The New Legal Realism and International Law

Abstract

Koh examines how international law is actually internalized and enforced within domestic legal systems, challenging the realist assumption that international law is merely aspirational. The article develops a theory of 'transnational legal process' to explain how international norms become embedded in domestic law through a process of interaction, interpretation, and internalization. The analysis argues that international law compliance occurs not primarily through coercion or rational self-interest but through a process by which international norms are incorporated into the domestic legal identity of nations.

Key Findings

• International law compliance is driven by norm internalization rather than external coercion
• Transnational legal process involves interaction between domestic and international legal actors
• Domestic courts play a crucial role in internalizing international legal norms
• The enforcement gap in international law is smaller than realists assume

Related Statutes

• Alien Tort Statute
• International Emergency Economic Powers Act

Related Cases

• Sosa v. Alvarez-Machain (2004)
• Medellin v. Texas (2008)