Symposium: The Trump Administration and International Law–Policy in the Shadow of International Law

[Laura Dickinson is the Oswald Symister Colclough Research Professor of Law at George Washington University Law School.]

In International Law in the Trump Administration, Harold Hongju Koh has articulated a bold vision of the role that international law can play (and to some extent is playing) during the current administration. Unlike some critics, he does not argue that the administration is inevitably destined to completely abandon or ignore all international law frameworks, although he does express serious concerns that Trump policies may seek to undermine or dismantle important international institutions such as NATO. Instead, Koh believes that international law continues to have teeth; he argues that it is a true constraining force, a “guardrail,” that reins in this or any administration.

Koh’s belief in international law’s constraining power derives from his longstanding theory of how international law actually functions and how it derives its force. Instead of a formalist vision of international law made only by states, interpreted largely through Executive Branch pronouncements, and implemented only occasionally in courts, Koh focuses on what he calls “transnational legal process.” In Koh’s view, this process is interactive and multi-dimensional, encompassing a diverse range of actors, from other governments contesting U.S. legal views, to U.S. courts interpreting those views, to foreign, regional, and international courts outside the United States issuing relevant decisions, to inter-governmental and non-governmental organizations advocating or expressing views of the law. For Koh, international law’s constraining power inheres in the norms that inevitably get articulated and inculcated during this complex process.

Koh’s theory of transnational legal process has not only been a path-breaking theoretical vision of how international law works. It also provides a pragmatic approach to international lawyering. One of the strengths of this piece is that in it Koh maps out a broad range of specific international law issues and projects for actors within this transnational process to tackle in the coming years, from immigration to the use of force, from climate change to cybersecurity.

There is, of course, much that could be said about Koh’s wide-ranging article. Here, I would like to focus on one issue that is implicit in his approach, but which remains largely unexplored: the distinction between legal rules and policy choices, as well as the relationship between the two. The various examples that Koh provides of transnational legal process, both in his previous writings and in this proposed plan of action, tend to slide back and forth between law and policy. For example, some of the instances of legal process that he cites in this new article are more frequently understood as policy choices rather than as legal constraints, in particular many policies that were adopted by the Obama administration.

It may be that Koh doesn’t focus on the law/policy distinction because he thinks that norms articulated as a policy matter impact legal rulings and over time may “harden” into law. Indeed, such seepage seems to be at the core of transnational legal process. And it is undoubtedly true that such seepage is an important part of the constraining power of international legal norms. Yet, that does not mean that the formal distinction between law and policy should be ignored altogether. Indeed, having just spent a year serving as Special Counsel to the General Counsel of the U.S. Department of Defense, half of which was at the end of the Obama administration and half of which was in the new Trump administration, I have a greater appreciation for the way in which government lawyers think about the law/policy boundary and the effect that the distinction may have.

During the Obama administration, many issues that could be described as conflicts over interpretation of international law got resolved not through definitive judgments about the content of international law, but through the implementation of Executive Branch policies. One prominent instance of this, in my view, is the 2013 Presidential Policy Guidance on Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities (PPG), which Koh suggests is an example of a constraint within his framework of transnational legal process.

As a matter of domestic law, a Presidential Policy Guidance has a legal dimension. But for the purposes of international law, the 2013 PPG did not purport to establish legal rules. Instead, it imposed, via policy, a set of limitations on the use of force by the United States over and above all existing limitations under the law of armed conflict (LOAC), also known as international humanitarian law (IHL).

In particular, the PPG permitted U.S governmental personnel to use force in areas outside zones deemed areas of active hostilities only when such force was being used: (1) against a target that posed a “continuing, imminent threat to U.S. persons,” (2) when there was “near certainty” that the target was present, (3) when there was “near certainty that noncombatants … [would] not be injured or killed,” (4) when “capture ….[was] not feasible at the time of the operation,” (5) when the “relevant authorities in the country where the action was contemplated” could not or would not “effectively address the threat,” and (6) when “no other reasonable alternatives” existed. The PPG also imposed a variety of procedural requirements regarding the nomination of targets and their approval, including inter-agency coordination, review by senior administration officials, and evaluation by lawyers.

As a policy, the PPG addressed, but significantly did not resolve, an underlying conflict over the appropriate legal paradigm applicable to the use of force in these geographic areas. If the United States is in a global armed conflict with Al Qaeda, the Taliban, and associated forces, then LOAC/IHL would apply to the use of force anywhere in the world against these entities. But if this armed conflict is not global, then the usually more restrictive rules regarding the use of force governed by international human rights law (IHRL) would generally apply outside the areas of armed conflict. Various actors in the international system, including states and non-governmental organizations, disagree about this issue and have taken differing approaches to the scope of this armed conflict (or conflicts). By adopting the PPG, it could be said that the Obama administration bridged an interpretive legal dispute with a policy, because many of the elements of the PPG resemble human rights norms regarding the use of force. Currently, it is unclear to what extent the Trump administration is following that policy, though reports have indicated that it has developed a new policy that retains some, but not all, of the elements of the PPG.

I do not here want to say that the policy approach to the 2013 PPG was necessarily good or bad in that particular instance. But I would like to suggest that adopting a voluntary policy, rather than an interpretation of what is legally required in such circumstances does have important consequences and has distinct advantages and disadvantages. (And of course, whether one sees an advantage or disadvantage in a particular case, may depend in part on one’s perspective on the specific policy).

On the plus side:

1. 1. Policy is flexible. In this sense it reflects a kind of pragmatism. Policies can be fine-tuned and calibrated to specific circumstances. Thus, the PPG might be said to implement standards similar to those of human rights law, but the state is not bound under this body of law, and the standards do not have to match exactly. This flexibility gives the state room to maneuver as appropriate in a variety of circumstances.

2. 2. Policy may serve to address differences of legal interpretation within a government. To the extent that there is a dispute over the applicable legal framework among different entities even within the Executive Branch, adopting rules as a matter of policy rather than as a legal requirement may help to smooth over those differences. It may therefore be easier to achieve consensus on policy rather than to try to resolve serious disputes about the applicable legal requirements.

3. 3. Policy can also bridge gaps in legal interpretation among states. Adopting rules as a policy matter can present certain inter-operability benefits among allies who may have different approaches to the law. For example, one could make the case that the US adoption of the PPG helped relations with our European allies, many of whom have a narrower view than the United States regarding the scope of the armed conflict against Al Qaeda, the Taliban, and associated forces. By adopting an approach closer to that of our allies as a matter of policy, the Obama administration could ease tensions that might otherwise accompany joint operations with those allies. And significantly, such tensions could be eased without needing to make a wholesale change to U.S. legal interpretations of the scope of IHL/LOAC.

Nevertheless, despite these advantages, it is important to recognize that there are also potentially certain disadvantages to the adoption of rules as a matter of policy rather than law:

1. 1. Policy may be too flexible. Although the flexibility of policy can be an advantage, it can also be a disadvantage. For example, a voluntarily policy exerts less constraining power on a state. Although there may be certain path dependencies that cause policies to be “sticky” once adopted, there is little doubt that Executive Branch policies usually do not bind future administrations in the same way as Executive Branch determinations about the applicability of international legal rules.

2. 2. Policy can mask (or ignore) the legal dimensions of a problem. Even when a policy could be said to help smooth over differences regarding legal interpretations, a policy does not necessarily make explicit the degree to which the policy being adopted is informed by perceived legal requirements. Certainly the 2013 PPG does not do so. As a result, the refusal to make explicit the perceived law in the area might slow the development of the law by relieving pressure on the interpretive conflict.

Beyond these general advantages and disadvantages, there are also some specific consequences that arise when a policy can be said to be “legalistic.” What do I mean by a “legalistic” policy? When a policy articulates very specific rules, standards, and procedures, as the PPG does, it could I think be fairly called “legalistic.” One consequence of implementing this type of policy is that it may require government lawyers to interpret it, even if those lawyers are not the ultimate decision-makers. Yet, legal interpretation of a policy may be complicated because it is unclear whether the policy should be interpreted in light of international law doctrine or not. In addition, sometimes the adoption of a “legalistic” policy can blur the boundaries between law and policy itself. For example, even if a government implements a policy rather than articulating a legal obligation, other actors in the system – other states, non-governmental organizations – might subsequently argue that the policy is evidence of customary international law, especially if the government is not entirely clear about the policy’s status. If that occurs, it might mitigate some of the advantages of policy. Indeed, if governments become worried that they might unwittingly be creating customary international law, they might begin to resist crafting policies that are more protective than minimum legal standards.

All of this is just to say that, as one thinks about how transnational legal process may operate, it is important to consider the differing ways in which policy decisions on the one hand, and legal decisions, on the other, may work. It may matter quite a bit the kind of “hook” that an actor in a “transnational legal process” may be using. And we should at least be aware of the differences and implications of both.