WHY SHOULD WE CARE ABOUT INTERNATIONAL LAW?

• Author: Hakimi, Monica

THE TRUMP ADMINISTRATION AND INTERNATIONAL LAW. By Harold Hongju Koh. New York: Oxford University Press. 2018. Pp. 232. $27.95.

INTRODUCTION

International lawyers are used to having their discipline dismissed. A conspicuous strand of thought in U.S. foreign policy circles--known as realist--posits that international law does not matter. Realists of course recognize that states and other global actors speak the language of international law. But they view this discourse as cheap talk or epiphenomenal. They contend that state decisions on the international plane are animated not by the dictates of international law but by material interests and power. States act consistently with international law insofar as they have independent reasons for acting that way. If those reasons dry up, states, especially powerful states, can just violate the law; because the international legal system lacks centralized enforcement agents, any repercussions for the violation will be determined not by law but by the participants' own interests and power relations. International law is again irrelevant. (1)

The realist position goes to the heart of the enterprise, so international relations and legal scholars have devoted enormous energy to refuting it. There is now an expansive literature on the efficacy of international law. Most of this work measures international law's efficacy in terms that realists can appreciate, by asking whether international law helps to achieve specific policy outcomes--for example, reductions in greenhouse gas emissions, trade restrictions, or incidents of torture. The analysis ultimately turns on the facts. But it also entrenches a particular view of what makes international law worthwhile. It suggests that international law matters insofar as it advances the material outcomes that it itself prescribes.

Harold Hongju Koh (2) has contributed enormously to this debate. More than twenty-five years ago, he articulated what is now a foundational theory about the efficacy of international law. (3) The theory, in essence, is that states are habituated to comply with international law through a complex transnational legal process. Once a state engages with international law, disparate actors within and outside of government can invoke it to foster "institutional interaction whereby global norms are not just debated and interpreted, but ultimately internalized by domestic legal systems." (4) Internalized norms operate as domestic law; they establish "default patterns of international law-observant behavior," which are "routinized and 'sticky' and thus difficult to deviate from without sustained effort" (p. 7). So the reason that international law is effective is that the transnational legal process pushes states toward obeying its mandates and thereby achieving its prescribed outcomes.

In The Trump Administration and International Law, Koh argues for reinvigorating this process during the presidency of Donald Trump. The Trump Administration, not coincidentally, describes its foreign policy as realist. (5) The central message of its "America First" platform has been that international law is not particularly relevant to the uberpowerful United States. (6) Koh counters that message with two claims about the efficacy of international law. First, international law has constrained U.S. foreign policy and curtailed U.S. disobedience even under President Trump. Second, international law could empower Trump. The president would be more effective at achieving longstanding U.S. foreign policy goals if, instead of dismissing international law, he harnessed it to get things done. To support these claims, Koh works through several policy issues, ranging from immigration to climate change to the denuclearization of the Korean Peninsula. The up-shot, which is certainly worth highlighting, is that international law can have real operational value, including--perhaps especially--for the United States.

But Koh did not write the book just to reiterate that point. He is clearly worried that Trump is doing damage both to the current international legal order and to the U.S. relationship with it. Thus, he intends for the book to be a "call to action." (7) He implores people to keep using the transnational legal process to uphold international law and to fight the Trump Administration's antagonistic policies.

This is where the book falls short. It does not give readers compelling reasons to fight not just against Donald Trump but for international law. What about international law is both worthwhile and at risk under President Trump? The final chapter--entitled "What's at Stake"--is meant to address this question, but the answer is cursory. Koh says that Trump threatens the U.S.-led, Kantian global order in which "states collectively explicate shared moral commitments to democracy, the rule of law, individual freedom, and the mutual advantages derived from peaceful intercourse ... to achieve shared outcomes" (p. 143). As I will discuss, Koh expands on this claim in the rest of the book. But his normative case for international law remains thin. He is not alone. Many people advance similar narratives about international law, (8) even though many others have argued that these narratives are too pat (9) or have reported being unmoved by them. (10)

So, we still have work to do. Those of us who are invested in international law need to drill down to explain what makes Trump corrosive and why people should care. And to do that, I'll argue, we need to look beyond the old efficacy debate, which frames international law's relevance primarily, if not entirely, in terms of the discrete regulatory outcomes that it helps to produce. That frame is too narrow in two respects. The first arguably is implicit in Koh's theory of the transnational legal process. International law shapes behavior in complex and diffuse ways, not all of them captured by indicia of obedience. It might have regulatory purchase, even when its material impact cannot be neatly isolated or measured.

The second point is more fundamental. International law does important work apart from the material outcomes that it produces. In this Review, I draw on insights from legal and political philosophy to advance a claim that, though straightforward, is often elided in American conversations about international law: a lot of what makes law worthwhile, both domestically and at the international level, is that it commits us "to a certain method of arguing about the exercise of public power." (11) International law invites people across national borders to communicate in relatively constructive ways about what is happening in the world, why it is happening, and whether anything should be done about it. This discursive practice is not, as some suggest, just cheap talk, (12) a means for achieving concrete ends, (13) or a smokescreen for reinforcing positions of dominance. (14) It has independent, if somewhat intangible, value. And it is deteriorating under President Trump.

1. INTERNATIONAL LAW AS ANOPERATIONAL TOOL

   Koh weaves three normative claims about international law into his book. He variously contends: (1) that international law helps to produce desirable material outcomes, (2) that states should obey it to achieve these outcomes, and (3) that the United States should harness it to exercise leadership in solving concrete problems. These claims are all about international law's efficacy as an operational tool. They are not, in my view, wrong. But they are on their own terms overdrawn or unsubstantiated. They do not make a strong case that people, especially Americans, should support international law or that President Trump poses it an unusual threat.

   1. Material Outcomes

      Koh at times speaks of international law as if its outcomes are self-evidently desirable. For example, he defends the current international legal order on the grounds that it establishes the "basis for our United Nations system to end war and promote human rights, our treaty structure for mutual security (e.g., NATO), and our system to end global depression and poverty" and that it "enable[s] ... like-minded nations to organize an ambitious multilateral assault on all manner of global problems: e.g., climate change, denuclearization, intellectual property, and global health" (p. 143). This claim is articulated at such a high level of abstraction that it's hard to imagine a normative objection. Would anyone seriously contend that we need more war or poverty in the world? If international law consistently alleviates such problems, then surely it does good and deserves our support.

      One could at this point ask whether international law actually alleviates such problems. On a number of the issues that Koh mentions, the relevant international law is widely perceived to have little or no material impact. But I want to stay focused on the normative question: Assuming that international law is effective in advancing the outcomes that it prescribes, are these outcomes desirable? To substantiate the claim that they are, one needs to defend their actual policy content, not an abstract ideal of what that content might be. For example, let's stipulate that international law would do good if it created a "system to end war" (p. 143). It does not do that, at least not unless we define "war" so narrowly as to exclude a lot of conduct that looks exactly like war. Positive international law entitles states to conduct military operations in a broad range of circumstances involving the U.N. Security Council's authorization, the territorial state's consent, or a justifiable claim of self-defense. It prohibits some armed conflicts but permits many others. (15) To defend the outcomes that international law helps to produce, one would have to justify not only the norms for ending war but also the norms that license it. Koh does not embark on that project.

      If Koh had his way, international law would permit states to use military...