Read alongside Trump’s relentless assault on juridical institutions in the United States, this campaign reveals more than a transformation in American foreign policy; it marks a rejection of the constitutional imagination.
There is an old joke about constitutional law that says a constitution is only a piece of paper until someone with guns decides to obey it.
International law has always suffered from an even greater indignity. It possesses no legislature capable of compelling obedience, no executive capable of enforcing its judgments, and no police force waiting outside the courtroom. It has always depended upon sovereign states’ willingness to submit to rules they could often evade.
That fragility has long made international law an object of ridicule for hard-headed realists and an object of faith for idealists. Yet that very weakness concealed an important political achievement. The development of international law represented one of the few attempts in modern history to place power—even the greatest power—within a framework of public justification.
The conventional response to the Trump Administration’s campaign against the ICJ has been to lament the erosion of the so-called “rules-based international order”. But that phrase has become almost unusable. It arrives in every newspaper column carrying the accumulated weight of three decades of diplomatic boilerplate. Worse still, it asks readers to forget that the order in question has always been selective in its devotion to rules.
After all, the United States has spent much of the postwar era insisting that international law is indispensable while simultaneously reserving the right to decide when to avoid its application.
Washington withdrew from the compulsory jurisdiction of the ICJ after losing the Nicaragua case. It declined to ratify the Rome Statute establishing the International Criminal Court. It invaded Iraq without Security Council authorisation, maintained Guantánamo Bay beyond the reach of ordinary legal constraints, and developed a doctrine of targeted killing that quietly transformed much of the globe into a potential battlefield.
Donald Trump did not invent American exceptionalism. It was already deeply woven into the fabric of liberal internationalism.
Recognising this history strengthens the argument against the Trump Administration. It also makes it easier to identify what is genuinely new about the campaign against the ICJ.
Previous administrations ignored international law, bent it, stretched it, or issued ingenious legal memoranda explaining why apparently obvious violations were not violations. They lied, but they lied juridically. Their lawyers remained indispensable because American power still sought legitimacy through the language of universal principles.
In other words, there remained an assumption—however cynical—that legality mattered. Hypocrisy, as La Rochefoucauld observed centuries ago, is the tribute vice pays to virtue. It is worth paying tribute to standards that still possess authority.
The Trump Administration increasingly dispenses with even this performance of legality, so Marco Rubio’s denunciations of international courts matter less for their immediate policy consequences than for what they reveal about the changing self-understanding of American sovereignty.
Previous administrations argued that international law exists, but that exceptional circumstances require deviation from it. By contrast, the Trump Administration claims that no international institution possesses the standing to judge the United States in the first place.
As a result, the question “Was this action lawful?” has given way to the question “Who exactly intends to stop us?” Constitutional argument has been trumped by geopolitical arithmetic.
Carl Schmitt would have recognised this shift immediately. For Schmitt, every legal order ultimately depends upon a sovereign capable of deciding when its rules cease to apply. Liberal constitutionalism imagines politics as fundamentally rule-governed. Schmitt insisted that beneath every constitution lies a decisive act that cannot itself be fully constitutionalised.
The constitutional history of the modern world is replete with attempts to domesticate that unsettling insight—to surround sovereign discretion with procedures, institutions, and legal norms that can make arbitrary power progressively less arbitrary. International law represented the most ambitious extension of that project beyond the boundaries of the nation-state.
International law was always limited. Great powers retained privileges unavailable to smaller states. The UN Security Council institutionalised geopolitical inequality, since the United States, Russia, China, Britain, and France hold permanent veto power, rendering the universal application of law permanently imperfect. But imperfection is not the same thing as futility.
Liberal constitutionalism has never abolished arbitrary power; it has merely sought to constrain it through institutions that compel rulers to justify themselves before audiences larger than their immediate supporters.
This distinction matters because critics of international law fail to distinguish effectiveness from significance. The ICJ has rarely prevented wars. It cannot compel compliance from unwilling states. Its judgments are sometimes ignored.
Nevertheless, courts perform political work even when they fail to produce immediate obedience. They establish public standards. They force governments to explain themselves. They create settings in which power must make its case rather than issue commands. That process of justification is not incidental to constitutional politics. It is constitutional politics.
Here the republican tradition offers a surprisingly useful vocabulary. Philip Pettit famously distinguishes liberty from mere non-interference. One may be left alone by a benevolent master while remaining fundamentally unfree, because one’s freedom depends entirely upon another’s discretion.
Genuine liberty requires protection against arbitrary domination. Institutions matter because they reduce the space within which arbitrary power operates. Their value lies not in their perfection but in their capacity to make domination contestable.
Seen from this perspective, international courts are less important as engines of enforcement than as fragile republican institutions operating in a world that lacks an international republic.
International courts cannot eliminate domination. But they provide weaker states, nongovernmental organisations, journalists, and victims with a forum in which power can be named, challenged, and documented. That challenge may fail and often does. It still matters a great deal. No one becomes freer by abolishing a court because its verdicts were imperfect.
There is good reason for the left to be sceptical of international law. The language of human rights has frequently accompanied military intervention. International financial institutions have imposed neoliberal restructuring under universalist rhetoric.
Liberal powers have often celebrated legality while quietly exempting themselves from its demands. An entire literature shows how international law reproduces existing hierarchies of global capitalism rather than transcending them.
Critics who point out these shortcomings focus on where actually existing international law has fallen short. They want more universal legality, fewer exceptions, and greater democratic accountability.
By contrast, the Trump Administration seeks fewer institutions altogether.
Its intellectual architects question the very aspiration to constitutionalise international politics. The issue is not that the ICJ is flawed. The issue is that no external institution should presume to judge American decisions. Sovereignty ceases to be compatible with accountability because accountability itself is redefined as an intolerable infringement upon sovereignty.
One of the more curious features of American nationalism under Donald Trump is its debt to neoliberalism. Its rhetoric celebrates sovereignty, borders, and national identity, but its political style is rooted in entrepreneurial transaction.
Institutions become obstacles to bargaining rather than frameworks within which bargaining occurs. Alliances become temporary deals. Treaties become opening offers. Tariffs become negotiating tactics. International organisations become cost centres to be liquidated whenever they cease producing immediate returns.
Even foreign policy begins to resemble a private-equity acquisition in which every relationship is perpetually renegotiable.
Although this approach is often described as realism, that label gives it too much credit. Classical realists such as Hans Morgenthau or George Kennan were profoundly sceptical of moral crusades. But they also valued stable institutions because institutions reduced uncertainty. They regarded predictability as a strategic asset. Permanent improvisation was not realism. It was recklessness. States require durable expectations in order to calculate risk.
Even empires benefit from rules that reduce transaction costs.
What has emerged under Trump is something closer to entrepreneurial sovereignty. Power becomes valuable precisely because it remains unconstrained by procedure. Uncertainty itself becomes an instrument of negotiation. Yesterday’s ally may become tomorrow’s tariff target. Yesterday’s treaty may become today’s bargaining chip. Yesterday’s court may become tomorrow’s sanctioned institution. The objective is not stable order but as much discretionary leverage as possible.
This logic extends naturally to international law. Courts are objectionable not because they always issue unfavourable judgments but because they embody a competing principle of authority. Their existence implies that political decisions should be held to legal standards that exist independently of executive preference.
Once that principle is conceded internationally, it becomes more difficult to deny domestically.
This is perhaps the deepest reason why the Trump Administration’s campaign against the ICJ deserves a closer look, even from those who harbour few illusions about the institution’s effectiveness.
Constitutional orders survive not because every institution functions perfectly but because societies become accustomed to the idea that power requires justification. Once that expectation weakens, the scope of arbitrary discretion expands automatically.
We should resist the temptation to romanticise the postwar order. It was never the cosmopolitan utopia imagined by its most enthusiastic defenders. It rested upon nuclear deterrence, colonial legacies, economic inequality, and overwhelming American military predominance. It contained contradictions from the beginning. Yet those contradictions themselves testified to a paradoxical aspiration: the belief that power ought to appear lawful, even when it was not.
Abandoning the constraints of that order has implications that reach far beyond foreign policy.
A political culture that rejects external constitutional constraints abroad rarely confines that instinct to international affairs alone. The same suspicion toward judges, independent agencies, civil servants, universities, journalists, and legislatures emerges domestically. Each appears not as an institution capable of limiting arbitrary power but as an illegitimate obstacle placed before authentic political will.
The Trump Administration’s campaign against the ICJ seems disproportionate to its practical authority. But it proceeds from an understanding that what the ICJ actually does matters less than what it represents.
Although the actual power of international courts is modest, their symbolic significance is enormous. International courts embody the proposition that no sovereign, however mighty, stands wholly outside the obligation to offer reasons. They insist that judgment may proceed from institutions other than armies. They preserve, however tenuously, the ancient constitutional intuition that authority without accountability eventually ceases to be authority and becomes merely force.
Whether that intuition will survive the present moment remains uncertain. International law has always depended less upon coercion than upon political belief. Courts endure because governments continue acting as though judicial judgment possesses moral weight. Once enough powerful states decide that such judgments are simply irrelevant, the constitutional imagination that sustained them is in grave peril.
Once rulers abandon the principle that power must be held accountable, they do more than weaken international law. They announce a world in which the oldest principle of arbitrary rule returns with a vengeance: what the sovereign wills is law.
In such a world, The Hague is not really the target. Constitutionalism itself is.
Photograph courtesy of Duncan Cumming. Published under a Creative Commons license.
