International law impacts the behavior of both national governments and international non-state actors, governing things like the use of drones and military technology. But the effects can also be felt on an individual level – in everything from financial transactions to luggage protection and free-travel visas in the European Union.
“It sets up patterns of conduct that we follow and that people expect to be followed,” says Harold Koh, the Sterling Professor of International Law at Yale, and the former top legal advisor at the U.S. Department of State.
Historically, establishing precedents for state behavior allows for legitimate global leadership and action. Koh says during the United States’ earliest days, the country tried to win the respect of the world by faithfully adhering to international law.
“The Declaration of Independence says, ‘a decent respect for the opinions for mankind.’ We understood at that time that if we didn’t follow the rules on piracy or war we would be isolated,” Koh says. “And I think if we want to continue to be a global leader we have to play by the global rules.”
A challenge facing the contemporary world, however, is how to place changing technologies and patterns of conflict within the context of international laws.
“[This] requires some translation of the laws of war to this new situation,” Koh says. “Drones could, in theory, be a much more accurate and humane and lawful way to conduct conflict.”
During a widely-publicized March 2010 speech, Koh said targeted killings by unmanned aerial vehicles can be used lawfully and legally within the boundaries set by the laws of war.
Koh says he sees international law as a way to advance various levels of civilization.
“Relationships are set forth in norms and rules and agreements, just like a neighborhood agreement in a condominium complex,” Koh says. “So if people have to resort to these rules and dispute resolution mechanisms, it avoids them fighting… certainly it's worth the effort to try to have such rules.”
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SUZETTE GRILLOT, HOST: Harold Koh, Welcome to World Views.
KOH: Thank you for having me.
GRILLOT: So, you've had such a distinguished career in international law and I really wanted to start with a general discussion about what that is, what international law is. Many people struggle with this concept. They consider international law to be a violation of state sovereignty, that international law is weak and that it cant' be enforced, that it's really a reflection of the powerful, the interests of powerful states, that it really doesn't exist, or if it does exist it's not worthwhile. What would you say to somebody who's a skeptic about international law?
KOH: What it does is it sets up patterns of conduct that we follow and that people expect to be followed, so it gives a kind of certainty to life. To give an example, when I was a student if you went to Europe you couldn't be sure that if you lost your luggage you'd get paid. When you got to the other side you had to have traveler's checks. If you had a visa for one country it didn't get you into another country. There were no communications mechanisms to let your family know where you were. International law has freed us in remarkable ways to do remarkable things. We now have luggage protection under the Warsaw Convention, electronic funds transfers allow you to draw money from ATM machines, the Schengen visas that allow you to travel all across Europe. So it's an enormously liberating thing. And now I think what people are concerned about is we're part of these networks so people who are also part of these networks have influence over us. My answer to that is so we're part of a legal network. We're also part of an economic network. We're part of a cultural network. We're interdependent with the rest of the world. We have influence over them. They have influence over us. So why should we build this structure and make it stronger? Because it's the thing that gives us the most capacity to control the future and a common destiny. And I think the most important thing is that the United States is a country that, when it was a small nation, tried to win the respect of the world by talking about its faithfulness to international law. The Declaration of Independence says out of a decent respect for the opinions for mankind. We understood at that time that if we didn’t follow the rules on piracy or war we would be isolated. So we followed international law. That's what small countries do. And I think if we want to continue to be a global leader we have to play by the global rules. I mean, if you think about it this way, how should we talk to China? You say, if you want to be a global leader, be a part of the global system and play by the global rules. And that's all that we're being asked to do reciprocally.
GRILLOT: Well it's very interesting to hear you talk about the very practical aspect. A lot of people don't even realize these day-to-day things like luggage and financial transfers that are practical aspects of international law. But you've gone further of course - in your many books and articles and the work that you've done - to talk about transnational jurisprudence and international law as a critical for order in the international system. And [you say] concepts that we hold dear in this country - liberty, equality, privacy- are not just American ideas but are part of a global human rights movement. So it's not just about practicality and engagement and day-to-day business and travel and communications in the way we live our lives, but there's something deeper to that. And you were kind of alluding to it when you were saying "global leadership" and "setting the standard" as global leaders - that international law is a requirement for that. But it's deeper than that, isn't it? You've written, it seems to me, there's something more that would indicate in order for us to spread liberty, equality, privacy, those kinds of ideas, international law is a requirement.
KOH: So, just to give an example nearly 60 years ago in Brown versus Board of Education our Supreme Court said that segregated schools are not equal. Separate but equal is inherently not equal. So if another country, say South Africa, were addressing the same question under their constitution and the question is "Is this equal protection or equal treatment?" You would expect them to look at what another country addressing this same set of issues did 50 years earlier. Why do you want to be ignorant of a relevant precedent just because it's not part of your own system? You're not bound to follow it, but it's good to know. So a lot of this is simply the statement that various issues have been addressed by different systems. For example, I learned, to my surprise, that gays and lesbians were admitted to the military publicly in Germany in 1969. So they have 43 years of experience with it before we finally addressed that question. One of the things that people were saying, as a matter of fact, was that having gays and lesbians in the military would disrupt the cohesiveness of military units. It turned out that American soldiers have been serving alongside German troops in NATO forces who are gay. So nobody said that those units aren't cohesive. So it's a way to test factual claims that are made to see whether they're based on any fact. Let me give you another example. Our constitution forbids cruel and unusual punishment, but up until quite recently a number of states of the Union allowed the execution of people whose IQs were less than 80 and therefore have mental retardation. There's a lot of research done on this. We learned that there are only two countries in the world, out of 193, that permitted the execution of people with mental retardation - the United States and Kyrgyzstan. So a brief was filed at the Supreme Court that said this is an unusual situation, at which point Kyrgyzstan filed a brief which said 'We've stopped doing this. It's only the United States." And within the United States it turned out that only about 20 states had this law on the books and only about five had ever actually used the law ever. So, our Constitution says no cruel and unusual punishment. If we're the only country in the world that does it out of 193 and in fact only about five states of our 50 states do it that's unusual. And, it seems to me, that's what our Constitution anticipated. If something becomes unusual, you question whether it’s constitutional.
GRILLOT: And international law is obviously helpful in terms of putting it in context in a global environment.
KOH: Well, I see international law quite simply about the advance of civilization at various levels. When states are in a state of nature, they deal with each other through force and threats. As they start to cooperate, they create communal relationships. Sometimes those relationships are set forth in norms and rules and agreements, just like a neighborhood agreement in a condominium complex. So if people have to resort to these rules and dispute resolution mechanisms, it avoids them fighting. It's a way in which you essentially have a kind of law that governs the community. That seems to me as putting your ingenuity on behalf of creating structures to avoid conflict. If after all these years we haven't been able to develop such mechanisms, then we haven't advanced much. Now just because we have them doesn’t mean that they’re straightjackets or that they can make us do things that are counterproductive or dangerous, but certainly it's worth the effort to try to have such rules.
GRILLOT: Well, on that note I have to ask about the specific case that you've commented on. In 2010 you gave a speech where you strongly supported the legality of drone strikes. I mean as we're talking about advancement of civilization and avoidance of conflict, you came out suggesting that drone strikes for targeted killings in places like Pakistan and Yemen and others - where it's a part of that global war on terror - is legal and just, I suppose. So how do you square that around with what you were just saying regarding advancement of civilization and avoidance of conflict? How do you separate those two things? Help us understand that.
KOH: Well, there are three key points. Number one: not all wars are between nation-states. What happened on September 11 was the start of an armed conflict between the United States and a non-state actor: Al-Qaeda. And it’s a transnational organization, so that requires some translation of the laws of war to this new situation. Number two: The history of warfare is using more and more remote weapons more and more precisely. So at the beginning there's face-to-face conflict, then you had bows and arrows, then spears, then catapults, and then bombs and now we have drones, which strike with tremendous accuracy. My point was that these are not, per se, illegal. They can be used lawfully. So I think if you used one to kill Osama bin Laden that would be lawful. If you used it to kill a child that's unlawful. So what determines whether it's lawful or not is what rules you apply and follow. The third question, after all, many people depend the use of the nuclear weapons, which are by their nature extremely indiscriminate and always kill civilians, because they just can't be controlled in that way. Drones could, in theory, be a much more accurate and humane and lawful way to conduct conflict. The final question goes to Al-Qaeda. It seems to me that we're not at war with most of the people of the Middle East. The Arab Spring gives us a chance to reach out to their hearts and minds and try to persuade them to join us in some different kind of exercise. But there's going to be a group of people - and Osama bin Laden's one of them - who don't want to be democrats. He didn't want to be the leader of a country. His job was designing bombs and weapons to kill innocent civilians. And the response against him was in the context of the laws of war. And I think that if drones end up achieving that outcome, I don't like that, but I don't think it's illegal. As a lawyer, I would say that's a lawful use of drones.
GRILLOT: So to relate that and connect that - as you were just making this point about using these types of technology to protect, in a sense, civilians and to protect others, to target and get rid of those who are dangerous to other people - can we connect that at all to this larger issue of the responsibility to protect and to engage in humanitarian intervention? And if so, why is this so difficult for us to deal with this issue, in terms of engaging whether its in Syria or Darfur - why is it so difficult for us, this concept of "responsibility to protect" if it's lawful? Just because it's lawful doesn't mean that we will do it.
KOH: It used to be we were just limited by our physical capacities. There was a time when, even if we wanted to do something across the other side of the world we couldn't do it. Or we couldn't get our military assets over to where they needed to be. Now, since you have the capacity the question is when do you have the responsibility? Now I'm struck, for example, in Syria many people talk about a pro-peace position as not intervening. Not intervening means a war continues and that innocents get slaughtered, so to do nothing is to let war continue. Now then the question is can you satisfy the principle of first do no harm? Is it possible together with other countries to use military action to prevent slaughter from occurring? I think this is brought to a head when there's a clear and undeniable attack on children with chemical weapons. Now, some people say well, look, the UN charter says you cannot violate territorial sovereignty because, if there's no Security Council resolution because the Russians have vetoed it. If that were an absolute rule, then every country that it vetoed could commit genocide in its own territory and there'd be nothing you could do about it. The UN system values more than just territorial sovereignty. It values human rights. It values peace and security. So I think we need to look at this issue going forward. It's obviously in a state of flux, but I think just asserting an absolute rule doesn't make any sense. Finally, there are people who say it's legitimate but it's illegal to do humanitarian intervention. I would say when the ERA failed did we say it's illegal but legitimate to want to have equal rights for women? You keep pushing that until you get to a better legal rule.
GRILLOT: Well, certainly very interesting and a lot for us to think about. Harold Koh, thank you so much for joining us today.
KOH: It's a pleasure to be here. Thank you.
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