IT DIDN’T take long for the scare stories to hit the wires after President Obama nominated Harold Koh, Dean of the Yale Law School, to be the next Legal Advisor to the State Department. Judicial appointments are often fraught with manufactured controversy, but conservatives have opposed Koh’s nomination more ferociously than usual because he brings what they consider to be a complete Louis Vuitton set of ideological baggage: fealty and reverence for international law. An ardent transnationalist, Koh has defined his academic career by arguing for the mandatory authority of international law in domestic realm of American jurisprudence. Now, he stands in waiting to become the top counsel and sitting expert on international law for the State Department. Cue conservative panic followed by liberal enthusiasm.

Party lines aside, it’s more appropriate to look at Koh’s appointment through the lens of his actual future role. What power will he actually have? So far, the debate concerning the role of international common law in the U.S. court system remains firmly entrenched in the gilded halls of academic debate. Torrid exchanges on the topic have not yet led to significant movement in court precedent. While Koh’s arguments profoundly question the nature of American government, their full weight currently exists only in the pages of law reviews. So rather than worrying about his ideas in their theoretical vacuum, it might be more productive to try to pinpoint what actual impact he might have on American foreign policy.

First, it is important to note Koh’s incredibly impressive legal qualifications. See his Yale biography for exactly how impressive, but it goes almost without saying that critics would be remiss to ignore his leadership in the field of international law. His extensive background does tilt heavily towards legal globalization, however, which should raise a few red flags regardless of his qualifications.

Essentially, he believes American laws should be interpreted in light of international law established by treaties, declarations, tribunal decisions, and any other ancillary agreements. Taken together, these documents create “international common law” that ought to bind individual nations and guide their own bodies of common law precedent. Such authority takes two forms: the explicit obligations imposed by treaties, and the implicit obligations imposed by the decisions of judicial bodies such as the International Criminal Court or the European Court of Human Rights. Koh argues that international common law runs parallels with American domestic law and should trump state and federal statutes when they conflict with international precedent. He draws from a few phrases of the American Constitution to support this claim: the Supremacy Clause (Article 6, section 2), defining treaties as the “supreme law of the land,” and Article I, section 8, clause 10, giving the Congress the power to define and punish “offenses against law of nations.”

Koh has argued passionately against America’s legal isolationism by invoking international influence on standards for civil liberties. He cites Supreme Court decisions that have expanded the “evolving standards of decency” that define constitutional liberties. Such decisions, he claims, demonstrate that American values are no longer the sole measure of our rights. What is “cruel and unusual punishment” in Texas should ultimately be subject to what the international community deems “cruel and unusual punishment.” His conception of binding international common law governs both the relationships between countries and the relationship between a country and its citizens.

In the past, scholars have distinguished between international agreements as “self-executing” or “non-self-executing” pacts. When the U.S. agrees to a self-executing treaty, its tenets are mandatory authority as a matter of federal law. For example, the U.S. has ratified agreements requiring sovereign immunity for visiting dignitaries of state. Because this is an issue of foreign policy and has become a “supreme law of the land,” federal courts are authorized to strike down both state and federal laws that conflict. In contrast, international common law (non-ratified treaties and international judicial decisions) is generally classified as non-self-executing law. It can act as persuasive authority in cases, but courts are not constitutionally required to strike down domestic laws that may conflict with it. In the same way, the U.S. also treats any non-ratified treaty or treaty of limited application to be non-self-executing.

Koh views the self-executing vs. non-self-executing as a false dichotomy. He argues that both ratified and un-ratified treaties as well as international common law should be deemed self-executing and thus mandatory authority under federal law. Koh seems to suggest that if the Reagan Doctrine is correct and America does not hold a monopoly on natural rights, then we ought to submit our laws to how the world defines natural rights. This, ideally, creates an even playing field for the international community and provides accountability for the world’s only superpower.