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Published online by Cambridge University Press: 09 April 2019
1 Koh, Harold Hongju, Transnational Legal Process, 75 Neb. L. Rev. 181, 183–84 (1996)Google Scholar.
2 Exec. Order No. 13,769, 82 Fed. Reg. 8,977 (Jan. 27, 2017); Exec. Order 13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017).
3 Proclamation No. 9,465, 82 Fed. Reg. 45,161 (Sept. 24, 2017). Chad was dropped from the list on April 10, 2018, leaving in place restrictions on the seven remaining states. Proclamation No. 9,723, 83 Fed. Reg. 15,937 (Apr. 10, 2018).
4 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam) (affirming temporary restraining order blocking first order); Washington v. Trump, 858 F.3d 1168 (9th Cir. 2017) (denial of rehearing en banc); Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (affirming injunction of second order); Int'l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc) (same); Hawaii v. Trump, 878 F.3d 662 (9th Cir. 2017) (affirming injunction of third order); Int'l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc) (same).
5 Trump v. Hawaii, 138 S. Ct. 2392 (2018); Brief for Respondents, Trump, 138 S. Ct. 2392 (No. 17-965); Brief for the Petitioners, Trump, 138 S. Ct. 2392 (No. 17-965); Reply Brief for Petitioners, Trump, 138 S. Ct. 2392 (No. 17-965).
6 Trump v. Hawaii, SCOTUSblog, at http://www.scotusblog.com/case-files/cases/trump-v-hawaii-3.
7 See Amici Curiae Brief of International Law Scholars & Nongovernmental Organizations in Support of Respondents, Trump, 138 S. Ct. 2392 (No. 17-965). Two other amicus briefs made arguments in passing related to the travel ban and international law. See Brief of Amici Curiae Retired Generals & Admirals of the U.S. Armed Forces in Support of Respondents at 30, Trump, 138 S. Ct. 2392 (No. 17-965) (travel ban “creates a strong perception of nation-specific religious discrimination contravening the international norms enshrined in both U.S. law and international treaties”); Brief of Amici Curiae Immigration Equality et al. in Support of Respondents at 20–21 & 20 n. 56, Trump, 138 S. Ct. 2392 (No. 17-965) (ICCPR is a “useful guide” to interpreting domestic immigration law) (quoting Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009)).
8 On the ICCPR, see Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004). On the Refugee Convention, see, for example, Hernandez v. Sessions, 884 F.3d 107, 111 (2d Cir. 2018); Haitian Refugee Ctr., Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991) (per curiam).
9 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).
10 United States Department of State, Communication Regarding Intent to Withdraw from Paris Agreement (Aug. 4, 2017).
11 See UN Framework Convention on Climate Change Conference of the Parties, Twenty-First Session, Adoption of the Paris Agreement, UN Doc. FCCC/CP/2015/L.9/Rev.1, Art. 4.2 (requiring all parties to “prepare, communicate and maintain” a national pledge); Art. 13 (establishing a transparency mechanism).
12 See id. Art. 15.2 (“The [compliance] mechanism … shall consist of a committee that shall be expert-based and facilitative in nature and function in a manner that is transparent, non-adversarial and non-punitive.”).
13 See, e.g., Daniel Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 AJIL 288, 289 (2016).
14 See Joseph Curtin, The Paris Climate Agreement Versus the Trump Effect: Countervailing Forces for Decarbonization, Inst. Int'l & Eur. Aff. (Dec. 3, 2018).
15 Koh asserts that in domestic litigation over the Trump regulatory rollbacks, “environmental groups could well claim that the president has failed faithfully to execute continuing U.S. international legal obligations under the Paris Accords [sic]” (p. 43). I have not been able to discover a court or environmental party that mentioned the Paris Agreement as a legal basis for maintaining the Obama regulations. See, e.g., Clean Air Council v. Pruitt, 862 F.3d 1 (D.C. Cir. 2017) (vacating the Environmental Protection Agency's stay of its final methane rule on Clean Air Act grounds). One reason why is that the domestic and international legal regimes are legally independent of one another. “[T]here would be no violation of international law were a Party to change its domestic measures. If a domestic stakeholder sought to invoke the Paris Agreement in a domestic challenge to withdrawing the Clean Power Plan, courts would almost certainly find that the agreement does not constrain executive branch action.” Legal Issues Related to the Paris Agreement, Ctr. Climate & Energy Solutions (May 2017).
16 Curtin, supra note 14, at 1, 4–5.
17 U.S. carbon dioxide emissions rose approximately 3.4% in 2018, the largest increase in eight years. See Rhodium Group, Preliminary U.S. Emission Estimates for 2018 (Jan. 8, 2019). Trump's actions are not responsible for all of this increase, but they contributed to it, and they will make the increase harder to reverse, and the Paris targets harder to reach. In order to achieve its Paris Agreement pledge to reduce its greenhouse gas emissions by 26 to 28% compared to 2005 levels by 2025, the United States would have to reduce emissions between 2018–2025 more than twice as fast as it did between 2005–2017. See id. Trump's successor will have a much harder time meeting this target than he or she would have if Hillary Clinton had won in 2016.
18 See, e.g., Eric Levitz, Trump Deals New Blow to Paris Climate Accord Ahead of Conference, N.Y. Mag. (Nov. 26, 2018); David Nakamura & Darryl Fears, Trump Administration Resists Global Climate Efforts at Home and Overseas, Wash. Post (Dec. 9 2018); but see Frank Jordans, Nations at UN Climate Talks Agree on Universal Emissions Rules, Assoc. Press (Dec. 15, 2018) (describing Trump administration role at recent conference of parties as “schizophrenic” since, despite pushing back against many progressive initiatives, it worked hard for transparency rules concerning emissions).
19 See Nicky Sundt, U.S. Fails to Submit Reports on 1 January as Required Under U.N. Climate Treaty, Climate Sci. & Pol'y Watch (Jan. 4, 2018). As of this writing, the United States still appears to be non-compliant. See Third Biennial Reports – Annex I, available at https://unfccc.int/process/transparency-and-reporting/reporting-and-review-under-the-convention/national-communications-and-biennial-reports-annex-i-parties/submitted-biennial-reports-brs-from-annex-i-parties. The United States has submitted other required reports, however. See National Inventory Submissions 2018, available at https://unfccc.int/process-and-meetings/transparency-and-reporting/reporting-and-review-under-the-convention/greenhouse-gas-inventories-annex-i-parties/national-inventory-submissions-2018.
20 See Matthew J. Kotchen, Trump Will Stop Paying into the Green Climate Fund. He Has No Idea What It Is, Wash. Post (June 2, 2017). Koh acknowledges this point but optimistically asserts that “domestic and international stakeholders can exert pressure to force this administration and the next to make up the difference” (p. 52).
21 Curtin, supra note 14, at 9 (noting that Turkey, Brazil, and Australia have invoked Trump's actions as a reason for their own anti-Paris steps). According to the most recent authoritative report, seven G20 countries in addition to the United States (Argentina, Australia, Canada, EU28, South Korea, Saudi Arabia, South Africa, and the United States) are not on track to meet their Paris Agreement pledges. See United Nations, Emissions Gap Report 2018, at 9 (2018).
22 Koh paints a number of scenarios in which Trump's impact might be minimal (e.g., pp. 64–67) and notes, for example, that “[a]ll Trump has done is force that process of engage—translate—leverage to shift its focus from Iran, and to take place without him and about him” (p. 69).
23 See, e.g., Thomas Erdbrink, Iran's Economic Crisis Drags Down the Middle Class Almost Overnight, N.Y. Times (Dec. 26, 2018), at https://www.nytimes.com/2018/12/26/world/middleeast/iran-middle-class-currency-inflation.html; Peter Kenyon, Squeezed by U.S. Sanctions, Iran Has Had an Especially Bad 2018, NPR (Dec. 18, 2018). I once predicted that “[a]ny re-imposition of U.S. sanctions against Iran on January 20, 2017, would largely fail to change Iran's behavior and would primarily hurt U.S. firms.” Goldsmith, Jack, The Contributions of the Obama Administration to the Practice and Theory of International Law, 57 Harv. Int'l L.J. 2, 17–18 (2016)Google Scholar.
24 See, e.g., Koh, Harold H., Address, The War Powers and Humanitarian Intervention, 53 Hous. L. Rev. 971 (2016)Google Scholar.
25 For a good explanation, see Hathaway, Oona A., Brower, Julia, Liss, Ryan & Thomas, Tina, Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign, 46 Cornell Int'l L.J. 499, 533–35 (2016)Google Scholar. Koh has cited only three nations—the United Kingdom, Denmark, and Belgium—that have publicly maintained that humanitarian intervention can be consistent with the Charter. See Koh, supra note 24, at 980. The United States, as Koh notes, has not (pp. 134–35).
26 It also raises hard questions for the normative side of transnational legal process. Koh's book, like his prior work, urges activists to “participate in, influence, and ultimately enforce transnational legal process.” Koh, Harold Hongju, 1998 Frankel Lecture: Bringing International Law Home, 35 Hous. L. Rev. 624, 680 (1998)Google Scholar. Koh assumes this role in his book by offering strategies to preserve most of pre-Trump international law and arguing for a sharp change in international law concerning humanitarian intervention. But if transnational legal process includes altering international law in addition to preserving it, is Trump not an actor in the process who seeks through interaction, interpretation, and internalization to alter international law, just like Koh with humanitarian intervention? Koh seems to assent when he notes at the very end that “[w]e are all participants in transnational legal process,” and urges those who care about international law to “push even harder” than the “antiglobalist forces” (p. 153). It is hard to see the point of the normative side of transnational legal process if it contemplates international law advocacy from all perspectives.
27 On these two problems in Koh's work, see Eric A. Posner, The Perils of Global Legalism (2009).
28 The points in this paragraph are fleshed out in Goldsmith, Jack & Mercer, Shannon Togawa, International Law and Institutions in the Trump Era, 61 Ger. Y.B. Int'l L. (forthcoming 2019)Google Scholar.
29 See generally Bradley, Curtis A. & Goldsmith, Jack L., Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018)Google Scholar.
