The Trump Administration and International Law: A Reply

[Harold Hongju Koh is Sterling Professor of International Law at Yale Law School. He returned to Yale in January 2013 after serving for nearly four years as the 22nd Legal Adviser of the U.S. Department of State.]

I have been educated by the thoughtful symposium on my new book, The Trump Administration and International Law (Oxford University Press 2018). I am grateful to the committed colleagues who contributed to this Symposium for enlightening me, and deepening my understanding. I especially thank my kind friend Kevin Jon Heller for graciously hosting another thought-provoking discussion of my work here on the impressively revamped Opinio Juris website.

Although each blogpost makes many points that deserve thoughtful response, space and time permit only this brief overarching answer. Overall, I am reassured that the commentary basically reaffirms several of the book’s key themes, as summarized in my initial symposium entry: (1) the anatomy of a struggle and the strategy of counter-resistance, (2) the critiques to my discussion of “America’s Wars” (Chapter 5); (3) some responses to particular critiques and (4) what’s really at stake.

The Anatomy of a Struggle and a Counter-Strategy of Resistance: The book sketches Trump’s impulsive strategy of antiglobalism, the motivations for it, and how—over the past two years—an “outside-inside” counter-strategy of resistance based on transnational legal process has been applied across the board to push back against Trump’s many disjointed initiatives. That counter-strategy combines an “outside strategy”—whereby many external players “interact-interpret-internalize” from the outside to bring lawsuits and other obstacles to block Trump’s multiple initiatives—with an “inside strategy,” whereby many members of Trump’s bureaucracy have “engaged-translated-leveraged” to internalize preexisting international norms and blunt Trump’s misguided impulses. The default is that Trump has disengaged far less than he has hoped, as under his presidency, the United States has shifted to a strategy of “resigning without leaving” and underperforming within existing global regimes.

Several of the symposium authors importantly expand and enrich that analysis in key subject matter areas. In his excellent post, Mark Wu documents how the “influence of transnational legal process is still very much at work” in the field of international trade, even as the world experiences its worst trade tensions since the Great Depression. He ably documents how the Chinese government engaged in what could be called “selective norm-internalization”: downloading global trade norms, while excluding their human rights counterparts. “Having secured the legal certainty and economic benefits of most-favored-nation treatment through WTO accession, the Chinese Party-state embarked on a mission to ensure that the economic transformation would not upend its political control.” Wu goes on to confirm the many ways in which the Trump Administration has counterproductively responded by “resigning but not leaving” from several modern multilateral institutions of international trade law.

Although I have written elsewhere on the International Criminal Court (ICC), my book did not discuss it, because until recently, the Trump Administration had not staked out its public position on international criminal justice. Beth van Schaack skillfully fills that gap, explaining why the recent incendiary speech attacking the Court by National Security Adviser John Bolton encapsulates the defects of broader Trump foreign policy: it is “reactionary, overwrought, alienating …welcomed only by those rogue states whose officials are under investigation, such as Sudan and Burundi, self-defeating, specious …, and potentially in violation of the Rome Statute itself.” She smartly analyzes how the better strategy for the United States would be to remain engaged with the Court as part of a “smart power” approach.

America’s Wars: Not surprisingly, the most controversy in the commentary is directed toward Chapter 5 of my book on “America’s Wars,” which addresses the seventeen-year battle with Al Qaeda and the Islamic State, the challenge of Ending the Forever War, and the ongoing tragedy in Syria. A number of commentators (Daphne Eviatar, Rita Siemion) helpfully take up the “Forever War” issue, particularly revamping the Authorizations for the Use of Military Force (AUMFs), closing Guantanamo, and narrowing and limiting the battle with Al Qaeda and the Islamic State. Although I fully acknowledge that “the Obama administration was far from perfect” and that “[m]y goal is not to whitewash its blemishes,” (Pg. 98) they all criticize me for not criticizing the Obama Administration more. But as Eviatar herself notes (citing Charlie Savage at the New York Times) as State Department Legal Adviser in 2010, without success, from the inside I “actually advised the Obama administration to change its interpretation and to recognize the extraterritorial application of the ICCPR;” I then argued with greater success both internally and externally for the view that the Convention Against Torture applies extraterritorially, a view that the Obama administration eventually adopted after I left. Given Eviatar’s recognition that I fought internally—with admittedly mixed success—for the United States to actually comply with international human rights law, I am bit puzzled by her suggestion that “prominent lawyers and legal scholars like [my]self could do much to help that cause [of human rights law] by insisting on actual compliance with international human rights law . . . .” (emphasis added). Similarly, I agree with Rita Siemion that ideally, in America’s wars, “armed conflict-based targeting rules [should be specified] as a matter of law, not just mutable policy.” Modern warfare raises countless knotty issues of both international human rights and humanitarian law, as this article and the blogpost by Laurie Blank well illustrate. Had I been the only decisionmaker, obviously I would have preferred that President Obama’s 2013 Presidential Policy Guidance on Targeting Standards and December 2016 Legal and Policy Frameworks Report been cast more firmly as executive or presidential orders with greater legal stability. But as Siemion herself acknowledges, “[g]iven Koh’s overarching theory of the case that such policies often harden into law over time, maybe a strong policy is a good place to start.” When individuals with limited time in government can’t entirely succeed in pushing a stubborn bureaucracy to adopt the legal rules they desire, they should nevertheless push as far as they can, to get what policy changes they can, and not let the best be the enemy of the good.

To be sure, I share these friends’ frustrations about many of the international law issues that were not perfectly resolved during the Obama administration. But it seems strangely counterproductive and mistimed—amid Trump’s daily radical and pervasive attack on the international legal institutions of our postwar legal order—for rule-of-law commentators to join in Trump’s attack on Obama and Clinton and remain fixated on critiquing the flaws of the Obama Administration. The purpose of my book was to get beyond that fixation, not to dwell on past bureaucratic battles, but rather, to identify and suggest a counter-strategy to respond to the unique dangers posed by the new, wide-ranging and unprecedented assault on international law that has now been launched by the Trump Administration.

With respect to Syria, my formidable South African friend, Dire Tladi, mistakenly argues that my core assertion is “that states can unilaterally use force in response to a humanitarian catastrophe in another state.”  To the contrary, my claim has consistently been that humanitarian intervention is not always unlawful under all circumstances under both domestic and international law, particularly when UN Security Council resolutions have been persistently blocked by more than a dozen Russian vetoes (what I call the “never/never rule”).

The best response to Tladi’s post is Steve Pomper’s incisive and illuminating post on the broader challenge of articulating a legal framework for humanitarian intervention. As Pomper correctly diagnoses, such a “framework has already, in effect, emerged,” but “exists, however, outside the rule of international law. Finding a legal foundation for it could help in shaping it to legitimate ends and assigning it strong limiting principles ….” I agree with Pomper that this problem is here to stay: “the likelihood that future U.S. presidents will feel constrained by [the never-never rule], given the precedents … and the striking lack of pushback from the international community (analyzed by Monica Hakimi and documented in the recent Syria context by Alonso Gurmendi Dunkelberg, Rebecca Ingber, Priya Pillai, and Elvina Pothelet) …is highly remote.” I further share Pomper’s conviction that the “international legal community [can and should] develop a rule and a justification that would as much constrain as enable the use of force to address humanitarian emergencies” “through a multi-step process, which begins with revisiting the history and text of the UN Charter itself, developing a credible interpretation based on the text and history of Article 2(4) that permits space for the development of a customary rule relating to humanitarian intervention, articulating that rule as an emergent norm of customary international law, and defending it.”

The discussion in my book was designed not to close, but to stimulate precisely the debate in which Tladi and Pomper have engaged. After Kosovo, the international legal community went some distance to define a legal standard to govern the lawfulness of Responsibility to Protect or R2P. The dialogue between Pomper and Tladi is part of a welcome effort to start finishing the job. I had already laid out my own position on this topic here, here and here. Suffice it to say that I don’t believe that international lawyers should take the smart power policy option of diplomacy backed by force off the table, by artificially claiming that a collective exercise of the Responsibility to Protect is always legally unavailable. I fear that those who offer no alternative to the notion that humanitarian intervention is always illegal can also offer no policy suggestion as to how the world can stop the continuing horrible slaughter in places like Syria. It is a fiction to assert an absolutist norm against intervention as a prevailing governing norm, at a time when all the world seems to have intervened in Syria. And it is even worse when sticking with that anti-interventionist legal fiction has become a de facto pro-slaughter position as a matter of policy. Twenty years after Kosovo, isn’t it long past time for the government lawyers and legal academics to engage with foreign counterparts to determine whether and under what narrow circumstances limited intervention for humanitarian purposes may be lawful?

Particular Critiques: As for particular critiques, some of them have already been addressed in the book itself. For example, Sean Murphy’s claim that the Trump Administration views its recent win before the Supreme Court in the Travel Ban litigation “as a success” is addressed in the book at pp. 31-33 and 203-04, where I note that that litigation is far from over. Even after the Supreme Court ruling, transnational legal process continues as it did in this other famous immigration case. The Trump Administration expended huge capital to win a narrow Court majority holding that a preliminary injunction was not warranted to invalidate the Ban on its face, but still faces substantial ongoing litigation to prove that the Ban is not discriminatory as applied. Similarly, Jean Galbraith argues that the Travel Ban case did not truly represent transnational legal process, because it was initially litigated as a First Amendment Establishment clause case and administrative law case, not as an international human rights issue. But as the book notes (p. 23), of course, the ban facially violates human rights treaties; it is on those very grounds that it could still be reversed legislatively after January 2019, or challenged before foreign or international courts, only confirming that neither transnational legal process nor the Travel Ban saga has yet run its course.

Some other critiques are better answered elsewhere. In the area of climate change, for example, Professor Galbraith and Sue Biniaz both question the likely success and value of litigation to challenge Trump’s withdrawal from the Paris Agreement, which will likely be initiated in November 2019. While I understand their concerns, I both disagree—and I believe, answer—these concerns at considerable length in a longer forthcoming article, Harold Hongju Koh, Presidential Power to Terminate International Agreements in 128 Yale Law Journal Forum (November 2018), so I will not recapitulate those arguments here. 

What’s at Stake and a Call to Action: Sean Murphy usefully asks whether ““process” constraints … are operating in two directions”? The answer, of course, is yes. Just as disease and curative medications alike can flow through the same veins and arteries of the human body, challenges and restorations to the body politic can also flow through the same channels in opposite directions. Murphy flips my analysis on its head, and looks at this process in reverse. He speculates as to why

a conservative instead might cast the strategy as “sovereignty-freedom-strength.” In any event, the conservative would argue that his or her “inside strategy” is not pernicious in nature, [and] does not mean complete disengagement with the world, but instead engagement with sharp elbows, hard-nosed realism, and pragmatic cost-benefit analysis.” One might regard neither vision as inherently correct but, rather, as a part of the fabric of the U.S. political tradition. … [T]here is a wide range of views within the United States as to how best to pursue transnational affairs. Surely the path forward lies not just in considering strategies for one side to oppose the other, but in pursuing techniques for finding common ground between those competing visions (emphasis added).

To which, the obvious response is “What common ground? Are you looking at a different Washington, D.C. than I am looking at?”

Murphy’s reaction—reasonable in the abstract—views today as a time of normal politics, not the abnormal politics that it increasingly is. Murphy’s desire to normalize Trump’s behavior and lump it in with other past Republican presidents seems not to acknowledge the political reality of the intense polarization in which we now live, a sad reality in which politics no longer stops at the water’s edge and there no longer seems to be any foreign policy topic that is not viewed as zero-sum. He suggests finding “common ground-can’t we all just get along?” tools that many politicians inside the Beltway claim to seek, but few actually pursue. It is true that it will take time to determine whether (as Murphy believes) what we are seeing from Trump is simply a difference in degree—a harder-edged version of typical conservative foreign policy strategy, or whether, as I believe, it is a difference in kind—a more naked, frontal assault on the very foundations of our post-World War II system of Kantian global governance. Wu asks essentially the same question in the trade field: whether “what we are witnessing may just be a sharper and more confrontational version of President Obama’s vow that the U.S. will not allow China to write the rules of global trade for the 21^st Century,” or a naked “effort[t] to dismantle [and] move toward a power-based trade regime … that [Trump] is nevertheless keenly determined to do so.”

My book argues that the early evidence is that the situation is far more dire than Murphy acknowledges. Buttressed by a new wave of global authoritarians, Trump intends an existentialist threat that would supplant an admittedly imperfect, but adequately functioning, Kantian vision of a law-governed international society with a far more cynical, Orwellian vision of global governance dominated by realist great-power spheres of influence. Jenny Goldschmidt agrees that “Trump is a symptom of a changing climate which embodies a serious threat to our free societies.” She deepens the analysis by explaining why “[a]t all levels we see that there is a discrepancy between the daily lives of the people and the level of decision-making,” so that people increasingly “feel marginalised and excluded … in the regular particular processes, where decisions are taken ‘about them without them’. They see the international order as their enemy.” Thus, the goal of transnational legal process should be to bring these growing groups back into the political process, “by creating empowering frameworks to [promote participation] and address the processes of exclusion that impoverish human rights, providing the countervailing power against the devastating intentions of Trump.”

It is of course true that pendulum swings always occur from administration to administration, some more extreme than others. But the core of my claim is that our system is not self-correcting; we must correct its deviations. As Martin Luther King, Jr. said, “the moral arc of history is long, but it bends toward justice.” But it certainly does not bend by itself. Committed advocates need to mobilize across borders to fight against the radical deconstruction of rights and rule of law institutions. Of course, we must first seek common ground, but if that common ground crumbles or does not exist, we need to be willing and able to fight. And in that fight, one of our most effective tools is transnational legal process.

My friend Shaheed Fatima clarifies how “the ‘power’ of transnational legal process is nuanced; context-specific and often multi-dimensional.”  She offers examples of how international law advocates—in her case in the United Kingdom—can deploy “international law as a technique of political resistance to make a powerful, incisive and long-lasting contribution to achieve a ‘more enlightened populism’, which [she agrees], is ‘the best antidote to underinformed populism,’” combined with carefully chosen, concerted, and persistent legal and political action.

Given all of this, I am frankly baffled by Sam Zarifi’s claim that my book suffers from “poverty of imagination,” because “[f]or [Koh’s] strategy of ‘transnational law’ to succeed, he has to advocate for US lawyers to work more closely with their colleagues in other countries [as I have recently worked with Shaheed Fatima, for example;] to learn, know, and cite international law and foreign precedents more in their arguments; to reemphasize on their commitment to international law and accountability in principle and in practice…[t]o poin[t] out the tremendous and tangible successes achieved by the international human rights legal framework, to identify this framework’s shortcomings and commit to strengthening it, and to use the tools of accountability and politics to win.” With respect, as the hyperlinks to Zarifi’s preceding statements show, these are precisely the ideas that I thought I had been advocating, for the last thirty years!

Let me close by thanking the commentators once again. In the end, our agreements are much deeper than our differences. We all seek preservation and development of a world order of dignity under the rule of law, not a brutal system of power politics. Mine is at bottom a hopeful book, deliberately designed to open debates like this, not to end them. I invite all of the commentators to join me in my core message: which is not just resistance, but resilience. How best to do it is of course a subject for extensive public discussion and debate, which this symposium has helped to jump-start. But I think we all share the conviction that we can preserve the rules-based global order that we inherited, so long as we fight for it, together.

Simply put, we can get by, but we need a little help from our friends. With luck and perserverance, the shared resilence of our enduring institutions will outlive Trump’s deviations and help reknit our society and our alliances when he is gone.