are)am in your law li'rary. Standing ere reminds me again of your great tradition ininternational law and uman rigts! parti"ularly of te late great Fater (o' Drinanof your fa"ulty! in wose onor I ad te *oy of giving te Inaugural Drinan Le"tureere a few years ago! *ust weeks 'efore (o' passed away.

Te last time I spoke ere was on te o""asion of te eigtiet anniversary of teLegal Adviser+s ,"e! known ae"tionately at te State Department as /L.0 I avenow 'een te Legal Adviser at te State Department for more tan tree and a alfyears. During tat time! at nearly every pu'li" event I attend! I 1nd myself 'eingasked 2uestions a'out one issue3 armed confict. 4early every 2uestion I am askedinvolves $uantanamo! Afganistan! "y'erwar! detention and targeting pra"ti"es.5ile tese key areas raise tremendously important legal 2uestions! in fa"t! tey donot o""upy even alf of my time. 6ore tan alf of my time is spent on a "ompletelydierent set of issues! wi" I almost never get a "an"e to talk a'out pu'li"ly.

So today! let me talk not a'out international "on7i"t! 'ut a'out te oter side ofwat I do3 te legal aspe"ts of international cooperation and engagement.Spe"i1"ally! let me address ow we in te ,'ama Administration ave andled a'road set of a"tivities tat "an 'e grouped loosely under te ru'ri" of /89st CenturyInternational Lawmaking.0

4ow I would e)pe"t tat many! if not most! of you ave already studied! or eventaugt! tis topi"! weter in a "onstitutional law! international law! nationalse"urity law! or foreign relations law "lass. #ou all know te orn'ook law on tissu'*e"t3 te United States "an make law troug international "ooperation via oneof tree domesti" law devi"es3 :9; an Arti"le II Treaty! advised and "onsented to 'y8<= of te Senate> :8; a "ongressional-e)e"utive agreement! wi" involves passinga statute 'y a ma*ority of 'ot ouses and signed 'y te ?resident> and :=; under"ertain "ir"umstan"es! 'y sole e)e"utive agreement! "on"luded witin te s"ope of

http://www.state.gov/s/l/releases/remarks/199319.htm

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te ?resident+s independent "onstitutional autority. Indeed! sket"ing tis tripartiteframework of Arti"le II treaty! "ongressional-e)e"utive agreement! and solee)e"utive agreement is Lesson I of Foreign &elations Law 9@9. ,ver my a"ademi""areer! tose "ore lessons "onstitute a law s"ool "ourse tat I ave often taugtand law review arti"les tat I ave pu'lised.

(ut in te real world I ave found during my time at L it turns out tat it is *ustnot tat simple. In tis le"ture! I ope to "allenge your pre"on"eived notions ofow today+s pra"ti"e of international legal engagement really works. In te 89 st "entury! I would argue! we are now moving to a wole ost of less "rystalline! morenuan"ed forms of international legal engagement and "ooperation tat do not fallneatly witin any of tese tree pigeonoles. 6y message is tat in te 89st "entury!our international legal engagement as 'e"ome a'out far more tan *ust treatiesand e)e"utive agreements. 5e need a 'etter way to des"ri'e te nuan"ed te)tureof te tapestry of modern international lawmaking and related a"tivities tat staystruer to reality tan tis pro"rustean "onstru"t tat a"ademi"s try to impose on amessy reality. To give you a fuller sense of tat te)ture! let me des"ri'e our "urrentinternational lawmaking pra"ti"e3 wit regard to entering and "omplying wittreaties! e)e"utive agreements and "ustomary international law! and emergingmodes of international legal engagement! su" as wat I will "all /diplomati" law-talk!0 layered "ooperation! and y'rid pu'li"-private arrangements.

I. ,ur Baried International Legal ngagement ?ra"ti"es

A. Treaties and Agreements

Let me start wit treaties. ven in tis age of legislative near-deadlo"k! treaties inte "onstitutional! Senate /advi"e and "onsent0 sense remain an integral part ofour international lawmaking pra"ti"e. Arti"le II of te Constitution gives te

?resident te power to /make treaties!0 su'*e"t to te advi"e and "onsent of two-tirds of te Senate! and te Suprema"y Clause! Arti"le BI! makes tose treaties/te supreme law of te land.0

(ut in modern times! Arti"le II treaties ave never 'een te only option. Te long-dominant view in te A"ademy arti"ulated 'y my late #ale "olleague 6yres6"Dougal and Aser Lans in te #ale Law ournal as far 'a"k as 9EG as 'eentat treaties and "ongressional-e)e"utive agreements are in fa"t inter"angea'le!legally availa'le options for 'inding te United States in its international relations.At te same time! a governmental practice as arisen of doing "ertain types ofagreements 'y treaty3 for e)ample! e)tradition! uman rigts! mem'ersip ininternational organiHations! and arms "ontrol matters. ,ter forms of international

lawmaking ave traditionally 'een done 'y "ongressional-e)e"utive agreement. Fore)ample! free-trade agreements ave traditionally 'een entered into wit te e)post approval of Congress e)pressed troug su'se2uent legislation.

I am sometimes asked! why don’t we just ratiy a particular convention bycongressional-executive agreement, rather than Article II reaty! If it is so ard toget J votes for a treaty! wy don+t we *ust a""ede to it 'y statuteK Te sortanswer! wi" you will understand sitting ere less tan a mile from te Capitol! istat a parti"ular non-treaty route migt 'e legally availa'le to te )e"utive for



entering into "ertain kinds of international agreements! 'ut may not 'e politically advisa'le as a matter of "omity to Congress. Congress as its own strong views onow "ertain types of agreements sould 'e entered into and will 1gt for toseout"omes as a matter of institutional and politi"al prerogative. Tat does not meantat te )e"utive+s ands are tied in any given "ase. (ut wat it does mean is tata key part of 'eing an )e"utive (ran" lawyer is a""urately fore"asting to your

"lients wen "oosing a parti"ular legal route even if lawful may foster 'itterpoliti"al "on7i"t and invite unne"essary trou'le.

very time we enter into an international agreement! we also send te world amessage. Se"uring a J-vote Senate superma*ority for a treaty is parti"ularly ardwork! and re2uires a very ig degree of 'ipartisansip. In any given "ase!"on"luding a treaty wit te re2uisite two-tirds support sends a powerful politi"almessage a'out ow united our nation is 'eind a parti"ular international o'ligation.And so! for all teir di"ulties! Arti"le II treaties remain a "riti"ally important fo"usof our international lawmaking pra"ti"e.

Take te 4ew STA&T treaty! wi" passed te Senate in 8@9@ 'y a ard-won vote ofJ9-8. Under 4ew STA&T! te United States and &ussia agreed to limits on tenum'er of deployed wareads and nu"lear weapon delivery vei"les! as well as"ompli"ated veri1"ation pro"edures. Lawyers in my o"e played a key role in tismassive eort advising poli"ymakers! working on language at te negotiatingta'le! and working wit te Senate every step of te way to ensure rati1"ation. 5ywas 4ew STA&T so importantK (e"ause tat treaty allowed us to resume on-siteinspe"tions of &ussian fa"ilities! a rigt tat ad e)pired along wit te previousSTA&T treaty. &estoring tis /trust 'ut verify0 regime was "riti"al to a genuinesystem of arms "ontrol! wi" is wy ?resident ,'ama "alled ratifying te 4ewSTA&T treaty a /national se"urity imperative.0

Currently 'efore te Senate! as you pro'a'ly know! are two more treaties tat te,'ama Administration is strongly supporting. Te 1rst is te 9E8 Law of te SeaConvention! wi" Se"retary Clinton testi1ed in support of in 6ay of tis year.Altoug tat treaty as long en*oyed su'stantial 'ipartisan support! and was alsopused 'y our prede"essors in te (us Administration! some "riti"s ave allegedtat *oining it would sa"ri1"e our national sovereignty. (ut noting "ould 'e furterfrom te trut. In fa"t! te opposite is true3 *oining te Convention would enhance our sovereignty. It would se"ure for te United States sovereign rigts over vast newareas and resour"es! in"luding vast "ontinental self areas e)tending o our "oastsand into te Ar"ti"! at least @@ miles o Alaska. It would give U.S. "ompanies telegal "ertainty tey need to make e)pensive investments and "reate Ameri"an *o's.It would enan"e our national se"urity 'y guaranteeing our military te freedom of

navigation prin"iples ensrined in te Convention. And it would amplify our voi"ewen we use te Law of te Sea platform to speak a'out te numerous maritimeissues tat impli"ate our national interests! su" as te ongoing tensions in teSout Cina Sea. For tese reasons! we "ontinue to 'e opeful tat te Senate willsoon a"t on tese interests and give advi"e and "onsent to te Law of te SeaConvention.

Se"ond! we also are urging te Senate to give its advi"e and "onsent to teDisa'ilities Convention! te Convention on te &igts of ?ersons wit Disa'ilities.



Mere in te United States! we ave a long istory of 'ipartisan leadersip ondomesti" disa'ility legislation in"luding te Ameri"ans wit Disa'ilities A"t :ADA;!legislation tat is not only te gold standard worldwide 'ut served as te model fortis very Convention. At its eart! te Convention promotes a "ore prin"iple of ourConstitution3 nondis"rimination. It seeks to ensure tat all persons wit disa'ilitieswould 'e a'le to en*oy te same rigts as non-disa'led persons! on an e2ual 'asis

wit tem. 6y o"e! wit su'stantial input from te Department of usti"e andoter key agen"ies! prepared te arti"le-'y-arti"le analysis and proposedreservations! understandings! and de"laration in te transmittal pa"kage for tistreaty! and as a"tively assisted te rati1"ation eorts. Tis past uly 8t! te 88nd Anniversary of te Ameri"ans wit Disa'ilities A"t! te Senate Foreign &elationsCommittee sent te treaty to te Senate 7oor wit 'ipartisan support. Again! weope to see te full Senate give its advi"e and "onsent soon.

Finally! despite aving "ompleted in 8@@ te advi"e and "onsent pase of treatya""ession! tis Administration is seeking Congressional a"tion to "omplete ourrati1"ation of two key nu"lear se"urity treaties designed to strengten our legal'asis for se"uring nu"lear materials and preventing nu"lear terrorism3 te 8@@GAmendment to te Convention on te ?ysi"al ?rote"tion of 4u"lear 6aterial! andte International Convention for te Suppression of A"ts of 4u"lear Terrorism. Tesetreaties re2uire updates to te United States "riminal "ode! for wi" teAdministration presented draft legislation in 8@9@ and again last year. Te Mousepassed a version of tis 'ill tis summer! and we await Senate a"tion tat wouldpermit us 1nally to deposit our instruments of rati1"ation.

4ow *ust a few generations ago! wat you *ust eard me say would ave 'een 'otte 'eginning and te end of a spee" on international lawmaking3 te Constitutionspe"i1es treaties as te "onstitutionally enumerated me"anism for enteringinternational agreements! and tat+s tat. Indeed! s"olars su" as my friend andformer ,'ama Administration "olleague Larry Tri'e made su" an argument in te9EE@s! wen e "alled un"onstitutional te me"anism 'y wi" te ClintonAdministration *oined 4AFTA 'y an A"t of Congress! or as a "ongressional-e)e"utive agreement. (ut te overwelming "onsensus in te legal a"ademyre*e"ted tat view and approved of te way our "onstitutional pra"ti"e asdeveloped to permit 'inding agreements entered into 'y te )e"utive andapproved 'y ma*orities of 'ot ouses of Congress.

Te "onstitutionality of tese "ongressional-e)e"utive agreements is now well-settled! parti"ularly were Congress is e)er"ising its foreign "ommer"e power.Indeed! te United States used a "ongressional-e)e"utive agreement as tepro"edure to "on"lude te 9EG (retton 5oods Agreement! wi" did noting sort

of esta'lising te post-war glo'al e"onomi" order. Sin"e tat time te same type of legislative instrument as 'een used to *oin 4AFTA and te Agreement sta'lisingte 5orld Trade ,rganiHation. And during tis Administration! Congress as nowapproved tree new free trade agreements wit te &epu'li" of %orea! Colom'ia!and ?anama. (e"ause te pro"ess for domesti" approval of su" agreements notonly eliminates te need for a J-vote superma*ority! 'ut also in"ludes te Mouse! itallows implementing legislation to 'e"ome part of te international lawmakingpro"ess.



5at is also well-settled! wit Supreme Court "ase law to prove it! is tat tere is a"ategory of "ases were te ?resident "an enter a 'inding international agreement'ased on is own independent! Arti"le II autorities! witout a"tion from Congress.

Tis was te olding of te famous "elmont and #in$ "ases were ?resident Franklin&oosevelt! as part of is re"ognition of te Soviet Union! agreed to settle "ertaininterstate "laims. Te Court re"ogniHed not only tat te ?resident ad autority to

enter into te Agreement on is own autority as ?resident! 'ut also found! underte Suprema"y Clause! tat tat agreement prevailed over any "ontrary state law.

4one of tis is news you "an learn it all from reading Lou Menkin+s %oreign A&airsand the 'onstitution or te ALI+s (estatement )hird* o %oreign (elations +aw. (utwen you dig into te details! te "larity starts to fade. A"ademi"s like to put tingsin 'o)es! and tend to treat tis area of law as divided into tree. #ou ave yourtreaty 'o). #ou ave your "ongressional-e)e"utive agreement 'o)! wi" issu'divided into /e) ante0 agreements! were Congress 1rst autoriHes teagreement 'y statute! and te )e"utive ten negotiates and "on"ludes it> and /e)post0 agreements! were te )e"utive 1rst negotiates an agreement and ten'rings it to Congress for su'se2uent approval. Tird! you ave your /sole e)e"utiveagreement0 'o)! "overing tose areas were te ?resident makes international law'ased on is independent "onstitutional autority.

(ut in te real world! tis tidy framework grossly over-simpli1es reality. Tere are awealt of international agreements tat are "onsistent wit! and "an 'eimplemented under! e)isting law! 'ut tat do not fall neatly into any of tese 'o)es.6any of tese agreements may not even 'e intended to ae"t legal interests at tedomesti" level :e.g.! 'y 'eing *udi"ially enfor"ea'le like in te #in$ and "elmont "ases;. For e)ample! re"ently! we in te Legal Adviser+s ,"e were surprised to 1nd"ontroversy surrounding te )e"utive+s autority to enter into te Anti-Counterfeiting Trade Agreement! or ACTA! a multilateral agreement on enfor"ingintelle"tual property rigts. Certainly! some of tat "ontroversy may ave derivedfrom poli"y disagreements wit te goals of te ACTA! 'ut a surprisingly largenum'er of law professors 2uestioned te )e"utive+s legal autority even to enterte agreement. Tey said! /I don+t see an e)press ex ante "ongressionalautoriHation! so it "an+t 1t into te "ongressional-e)e"utive agreement 'o)! nordoes tis look like a traditional topi" for a sole e)e"utive agreement. Sin"e it falls'etween te stools! tat must mean te U.S. la"ks any autority to enter teagreementN0

(ut autority in tis area sits not on isolated stools! 'ut rater runs in a spe"trum.5y was entering te agreement a legally availa'le optionK First! wile Congressdid not expressly pre-autoriHe tis parti"ular agreement! it did pass legislation

"alling on te )e"utive to /workOP wit oter "ountries to esta'lis internationalstandards and poli"ies for te ee"tive prote"tion and enfor"ement of intelle"tualproperty rigts.0 Furter! we and UST& determined tat te agreement negotiated1t witin te fa'ri" of e)isting law> it was fully "onsistent wit e)isting law and didnot re2uire any furter legislation to implement. 5e also surveyed ow te politi"al'ran"es ave dealt wit similar agreements in te past! and found tat Congress+"all for e)e"utive a"tion to prote"t intelle"tual property rigts arose against te'a"kground of a long series of agreements on te spe"i1" 2uestion of intelle"tualproperty prote"tion done in a similar fasion. 5at we saw in pra"ti"e resem'les a



penomenon I "alled in my 'ook he ational ecurity 'onstitution /2uasi-"onstitutional "ustom!0 a widespread and "onsistent pra"ti"e of e)e"utive 'ran"a"tivity tat Congress! 'y its "ondu"t! as essentially a""epted. In tis respe"t! teACTA resem'led te Algiers A""ords tat ended te Iranian Mostages "risis! wose"onstitutionality was 'roadly upeld 'y te Supreme Court =9 years ago in ames/ 0oore v. (egan. Tere! te Supreme Court upeld te Algiers A""ords 'y relying

not on any parti"ular e)press e) ante "ongressional autoriHation! 'ut rater! on/"losely related0 legislation ena"ted in te same area and a long istory of)e"utive (ran" pra"ti"e of "on"luding "laims settlement agreements. Altougte Algiers A""ords! like ACTA! did not fall neatly into any of tese tree /'o)es0!te Supreme Court in ames / 0oore easily upeld te "onstitutionality of teAlgiers A""ords and found a /legislative intent to a""ord te ?resident 'roaddis"retion0 and! "iting te teel ei1ure 'ase, noted tat su" legislation /may 'e"onsidered to invite Qmeasures on independent presidential responsi'ility.+0

(. nsuring Complian"e

I+ve talked a'out a ost of ways to undertake an o'ligation! 'ut tat+s only te'eginning. #ou ten fa"e wat international relations people "all /te "omplian"e2uestion30 if te United States "an lawfully enter into an international agreement!ow do you ensure tat we+ll "omplyK 6y o"e+s lawmaking pra"ti"e is not limitedto joining treaties and oter agreements> we spend *ust as mu" time ensuring teU.S. is in a position to "omply wit its international o'ligations. I sometimes amasked 'y my uropean "ounterparts wy te United States seems slow to *oininternational agreements! suggesting tat tis sows tat te United States doesn+treally "are a'out international law. In fa"t! it reveals te opposite3 beore weundertake international "ommitments! we tink very "arefully a'out wat teyentail! pre"isely 'e"ause we take so seriously tose "ommitments we do make.

In my a"ademi" work! I ave des"ri'ed a pervasive penomenon in internationalaairs tat I "all /transnational legal pro"ess30 tat international law is primarilyenfor"ed not 'y "oer"ion! 'ut 'y a pro"ess of internali1ed compliance. 4ations tendto obey international law! 'e"ause teir government 'ureau"ra"ies adopt standardoperating pro"edures and oter internal me"anisms tat foster default patterns ofa'itual "omplian"e wit international legal rules. 5en I 'e"ame Legal Adviser! Ifound tat tis is even truer tan I tougt. For e)ample! most people are unawareof te so-"alled /C-9JG0 pro"ess! named after a 9EGG State Department Cir"ularsetting out a standardiHed pro"edure for "on"luding international agreements. Tefew a"ademi"s wo ave ever noti"ed tat pro"ess often assume it is noting moretan a ru''er stamp. (ut aving now seen it from te inside! I "an tell you tat tepro"ess is e)austive and designed to ensure tat all proposed U.S. international

agreements even if "on"luded 'y a dierent agen"y are su'*e"t to a rigorouslegal and poli"y review 'y te State Department 'efore an any agreement isnegotiated and "on"luded. Troug tis pro"ess! te State Department plays tesame kind of "learingouse role wit respe"t to international agreements tat ,6(plays wit regard to federal regulations. Te C-9JG pro"ess ensures not only tat weave te legal autority to "on"lude te agreement in 2uestion! 'ut also tat everyagen"y+s lawyers fully understand te nature of te domesti" and international legalo'ligations we will undertake! so tat we "an a""urately evaluate weter teUnited States will 'e a'le to "omply wit its new international legal o'ligations.



6y o"e also steps in on te oter side of te e2uation! in te mu" rarer "aseswere we 1nd ourselves falling sort of "omplian"e. ,ne widely underappre"iatedstory is our "ontinuing eort to "omply wit te IC+s 8@@ *udgment in te Avena "ase. In Avena! te International Court of usti"e famously eld tat te UnitedStates ad violated Arti"le = of te Bienna Convention on Consular &elations:BCC&; were'y States must inform detained foreign nationals of teir rigt to

"onta"t teir "ountry+s "onsular o"ials to seek assistan"e wit respe"t to G96e)i"an nationals on state deat rows. To remedy tis violation! te Court ruled tatte United States ad to provide for review and re"onsideration of ea" of te G9"onvi"tions! notwitstanding any pro"edural default rules :wi" in our systemnormally apply to post-"onvi"tion review of state "onvi"tions;. ,n"e te IC gave

*udgment! we ad an international o'ligation to "omply not *ust wit te BiennaConvention 'ut also Arti"le E of te U4 Carter! wi" re2uires States to "omplywit IC *udgments in "ases to wi" tey are a party.

Te Avena *udgment inaugurated an eigt-year long eort over two Administrationsto 'ring ourselves into "omplian"e wit te IC *udgment. Altoug te 1rstunsu""essful pase was well-pu'li"iHed! our ongoing eorts at "omplian"e are farless well-known.

In 8@@G! ten-?resident $eorge 5. (us sougt to implement te Avena *udgment'y issuing a memorandum to te Attorney $eneral dire"ting state "ourts to /giveee"t to te de"ision in a""ordan"e wit general prin"iples of "omity in "ases 1led'y te G9 6e)i"an nationals addressed in tat de"ision.0 Te)as refused to "omplywit te memorandum and! in te 8@@ Supreme Court "ase of 0edellin v. exas!"onvin"ed te Court tat te ?resident a"ting alone la"ks te autority to enfor"ete Avena *udgment in U.S. "ourts. Altoug te Supreme Court eld tat our Arti"leE o'ligation is not self-e)e"uting or enfor"ea'le in domesti" "ourt! Cief usti"e&o'erts e)pressly re"ogniHed tat te Avena *udgment /"onstitutes an internationallaw o'ligation on te part of te United States.0 Sin"e 0edellin, we ave tereforeworked ard to 'ring te United States into "omplian"e wit Avena :and our BCC&o'ligations more generally; troug tree oter avenues3 :9; furter litigation toful1ll Avena+s dire"tive> :8; an ongoing eort to se"ure "omplian"e trougproposed federal legislation! te Consular 4oti1"ation Complian"e A"t :C4CA;> and:=; "ontinuing improvements in our "onsular pra"ti"es to ensure tat no futureBCC& violations o""ur.

First! te United States as supported state and federal litigation to implement ourinternational legal o'ligations under Avena. In te "ase of Mum'erto Leal $ar"ia!te United States supported a stay of e)e"ution for a 6e)i"an national su'*e"t tote Avena *udgment wo in violation of our Bienna Convention o'ligations was

"onvi"ted and senten"ed to deat following te failure of Te)as autorities to notify6r. $ar"ia upon is detention of is rigt under te BCC& to seek te assistan"e ofte 6e)i"an "onsulate. Along wit Soli"itor $eneral Don Berrilli! I signed our ami"us'rief in tat "ase! making "lear te importan"e of te foreign poli"y "onse2uen"esat issue! 'ut a G- ma*ority of te Court :(reyer! $ins'urg! Sotomayor and %agan .!dissenting; noneteless denied te stay. (ut litigation in tis area "ontinues. ustlast mont! te 4evada Supreme Court did remand te "ase of one of te Avena defendants for an evidentiary earing to determine weter e was a"tuallypre*udi"ed 'y te la"k of "onsular a""ess. 4ota'ly! te "ourt des"ri'ed te reverse



ypoteti"al of a U.S. "itiHen detained in 6e)i"o! pointing out tat /we would e)pe"t6e)i"o! on order of te IC! to review te relia'ility of te pro"eedings.0

Se"ond! tis Administration as worked to develop a ederal legislative solution toimplement te Avena *udgment. After e)tensive "onsultations wit tisAdministration! in une 8@99! Senator ?atri"k Leay introdu"ed te Consular

4oti1"ation Complian"e A"t :C4CA; a 'ill wi"! if ena"ted! would 'ring te UnitedStates into "omplian"e wit our Avena o'ligations 'y providing federal "ourt reviewof te Bienna Convention "laims of foreign nationals on deat row to determineweter tey were pre*udi"ed 'y a "onsular noti1"ation and a""ess violation.Se"retary of State Clinton! Se"retary of Defense ?anetta! and Attorney $eneralMolder ave all written to Senate "ommittees e)pressing te Administration+s strongsupport for tis legislation! "iting its impli"ations for te U.S. government+s a'ility toprote"t U.S. "itiHens overseas and to promote "ross-'order law enfor"ement"ooperation. Legislative eorts to se"ure te C4CA+s passage "ontinue even as Ispeak.

Tird! looking at our BCC& o'ligation more generally3 we ave found tat violationsof "onsular assistan"e o'ligations typi"ally result not from any mali"e! 'ut simplyla"k of awareness of our international o'ligations 'y street-level o"ials. 5e aveterefore worked on promoting awareness among tose wo are responsi'le forliving up to our nation+s o'ligations. Applying transnational legal pro"ess te"ni2uesof norm-internaliHation! we ave sougt to a"ieve full "omplian"e wit te BCC&troug guidan"e! training! and model poli"ies and pra"ti"es to guarantee "onsularnoti1"ation and a""ess. Tese ongoing! persistent eorts at treaty "omplian"e arealmost unknown! 'ut tey are a "riti"al part of a'iding 'y our legal o'ligations. Fornearly a de"ade! te Departments of State and usti"e ave engaged in intensiveoutrea" and training eorts dire"ted at federal! state! and lo"al law enfor"emento"ials! as well as "ounsel and *udges. Sin"e 9EEJ! te State Department aspu'lised and provided free of "arge a Consular 4oti1"ation and A""ess :C4A;6anual and 1eld trainings and 'rie1ngs for federal! state! and lo"al lawenfor"ement! as well as for federal and state agen"ies! governors+ and mayors+o"es! 'ar asso"iations! prison asso"iations! and many oter entities. Te StateDepartment also now disseminates information a'out "onsular noti1"ation anda""ess re2uirements on our we'site! as well as on su" so"ial media we'sites asFa"e'ook and Twitter.

C. Customary International Law

Anoter traditional way for te )e"utive (ran" to engage in internationallawmaking for te U.S. even in te a'sen"e of an e)press agreement is 'y

re"ogniHing and elping develop "ertain rules as "ustomary international law! wi"results from a general and "onsistent pra"ti"e of states followed out of a sense oflegal o'ligation. For e)ample! related to wat I *ust dis"ussed! te State Departmenttakes te view tat "ustomary international law imposes on us an o'ligation toprovide "onsular noti1"ation and a""ess upon re2uest to nationals even of foreign"ountries tat are not parties to te BCC& or oter appli"a'le 'ilateral treaties.

Te )e"utive (ran" as famously re"ogniHed many provisions of te BiennaConvention on te Law of Treaties as "ustomary international law. Sin"e te late



9EJ@s! it as done te same wit respe"t to many aspe"ts of te law of te sea. In6ar" 9E=! ?resident &eagan+s ,"ean ?oli"y Statement noting te U.S.leadersip role in developing "ustomary law of te sea announ"ed tat teUnited States would respe"t te "laims of oter States made in "onformity wit te9E8 Law of te Sea Convention! and a'ide 'y te Convention wit respe"t totraditional uses of te o"ean! su" as navigation and over7igt. ?rovisions in te

Convention were tereafter internali1ed a"ross te United States government!in"luding in te U.S. 4avy+s standard operating pro"edures. Te United States asnot only re"ogniHed mu" of te Convention as "ustomary law! it as a"tivelysougt troug diploma"y and pea"eful military a"tivities to promote tisre"ognition a"ross all States. Te U.S. Freedom of 4avigation program! starting inte 9EJ@s and "ontinuing to tis day! as implemented tose pro"edures 'yopposing te maritime "laims of States tat go 'eyond tat wi" is permitted 'yte Convention.

Te )e"utive (ran" also regularly asserts "ustomary international law rules'efore our "ourts as prin"iples to evaluate state "laims of title to "oastal waters! toguide statutory "onstru"tion and to inform federal "ommon lawmaking. In te areaof te law of armed "on7i"t! te U.S. $overnment as long re"ogniHed various rulesof "ustomary international law as 'inding! in"luding te "entral prin"iples of jus inbello! su" as te prin"iples of distin"tion and proportionality. And te U.S.$overnment as also sougt to promote te development of "ustomaryinternational law. For e)ample! in 8@99! te ,'ama Administration e)presslyde"lared tat /Te U.S. $overnment will . . . "oose out of a sense of legalo'ligation to treat te Oumane treatmentP prin"iples set fort in Arti"le JG Oof teFirst Additional ?roto"ol to te $eneva ConventionsP as appli"a'le to any individualit detains in an international armed "on7i"t! and e)pe"ts all oter nations to adereto tese prin"iples as well.0

D. merging 6odes of /4on-Legal Understandings!0 /Layered Cooperation!0 and/Diplomati" Law Talk0

Twenty-1rst "entury international legal engagement is ardly limited to tese"onventional tools of treaties and e)e"utive agreements and "ustomaryinternational law. 6u" of wat my o"e does is to elp poli"y "lients advan"e teirinterests outside tis familiar framework! oftentimes 'y fostering "ooperation witvarious partners in innovative ways. Tis "an take te form of wat I "all /diplomati"law talk!0 involving 7uid "onversations on legal norms. It "an also take te form ofmemorialiHing arrangements or understandings tat we ave on paper witout"reating 'inding legal agreements wit all te "onse2uen"es tat entails. To take

*ust one re"ent e)ample! Se"retary Clinton re"ently signed a 6emorandum of

Understanding on enan"ing our "ooperation wit te Ara' League. Again! its legalstatus is neiter treaty nor agreement! 'ut rater an e)pression of mutual intenttat em'odies our "ommon eort to rea"t to te new 6iddle ast 'rougt on 'y teAra' Awakening.

,r take te ,'ama Administration+s eorts to renew te United States+ engagementin international diploma"y to address te treat of glo'al "limate "ange. In 8@@E!many oped tat te "limate "ange "onferen"e in Copenagen would yield a new"limate "ange treaty. 5en it 'e"ame "lear tat would not 'e a"ieva'le! te



international "ommunity! led 'y ?resident ,'ama and Se"retary Clinton! was a'le toagree on te Copenagen A""ord3 a politi"al! not legally 'inding do"ument! tatmoved away from te %yoto ?roto"ol paradigm 'y se"uring "ommitments to address"limate "ange from developed and developing "ountries alike. At a "ru"ial momentin "limate diploma"y! te Copenagen "ountries for te 1rst time agreed on a glo'alaspirational temperature goal> all key "ountries listed te emissions a"tions tat

tey would implement> everyone agreed to transparen"y pro"edures> and a newglo'al "limate fund was spawned. 5ile not legally 'inding! te Copenagenout"ome paved te way for last year+s Dur'an Conferen"e! were te world againde"ided to pursue a "limate agreement of a more legal "ara"ter a proto"ol! legalinstrument! or agreed out"ome wit legal for"e.

Anoter re"ent e)ample is te 8@9@ 5asington Communi2ue of te 5asington4u"lear Se"urity Summit! osted ere 'y ?resident ,'ama. Again! te te)t is notlegally 'inding! 'ut it in"ludes signi1"ant undertakings! and States ave alreadymade signi1"ant progress in ful1lling teir pledges and improving nu"lear se"urity.

Tese non-traditional eorts at legal diploma"y also in"lude wat I "all /layered"ooperation.0 In any given area of international "ooperation! te "oi"e 'etweeninternational agreements and non-legal alternatives is not 'inary. Instead! te legaland te non-legal understandings are layered! and operate on dierent levels. Takefor e)ample te Ar"ti" Coun"il! a group of eigt Ar"ti" States Canada! Denmark!Finland! I"eland! 4orway! &ussia! Sweden! and te United States wi" asemerged as an impressive e)ample of a non-legal me"anism to fa"ilitatesustaina'le development and international "ooperation in te Ar"ti". Te"ooperation tat takes pla"e witin te Ar"ti" Coun"il generally troug non-'inding means is layered on top of a legal 'a"kdrop of te Law of te SeaConvention! and te "ustomary international law it re7e"ts! wi" answer important2uestions a'out sovereign rigts and *urisdi"tion in te Ar"ti". 4ow noti"e tat teCoun"il is not a formal international organiHation> it was not set up 'y aninternational agreement! and te ma*ority of its work is not legally 'inding. (ut tisas not detra"ted from and as pro'a'ly even enan"ed its su""ess infa"ilitating ro'ust international "ooperation among te Ar"ti" States at all levels!ranging from foreign ministers to 'en" s"ientists.

#et anoter e)ample of tis kind of layered "ooperation "an 'e found in outer spa"e. Te e)ploration and use of outer spa"e is "ondu"ted pursuant to importantmultilateral treaties as old as spa"e e)ploration itself. (ut to address "ontemporarypro'lems presented 'y new "apa'ilities and new a"tors! instead of newinternational agreements! spa"e-faring states ave favored legally non-'indingprin"iples and te"ni"al guidelines tat are layered on top of tose pre-e)isting

treaties.

5e ave also engaged in an innovative kind of /diplomati" law talk0 on te ultimate89st "entury legal issue3 te law tat applies to "y'erspa"e. In tis area! a few"ountries ave sougt to promote entirely new treaties and "odes to regulate teinternet. Te U.S. $overnment as opposed tese law-"reation eorts not'e"ause we don+t tink tere sould 'e any rules governing "y'erspa"e! 'ut to te"ontrary! 'e"ause we 'elieve tere is already established law tat applies. At tesame time! we a"knowledge tat wen it "omes to new te"nologies! it will not



always 'e "lear e)a"tly how e)isting law applies. So rater tan start writingentirely new rules from s"rat"! we+ve taken te approa" of engaging in a series of legal "onversations diplomati" law talk wit our international partners topromote "onsensus around international norms in various areas of "y'erlaw.

For e)ample! I re"ently gave a spee" at U.S. Cy'er Command presenting te U.S.

views on ten 2uestions regarding international law and "y'erspa"e! fo"using on te"onte)t of use of for"e and armed "on7i"t. Te answers to tese 2uestions stateimportant prin"iples! in"luding te re"ognition tat a "y'eratta"k "an! under "ertain"ir"umstan"es! "onstitute an illegal use of for"e> tat under "ertain "onditions! su"an atta"k "an give rise to a rigt of self-defense : jus ad bellum;> and tat in te"onte)t of ostilities! "y'er operations must a'ide 'y te law of armed "on7i"t!in"luding te jus in bello prin"iples of /distin"tion0 and /proportionality.0 (eyond"y'er confict ! Se"retary Clinton as 'een vo"al in supporting te proposition tatte uman rigt of freedom of e)pression! ensrined in te Universal De"laration ofMuman &igts and "odi1ed in te International Covenant on Civil and ?oliti"al&igts! applies online! *ust as it does oRine.

In politi"al s"ien"e terms! wat we are doing is not /lawmaking0 per se! so mu" asit is wat international relations teorists "all /regime-'uilding0 in te sense offostering dis"ussion and 'uilding "onsensus a'out a set of norms! rules! prin"iples!and de"isionmaking pro"edures tat "onverge and apply in a parti"ular issue area.Some of te do"uments tat emerge from tese diplomati" dis"ussions migt 'edes"ri'ed as /soft law!0 inasmu" as tey seek to de1ne new norms! or speak toow esta'lised norms sould apply to new "ir"umstan"es. Tis kind of law talkalways pre"edes and sometimes takes te pla"e of formal lawmaking> in te "y'erarea! for e)ample! we engaged in meetings wit "ounterparts from oter "ountriesat te U4 $roup of $overnment )perts on information te"nology issues. In fa"t! alarge part of my *o' as Legal Adviser as 'een to old regular meetings wit groupsof legal adviser "ounterparts for te e)press purpose of dis"ussing emerging areasof "onsensus in tese areas of law. Troug tis iterative pro"ess! wereinternational lawyers from many "ountries talk a'out tese issues 'ilaterally!plurilaterally! and multilaterally! we are 'uilding wat international relationsteorists "all an epistemi" "ommunity or wat my late #ale "olleague (o' Cover"alled an /interpretive "ommunity0 international lawyers speaking te samelanguage to des"ri'e te same transnational penomenon as it plays out in teir"ountry and in teir foreign relations.

. My'rid ?rivate-?u'li" Arrangements

Finally! te new 89st "entury international lawyering pro"ess re"ogniHes tat states

are not te only a"tors. ,f "ourse neiter international law nor foreign poli"y aveever 'een "ompletely restri"ted to states! 'ut te proliferation and in7uen"e of non-state a"tors as /gone viral0 in re"ent years. And so it is inevita'le tat te U.S.$overnment now 1nds itself developing relationsips not *ust wit states! 'ut wit"ivil so"iety and industry groups too! among oters. 5it tis trend as "ome ane)plosion in so-"alled /pu'li"-private partnersips!0 or /y'rid arrangements.0

,ne early and important landmark was te Boluntary ?rin"iples on Se"urity andMuman &igts! an initiative I elped laun" in 8@@@ during my last days as Assistant



Se"retary of State for Demo"ra"y! Muman &igts and La'or in te ClintonAdministration. Te Boluntary ?rin"iples 'ring togeter governments! "ompanies!and 4$,s to promote guiding prin"iples for oil! gas! and mining "ompanies onproviding se"urity for teir operations in a manner tat respe"ts uman rigts.(e"ause tis initiative is e)pli"itly /voluntary0 in name! it ardly "onstitutes/international lawmaking0 in a traditional sense. At te same time! it represents a

way of setting standards and pursuing te ends of uman rigts lawmaking fostering a "ulture of respe"t for "ertain rigts 'ut using te novel means of apu'li"-private forum to advan"e tat pro*e"t. Te Boluntary ?rin"iples elp"ompanies identify uman rigts risks and take meaningful steps to address toserisks in a manner tat elps ensure respe"t for uman rigts in teir operations.,ne ting we+ve done to improve tis pro*e"t during te ,'ama Administration is toadvo"ate te "reation of an entity to provide administrative and 1nan"ial support tote Boluntary ?rin"iples Initiative. &ater tan sign an international agreement or"reate a new international institution! te parti"ipants ave now done sometingnovel3 to set up a "orporate-type /asso"iation0 under utch law! wit a U.S.government o"ial serving on te (oard of Dire"tors on a rotating 'asis. So te"urrent framework of "ooperation e)empli1es te modern /y'rid arrangement30 to

promote international norms and respe"t for uman rigts in te e)tra"tiveindustries! parti"ipants ave set up a pu'li"-private partnersip troug wi" 'estpra"ti"es "an 'e sared and norms internaliHed. And we+ve elped set up an entityto provide te initiative ne"essary support organiHing tat entity under te law ofte 4eterlandsN

Anoter! more re"ent! e)ample is te set of y'rid arrangements we avedeveloped to "reate te International Code of Condu"t for ?rivate Se"urity Servi"e?roviders. ,ver te last de"ade or so! we ave seen an in"reased need to 'otutiliHe private "ontra"tors in ig-risk environments! and to old tose "ontra"torsa""ounta'le igligted most tragi"ally 'y te killings in 4isoor S2uare in Ira2! a"ase tat te usti"e Department is "urrently prose"uting. In response to tesekillings! te (us Administration engaged in te development of te 6ontreu)Do"ument! a /non-legally 'inding0 'ut politi"ally "onse2uential internationalinstrument tat laid out important prin"iples for te regulation of private "ontra"torsin a military environment. In addition to "ompiling a set of good pra"ti"es! tedo"ument set out te established law appli"a'le to tis new penomenon aneort not unlike te "y'er work I+ve *ust des"ri'ed. Sin"e 6ontreu)! we+ve addedanoter layer 'y elping to "reate te International Code of Condu"t. Instead ofnegotiating a traditional state-to-state agreement! we ave elped develop aninnovative pu'li"-private partnersip! striving to 'ring government! industry! and"ivil so"iety togeter to promote iger standards for private se"urity "ompanies:?SCs;. #ou "an tink of it as sifting from an approa" tat fo"uses largely on stati""ontra"ts to one tat also empasiHes evolving and deepening pu'li"-privaterelationsips.

As of today! in a remarka'ly sort period of time! te Code as 'een signed 'y overG@@ ?SCs! in"luding many tat "ontra"t wit te U.S. $overnment in pla"es like Ira2and Afganistan. Companies tat sign te Code "ommit to prin"iples regarding te"ondu"t of personnel and se"urity management pra"ti"es. ust as important! tey"ommit to work wit oter stakeolders toward te esta'lisment of governan"eand oversigt me"anisms to ensure implementation of te prin"iples laid out in te



Code troug ee"tive "erti1"ation! auditing! monitoring and reporting! as well astroug te development of tird-party "omplaint me"anisms. Stakeolders aremaking progress in moving tis initiative forward! eviden"ed in part 'y te1naliHation earlier tis year of an Ameri"an 4ational Standards Institute standard on?SC operations tat may 'e utiliHed 'y te "erti1"ation pro"ess. Te nature of te?SC industry "reates signi1"ant pra"ti"al "allenges for traditional legal regimes!

'ut innovative initiatives su" as te Code oer a "an"e to make real progress in"anging se"urity "ontra"ting pra"ti"es and improving "omplian"e wit re"ogniHedprin"iples and norms.

II. Con"lusion

In "losing! professors and students taking "lasses in international law still like tofo"us on "on"rete treaty language and *udi"ial de"isions. Tese remain importantand are still te leading te)ts of international law. (ut te world as 'e"ome farmore 7uid and messy. International legal instruments do not "ome neatly pa"kagedinto tripartite "onstitutional 'o)es! and te pro"ess of ensuring national "omplian"ewit international o'ligations 'ot 'efore and after rati1"ation of a treaty nowoften takes us out of "ourtrooms and into te alls of Congress! or onto 'logs and

Twitter or into te o"es of foreign poli"y 'ureau"rats or even lo"al seris.

In"reasingly! traditional forms of international legal engagement do not "onvey teentire pi"ture of our legal diploma"y. 5e elp our "lients advan"e foreign poli"yo'*e"tives troug an innovative array of 'inding and non-'inding arrangements!layered "ooperation! normative dialogues and y'rid pu'li"-private partnersips.5e ave 'roadened our fo"us 'eyond a narrow view of international lawmaking tatfo"uses only on te wording of parti"ular treaties! to in"lude innovative te"ni2uesof norm-enun"iation and forum-"reation to promote aderen"e to importantprin"iples.

89st "entury lawmaking is not limited to traditional /lawmaking0 in te sense ofdrafting "odes and stati" te)ts! so mu" as it is a pro"ess of 'uilding relationsips tofoster normative prin"iples in new issue areas! leading to /soft law!0 /regime-'uilding!0 and sometimes eventually "rystalliHing into legal norms. 4ow tis is notnew. In teir "lassi" 9E politi"al s"ien"e 'ook 2anging ogether ! Marvard+s &o'ert?utnam and 4i"olas (ayne des"ri'ed ow te $- summit evolved from aninformal meeting into a 2uasi-international institution! witout ever "rossing te lineinto formal law making. (ut in"reasingly! we now develop international law moreand more troug /diplomati" law talk0 dialogue witin epistemi" "ommunities of international lawyers working for diverse governments and nongovernmentalinstitutions. ?eraps someday tese norms will "rystalliHe and! if ne"essary and

advisa'le! 'e"ome a 'asis for a multilateral treaty negotiation.

(ut even if tey don+t! some of wat we do "reates a re"ord of state pra"ti"e and'uilds a pro"ess of generating opinio juris! te notion tat states engage in tosepra"ti"es out of a sense of legal o'ligation. So even wen teir meetings don+tinvolve drafting and "on"luding agreement language! government lawyers 1ndtemselves "ontri'uting to te development and appli"ation of international law.



5at I ope tis le"ture as "onveyed is tat 89st "entury international lawmaking isnot a rote "e"klist of traditional orn'ook tools! su" as treaties and e)e"utiveagreements. Instead! it in"ludes a living! 'reating uman tapestry of meetings!relationsips! and oter "ommuni"ations personal and virtual all fo"used onte 'roader tasks of promoting "ooperation! engagement and norm-promotion.

6ake no mistake3 tis is not your grandfater+s international law! a 5estpalian top-down pro"ess of treatymaking were international legal rules are negotiated atformal treaty "onferen"es! to 'e anded down for domesti" implementation in atop-down way. Instead! it is a "lassi" tale of wat I ave long "alled /transnationallegal pro"ess!0 te dynami" intera"tion of private and pu'li" a"tors in a variety ofnational and international fora to generate norms and "onstru"t national and glo'alinterests. Te story is neiter simple nor stati". Twenty-1rst "entury internationallawmaking as 'e"ome a swirling intera"tive pro"ess were'y norms get/uploaded0 from one "ountry into te international system! and ten /downloaded0elsewere into anoter "ountry+s laws or even a private a"tor+s internal rules.

4ow I am sure tat Mugo $rotius ad it good in is time. (ut 'elieve me3 tere asnever 'een a more "allenging and e)"iting time to 'e an international lawyer or aninternational lawmaker. I ave 'een lu"ky to spend my wole "areer steeped in tiseady environment as a lawyer! s"olar! advo"ate and pu'li" o"ial. To 'e sure!tere will always 'e "allenges. (ut still! I 1nd no 'elief more "ontagious tan tesimple! idealisti" "onvi"tion! sared 'y so many! tat even in a new millennium! it isstill possi'le to aspire to elp 'uild a vi'rant world order 'ased on law.

Tank you.

Harold Koh International Law-Making.doc

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