Trump vs. International Law: The Power of Transnational Legal Process

[Shaheed Fatima, Q.C., is is a London-based barrister, practicing from Blackstone Chambers.]

In ‘The Trump Administration and International Law’ Professor Harold Hongju Koh diagnoses the multiple threats to domestic and international institutions and norms posed by the current administration’s foreign policy approach; prescribes a ‘political counterstrategy’ based on transnational legal process which may be applied by a range of players, with the purpose of making ‘political changes and institutional exits too difficult or politically costly’; gives illustrations of the counterstrategy in practice and ends with a compelling call to action ‘for committed international lawyers to keep fighting to invoke that process – repeatedly, if need be – to preserve and advance the imperfect world we have inherited’.

Professor Koh’s description of the use and application of international law, especially in the context of executive decision-making, is a familiar one – even to a barrister practising in the UK. And, in reply to the question, ‘Do you believe in the power of transnational legal process?’ I would give a similar answer to the one that he gives: ‘Believe in it? I’ve seen it done!’.

However, by way of endorsing Professor Koh’s central analysis, I would highlight three points as part of that answer.

First, the ‘power’ of transnational legal process is nuanced; context-specific and often multi-dimensional. Consider, for example, a case in which a claimant claims that a binding international law obligation, which has been ‘domesticated’ or ‘incorporated’ into domestic law, has been misinterpreted or misapplied by the executive. In that situation there can be no doubt that the court is simply performing its usual function of administering the rule of law – even though the adjudication may involve political, or other non-legal, issues. Without more, it would not be objectively accurate to describe such a claimant as pursuing a political strategy – just as it would not be objectively accurate, without more, to describe a claimant who claims that he has suffered race discrimination, contrary to a domestic race discrimination statute, as pursuing a political strategy. In both cases, the claimants are pursuing claims that arise under domestic law. So where, for example, there is an existing, domesticated, international law obligation then Professor Koh’s call to use transnational legal process in cases against the current administration is a call to ensure that the administration operates in accordance with the rule of law. That call transcends politics and it should be universally and unequivocally supported, regardless of political inclination.

Second, respecting the rule of law necessarily involves respecting the role of the independent judiciary. As I have observed elsewhere; in the context of the reporting of the Brexit Miller case in the UK, criticism of judgments is an important part of life in a democratic society that values freedom of expression. But there is a difference between criticizing a judgment and impugning the legitimacy of a judge. Criticism that attacks the legitimacy of a judge should be met with a prompt and robust response from, at least, the other branches of the State because such criticism, left unchecked, undermines not just the legitimacy of that particular judge but also the independence of the judiciary and the rule of law. In a democratic State, it is in the public interest that these values are protected and upheld by the executive and legislature. It should go without saying (but, sadly, needs to be said) that the executive should not, itself, make such attacks on the legitimacy of courts, the independence of the judiciary and the rule of law.

Third, claimants may bring cases by which they seek to hold the executive accountable pursuant to binding international law, as expressed either in a treaty ratified by the State in question or as set out in customary international law because, as Lord Bingham said in ‘The Rule of Law’, ‘observance of the rule of law is quite as important on the international plane as on the national, perhaps even more so’. There may not be an obvious domestic law ‘foothold’ for the relevant international law in such cases and this may contribute to the conclusion that such cases are brought primarily for a political or campaigning purpose. But that does not – without more – mean that it was an abuse of process for them to be brought and pursued. Indeed, as Professor Koh says, such cases are ‘the latest iteration’ of the cases started in the civil rights era, which were carried forward into equality movements. And provided they are brought and litigated in a responsible, principled way they can be a powerful tool: even when the claimant fails to get their desired outcome the case may nevertheless succeed in drawing attention to an unattractive policy or practice and the adverse publicity may be a lever in changing public opinion or effecting incremental policy change. As Professor Koh observes, ‘Whatever the ultimate outcome, such litigation serves a critical signaling and public education function.’

Although the obvious audience for Professor Koh’s engaging book is the legal community, it should be read by a far wider group. By explaining how international law may be used as a technique of political resistance, he has made a powerful, incisive and long-lasting contribution to achieving ‘more enlightened populism’, which is, as he puts it, ‘the best antidote to underinformed populism’.