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TRUMPING INTERNATIONAL LAW?

Rebecca Sanders and Andrea Birdsall, “Trumping International Law?,” International Studies Perspectives, forthcoming

From bringing back waterboarding, to violating treaty obligations, to banning Muslims, Donald J. Trump has proposed numerous extra-legal policies. In this article, we examine the implications of this disdain for legality, arguing that Trump’s frequent hostility and indifference to legal rules and institutions as sources of legitimacy paradoxically impede his capacity to enact his promises and damage international law. As constructivists note, the vitality of legal norms is dependent not just on one state’s actions, but crucially on others’ reactions. To situate Trump’s legal politics, we draw comparisons with the Bush and Obama administrations, identifying distinctive patterns in Trump’s legal strategies and resultant interim outcomes related to multilateralism, in particular the status of the International Criminal Court and Paris Agreement, and human rights protections governing torture and migration. We find that while Trump has gone beyond his predecessors in rhetorically attacking international law, in practice he generates backlash that limits the realization of his agenda. This is in part due to Trump’s failure to convince others to violate the law or revise legal rules in novel ways. However, we argue that when the administration does reluctantly pursue legal justifications for controversial policies, it is better able to overcome legal constraints and political opposition.