The Trump Onslaught on International Law and Institutions

Jack Goldsmith
Friday, March 17, 2017, 10:09 AM

Two months into the Trump administration, we are witnessing the beginnings of the greatest presidential onslaught on international law and international institutions in American history.

President Trump welcomes Chancellor Merkel to the White House / @realDonaldTrump Instagram

Published by The Lawfare Institute
in Cooperation With

Two months into the Trump administration, we are witnessing the beginnings of the greatest presidential onslaught on international law and international institutions in American history. The onslaught appears to be driven by a combination of economic nationalism, anti-cosmopolitanism, anti-elitism, a belief that international law does not reflect American values but threatens American institutions, and a related belief that “American peace, prestige, and prosperity were not being served by our foreign policy.”

I don’t think the onslaught will succeed on its own terms, but I do think it will be consequential—for international law and institutions, and for America’s role in the world. What follows is an outline of what we know so far about the onslaught, as well as some modest predictions along the way, and at the end.

Gutting State Department capacity

The State Department runs U.S. diplomacy and oversees the operation of U.S. international agreements. The Trump administration is trying to gut State Department capacity across the board. This is evident in its proposal to cut sharply the State Department and USAID budgets, in its failure to nominate (much less get confirmed) anyone yet for senior Department posts other than Secretary of State Tillerson, in the general slowdown of State Department operations, in Tillerson’s very low-key tenure thus far, and in its proposal to kill a number of State Department initiatives and funds, including the Global Climate Change, the Green and Strategic Climate Funds, the Emergency Refugee and Migration Assistance Fund, and the East-West Center. It is unclear at this point precisely how a reduction of State Department capacity will impact U.S. international law commitments and U.S. participation and influence in international institutions. But Tillerson wrote to State Department employees yesterday, the budget cuts are “an unmistakable restatement of the needs the country faces and the priorities we must establish.”

Eliminating domestic agencies related to international relations

The Trump budget also proposes to eliminate numerous domestic agencies outside the State Department related to international law and relations, including African Development Foundation, the Inter-American Foundation, the U.S. Trade and Development Agency, the Overseas Private Investment Corp., the U.S. Institute of Peace, and the Woodrow Wilson International Center for Scholars, and the International Food for Education program.

Slow-down, or halt, in new international agreements

The writing has been on the wall for new international agreements ever since President Trump formally abandoned the Trans-Pacific Partnership on the third day of his presidency. A few days later a draft Executive Order, Moratorium on New Multilateral Treaties, leaked. The EO was only a draft, and it is limited to Article II treaties, which form only a sliver of U.S. international agreements. (It’s not clear if the Trump Team realizes that treaties are rare.) But even if it never sees the light of say, the draft EO reveals the thinking of some senior officials in the Trump White House. The purpose of the draft EO is “to prevent the making of any new treaties—other than treaties that are clearly appropriate matters of international concern, such as treaties implicating national security, extradition, and international trade—until a high-level executive branch committee has had an opportunity to review and assess the treaty.” The draft EO would place a moratorium on most new treaties except upon an inter-agency Treaty Committee’s review and recommendation (a process that apparently comes on top of the usual Circular 175 process).

The explanatory statement of the draft EO picks out the Convention on the Elimination of all Forms of Discrimination Against Women and the Rights of the Child Convention as treaties used “to force countries to often radical domestic agendas that could not, themselves, otherwise be enacted in accordance with a country’s domestic laws.” It’s thus not looking so good for these treaties in the next four years, or for other human rights treaties, or for other even slightly controversial multilateral treaties (including the Law of the Sea Convention and the Convention on Biological Diversity.) For various reasons, President Obama both sent treaties to the Senate and received Senate consent at historically low rates. We should expect the Trump administration’s rate to be even lower, perhaps much lower. Indeed, I would not be surprised if the Trump administration declined to send to the Senate the usual Treaty Priority List. Finally, expect relevant treaties that make it through the Senate to have historically robust non-self-execution declarations and federalism clauses.

Increase in termination of international agreements

President Trump has already threatened to unwind or terminate the Iran Deal (i.e. the Joint Comprehensive Plan of Action), the Paris Agreement, and NAFTA. This will be harder to do than he thinks. It is in theory easy for the United States to walk away from its part of the Iran Deal, which rests at its foundation on presidential waivers of domestic sanctions that President Trump can reverse. But this might be politically hard to do since the United States cannot re-establish the global sanctions regime and any reimposition of unilateral action might hurt U.S. companies more than anyone else. Certain elements of the Paris Deal establish binding international commitments, though the key provision on emissions reduction is legally non-binding. It is unclear whether President Trump will try to terminate the agreement itself, or simply violate the non-binding commitment to reduce emissions, which would involve unwinding the domestic Clean Power Plan (the latter of which would likely trigger significant domestic litigation). As for NAFTA, it is an ex post congressional-executive agreements embedded in domestic law. No president (to my knowledge) has every unilaterally terminated such an agreement, and it is unclear whether Trump has the authority to do so.

While all three of these threatened high-profile terminations are thus uncertain, I expect Trump to try to kill or undermine at least some of them, and also to terminate less prominent treaties and agreements for symbolic purposes if nothing else. We will, I expect, learn a lot about the law of treaty and agreement termination—a topic almost bereft of judicial guidance—in the coming years.

Disengagement from international organizations

Early in the administration a draft Executive Order titled Auditing and Reducing U.S. Funding of International Organizations leaked. Like the draft on new treaties, this one has not become final. But the Trump administration has made clear its plans to reduce funding or disengage from from international organizations. Secretary of Defense Mattis threatened to reduce NATO funding unless NATO allies pony up. Secretary of State Tillerson has threatened to withdraw from the UN Human Rights Council absent “considerable reform.” The Trump budget would reduce or kill funding to a number of United Nations programs, including “eliminating pledged payments to U.N. climate-change programs, and reducing funding for U.N. peacekeeping missions.” Trump won’t get all of his cuts, but the prospects for U.S. funding for and participation in many international organizations looks bleak.

Disengagement from international courts

Don’t expect the next four years to be happy times for U.S. engagement with international courts either. The Trump administration has not said anything specific on this topic. But it easy to imagine the administration refusing to participate in the current case brought by Iran in the International Court of Justice—especially if the United States loses on jurisdiction. A refusal to participate accompanied by a bit of Iran-bashing and ICJ-bashing would be just the type of easy-to-accomplish, highly symbolic anti-international law move that the Trump Team appears to like. Expect similarly poor relations with the International Criminal Court, especially if the prosecutor there opens a full investigation against Israel or of senior Bush officials concerning activities in Afghanistan. The Obama and late Bush administrations supported ICC prosecutions and gave assistance to the ICC prosecutor, and the Obama administration participated in an observer capacity in the ICC Assembly of States Parties (ASP). The Trump administration won’t support the ICC in any way and may withdraw even from observer status in the ASP. Finally, I think we can expect somewhat greater presidential resistance to WTO dispute resolution decisions than in the past.

De-emphasis on international human rights law in U.S. foreign policy

President Obama has been criticized in some circles for his poor human rights record. Expect President Trump to be much worse for the international human rights movement. Trump’s rhetoric on topics ranging from torture to immigration to Islam have already been seen as a major setback for international human rights. “Donald Trump’s election as US president after a campaign fomenting hatred and intolerance,” in combination with the rise of the right in Europe, has “put the postwar human rights system at risk,” said Human Rights Watch in the introduction to its 2017 World Report. One sign of the Trump administration's attitude toward international human rights: In a breach of tradition, neither Secretary of State Tillerson nor anyone else at the State Department appeared in person to introduce the recent rollout of the Department’s annual human rights report.

Actions closer to the (controversial) legal line on jus ad bellum and jus in bello

President Obama interpreted international law related to war powers (jus ad bellum and jus in bello) to give the United States more discretion to engage in offensive operations against terrorists in countries with whom the United States was not in an armed conflict. His administration was also successful in getting many important allies to accept these interpretations. President Obama tempered these legal interpretations, which were controversial in many quarters, by imposing restrictive policy overlays on the use of force outside areas of “active hostilities” (defined to be areas other than in Afghanistan, Iraq, and Syria). Now President Trump is in the process of removing the policy restrictions and of using force closer to the legal limits marked out by the Obama administration—and perhaps beyond.

* * *

I lack space or time—and it is too early—to analyze the Trump onslaught in any detail. But here are a few initial thoughts.

For reasons briefly stated above, Trump will have a hard time unwinding the Paris Agreement, Iran Deal, and NAFTA. I expect he will have the most success in gutting the core U.S. pledge on climate change, and that he will do so by attacking the domestic regulatory basis for the U.S. pledge.

Trump will not get all or perhaps even most of his budget cuts. But even absent the budget cuts, the President can achieve many of the aims of the budget cuts simply by directing his administration not to act in international fora, or to act in ways sharply contrary to American policy in the past.

And finally, a word on tactics. An in-your-face attitude toward international law and institutions will invite blowback—from international and domestic actors—not unlike what Trump has been experiencing in response to his controversial attacks on domestic courts and the press. There is a quiet way to pull back from international law and institutions, and a loud way. The loud way has heightened symbolic impact, and for that reason invites heightened resistance and retaliation. I predict that the Trump Team will prefer a loud approach with high symbolic impact to policy achievement, just as he has done thus far in the domestic realm (e.g. the immigration EOs).

Note: Thanks especially to John Bellinger for insights.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Subscribe to Lawfare