Koh, Harold Hongju

This article was written in response to Bradley and Goldsmith's argument against current international human rights litigation in the United States and the application of customary international law by federal courts. The author argues that history, doctrine, the Constitution and democracy support international law's place in federal law, and current human rights litigation also has firm historical, legislative and doctrinal footings.

Like domestic law, transnational public law seeks to vindicate public rights and values through judicial remedies. What makes transnational public law unique is that it melds two conventional modes of litigation that have traditionally been considered unique: domestic and international litigation. Private individuals, government officials, and nations sue one another directly in a variety of judicial fora, most prominently domestic courts, and invoke claims of rights based on a body of "transnational law" that blends domestic and international law.

In this lecture, Harold Koh addresses three questions: firstly, what does it mean to ask 'why do nations obey - as opposed to simply comply - with international law?'; secondly, how precisely do nations "internalize" or "domesticate" international law; and thirdly, how does understanding this process of internationalization help us to understand and promote national obedience to international norms? [While this article does not address women's human rights, it has been included on the WHRR because of the contribution it makes to the debate on the domestic implementation of international law.