The most serious argument against my position comes from those international lawyers, in America and elsewhere, who don’t trust Donald Trump and his administration to get this right. As should be clear by now, I share this skepticism. But in the international order, there is only one United States, and regardless of who is president, the U.S. plays a critical role as a balance wheel of the international system. What the first eight months of the new Administration have shown—particularly, the blocked Travel Ban and the unconsummated threats to withdraw from the Iran Nuclear Deal and the U.N. system—is that the United States is much bigger than Donald Trump. And this lecture has shown that Donald Trump will shift on many aspects of his stated foreign policy aims, if subjected to enough political pressure.207 Our challenge as participants in transnational legal process is to keep the Trump Administration’s feet to the fire, to demand a Syrian policy and strategy, not just a set of military strikes, and to seek a pivot to a broader smart power diplomacy that might resolve the underlying Syrian crisis. And if America’s president is truly serious about pursuing such diplomacy, he would be wise to revise other aspects of his chaotic early foreign policy. In particular, he should withdraw his offensive Travel Ban 3.0; do a better job talking and listening to our allies and working with critical organizational partners like NATO and the European Union; dial back his bombastic rhetoric in situations of growing tension with hostile countries like North Korea, and be more careful about telling the truth and respecting our intelligence agencies, so that listeners will actually believe our government when, for example, we accuse Russia of complicity in Assad’s April 6 chemical weapons strike. If he cannot make these adjustments on his own, concerted pressure from litigation, allies, and public opinion will be necessary to make him bend. In recent months, in the so-called “Astana process,” the Russians have expressed receptivity to the notion that Iran, Russia, and Turkey would be guarantors of so-called “de-escalation zones” within Syria, authorized to use any necessary force to prevent civilian harm within thosezones.208 The proposal does not mention chemical weapons, provide any legal rationale, or offer a credible group of guarantors. Nevertheless, it would make sense for the Trump Administration to seize on Russia’s seeming concession that indicate within Syria are both a legally and politically available policy option. Ultimately, finding a durable solution to the festering crisis in Syria will require far more sustained diplomacy than we have seen to date from this Administration. Surely, an institutional State Department populated by the kind of U.S. diplomats who brought about Dayton, Paris, and the Iran Nuclear Deal are capable of finding and concluding creative diplomatic solutions. What remains to be seen is whether this President and Secretary of State will give them the mandate and discretion to do so.209 III. What’s at Stake Several important lessons emerge from this rapid tour d’horizon. America’s observance of law, international and constitutional, is preserved not just by the federal political branches and the leaders who lead them at any particular time, but by an ongoing transnational legal process whose diverse stakeholders elected officials do not control. Institutional habits, once formed, prove surprisingly hard to break. With respect to international organizations and regimes, as the old song goes, breaking up is hard to do. And in the 21st century, the better way to produce good foreign policy outcomes remains Engage–Translate–Leverage, not Disengage–Black Hole–Hard Power. When Donald Trump took office, he was faced with international and domestic rules that created a persistent default path to compliance with pre-existing norms. Once in place, the law became a “guard-rail” for politics, and early signs indicate that most of those guard-rails are still holding. A new president cannot simply have his way. Domestic constituencies and interests with institutional authority to push back are doing so, as are foreign allies with shared interests in preserving rules of law within a painfully constructed international system. Government bureaucracies long devoted to pursuing solutions to climate change or promoting diplomacy in foreign policy do not turn on a dime.210 The United States has become deeply enmeshed in many multilateral regimes, and exit from those regimes is neither immediate nor easy. Most fundamentally, many Americans want what many of these regimes offer, whether it be a nuclear-free Iran or clean energy. So exit, if it is attempted, will be challenged, by transnational actors committed to the default agenda. And if exit and change are made difficult, the Administration will have to ask itself “how critical, really, are these policy changes and institutional exits to the core agenda of this Administration?” Whatever the new Administration may say to claim that it has fulfilled particular campaign promises, the real question is how much does it really care about any particular policy initiative, especially when those resisting say, a religiously-based Travel Ban, are ready to fightback together against a radical policy change from both the inside and the outside. So even for an Administration that made many promises to win a tumultuous campaign, enough internal and external resistance to change can make the Administration’s path of least resistance to stay in and underperform within existing legal regimes, rather than to absorb the costs of actual violation of standing international rules and exit from standing international institutions In battling over all of these issues, what’s really at stake? In brief, our current system of Kantian global governance versus a cynical system of authoritarian spheres of influence. That is why we are potentially at such a dramatic moment of change. What is being rejected now is not just a prior administration’s foreign policy strategy, but a broader political philosophy of international cooperation, of the kind that philosopher Immanuel Kant talked about in his great pamphlet, Perpetual Peace.211 Significantly, Kant did not advocate world government and those who attack Kantian global governance as “world government” are attacking a strawman. What Kant declared instead was that “[t]he law of the nations shall be founded on a federation of free states”: that law-abiding nations should live in a law-governed international society, where sovereign states that respect basic values—democracy, the rule of law, individual freedom, and the mutual advantages derived from peaceful intercourse—engage in mutual discourse based on respect for domestic and international rule of law in order to achieve shared outcomes.” Or otherwise put, Engage, Translate, and Leverage. Kantian global governance is a system that the United States helped to create, and that has sustained our global leadership role since World War II. It formed the basis for the United Nations—our system to end war and promote human rights—and the Bretton Wood system to govern international monetary flows, trade and development through the IMF, WTO, and World Bank—our system to end global depression and poverty. Kantian global governance has allowed the United States to lead a group of like-minded nations to organize an ambitious multilateral attack on all manner of global problems: e.g., climate change, through the U.N. Framework Convention on Climate Change; intellectual property, through the World Intellectual Property Organization; and global health, through the World Health Organization. For seventy years, the United States has been the driver, the balance wheel of this Kantian governance system: whether it be in the United Nations, the World Trade Organization, the Paris Climate Change Regime, or the Iran Nuclear Deal. But as I speak, all of these historical experiments, as well as the Brexit-led attack on the European Union are under threat of displacement by a counter-model of Orwellian Spheres of Influence. Remember the nasty and brutish world that George Orwell described in his haunting1984: where cynical global mega-powers—indistinguishable from one another in their authoritarianism, totalitarianism, and commitment to disinformation and “fake news”—violate human rights and the rule of law within their own spheres, while making cynical alliances and manipulating public opinion to make today’s adversaries tomorrow’s allies.212 Unlike Kant, Trump does not seem to believe in universal rights or accept the notion that everyone can rise together. His “America First” strategy, most recently repeated in his first United Nations speech, grimly views our interactions with the world as zero-sum, an approach that inevitably promotes reciprocal self-centeredness on the part of other powerful nations. Will we head in this Orwellian direction? Will Donald trump international law? Will he change the process, will it change him, or will consistent “rope-a-dope” resistance force him to adapt and change course in a more international law-friendly direction? And as his fragile coalition comes under stress, will it solidify or crumble? The answer, of course: we shall see, but the early signs give reason for optimism. As this review has chronicled, in some issue areas, bold public acts of resistance are playing a critical role in blocking Trump’s initiatives. In other areas, bureaucratic inertia, path dependence, overly high opportunity costs, and international realpolitik realities, have posed powerful constraints. In many of these areas, both heroic and mundane constraints can be seen at work. But the ultimate challenge for those who wish to join forces actively to resist is to search for, find, and apply political pressure to those critical pressure points within transnational legal process that can be strategically leveraged by anti-Trump actors. And is the rope-a-dope working? While we are still in the early months of this administration, here’s the tally so far. More than 40 Executive Orders in six months, with little real impact. Fourteen senior White House officials resigned in 6 months. A stunning loss on repealing Obamacare. Travel ban: twice blocked. Torture order: never issued. Climate: a claimed withdrawal that will not go into effect until after the next presidential election. Iran nuclear deal still in place. North Korea: saber-rattling and rhetoric, but no real change in policy. Russian hacking: continued turmoil, many active investigations. Ukraine: mobilizing transnational legal process on its own. IS and Syria: borrowing from the Clinton playbook, but lacking the “smart power” plan that might achieve a real foreign policy. Many strained alliances, both with foreign governments and with Trump’s Republican allies. Little progress on Trump’s core agenda. And all of that less than a year into a four-year term. In closing, I am reminded of an old joke by comedian Mel Brooks, playing a 2,000-year-old man. That super-elderly man is asked, “Before the Almighty, did you believe in any superior being?” His answer: “There was this guy, Phil; and we used to plead, ‘Oh Phil, don’t kick us; don’t beat us; don’t hurt us.’ Until one day, lightning came out of the sky and struck Phil down. At which point we realized, ‘There’s something bigger than Phil!”213 Well, in the same way, there’s something bigger than Donald Trump. He does not own transnational legal process. He is just another player in it. But what this lecture should remind you, is that, so are we. As are all the other transnational actors I have mentioned. In sketching this early picture, I am intensely mindful that the fight is just beginning. Inevitably, a “rope-a-dope” strategy wears down both sides. While the resistance has won some impressive early victories, the constant battering by the Trump Administration may have a longer-term corrosive effect on the health and well-being of our democratic institutions. And while in Donald Trump’s America, legal guard-rails may be keeping the traffic of power on the road of law, more or less, in other countries where democratic institutions and civil society are weaker, the news is far darker. China, Russia, and illiberal democracies like Hungary, Poland, and Venezuela are emerging not just as spoilers, but as active predators within the liberal international order. Perhaps our postwar alliance system can preserve and continue to build the international order by keeping these illiberal states within the guardrails. But as I write, pressure on human rights activism is visibly growing, not just in these states, but in other democracies takes throughout Europe as well as India. The language of human rights and democratic sovereignty are increasingly being turned against the whole idea of external monitoring of domestic compliance with international law.214 Put another way, the game is on, and the stakes are high. The Fight is in its early rounds, and the transnational legal saga is just beginning. As you all know from living here in Topeka, Kansas, the home of Brown v. Board, as Dr. Martin Luther King, Jr., used to remind us, the arc of history is long but it bends toward justice.215 But it doesn’t bend by itself. We are all participants in transnational legal process. So it is up to us, as the story of this administration unfolds, to continue to fight to help the arc of history bend in the right direction.
The most serious argument against my position comes from those international lawyers, in America and elsewhere, who don’t trust Donald Trump and his administration to get this right in the international order there is only one United States and regardless of who is president, the U.S. plays a critical role as a balance wheel of the international system. What the first eight months of the new Administration have shown the U S is much bigger than Trump this lecture has shown Trump will shift on many aspects of his stated foreign policy aims if subjected to enough political pressure Our challenge as participants in transnational legal process is to keep the Trump Administration’s feet to the fire and to seek a pivot to a broader smart power diplomacy if America’s president is truly serious about pursuing such diplomacy, he would be wise to revise other aspects of his chaotic early foreign policy . If he cannot make these adjustments on his own concerted pressure from litigation allies and public opinion will be necessary to make him bend finding a durable solution to the festering crisis in Syria will require far more sustained diplomacy than we have seen to date from this Administration an institutional State Department populated by the kind of U.S. diplomats who brought about Dayton, Paris, and the Iran Nuclear Deal are capable of finding and concluding creative diplomatic solutions the law became a “guard-rail” for politics, and early signs indicate that most of those guard-rails are still holding A new president cannot simply have his way Government bureaucracies long devoted to pursuing solutions do not turn on a dime The United States has become deeply enmeshed in many multilateral regimes exit from those regimes is neither immediate nor easy many Americans want what many of these regimes if exit and change are made difficult, the Administration will have to ask itself “how critical, really, are these policy changes and institutional exits to the core agenda of this Administration?” how much does it really care about any particular policy initiative, especially when those resisting say are ready to fightback together against a radical policy change from both the inside and the outside enough internal and external resistance to change can make the Administration’s path of least resistance to stay in and underperform within existing legal regimes rather than to absorb the costs of actual violation of standing international rules and exit from standing international institutions what’s really at stake our current system versus a cynical system of authoritarian spheres of influence That is why we are potentially at such a dramatic moment of change What is being rejected now is not just a prior administration’s foreign policy strategy, but a broader political philosophy of international cooperation law-abiding nations should live in a law-governed international society, where sovereign states that respect basic values engage in mutual discourse based on respect for domestic and international rule of law in order to achieve shared outcomes.” otherwise put, Engage, Translate, and Leverage Kantian global governance is a system that the United States helped to create, and that has sustained our global leadership role since World War II It formed the basis for the United Nations and the Bretton Wood system to govern international monetary flows, trade and development the IMF, WTO, and World Bank our system to end global depression and poverty Kantian global governance allowed the U S to lead a group of like-minded nations to organize an ambitious multilateral attack on all manner of global problems climate change intellectual property global health Will Donald trump international law? Will he change the process The answer we shall see but the early signs give reason for optimism bold public acts of resistance are playing a critical role in blocking Trump’s initiatives bureaucratic inertia, path dependence, overly high opportunity costs, and international realpolitik realities, have posed powerful constraints the ultimate challenge for those who wish to join forces actively to resist is to search for, find, and apply political pressure to those critical pressure points within transnational legal process that can be strategically leveraged by anti-Trump actors is the rope-a-dope working More than 40 Executive Orders in six months, with little real impac A stunning loss on repealing Obamacare. North Korea: saber-rattling and rhetoric, but no real change in policy Ukraine: mobilizing transnational legal process on its own. IS and Syria: borrowing from the Clinton playbook, but lacking the “smart power” plan that might achieve a real foreign policy Little progress on Trump’s core agenda. And all of that less than a year into a four-year term. there’s something bigger than Donald Trump He does not own transnational legal process. He is just another player in it. While the resistance has won some impressive early victories, the constant battering by the Trump Administration may have a longer-term corrosive effect on the health and well-being of our democratic institutions China, Russia, and illiberal democracies like Hungary, Poland, and Venezuela are emerging not just as spoilers, but as active predators within the liberal international order pressure on human rights activism is visibly growing The language of human rights and democratic sovereignty are increasingly being turned against the whole idea of external monitoring of domestic compliance with international law the game is on and the stakes are high The Fight is in its early rounds, and the transnational legal saga is just beginning