‘International Law Makes Us More Free’: In Conversation with Professor Harold Koh

Molly Bolding 20 January 2019
Image Credit: Ed Ince-Jones

Professor Harold Hongju Koh is one of the world’s leading experts in international, human rights and national security law, and currently the Sterling Professor for International Law at Yale Law School. Born in Boston to Korean parents, Koh studied at universities on both sides of the Atlantic and he later taught at and served as Dean of Yale for five years. He served as Legal Advisor to the Department of State under President Obama and at time of publication he holds seventeen honorary degrees and over thirty awards for his work in human rights litigation. I had the privilege of interviewing Professor Koh after his talk on American Foreign Policy at the Cambridge Middle East North Africa Federation (MENAF) event at Gonville and Caius College.

Image Credit: Ed Ince-Jones

Having just read and recounted his endless achievements, titles and responsibilities, my first question was one of minor incredulity: what was the draw of events such as these? When dealing with such a comparatively small audience, what was he hoping people were taking away from his talk?

“When I was a student, both at Harvard and later at Oxford, I found that the academic learning was very divorced from what was going on in the real world. I wondered why I was learning one thing in lectures and reading other things in the newspaper, and I couldn’t connect them. I wondered whether they were really related, and it was clear to me at the time that what I was learning was relevant in some way but it wasn’t quite clear – and it turns out that what you’re doing is you’re developing a kind of world view that allows you to process whether you agree with policy decisions or particular approaches and to get past the trees and see the forest, so to speak. I’m also just excited to have a chance to meet Cambridge students from different places – there are a lot of different colleges and in many ways they’re siloed, and my formal lectures are always in the Law Faculty so it’s a good way to cover different regions; undergraduates as well as graduates young teachers and address contemporary issues. I enjoyed [the MENAF talk], it was a lot of fun – I feel like I met some Cambridge students too and heard their concerns.”

Drawing on my background research, I wanted to ask more broadly about his long, successful career in the American legal system. I was especially interested to see what he made of some of the comments I had read in certain political spheres which seemed to suggest he was attempting to ‘corrupt’ the systems the Professor had so long been a part of.

His answer was clinically accurate. “The American body politic,” he remarked, “is somewhat schizophrenic. It’s like a horror movie where people have dual personalities – Dr Jekyll and Mr Hyde. I think that the same country who elected Obama elected Trump, but it turns out that different factions or collections of factions get the upper hand at particular moments in time, depending on particular provocations or contingencies. Remember, Trump lost by 3 million votes – but because of the peculiarity of our electoral college system, we have Trump as our President. My basic view is that when the United States began, it was an internationalist country – its original philosophy was internationalist. Most new countries are: the way you acquire legitimacy is you pledge fealty to the international system. When the US got very large and powerful, it appeared to have amnesia about this and felt a reversion to autonomy and nationalism and forgot the benefits of all this globalism – and that’s exactly what happened with Brexit. A combination of amnesia and blindness.”

As it is wont to do, a mention of Trump in the conversation led us down a brief tangent. “You know, a guy like Trump thinks everything is a zero-sum game. He doesn’t grasp the idea that we all rise and fall together, and that if you’re gonna have a recession in one country, it’s gonna spread to others. He doesn’t understand the idea of ‘knock-on effects’ – which is one of the first things you understand when you come to university!” We laugh at his comparison of economic policy to dominoes, but it’s still somehow a sobering thought in a climate of governmental shutdown and stalling political inertia on both sides of the pond.

I was curious to see whether the Professor had a response to some of the fairly consistent criticism of his change in career path in becoming Obama’s Legal Advisor and a member of the Executive branch of government, and thus perceived a change in his principles by many in the profession. In 2011, an NPR interview with former Justice Department official Walter Dellinger revealed his defense of Koh to the critics: “It’s wrong to expect an academic like Harold Koh to take the same positions in government that he would have taken as a law professor”. I read this out to Koh, whose eventual response was measured and delivered in a succinct analogy.

“Let me take it out of the context of international law. Suppose you wanted to do criminal law, and you started as a criminal defender, representing criminal suspects – many of whom you know are guilty. Your job is still to defend them and to fight to make sure they don’t get convicted unless the government has done all of its homework…to emphasise ways in which there is the reasonable doubt. Suppose then you switch and you become a prosecutor. Your job is to put people in jail…to emphasise the ways in which that reasonable doubt can be overcome. Suppose you become a law professor. You can say what you think is the best solution without being a player in the process. Finally you become a judge or a legislator, and you decide cases of criminal law or legislate on it…to balance between and come to a reasonable conclusion. In other words, it’s the same body of law – you’re just playing different roles. If you switch the people’s roles, they will step into each other’s shoes. Everybody is doing their job honestly and fairly. That’s what Dellinger was saying…you’re just emphasising different aspects of the same picture. It’s like looking at a Rorschach test.” The Professor ended this comparison with a small smile: “I’m proud to be criticised by the people who criticise me – I don’t think they have a good sense of history or the nature of the global system.”

Image Credit: Ed Ince-Jones

My next question pivots on the central thesis of his life’s work – international law, in both practice and theory. I ask rather broadly whether he feels international law as a concept is in his view more of a codification of expected national behaviours, or actually acts more as a binding legal force that governs participation – if it’s the latter, surely events like Brexit should dwell more in that arena than in that of referendums.

“I would say that [international law]’s core function is norm internalisation. In my own academic work, there are two ways to enforce this. Horizontally: the EU and the UK can negotiate at an intergovernmental, ‘horizontal’ plane. But the other way, vertically, is that international law can be brought home and domesticated and become national law. In fact, that’s what happened in the EU – the UK is full of rules that were made outside of it and domesticated.” While some may view this nationalistically as a bad thing, as was propagated by the Leave Campaign, in Professor Koh’s view this exchange is a massively beneficial one.

“The United States is a powerful country but it has internalised a huge number of international rules, so most compliance is actually obedience and internalisation.” To explain more simply, Koh made this simple comparison: “this should just make sense to anybody – when you’re born you don’t know whether to put on a seatbelt or not, you don’t know whether to put on a bicycle helmet or not, you don’t know whether to recycle or not, but through a variety of mechanisms you internalise norms. You go to church, you get instructed on rules, and you internalise them. The real reason people don’t steal from each other isn’t legal sanctions, it’s because of internalised norms. But every once in a while, powerful nations try to oust these norms.” I query the role of identity politics in this rejection of international policy – many of the world-wide political, racial and gendered issues of last year were arguably linked to the perceived ‘threat’ that this globalising world the Professor speaks of posed to the conventional identity of these countries. “Well they try to argue that these internalised rules constrain us and limit our freedom. In fact, I think that we’re more free,” he counters, after a pause. “International law makes us more free. Here’s a good example: when I was a student here, I flew over and had to use my passport to get into every single country in Europe. My bags weren’t protected by an international treaty – the Warsaw Convention – and I had to use traveller’s cheques because I couldn’t withdraw money from ATM machines because that is possible only by legal coordination. To send a letter or receive the package my parents had sent I had to go an American Express office. It’s comical now.” The nostalgia is evident in his tone, but Koh revels in the attitudes of the new generation that exists sans these national boundaries.

“You guys think nothing of communicating with every nation in the world, through Facebook and other kinds of social media. [These medias] don’t respect borders. So you, the millennials, are educated in a globalised world, and that’s why young people need to realise that [potentially as an outcome of leaving the EU] you’re gonna have to wait in a queue at Dover for ten hours or you’ll go to Dublin or Belfast and there’ll be a border check on what was essentially an open border. This is going to introduce huge inconveniences – worthless, pointless inconveniences – in your lives. Besides,” he gestures around him amusedly, “where are all the toll takers? Is that what we want to be spending our time doing? By the way, there are real challenges in the world, and this is what we we’re spending our time on? In America we’re spending our time dealing with Trump’s…” he pauses delicately, “limitless idiocies and you guys are dealing with the self-inflicted wound of Brexit.”

Content with this summary, I move the conversation forward to an issue I am keen to get Professor Koh’s view on, as an Asian-American who attended some of the best universities in the world – the Harvard admissions law suit. “Well, the guy who’s representing Harvard is an Asian American, Bill Lee, but the suit was brought by a right-wing, conservative, white group. So,” he raises his palms sceptically, “one ought to be very suspicious of their motives. The Asian-American groups that I work with, that I have known, don’t agree with them – their position is more nuanced: Asian-Americans traditionally needed forms of affirmative action because they were excluded from political processes, and that some degree of stereotyping has probably occurred, and that they don’t seem to always get credit for the same kinds of things, in the same way that Jews were discriminated against. On the other hand, many Asian-Americans have succeeded – so it may be that they don’t need as much affirmative action as before. But admissions systems need to be sensitive to these kinds of issues. You have to weigh each elitist institution’s institutions by their own standards – I personally don’t think that Harvard’s admissions process is biased or slanted. Harvard gives preferences to football players and bassoonists and people who read Classics and people of colour – all kinds of people! The myth is that there is some core group of people who believe it is their right to get in. The truth that there are twice or three times as many people who are all equally qualified, in some grand scheme, to be part of a lawsuit [countering not getting admitted] – you have to identify some kind of diversity principle. You don’t take everybody from the same public school, you don’t take everyone from London, you don’t take everyone from the same ethnicity.”

Professor Koh takes a breath and pauses reflectively. Finally, he says, “life is long, and there are many chapters, and if you’re lucky you get to do a lot of different things. If you play tennis and you never hit the ball out, you’re not playing very aggressively.”

If you’re interested in the work of the Cambridge MENAF, check out their page on Facebook for the latest events!

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Professor Koh’s most recent publication, The Trump Administration and International Law (October 2018), is on sale now online and in most good bookstores.

Image Credit: Oxford University Press

Check out the book here.