Symposium: Domestic and International Challenges to the Rule of Law

[Chimène Keitner is Alfred & Hanna Fromm Professor of International and Comparative Law at the University of California Hastings College of the Law in San Francisco. Follow her on Twitter @KeitnerLaw.]

Jutta Brunnée’s characteristically thought-provoking keynote address presents an opportunity for reflection two years into the destabilizing presidency of Donald J. Trump. The second portion of her remarks considers the backlash against international law personified by members of the Trump Administration, and connects this to challenges to the domestic rule of law in the United States and other Western countries. Brunnée draws on the work of Ronald Inglehart and Pippa Norris for the proposition that rising income inequality and economic insecurity mean that “more and more people are prepared to put their faith in populism and perceived strong leadership, while the rule of law is seen as an obstacle rather than a protector.”

Brunnée is right, I think, to link these trends in domestic politics with support for unilateralist approaches to international problems. On November 10, 2018, French President Emmanuel Macron tweeted a picture of himself and German Chancellor Angela Merkel commemorating the armistice that ended World War One with the caption “Unis.” The symbolism of Trump’s conspicuous absence, which the White House blamed on rain, was lost on no one.

As Brunnée notes, I have criticized the United States’ recent treaty withdrawals, and I characterized Trump’s September 2018 speech to the U.N. General Assembly as “sovereignty on steroids.” I agree with her that it is crucial to identify and address the factors that contribute to the rise of authoritarian and exclusionary political regimes at the expense of democratic and inclusive ones. And I agree with Andrew Hurrell, whose work Brunnée cites, that “[t]he spread of backlash politics and populist nationalism and the specific rhetoric and policies of the Trump administration place the primary challenge to the existing global order at the center of the system.”

That said, I would not go as far as Brunnée does when she argues that “[b]y far the most destabilizing challenges to international law and multilateralism come from the United States.” To be sure, Trump is a bull in a china shop, and quite deliberately so, particularly when it comes to trade. On other issues, White House aide Stephen Miller and National Security Adviser John Bolton have managed to steer policy to conform with their deep ideological opposition to “globalism”—Miller by attacking inclusive definitions of national membership, and Bolton by dismantling “global governance.”

We are experiencing the results of a lack of U.S. leadership and diplomacy on issues as diverse as slowing down climate change, ensuring accountability for the killing of Jamal Khashoggi, and coordinating global responses to human suffering. Yet the most serious recent challenge to the prohibition on the use of force, in my view, comes not from the United States, but from Russia’s invasion and occupation of Crimea, and the weak international response. The absence of a constructive U.S. role on the international scene is so pernicious in part because it enables China and Russia, who do not even have a pretense of being inclusive or democratic, to fill the void. This they have done with alacrity, revealing the ways in which the postwar international order presumes a certain degree of U.S. leadership and, consequently, remains vulnerable to the vicissitudes of the U.S. Electoral College system.

John Bolton’s anti-internationalist ideas are not new. Stephen Miller’s xenophobic zealotry is not new. Although the ability of these views to gain traction and dictate policy is deeply worrisome, it would be premature to concede their longer-term ascendancy. As Brunnée notes with respect to the predicted impact of the AI revolution on the labor market—not to mention the current impact of social media companies in creating information silos and facilitating the spread of disinformation—there are reasons to be pessimistic about future trends. But pessimism doesn’t mean resignation. Building a rules-based international society that also fosters a shared commitment to at least some substantive values has always been a deeply fraught, yet vitally important, project. Whether this entails shoring up existing international regimes and institutions, or moving towards what Hurrell calls “a new pluralism,” remains to be seen. As the current paroxysms over Brexit illustrate, certain benefits of international integration and cooperation might not become apparent until they are on the verge of being lost.