Trump’s “Strategy” and the Counterstrategy of Resistance

2018 ◽  
Author(s):  
Harold Hongju Koh
Keyword(s):  
Black Hole ◽  
International Law ◽  
Legal Systems ◽  
Legal Process ◽  
Smart Power ◽  
Norm Internalization ◽  
Transnational Legal Process ◽  
Interaction Interpretation

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.

scholarly journals Military Lawyers on the Battlefield: An Empirical Account of International Law Compliance

2010 ◽  
Vol 104 (1) ◽  
pp. 1-28 ◽  
Author(s):  
Laura A. Dickinson
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Analysis ◽  
Theoretical Level ◽  
Legal Process ◽  
Strategic Action ◽  
State Behavior ◽  
Legal Norms ◽  
Norm Internalization ◽  
Transnational Legal Process

International law scholarship remains locked in a raging debate about the extent to which states do or do not comply with international legal norms. For years, this debate lacked empirical data altogether. International law advocates tended to assume that most nations obey most laws most of the time and proceeded to measure state activity against international norms through conventional legal analysis. In contrast, international relations realists and rational choice theorists have argued that international law is simply an epiphenomenon of other state interests with little independent power at all. Meanwhile, constructivist and transnational legal process approaches have posited that international law seeps into state behavior through psychological and sociological mechanisms of norm internalization and strategic action. But even these studies tend to remain on a theoretical level, without on-the-ground data about which factors might influence compliance in actual day-to-day settings.

scholarly journals TEORI INTERNASIONALISME DALAM SISTEM HUKUM NASIONAL

2015 ◽  
Vol 9 (2) ◽  
pp. 199
Author(s):  
Ninon Melatyugra
Keyword(s):  
International Law ◽  
South African ◽  
The State ◽  
Process Theory ◽  
The South ◽  
Legal Process ◽  
Crucial Problem ◽  
Municipal Law ◽  
South African Constitution ◽  
Transnational Legal Process

<p><strong>Abstrak</strong></p><p>Konstitusi suatu negara memegang peran penting dalam menjelaskan posisi hukum internasional dalam sistem hukum nasional. The South African Constitution adalah salah satu contoh konstitusi yang menjabarkan secara eksplisit mengenai kedudukan hukum internasional sehingga mempreskripsi pengadilan untuk menggunakan hukum internasional secara langsung dalam wilayah domestik. Masalah muncul bagi negara yang tidak memiliki ketentuan eksplisit dalam konstitusi, seperti Indonesia, namun praktiknya terdapat penggunaan hukum internasional oleh agen negaranya. Artikel ini menawarkan teori internasionalisme untuk memberi dasar legitimasi bagi negara yang ingin patuh terhadap hukum internasional di saat konstitusi tidak memiliki ketentuan eksplisit yang mengaturnya. Teori ini dibangun dengan fondasi 2 teori yakni teori <em>transnational legal process </em>yang menitikberatkan pada bagaimana negara memperlakukan hukum internasional, dan teori <em>international constitution </em>yang berfokus pada bagaimana perlakuan hukum internasional tersebut bersifat konstitusional. </p><p> </p><p><em><strong>Abstract </strong></em></p><p>A constitution of a nation holds an important role to define international law before municipal law. The South African Constitution is an example of constitutions that explain explicitly the position of international law and prescribe its courts to observe international law in domestic zone. A crucial problem has risen in States which have no explicit provisions in their constitutions, like Indonesia, but the State agent acts of using international law are often found. This article offers internationalism theory in order to give the States a legitimacy to be comply with international law although the constitution lacks the explicit provisions. The theory contains 2 basic theories which are transnational legal process theory that stresses on how states treat international law properly; and international constitution theory that focuses on how the treatment becomes constitutional.</p>

Introduction: Trumping International Law?

2018 ◽  
Author(s):  
Harold Hongju Koh
Keyword(s):  
Climate Change ◽  
Human Rights ◽  
World War Ii ◽  
International Law ◽  
Global Governance ◽  
Islamic State ◽  
World War ◽  
Legal Process ◽  
Spheres Of Influence ◽  
Transnational Legal Process

How to resist President Donald Trump’s assault on international law? This introduction sketches the tripartite plan of this book. First, it discusses a counterstrategy of resistance based on transnational legal process. Second, it illustrates that counterstrategy with respect to immigration and refugees, and human rights; the Paris Climate Change Agreement, the Iran Nuclear Deal, and trade diplomacy; with countries of concern such as North Korea, Russia, and Ukraine; and with respect to America’s wars: Al Qaeda, Islamic State, Afghanistan, and Syria. Third, it reviews what broader issues are at stake in the looming battle between maintaining the post-World War II framework of Kantian global governance versus shifting to an Orwellian system of authoritarian spheres of influence.

scholarly journals The Trump Administration and International Law

2018 ◽  
Author(s):  
Harold Hongju Koh
Keyword(s):  
Human Rights ◽  
International Law ◽  
Islamic State ◽  
Legal Process ◽  
High Stakes ◽  
Legal Adviser ◽  
The Many ◽  
Transnational Legal Process ◽  
Trump Administration

Will Donald trump international law? Since Trump’s administration took office in January 2017, this question has haunted almost every issue area of international law. This book, by one of our leading international lawyers—a former Legal Adviser of the U.S. State Department, former Assistant Secretary of State for Human Rights, and former Yale Law Dean—argues that President Trump has thus far enjoyed less success than many believe, because he does not own the pervasive “transnational legal process” that governs these issue areas. This book shows how those opposing Trump’s policies in his administration’s first two years have successfully triggered transnational legal process as part of a collective counterstrategy akin to Muhammad Ali’s famous “rope-a-dope.” The book surveys many fields of international law: immigration and refugees, human rights, climate change, denuclearization, trade diplomacy, relations with North Korea, Russia and Ukraine, and America’s “Forever War” against Al Qaeda and the Islamic State and its ongoing challenges in Syria. This tour d’horizon illustrates the many techniques that other participants in the transnational legal process have used to blunt Trump’s early initiatives across a broad area of issues. While this counterstrategy has been wearing, the book concludes that the high stakes, and the long-term implications for the future of global governance, make the continuing struggle both worthwhile and necessary.

scholarly journals Member State Compliance with the Judgments of the Inter-American Court of Human Rights

2005 ◽  
Vol 33 (3) ◽  
pp. 319-344 ◽  
Author(s):  
Morse Tan
Keyword(s):  
Human Rights ◽  
Member State ◽  
International Law ◽  
Theoretical Models ◽  
Comparative Perspective ◽  
Legal Process ◽  
Self Interest ◽  
State Compliance ◽  
Transnational Legal Process

This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

Foreign Relations Law

2019 ◽  
pp. 43-61
Author(s):  
Karen Knop
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
Comparative Law ◽  
The United States ◽  
Legal Systems ◽  
The U.S

The two starting points for this chapter are that fields of law are inventions, and that fields matter as analytical frames. All legal systems deal with foreign relations issues, but few have a field of “foreign relations law.” As the best-stocked cabinet of issues and ideas, U.S. foreign relations law would be likely to generate the field elsewhere in the process of comparison. But some scholars, particularly outside the United States, see the nationalist or sovereigntist strains of the U.S. field, and perhaps even just its use as a template, as demoting international law. The chapter begins by asking whether this apprehension can be alleviated by using international law or an existing comparative law field to inventory the foreign relations issues to be compared. Finding neither sufficient, it turns to the U.S. field as an initial frame and sketches three types of anxieties that the U.S. experience has raised or might raise for international law. The chapter concludes by suggesting how Campbell McLachlan’s allocative conception of foreign relations law might be adapted so as to turn such anxieties about international law into opportunities.

scholarly journals Illogicality and Roman Law

1972 ◽  
Vol 7 (1) ◽  
pp. 14-24 ◽  
Author(s):  
Alan Watson
Keyword(s):  
South Africa ◽  
International Law ◽  
Western Europe ◽  
Outer Space ◽  
Roman Law ◽  
Modern World ◽  
Legal Systems ◽  
The Moon ◽  
Age Of Reason ◽  
The Law

It is a commonplace that Rome's greatest contribution to the modern world is its law. Whether this is strictly true or not, Roman law is certainly the basis of the law of Western Europe (with the exception of England and Scandinavia), of much of Africa including South Africa, Ethiopia and in general the former colonies of countries in continental Europe, of Quebec and Louisiana, of Japan and Ceylon and so on. Perhaps even more important for the future is that International law is very largely modelled, by analogy, on Roman law. Just think of the perfectly serious arguments of a few years ago as to whether outer space (including the moon and planets) were res nullius or res communes and whether they were, or were not, susceptible of acquisition by occupatio. This persistence of Roman law has had undesirable consequences. First, Roman law as an academic subject has got into the hands of lawyers whose love of technicalities has frightened off classical scholars who tend not to use the legal sources. Secondly, scholars of antiquity, since Roman law is left well alone, have also been reluctant to look at other ancient legal systems. So have lawyers since these other systems have no ‘practical” value. Thirdly, following upon these but worse still, the usefulness of Roman law for later ages, coupled with its enforced isolation from other systems of antiquity, has often led to an exaggerated respect for it, and to its being regarded as well-nigh perfect, immutable, fit for all people. Many in “the Age of Reason” were ready to regard Roman law as “the Law of Reason”.

Dynamics of the regulatory function of Ukrainian lawin the context of European and international legal harmonization

2021 ◽  
pp. 49-56
Author(s):  
Roman Zvarych ◽  
Bohdan Hryvnak
Keyword(s):  
International Law ◽  
European Integration ◽  
Practical Significance ◽  
Regulatory Function ◽  
Scientific Article ◽  
Legal Systems ◽  
Legal Analysis ◽  
Council Of Europe ◽  
European Union Law ◽  
Legal Harmonization

Purpose. The purpose of the work is a comprehensive theoretical and legal analysis of the main problems of the dynamics of the regulatory function of Ukrainian law in the context of European integration and international legal harmonization. Method. The following theoretical methods of scientific knowledge were used in the study: the method of scientific analysis; system-structural; historical and legal; axiological; comparative law; formal-legal and method of generalization. Results. The scientific article highlights the process of transformation of the regulatory function of modern Ukrainian law in the context of its approximation to EU and international law. In the course of the research it was proved that in the issues of the European integration course the leading role belongs to the principles of realization of the regulatory function and regulatory influence. In particular, the implementation of the principle of the primacy of international law is for Ukraine a political and legal guarantee of stable relations with Europe and the world, as well as a legal means of protecting its legitimate interests. On the basis of the main principle of priority of norms of international law, such derivative principles of interaction of legal systems of the Council of Europe and Ukraine as: a) the principle of the rule of law should be developed; b) the principle of interconnectedness and complementarity of the law of the Council of Europe and Ukraine; c) the principles of cooperation, good faith fulfillment of obligations to the Council of Europe and the principle of mutual protection of human rights. Scientific novelty. The study found that the regulatory function of law, despite the narrowing of its scope at the domestic level and within national legal systems, has expanded its scope at the international and European levels, and especially at the level of European Union law. In this case, in the latter case, it interacts most closely with the integrative function. Practical significance. The results of the research can be useful for further general theoretical and applied research of the dynamics of the regulatory function of Ukrainian law in the context of European and international legal harmonization.

Human Rights

2005 ◽  
Author(s):  
Keith Ewing
Keyword(s):  
Human Rights ◽  
International Law ◽  
Constitutional Law ◽  
Legal Systems ◽  
International Treaties ◽  
Municipal Law

This article begins with a brief discussion of what human rights are. It then considers the international treaties which have emerged to protect human rights in national legal systems, focusing on aspects of the scholarship which has developed alongside the cascade of these rights from international law to constitutional law to ordinary municipal law. This is a process which has been controversial as human rights and democracy are seen by some to be mutually dependent, but by others to be engaged in an abrasive struggle for superiority on the battleground of ideas.

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