Transnational Legal Process Approach
It was clear from the outset that any attempt to overcome these obstacles would require a sophisticated approach employing the methods of vertical norm integration still being developed by the world's most prominent international lawyers and scholars. Given the extraordinary transnational law resources at our disposal by virtue of the involvement of the Transnational Law Institute at Washington and Lee University School of Law and its founder Mark Drumbl, we decided to structure our development of the Lexington Principles in accordance with the pioneering theory of Transnational Legal Process developed by Harold Koh, the Dean of Yale Law School.
The use of this approach resulted in the creation of the innovative conceptual framework employed in the Lexington Principles, which if accepted, will represent a substantial step forward in the way international human rights are understood under the domestic law of the United States and other common law countries. Although this framework is new and will require considerable scholarly analysis before it has been honed to perfection, the transnational incorporation mechanism it employs may ultimately provide the basis for both statutory and judicial norm-internalization in the United States and internationally. Perhaps the most valuable contribution is the framework's potential for use by domestic judiciaries to begin immediate implementation of our minimum standards without the need to wait for ratification by politicians who may be unable to act to protect these fundamental rights due to the pressures inherent in the conflicted political climate of our times.
Phase I – Transnational Norm Interpretation
Under the Transnational Legal Process approach, our objective in Phase I of the Project was interpretation, i.e. norm-identification and definition, with an eye toward eventual attempts at domestication in the United States and other common law countries. We undertook an extensive review of all primary source materials under international law bearing on the issue of detainee treatment. This involved reviewing all principal humanitarian and human rights law treaties, relevant materials regarding customary international law, statements from leading Nongovernmental Organizations, and the analytical writings of learned scholars.
Once we had established a firm foundation built on primary legal sources, we began attempting to flesh out a broader set of requirements based on the prevailing international norms guiding the treatment of detainees. Our work at this stage was greatly facilitated by the exceptional work of U.N. organs and other transnational normative institutions. We examined the norms codified in numerous relevant instruments. Particularly instructive, were the normative principles set forth in:
(1) The Standard Minimum Rules for the Treatment of Prisoners (1977),
(2) The Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (1988), and
(3) The Basic Principles for the Treatment of Prisoners (1990).
After an exhaustive review of all relevant normative sources, we sat down to draft the comprehensive body of fundamental due process rights now codified in the Lexington Principles.
Phase II – Transnational Norm Internalization
Phase II of our project begins with the formal publication of these Principles and an invitation for national and international commentary. This stage is intended to be an ongoing process of further interpretation and eventual domestication through various modes of transnational norm internalization in the U.S. and abroad. Although this stage was far in the future during the drafting process, it was ever present in our minds. We knew that in order for the Lexington Principles to effect meaningful change, they would have to be crafted in a way that comported with the available means of transnational norm internalization in the United States. To meet this challenge, Professor David Alan Jordan of Washington and Lee University School of Law developed our common law due process paradigm and conceptualized "The Transnational Incorporation Doctrine" as a means of providing a possible avenue for domestication in the future. We then drafted all of the Lexington Principles accordingly.
*The Lexington Principles Project is an independent international project on the rights of detainees hosted and supported by the School of Law and Washington and Lee University Institute for Honor. Its members hail from many different disciplines and institutions.