In "The Trump Administration and International Law," Harold Hongju Koh advances two descriptive claims about the efficacy of international law in the age of President Trump. First, international law has been effective in curtailing U.S. disobedience, despite Trump's antics. Second, it could also empower President Trump; the president would be more effective at achieving concrete policy goals if instead of dismissing international law, he harnessed it to get things done. The book's upshot is that international law can have real operational value, including, perhaps especially, for the United States.
Yet Koh did not write the book just to reiterate that point. He clearly is worried that Trump is doing damage both to the enterprise of international law and to the U.S. relationship with it. Thus, he intends for the book to be a "call to action," imploring people to uphold international law and contest 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 the Trump administration but for international law. What about international law is both worthwhile and at serious risk under President Trump?
I argue in this Review Essay that, because the book focuses so intently on the material outcomes that international law might produce, it misses what's uniquely at stake in the current moment. A lot of law's value, both domestically and at the international level, lies in fostering a particular kind of argumentative practice. International law's argumentative practice is not, as some suggest, just cheap talk, a means for achieving concrete ends, or a smokescreen for reinforcing positions of dominance. It is worthwhile for reasons that are independent of its material outcomes. And it is deteriorating under President Trump.
Monday, January 13, 2020
Hakimi: Why Should We Care About International Law?
Monica Hakimi (Univ. of Michigan - Law) has posted Why Should We Care About International Law? (Michigan Law Review, forthcoming). Here's the abstract: