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The Trump Administration and International Law$

Harold Hongju Koh

Print publication date: 2018

Print ISBN-13: 9780190912185

Published to Oxford Scholarship Online: October 2018

DOI: 10.1093/oso/9780190912185.001.0001

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Trump’s “Strategy” and the Counterstrategy of Resistance

Trump’s “Strategy” and the Counterstrategy of Resistance

Chapter:
Chapter 1 Trump’s “Strategy” and the Counterstrategy of Resistance
Source:
The Trump Administration and International Law
Author(s):

Harold Hongju Koh

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190912185.003.0002

Abstract and Keywords

This chapter sketches President Donald Trump’s strategy of impulse and instinct and the counterstrategy of transnational legal process, which seeks to effectuate norm internalization into domestic legal systems through interaction–interpretation–internalization (the outside strategy) and engage–translate–leverage (the inside strategy). The outside and inside strategies work together in a complementary way to create an approach called “international law as smart power,” a better alternative to Trump’s counterproductive approach of disengage–black hole–no leverage. The counterstrategy functions like a game of “rope-a-dope,” whereby other players in the process can resist Trump’s initiatives, absorb punishment, parry where possible, and strategically counterpunch when Trump gets exhausted. In playing this game, law, policy, and politics impose separate but interrelated constraints on presidential overreaching.

Keywords:   norm-internalization, interact-interpret-internalize, engage-translate-leverage, smart power, Barack Obama, Hillary Clinton, America First, counterstrategy

A. Trump’s “Strategy”

Does Donald Trump have a visible strategy toward globalism? We now know that this mercurial president acts based not so much on strategy as on instinct and impulse. But make no mistake, those instincts and impulses point in the same general direction: Wherever possible, disengage from globalism. Undermine international institutions and resign from global leadership. Reverse what Barack Obama did and what a President Hillary Clinton would have done. When in doubt, adopt an isolationist “hard power” posture. And if challenged, defend the president’s legal right to act with extreme claims of presidential power that demand broad deference from Congress, the courts, our allies, media, and nongovernmental organizations.

Trump’s means to achieving these ends have become equally predictable. Make radical shifts with little or no notice. “Flood the zone” with relentless initiatives so that the world quickly forgets yesterday’s surprise because of this morning’s tweet. When confounding a settled wisdom, call the truth itself into question by challenging media reports as “fake news” and denigrating settled knowledge, especially scientific expertise. Diminish diplomacy as (p.6) a soft-power tool by demoralizing and gutting the career bureaucracy. And cloak discriminatory actions in the veil of presidential power and “national security process,” which his underlings advise us “will not be challenged.”1

Still, we must acknowledge an inner logic underlying Trump’s rhetoric that viscerally touches real and deep American fears. In Trump’s worldview, the rush to globalization has left the American working class behind, particularly those who believe their jobs have been taken by immigrants. The United States has lost competitiveness vis-à-vis other countries, in what he perceives to be a zero-sum game. Because the United States has enough trouble dealing with its own problems, he contends, it should not needlessly waste energy judging or solving the problems of others. In his view, the United States now bears too much of the burden of international leadership, which should instead be shared or offloaded. To respond to Trump’s approach, any successful counterstrategy must not only respond to his immediate means and ends but also address these deeper populist currents into which he has plainly tapped. It is to that counterstrategy that I now turn.

B. Transnational Legal Process

This book argues that notwithstanding its resonance in some quarters, Trump’s strategy—systematic disengagement from nearly all institutions of global governance—is failing to achieve its desired goals. The reason is transnational legal process. International law is no longer just for nation-states or national governments. What Jeremy Bentham once called “inter-national law”—the law between and among sovereign nations—has evolved into a hybrid body of international and domestic law (p.7) developed by a large number of public and private transnational actors. These sovereign and nonsovereign actors include our allies; states, municipalities, and localities of the United States; government bureaucracies; the media; courts; nongovernmental organizations (NGOs); intergovernmental organizations (IGOs); and committed individuals. I have argued that these many actors make and remake transnational law—the hybrid law that combines domestic and international, public and private law—by generating interactions that lead to interpretations of international law that become internalized into, and thereby binding under, domestic law (in this case, United States law). These internalized rules create default patterns of international law-observant behavior for all participants in the process. Those default patterns become routinized and “sticky” and thus difficult to deviate from without sustained effort.

The central insight of this analysis is that most compliance with law—including international law—comes not from coercion but from patterns of obedience.2 Even all alone at 2 o’clock in the morning, most of us still stop for a red light. Why? Because most legal compliance does not owe to the fact that a police car is sitting behind you. The prime reason why law-abiding people do not regularly steal from each other is not because it is illegal, or because they fear detection, but because they have internalized a norm—probably learned from their parents, in school, or at places of worship—that ethical and law-abiding people do not steal. Internalized norms, not coercion, are the main drivers of legal obedience.3 Most legal obedience, I would argue, comes from such norm internalization.

Norm internalization can come from many sources, the most prominent being religion, the paradigmatic internalized norm set. Once norms have been internalized by individuals and institutions, they become habits that, once learned, are not easily (p.8) abandoned. Just as boats sail between riverbanks established by decades of flowing water, and new travelers almost invariably observe established traffic lanes, human and institutional behavior tends to follow default patterns set by internalized norms.

But neither are default habits immutable. With concerted effort, they can be changed. In my own lifetime, many people used to smoke regularly indoors, discard plastics in regular trash bins, and leave their seat belts unbuckled. But if as you read this, you are drinking from a plastic bottle, you have probably internalized a different habit, which is to throw recyclables into a recycling bin. Why? Because everywhere you go you encounter a sign, read a warning, see a recycle bin, are confronted by a friend or family member, or are forced to answer a challenge—all interactions that make clear that what you once did out of laziness or indifference no longer represents appropriate behavior. Most likely, you now recycle because a history of such interactions has encouraged you gradually to internalize a different normative interpretation. A period of socialization over time has now taught you to think it is right to recycle. A series of interactions has clarified a new norm of desirable behavior that you have come to accept as part of your internal value set. If most compliance comes from obedience, and most obedience comes from norm-internalization, then most norm-internalization comes from triggering such interactions, which lead to interpretations, which then lead to internalizations.

C. An Outside–Inside Counterstrategy

So how does this academic theory become political counter strategy? If asked, “Do you believe in the power of transnational legal process?” I would answer—like my old teacher Abe Chayes’s Southern Baptist minister—“Believe in it? I’ve seen it done!” (p.9) Throughout my career, I have seen this strategy applied repeatedly by players both inside and outside of the government. As a human rights lawyer, I tried to apply it myself from outside the government; as a government official, I tried to apply it from inside.

Nongovernmental actors traditionally apply the “outside strategy”—“interaction–interpretation–internalization”—to generate interactions that force interpretations that promote internalizations of international norms even by resisting governments. Lawsuits represent the paradigmatic example: if a government policy becomes illegal, an outside nongovernmental group can sue (generate an interaction) that yields a judicial ruling (an interpretation) that the government defendant must then obey as a matter of domestic law (norm-internalization).

The “inside strategy,” which I applied during my decade as a government official, I call “engage–translate–leverage,” or, simply, using international law as “smart power.” In hindsight, call this “the Obama–Clinton doctrine.” President Barack Obama tried to apply this foreign policy philosophy throughout his presidency. Upon taking office in 2009, Obama said that “[a] new era of engagement has begun,” emphasizing that “living our values doesn’t make us weaker. It makes us safer, and it makes us stronger.”4 That approach was urged upon him—and would have been continued had she become president—by Secretary of State Hillary Rodham Clinton, who argued: “We must use what has been called smart power, the full range of tools at our disposal—diplomatic, economic, military, political, legal, and cultural” to achieve better policy outcomes.5

A smart-power strategy means first that, given the choice, the United States—and other like-minded states—should choose engagement over unilateralism. When faced with a foreign policy problem, the United States should not proceed alone but rather seek to engage with other countries and adversaries around (p.10) common values, in search of diplomatic solutions that can be embedded within durable international law principles.

Second, a strategy of “international law as smart power” suggests that wherever possible, the United States should choose a persuasive legal translation based on existing law over denying the applicability of law altogether. If a country faces an entirely new situation—for example, problems that simply did not exist when the international laws of war were first drafted, such as drone warfare or cyberconflict—a tempting, but wrong, approach would be simply to deny the applicability of law, i.e., to ask the “Tina Turner question”: “What’s law got to do with it? What’s law but a sweet old-fashioned notion?” Since we now face a new technological situation, some might reason, we must be in a “law-free zone” where we can do whatever we want. Under this reasoning, there is no law to apply because we are in a “legal black hole,” and thus may pursue whatever option power politics dictates that best serves our perceived self-interest.

But the wiser, smart-power alternative is for a government to apply what Montesquieu called the “spirit of the laws,” or a “translation approach.”6 True, we may not always have a set of established legal rules that maps perfectly onto the new and unanticipated factual circumstance, but we can still make a good-faith effort to translate from the spirit of existing rules of law (e.g., the laws of war) to new situations (e.g., drones or cyberconflict).7 As a policy matter, the translation approach is superior because law-abiding nations strive to act based not just on power or expedience but rather by cabining new activity within recognizable legal frameworks.

On reflection, there is a world of difference between these alternatives. Claiming that we face a “black-hole” situation—where there is no law to apply—is qualitatively different from (p.11) acknowledging that existing rules do not exactly cover this new situation. In the former case, we are saying we can make up our own rules and no third party can judge us. But if we try in good faith to translate the spirit and intent of existing laws to govern new or unforeseen circumstances, we acknowledge the need to join with others committed to the rule of law to frame a new set of rules for emerging cases. In time, those new rules can eventually enjoy international consensus and legal legitimacy. So if a more “law-friendly” path exists, we should follow it. Doing so will keep the law on our side, keep us on the moral high ground, and preserve the vital support of our allies and international institutions as the crisis proceeds.8

The third element of the inside strategy is a commitment to leveraging international law as smart power to achieve sustainable policy solutions. This means blending legal arguments with other tools—including military force, diplomacy, development, technology, markets, and international institutions—to achieve complex foreign policy outcomes that cannot be achieved without the legitimacy that international law bestows: examples include the Dayton Peace Accord, the New START Treaty, or the Paris Climate Change Agreement.

Take, for example, the classic study The Rise and Fall of the Great Powers by my Yale colleague historian Paul Kennedy.9 History teaches, Kennedy argued, that any great power that tries repeatedly to dominate the world with hard military or economic force will eventually find that force exhausted. Great powers tend to overexert their hard power and fall into a situation of “imperial overstretch,” plagued by external debt, national weariness, and internal dissension. They try to do too much with too little, seeking to motivate the actions of others with tools of coercion rather than persuasion. But in the real world, most international (p.12) cooperation comes not from coercion but from joint action motivated by shared values. As we have seen in recent years, even a global superpower like the United States possesses only a limited amount of hard power that can be overtaxed—for example, by simultaneous military campaigns in Iraq, Afghanistan, and Syria.

The more successful, durable approach, political scientist Joseph Nye argues, is for wise nations to seek to influence the world through “smart power”10—a combination of “hard” and “soft” power that gains legitimacy from espousing international law and common values. If a nation squanders its reputation for legitimacy, it devalues its greatest asset in exercising global leadership. That is why nations try to make and keep—not gratuitously break—international rules: because those rules hold together the fabric of our multilateral relationships with our allies, international organizations, and other standing institutions of international law.

A moment’s reflection tells us that the two transnational legal process strategies are complementary. The outsider’s strategy of using “interaction–interpretation–norm internalization” to promote international legal compliance by resisting governments can be combined with the insider’s strategy of “engage–translate–leverage” to embed and preserve respect for international law within U.S. governmental bureaucracies. Interaction promotes engagement; interpretation generates translations; and norm-internalization enables lawful options to be leveraged with other policy tools into more creative, nuanced, and durable policies. Thus, these two strategies working together—an outside strategy implemented by committed nongovernmental activists and an inside strategy pursued by governmental officials committed to the rule of law11—can lead a nation into a pattern of sustained default compliance with international law that makes quick deviation (p.13) from these rules far more difficult than casual observers might predict.

D. The Emerging Trump Philosophy

What does all this have to do with a new, willful president arriving at the White House with a radical agenda to change how America engages with the world? In its first years, the Trump administration took a strikingly reactionary foreign policy approach. He renounced the approach taken not only by such Democratic presidents as Bill Clinton and Barack Obama, and former Democratic presidential candidates and Secretaries of State Hillary Clinton and John Kerry, but also by such past internationalist Republican presidents as George H.W. Bush and Richard Nixon.

Trump’s antiglobalist philosophy broadly rejects the Obama-Clinton approach—“engage–translate–leverage”—in favor of “disengage–black hole–hard power.” Wherever possible, Trump’s instinct seems to be to disengage—unilateralism, or, as he calls it, “America First.” The Trump approach does not value concerted efforts to translate existing legal rules but rather claims that there are no rules that bind our conduct. Under this worldview, the United States should act based on its perceived national interests, not international rules: an approach grounded on perceived national rights, not the universal rights on which this country was founded and that form the foundation of modern international human rights law. Finally, the emerging Trump approach seems to rest almost entirely on hard power, offering no visible strategy for bilateral and multilateral diplomacy or any attendant role for the State Department.12 Trump and his team have shown little or no inclination to combine hard and soft power into a more (p.14) nuanced approach nested in multilateral diplomacy that would allow America to leverage the legitimacy of lawful options into a creative set of proactive solutions to pressing international problems.

But as the chapters that follow will demonstrate, the various ways in which the Trump administration has announced its disengagement from global governance have thus far proven largely ineffective. This is precisely because the United States has become so deeply enmeshed with the laws, norms, and institutions of international law. In an increasingly integrated, globalized world, a nation-state can no more resign from the global system than an individual can resign from the human race. As Americans have learned since Trump’s election—and the British have learned since their tumultuous June 2016 Brexit vote—like it or not, our societies are all deeply enmeshed in that globalized system, over which we exercise limited influence, even as it governs us.

To be sure, the United States of America—and its president in particular—are powerful players in the making and unmaking of international law. But upon inspection, the wide-ranging counterstrategy of damage control surveyed in the chapters that follow has spawned a de facto path of least resistance. Under that default, the United States under Trump rarely exits, but rather stays in and underperforms in existing international regimes. As Chapter 3 argues, the default outcome of Trump’s blustering has tended to be “resigning without leaving”: the United States remains within existing international institutions but with dramatically reduced influence. While that may be a suboptimal state of affairs, it has the virtue of being curable, at a future time when Trump no longer controls the two houses of Congress or has been supplanted by a more enlightened successor U.S. administration.

(p.15) E. Transnational Legal Process as Rope-a-Dope

So will Donald trump international law, or vice versa? The theory above suggests that no player in the transnational legal process—not even the most powerful one—can single-handedly discard the rules that we have been following for some time. If players outside and inside the government enforce existing legal constraints in a way that makes policy changes and institutional exits too difficult or politically costly, a mercurial president like Donald Trump may decide to just “move on”—i.e., claim that he has “checked the box” on a political promise, in order to shift focus to other issues that he and his political base care about more, such as health care repeal or infrastructure reform.

If all of this seems too academic, recall “rope-a-dope,” the famous counterstrategy developed by our greatest pugilistic strategist, Muhammad Ali. Faced in Zaire by George Foreman—a much younger, stronger, seemingly invincible champion—Ali settled upon a brilliantly simple counterstrategy. He surprised everyone by retreating to the ropes and letting the champion pound him, taking pains only to avoid getting knocked out himself. For many rounds, Ali let his opponent “punch himself out,” until, at the end, Ali finally came off the ropes and knocked out his now-exhausted and weakened opponent.

The analogy here should be clear. If the Trump administration threatens to violate international law, actors outside the federal government can apply the external strategy of “interaction–interpretation–internalization” to hold it accountable. Those opposing President Trump’s policy initiatives on legal grounds can deploy the outside strategy in the various fora available to them to resist those initiatives. By so doing, they force Trump to (p.16) punch himself out by expending energy and capital on initiatives that do not meaningfully advance his or his party’s interests or chances at re-election. Meanwhile, U.S. bureaucrats committed to international rules can continue to pursue the inside strategy of engage–translate–leverage to maintain default compliance with existing norms, unless explicitly directed to do otherwise. Outside activists can work with other players who are checking the White House to generate interactions via direct democracy, citizen mobilization, litigation, advocacy, and resistance. If the federal government fails to follow international law, states and localities—as both outsiders and insiders—can step up to help fill the gap.

This struggle will continue until one side or another gets exhausted. But make no mistake: those in today’s New American Resistance are making much the same strategic bet as Ali made in Zaire: that over time, the energetic aggressor who loudly launches multiple ineffectual initiatives to change the status quo will force little real change. The winning counterstrategy may be simply to resist, absorb punishment, parry where possible, and strategically counterpunch until Trump and his administration finally get so tired, exhausted, and frustrated from all the flailing around, that they find themselves getting politically “knocked out”: by the Special Counsel, by congressional investigations, by the 2018 midterm elections, or the 2020 presidential re-election bid.

Admittedly, in the game of “rope-a-dope,” both sides pay a fearful price. Even while the nominal winner—Ali, in the Zaire fight—may win the fight, in the process he may endure the kind of battering that weakens his fabric and leaves him unglued in the long run. The parallel, broader danger is that Trump’s relentless disdain for international law may undo the “stickiness” of our standing rules and institutions by “ungluing” the elements of administrative and transnational governance that maintain obedience to international rules. Especially when (p.17) understood as part and parcel of Brexit and the global resurgence of Orwellian authoritarianism—discussed in Chapter 6—Trump may prove less a cause than a symptom of a much broader global counter assault on the postwar Kantian order. Left unchecked, that counterassault is arguably spreading a wave of global authoritarianism that could potentially generate a transnational transference of lawlessness flowing through the very same channels of transnational legal process that foster compliance.

While these are real and serious concerns, as yet, I hope they are premature. In the pages that follow, I argue that so far, transnational legal process is working, but harder times lie ahead. If Trump’s stated goal is to unglue the reflex to coordinate domestic and international legal processes, our counterstrategy should be to strengthen that connection. Trump’s anti-globalist rhetoric may seek to sever the link between the domestic and the international. But in a modern age of globalization, the interactive link between domestic and global law can be no more easily severed than the link between local cause and global effect. Transnational legal process enmeshes us all. That process is much bigger than Trump. He does not and cannot own it, because we all do.

F. Intertwined Constraints: Law, Policy, and Politics

Some might read the case studies that follow as too loosely mixing international and domestic law, and law, policy, and politics in discussing the constraints that impede impetuous presidential change. But one of my core claims is that these strands of constraint are inherently intertwined. When discussing the impact of (p.18) transnational legal process on government behavior, it is both unrealistic and counterproductive artificially to split off legal from policy and political constraints. In real life, these three kinds of constraints invariably overlap and are often used in combination to check action destructive of legal stability.

Although international lawyers tend to say, “let’s carefully distinguish between law and policy,” in reality, it is rarely so clear-cut. Law, policy, and politics pose interconnected constraints in foreign affairs decision making. Some policy options may not be available as a matter of law. Some options—which government lawyers tend to call “lawful, but awful”—may be legal, but not prove wise as a matter of policy. Still other options might seem desirable as a matter of both law and policy, but when actually tried, prove just not to be politically available. As they famously say in the Broadway musical Hamilton, sometimes “you don’t have the votes.”

Admittedly, law and policy differ as tools to promote the stickiness of internalized international norms. Executive branch policies usually do not bind future administrations as powerfully as do executive branch determinations about the applicability of international legal rules. Yet one reason not to obsess unduly over the distinction between law and policy is that often, norms initially articulated as policy for political reasons affect legal rulings and over time themselves harden into law. Under Ronald Reagan, for example, the United States famously declined to ratify the 1982 U.N. Convention on the Law of the Sea, but recognized much of it as governing U.S. practice and eventually as customary international law. The same could be said for the United States’ slow embrace of the Universal Declaration of Human Rights or the Vienna Convention on the Law of Treaties, both of which it now treats as customary international law.

(p.19) As the case studies that follow show, the very process of turning politics into policy and then into soft and hard law lies at the very core of transnational legal process. As I have described elsewhere, the goal of transnational legal process is to internalize norms socially, politically, and legally, but the precise sequence in which these internalizations occur will differ from case to case.13 This sequencing is perhaps best illustrated by the case of the Travel Ban, to which I now turn. (p.20) (p.21)

Notes:

(1.) Aaron Blake, Stephen Miller’s Authoritarian Declaration: Trump’s National Security Actions “Will Not Be Questioned”, WASH. POST, Feb. 13, 2017, https://www.washingtonpost.com/news/the-fix/wp/2017/02/13/stephen-millers-audacious-controversial-declaration-trumps-national-security-actions-will-not-be-questioned [http://perma.cc/B8HP-EQYW]

(2.) See generallyFrederick Schauer, THE FORCE OF LAW (2015)

(3.) See generallyTom R. Tyler, WHY PEOPLE OBEY THE LAW (1990)

(4.) President Obama’s Address to Congress, N.Y. TIMES, Feb. 24, 2009, http://www.nytimes.com/2009/02/24/us/politics/24obama-text.html [http://perma.cc/WT94-Q2RT]

(5.) Senate Confirmation Hearing: Hillary Clinton, N.Y. TIMES, Jan. 13, 2009, http://www.nytimes.com/2009/01/13/us/politics/13text-clinton.html [http://perma.cc/MY73-WFLX]. See generally Hillary Rodham Clinton, HARD CHOICES (2014).

(6.) Baron de Montesquieu, THE SPIRIT OF THE LAWS (Thomas Nugent trans., 1st ed. 1900). See also Harold Hongju Koh, The Spirit of the Laws, 43 HARV. INT’L L.J. 23 (2002).

(7.) Cf.Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165 (1993)

(8.) Harold Hongju Koh, Preserving American Values: The Challenge at Home and Abroad, in THE AGE OF TERROR: AMERICA AND THE WORLD AFTER SEPTEMBER 11, at 143, 153 (Strobe Talbott & Nayan Chanda eds., 2001)

(9.) Paul Kennedy, THE RISE AND FALL OF THE GREAT POWERS (1989)

(10.) E.g.Joseph S. Nye, Public Diplomacy and Soft Power, 616 ANNALS OF THE AM. ACAD. OF POL. & SOC. SCI. 94, 107 (2008)

(11.) I have labeled such outsiders “transnational norm entrepreneurs” and such insiders “governmental norm sponsors,” respectively. See Koh, Bringing International Law Home, supra Introduction, note 1, at 647–48 (1998).

(12.) See generallyRobbie Gramer et al., How the Trump Administration Broke the State Department, FOREIGN POL’Y, July 31, 2017, http://foreignpolicy.com/2017/07/31/how-the-trump-administration-broke-the-state-department/ [http://perma.cc/6PYG-PM65]

(13.) See Koh, Bringing International Law Home, supra Introduction, note 1 (distinguishing among social, political, and legal internalization).