There has been endless speculation over the last few years about whether we are witnessing the dying gasps of the “world order” as we know it.  This concept—the world order and its potential collapse—holds radically different meaning for different audiences.  For some, “world order” conjures a cabal of powerful states deploying a set of rules they created to benefit themselves, which they apply arbitrarily.  Law for you, plunder and exploitation for us.  For others, international law calls to mind a global supranational bureaucratic police force that answers to “foreign” unelected judges and imposes the will of some unidentified other on sovereign states.  That conception of international law lives only in the fever dreams of those who fear it and of some who wish that this vision could come to pass.  Each of these paints a compelling narrative.  The first is incomplete.  The second farcical.  Both are playing a role in the erosion of international law and institutions.

International law, as I will use it here, refers to the rules, norms, and contracts that states have created over time, through dialogue and action, to govern their relationships with one another.  The default norms under which states can trade, communicate, exchange expertise or ideas, or simply the mail, the common language states share to explain their assurances and their expectations for one another, the shared principles that permit them to contract, and invest, and promise with an understanding that such contracts, investments, and promises will be respected by their counterparts, and the institutions states have created so that they have fora in which to meet, discuss, and negotiate all of the above.  This is international law.  In the modern era, with the clarity born of two world wars, states also sought to establish a floor of violence, endeavoring to prohibit aggression toward each other and atrocities toward their civilian populations.  Today this system is under duress, and I see very little constituency for shoring it up. 

When international lawyers warn of potential rupture in the “world order,” they are generally contemplating a breakdown of these norms, understandings, and institutions through erosion of the cooperative mechanisms and belief systems—and public faith, frankly—that sustain them.  In the United States in particular, that breakdown is caused at least in part by the competing perceptions of international law and the “world order” that I described at the outset.  But without these common principles and rules, problem-solving at every level will be harder, everything from goods to national security will be vastly more expensive, and the world will be more chaotic and less safe. 

This is not new

The crisis for international law and institutions is not new.  But it does seem to be accelerating, prompted in no small part by increasing antagonism from the world order’s own chief architect, the United States.  The sitting U.S. President entered office for a second term, threatening to pull the United States out of longstanding treaties and international organizations, and he has been taking real steps to make good on that promise.  He has met with little pushback on these goals from the U.S. courts, Congress, or the electorate. 

It should come as little surprise that the President has faced little resistance from the courts or Congress. U.S. Presidents have consolidated in the executive branch enormous power to control the U.S. relationship with international law and foreign powers.  As for political opposition, Trump’s antagonism toward international law does not arise in a vacuum.  He is building upon generations of anti-international law sentiment that a subset of the intellectual right in America has cultivated and slowly entrenched in not only political opinion but also judicial doctrine.  In other words, the war on international law did not start with Donald Trump.  It has been long in coming.  To date it has been largely successful. 

The United States has historically had a complex relationship with international law.  Of course, it played a leading role over the last century in advancing the very treaties and institutions that today form the backbone of the rules-based order.  Perhaps less well-known is that the U.S. Constitution itself originated in part in the framers’ recognition that our striving new nation needed a means of upholding its treaty commitments in order to compel others to meet theirs.  (In that case, in the service of finally getting the British to pack up the last of their forts and vacate the premises.)

In more recent decades, notable breaches such as the Iraq war and the torture of detainees left many with a perception that the United States, drunk on power, perhaps now saw international obligations as beneath its gaze.  There is some truth here but it is not the whole story.  I know well from my own service inside the government that there has been a genuine commitment to international law and institutions by the experts who work to advance and engage with them.  And there has been a perhaps more grudging acceptance by the policymakers those experts advise.  It can be a slog at times to explain why these commitments matter to policymakers who have long reaped the benefits of a world where these commitments matter.  But in my experience, most can and do understand.  (Worse is that it is often a slog to explain to fellow government lawyers why such legal commitments matter.)

Outside the executive branch, the picture is starker.  On the Hill, international law is the third rail.  Senate consent to ratification of treaties has largely run dry.  Even the language is toxic.  I have been told repeatedly, if you want to get something passed in Congress, do not use the words “international law.”

But it is possible that international law is faring worst in U.S. courts.  In 1900, the Supreme Court pronounced that “international law is part of our law.”  Today, Supreme Court nominees appear to have accepted as a condition of confirmation that they denounce any significant role for international law in their judicial decision-making. 

This applies across parties.  When asked in her nomination hearing when it is appropriate for judges to consider international law when interpreting the U.S. Constitution, then-Judge Ketanji Brown Jackson said, “there are very, very few cases I think in which international law plays any role, and certainly not in interpreting the Constitution.”  When the same question was asked of Justice Barrett, she responded by conflating international law with foreign law, stating, “I don’t think [the Constitution] would be controlled by the laws passed by other countries.”

How did we get here?

It is worth considering how we got here.  The story implicates legal projects on both the right and the left. 

In modern history, a movement that lost its political battles on the substance of international law innovations—be they human rights, efforts to limit climate change, or the ban on aggression—turned to process as a second bite at the apple.  Having failed to halt the developing norms they found distasteful, opponents to these changes found ways to undermine the field of international law in the U.S. legal system. 

One of the arguments espoused by some critics of international law is that international law itself changed radically around this time period.  And there is some truth to that.  From the establishment of the UN to the human rights treaties of the middle of the 20th century to the burgeoning field of international criminal law culminating in the International Criminal Court, states have used the tool of international law in efforts to create a floor of security for individuals even against their own states, as well as some accountability for state actors who transgress. 

Those efforts have faced criticism and pushback as well as missteps, of course, and have not always been successful.  But they resulted in, among others, the UN Charter, the Universal Declaration of Human Rights, the Genocide Convention, and the ICCPR, all of which enshrine the principles of non-discrimination and respect for human rights and fundamental freedoms.  

The United States played a key role in drafting, negotiating, and marshalling state support for these agreements.  In fact, Eleanor Roosevelt, then-widow of the former President, chaired the drafting committee for the Universal Declaration of Human Rights, and is widely credited with garnering support for its adoption by the UN General Assembly. 

But of course, these basic human rights principles did not find support in all segments of U.S. society, in particular, states where segregation was then the law of the land and discrimination was aggressively enforced.  In the early 1950s, a movement of senators grew concerned that treaties codifying protection for human rights and barring discrimination would be used to challenge Jim Crow laws throughout the South. Senator John Bricker introduced a constitutional amendment seeking to limit the president’s ability to make treaties and to undermine the efficacy of existing treaties in court. Specifically, the Bricker Amendment would make all treaties “[in]effective as internal law in the United States” without the affirmative “enactment of appropriate legislation by the Congress.”

This was neither the first nor the last time that political opponents of treaty terms, having lost the battle on substance, would seek to undermine treaty efficacy itself as a matter of process.  In fact, the seeds of this debate go back to the founding.  In the case of Senator Bricker, he and his supporters lost the political battle, and the amendment failed.  But generations of lawyers and judges took up where Bricker left off, successfully narrowing the efficacy of treaties as a rule of decision in U.S. courts both in terms of the status of treaties as supreme over state law and as a matter of judicial enforcement more broadly.

Tentacles of these efforts spread, in the years since, often to substantive areas far afield from that original agenda but buoyed by a political acrimony that had been instilled in the public imagination.  From attacks on customary international law as a rule of decision in U.S. courts, to aggressive efforts to disrupt the traditional practice of looking to international law as context to inform and interpret relevant statutes or the Constitution.  The success of these latter efforts is evident in the words of Supreme Court justice nominees today. 

These efforts have significantly diminished the use of international law as a rule of decision or a tool of interpretation in U.S. courts.  But much worse than that, the accompanying political campaigns have promoted an antagonistic rhetoric that has denigrated international law in the public imagination.  International law became, in the narrative of this political effort, a useful bogeyman combining fears of foreign influence, loss of democratic control, cosmopolitan cabal overlords, and bureaucratic red tape.

The war on international law inside the United States has been so effective in part because international law lacks any real constituency today in any part of the political spectrum.  Throughout the 20th century, movements on the left championed treaties and international institutions, and sought to use those norms and bodies as tools to advance their domestic agendas.  (In fact, it is precisely the fear by southern segregationists that the civil rights movement might be bolstered by the embrace of international human rights norms of non-discrimination that led to the Bricker Amendment saga discussed above.)

But recent years have seen an assault on international law and institutions—and on public law institutions generally—from the left in addition to the right.  Common critiques range from disillusionment that the international system has failed to fulfill its promise to arguments that the modern institutions of international law are tools of Western exploitation and oppression, that they have been created by imperialist and colonialist powers to entrench their own power.  And there is of course also some truth to all of this. 

The failing public faith in international law and public law writ large today stems in large part from this assault from all sides, resulting in a formidable brew of hate, ignorance, skepticism, nihilism, and disillusionment.  These forces at times seem insurmountable.  In years past, when confronting the question, “is international law really law,” I used to take a page from Professors Jack Goldsmith and Daryl Levinson’s excellent article, Law for States, and respond, “well, is the Constitution really law?”  These days that response carries less rhetorical force.

What next – how do we (re)build a constituency for the rule of law?

If we are indeed witnessing a real rupture today in the world order that has served us imperfectly for the last century, will we either mend it or build something new to take its place?  And will it be a world based in the rule of law and not the whims of man?  To even begin to do so requires a genuine constituency for the rule of law.  This starts at the ground level, with the basic case for why law matters.  Public lawyers might take a page from their international law colleagues’ playbook. International lawyers are accustomed to explaining the relevance of their field.  That work can be tiresome, but it is essential.  We know that it is not enough to say that something is illegal, to quote the legal rule chapter and verse, and we know we cannot rely on the courts alone to save the rule of law. 

The case for law must be made on its own terms, separate and apart from any particular substantive agenda. People invoke a legal rule readily enough when it serves their policy objective. What is far more difficult is building public understanding of why it matters that we negotiate and enshrine shared principles, as both tools and constraints, to create and to check our government, and then insist upon their observance regardless of who sits at the helm. 

For those of us who are educators, and law professors in particular, that work can begin in our own classrooms. Are we teaching students how international and public law actually function in practice?  Or are we teaching them almost exclusively through judicial opinions, where courts frequently punt on the merits, denigrate the role of international law, and where enforcement looks nothing like the private law cases that form the backbone of American legal education?  A court-centric model of public international law will always disappoint.  By presenting students with a weak simulacrum of the private law enforcement system, it leaves them with the impression that international law is simply law without accountability.  And it means that we are not actually teaching the diversity of ways in which international law, and public law generally, shapes, enables, and also constrains the actions of public officials and of states.  In order to begin to rebuild public faith in international law, we might start by giving our newest lawyers a fulsome sense of what it can and does do.