The US under President Trump: Gravedigger of International Law

THE US UNDER PRESIDENT TRUMP:
GRAVEDIGGER OF INTERNATIONAL LAW


By Stefan Talmon


[This article published on March 27, 2019, is translated abridged from the German on the Internet, https://verfassungsblog,de. Stefan Talmon is the director of the Institute for International Law at the University of Bonn.]


March 25, 2019, was a dark day in the history of international law. With the recognition of Israeli sovereignty over the Syrian Golan Heights occupied by Israel since 1967, US President Donald Trump broke a taboo, rejected a 100 years of international law and undermined the rule of law and massively damaged the international legal order. This recognition in violation of international law stimulates analyzing the general relation of the US under President Trump to international law.


The US collaboratively built international law and its institutions and had an authoritative influence for more than 200 years. The names of US presidents like Thomas Jefferson and Woodrow Wilson are inseparably connected with the history of international law. Since the end of the Second World War, the US was a steadfast defender of international law. This does not mean that the US as a superpower did not also flagrantly ignore and break international law if its economic, political or strategic interests demanded it. The US put international law and its institutions in question or actively undermined international law in exceptional cases. This fundamentally changed with the presidency of Donald Trump.


Three areas should be distinguished today in US relations to international law: (1) the turning away from rule-based international law; (2) the violation of individual norms of international law; and (3) the open undermining of the legal order under international law.


Turning away from the rule-based international order

Ending international agreements


Shortly after taking office in January 2017, President Trump revoked the Transpacific Free Trade agreement that the US negotiated with Pacific states under President Barack Obama. The cancellation of the Paris Climate Protection agreement followed only a few months later in June 2017. In October 2018, the US revoked the World Postal agreement and withdrew from the World Postal Union, one of the oldest international organizations – only because Chinese negotiators could gain certain advantages from the agreement. The cancellation of the Vienna agreement on diplomatic relations and withdrawal from UNESCO occurred the same month.


Then President Trump threatened to annul the North American Free Trade Agreement (NAFTA) between the US, Canada and Mexico and the agreements on the World Trade Organization in the interest of the US.


Besides withdrawing from multilateral agreements, the US in October 2018 canceled the 1955 friendship-, trade- and consular agreements with Iran that survived the Islamic revolution and armed confrontations between the parties. In February 2019, the US withdrew from the INF treaty on intermediate-range nuclear weapons – one of the central disarmament agreements with Russia.


Even among President Trump's predecessors, the US was never afraid of ending international law agreements when this seemed in their interest. In December 1983, Ronald Reagan also withdrew from UNESCO to show his displeasure over the organization's policy (the US returned in October 2003). In October 1985, the US refused obligatory conflict resolution by the International Criminal Court (ICC) after the Haag judges decided against the US in the Nicaragua case. In December 2001, George W. Bush withdrew unilaterally from the ABM-treaty with Russia on limiting anti-ballistic defense systems. The US revoked its signature on the statutes of the International Criminal Court in May 2002 and the conflict resolution protocol in March 2005 after Mexico, Paraguay and Germany sued the US before the ICC for violating the agreement.


These actions of American presidents are hardly understandable for a state like Germany that has never unilaterally withdrawn from a multilateral agreement. A hard-as-nails interest policy is entirely incompatible with international law. Still, the US only exercises its rights under international law on terminating agreements even though this runs counter to a rule-based international order. The number of agreement terminations under President Trump. In the first two years of the Trump presidency, the US withdrew from more international law agreements than under his recent predecessors. In October 2018, the US administration announced even more agreements would be scrutinized.


Ending or refusing international cooperation


In May 2018, the US unilaterally withdrew from the Vienna nuclear agreement with Iran, the Joint Comprehensive Plan of Action (JCPOA). This was only a political declaration of the participating states China, Germany, France, Russia, the US, the United Kingdom and Iran and not an agreement of binding international law. The action plan – contrary to widespread opinion – was not declared binding by the UN Security Council in its Resolution 2231 (2015). The US was free to terminate the agreement and impose economic and financial sanctions against Iran. The unilateral action plan has seriously damaged the political reliability and credibility of the US and puts in question the importance of "soft law" instruments – while Iran fulfills its obligations.


In December 2017, the US ended a global pact ensuring orderly, regular and secure migration long before the pact was made public in other states (including Germany). In June 2018, the US withdrew from the UN Human Rights Commission and in December 2018 voted against the UN General Assembly Resolution 731151 when the international community confirmed the Global Pact for Refugees. Besides the US, only Hungary voted against the resolution that was accepted by 181 states. International law does not obligate any state to collaborate in projects within the United Nations. However, rejection of the Refugee Pact derived from the basic principles of humanity and international solidarity is disastrous for the idea of a rule-based international order.


General rejection of multilateralism


President Trump uses the possibilities given to him by international law to enforce his "America first" policy internationally. Cancellation of international law agreements, withdrawal from international organizations and institutions and non-participation in problem-solving in the framework of the United Nations are expressions of a deep, general rejection of multilateralism, conflict management and the worldwide standard-setting process of the international community. For President Trump, the most powerful is the strongest. International law with its annoying self-commitments of states should stop at the US borders. International law is reduced to interstate law, the jus inter genies. In the first month of the Trump presidency, a presidential moratorium was announced for new multilateral agreements. The US would not accept any agreements anymore that could affect the internal affairs of the US. So the ratification of the UN Convention on Children's Rights was rejected with the reason that the parents' right of disciplining their children is enforced on the national plane, not on the international plane. Agreements should be limited to international trade, handing over criminals and questions of national security. For President Trump, multilateralism represents a threat to the sovereignty of the US. So he said in his September 2018 speech before the UN General Assembly: "We will never subject America's sovereignty to an unelected, irresponsible, global bureaucracy. America is governed by Americans. We reject the ideology of globalism and enthusiastically accept the doctrine of patriotism."


Offenses against international law and human rights violations


Whether the US has violated international law more often under President Trump than under past presidents is hard to judge. However, some violations of international law are characteristic of the political agenda of the Trump administration. For deterrence, the Trump administration separated several thousand children from their parents, parents were arrested for an indefinite time and children were kept in state camps as a consequence of its zero-tolerance policy toward families that illegally crossed the US-Mexico border. More than 100 children were younger than four; some were only a few months old. The practice stopped by a US federal court in June 2018 represented a flagrant violation of international law.


The US is the only state on earth that has not ratified the UN Convention on Children's Rights and 12 of the other 18 UN Human Rights agreements and therefore is not bound to these agreements. Nevertheless, a human rights violation results from the international pact on civil and political rights (IPBPR). In addition, the indiscriminate arrest and criminal prosecution for illegal entrance is a violation of the Geneva Convention on Refugees. The temporary entrance prohibition for persons from several Moslem countries imposed by President Trump shortly after January 2017 was incompatible with the US' obligations under the IPBPR and the international agreements on removing all forms of racial discrimination.


With other human rights violations, President Trump only follows in the footsteps of his predecessors. Like Barack Obama, George W. Bush and Bill Clinton, President Trump holds the untenable notion that the US cannot be bound by human rights outside its borders. The consequences are well-known: unlimited detentions without constitutional state procedures in Guantanamo Bay, kidnappings and extraordinary extraditions of terror suspects from one state to another without any legal basis, use of prohibited interrogation techniques in secret prisons in Afghanistan and Eastern Europe, targeted killings of terror suspects without public indictments or legal procedures, deployment of armed drones in Pakistan, Somalia, Yemen and elsewhere in the endless "war on terror" and worldwide surveillance of telecommunications.


Interventions in the internal affairs of foreign states


In other areas, the conduct of President Trump in violating international law is not essentially different than his predecessor's conduct. Like them, he intervenes in dubious ways in the internal affairs of foreign states. President Trump recognized Juan Guaido in January 2019 de jure as Venezuela's president. As a result, Juan Guaido has access to Venezuelan state assets in the US (including bank accounts, gold reserves, and business partnerships0, can appoint the Venezuelan ambassador in Washington, can represent Venezuela in legal conflicts in US courts and can invite foreign states including the US to military intervention in Venezuela. President Trump's recognition of Juan Guaido is a classic case of premature recognition since the government of Nicolas Maduro exercises effective rule in Venezuela. While the recognition of the Franco government in Spain in November 1936 (more than 28 months before the end of the Spanish civil war) by the German Reich government is a cause celebre of premature recognition, this may be eclipsed by President Trump's recognition of Guaido


Offenses against the prohibition of force


President Trump violates the international prohibition on force in Article 2, section 4 of the UN Charter like nearly every US president since 1945. Like his predecessors, he acts like an accuser, judge, and executor in one person. As a reaction to the use of Sarin nerve gas during the Syrian civil war, he ordered the April 6, 2017 attack on a military airport of the Syrian army before an international investigatory commission established the Syrian government's responsibility for the poison gas. A year later on April 14, 2018, the US again attacked targets in Syria this time with France and the United Kingdom – again as a reaction to the use of chemical weapons and before an independent monitor explained who was responsible. The attacks were not authorized by the UN Security Council and were not a case of self-defense. The attacks were clearly in violation of international law and the collective security system of the UN Charter since international law prohibits violent retaliatory measures, punitive actions and the use of force for deterrence.


Unlike its predecessors, the Trump administration does not give any international law justification for its attacks. In March 1999, the Clinton administration used legal contortions to give the appearance of legal "legitimacy" to NATO air strikes on the Federal Republic of Yugoslavia during the Kosovo conflict. In March 2003, the George W. Bush administration tried to justify the invasion of Iraq with a creative theory reviving authorization of the use of force by the UN Security Council.


The Trump administration simply ignored international law while previous administrations sought to justify their actions in the international law system and indirectly overturned that system. The attacks were in "the vital national security interest" of the US to prevent the spread of chemical weapons and their use. That was the whole explanation. Characteristically, the attack on Syria was not mentioned at all in the "Digest of United States Practices in International Law 2017," the official collection of the international law practices of the US. As the ICC declared in the Nicaragua case, only the trust of a state in a new law or a new acceptance of a principle can lead to a change in customary international law provided this view is shared by other states. Mere political statements are irrelevant for international law.



Undermining the International Law Order


Attack on International Institutions and Courts


The US exercise of international law rights and violations against international law are only different in style and range from the praxis of previous presidents. The general attitude of the US toward international law has changed dramatically under President Trump. The tone defines the music here. The position of the Trump administration is marked by an unparalleled contempt or disdain if not open hostility.


The UN Human Rights Council


Withdrawing from this council in June 2018 was not enough for the Trump administration. Criticism of the UN Human Rights Council was very legitimate. The withdrawal was joined with a frontal attack on the institution. The US ambassador to the United Nations in New York, Nikki Haley, described the council as a hypocritical and selfish organization that mocks human rights, "a protector of desecrators of human rights and a swamp of political prejudice." US Secretary of State Mike Pompeo declared the US would not allow an organization to undermine the national interests of the US and violate its national sovereignty. "The US will not listen to lecturing and preaching from hypocritical organizations and institutions." These statements should be seen on the background that the UN High Commissioner for Human Rights sharply criticized the US only a few days before for separating several thousand migrant children from their parents who illegally crossed the US-Mexico border.


The UN Human Rights Council was not alone in drawing the anger of the Trump administration. After the ICC decided against the US on October 2018, President Trump's National Security advisor John Bolton insisted rejecting the jurisdiction of the ICC was the continuing policy of the US. The tribunal was "politicized and ineffective." The US government would no longer look on inactively when untenable and politically motivated criticisms of the US are made in The Hague and will scrutinize all international agreements that subject the US to the jurisdiction of the ICC. As though this was not enough, Bolton added: "We will let the tribunal die. For us, it is already dead."


The International Criminal Court


The Trump administration did not limit itself to a verbal slander of the International Criminal Court in The Hague – an institution of international criminal authority supported by 122 states. In May 2002, George W. Bush revoked the US approval of the ICC statutes and paved the way for actively undermining the ICC. In August 2002, the US Congress passed the so-called "American Service Members Protection Act" that prohibits the US government from cooperating with the ICC. The law is also called "The Hague Invasion Act." The US is determined to undermine the effectiveness of the ICC…


WTO Dispute Settlement


The US is actively trying to undermine other international institutions along with the ICC. In August 2018, President Trump threatened to withdraw from the World Trade Organization (WTO) if it was not reformed. In particular, the procedures on settling trade disputes are a thorn in the eye of the US. After imposing punitive tariffs in the billions on products from Europe and other states, the Trump administration sees itself exposed to a flood of potential complaints before the WTO's dispute settlement system.


The US government criticized the WTO dispute settlement procedures for unacceptably encroaching the sovereignty of the US. In his March 1, 2019 report on the trade policy of the White House for 2019, the US trade commissioner Robert Lighthizer declared: "The US is an independent nation. Our trade policy is made here – not in Geneva. We will not let the WTO and its dispute settlement system force the US into a straitjacket of obligations that we never accepted."…


If the US does not relinquish its blockade policy, the peaceful settlement of trade disputes in the scope of the WTO will collapse after 23 years. Protectionism and unfair trade practices would have free rein. The right of the stronger would replace the strength of the law. The US could then carry out its hegemony unhindered in international trade conflicts – an ideal position for "great deals." The conduct of the Trump administration violates the principle of faithfulness and the beliefs that pervade the whole international law order.


Attack on International Law


The attacks on international institutions and courts are nothing compared to the acknowledgment of Israeli sovereignty over the Syrian Golan Heights occupied by Israel since 1967. With this acknowledgment, President Trump struck at the roots of the two basic pillars of the international law order.


The sovereignty of a state cannot be expropriated by another state from the use of threats or the use of force. This is generally recognized since 1945. No territory acquired by threat or use of force can be recognized as legitimate. This is a principle of customary international law and is not only from Art 2 Section 4 of the UN Charter. The duty of non-recognition was confirmed in many declarations of international organizations (including the 1970 declarations of the UN General Assembly on Friendly Relations, the 1974 declaration on the definition of aggression, the final acts of Helsinki, the works of the international law commission of the United Nations and the jurisdiction of the ICC. No provision of international law may be more contested than the duty of non-recognition of land acquisition by force.


President Trump's declaration of recognition is just as incomprehensible as the fact that the US developed this principle and anchored it in international law… President Trump breaks with more than 100 years of international law praxis.


Jerusalem's recognition as Israel's capital by President Trump in December 2017 would have been an offense against the duty of non-recognition if the US government had not explicitly left open the question of territorial sovereignty… There is no margin for legal subtleties or splitting hairs in the recognition of the Golan Heights as part of Israel. The March 25, 2019 declaration says clearly "Israel's sovereignty over the Golan Heights should be recognized."


Recognition of Israeli sovereignty over the Syrian Golan Heights is also a slap in the face of the United Nations and not only a flagrant violation of international law. As an answer to the annexation of the Golan Heights by Israel, the UN Security Council declared unanimously (with the approval of the United States) that appropriation of territory by force in inadmissible according to the UN Charter, the principles of international law, and Security Council resolutions" and resolved "that Israel's decision to subject the occupied Syrian Golan Heights to its laws, jurisdiction, and administration is null and void and without international law authority. Both the UN Security Council and the UN General Assembly confirmed this position again and again in more than 50 resolutions, most recently on December 7, 2018.


The US under President Trump shows an unparalleled contempt for international law with its recognition of Israeli sovereignty over the Syrian Golan Heights violating international law and its repeated attacks on international institution s and courts. The international law nihilism of the United States will have consequences. The appeal to "unique circumstances" in the recognition of the Golan Heights will remain unconvincing like the argumentation that recognition of Kosovo was a case "sui generic." Other states, above all authoritarian states, will appeal to this test case or precedent or will take the disdain of the US toward international institutions as a blueprint for their own conduct, whether the US wants this or not. International law and its most important ally, the US, will be weakened for years if not decades. Whoever recognizes an illegal acquisition of territories can hardly call Russia to account for its illegal annexation of the Crimea. Whoever undermines international courts and institutions puts international jurisdiction in question and can hardly criticize China for not accepting arbitration procedures on the South China Sea. President Trump may think he does not need international law but international law needs the old US, a country that was obligated to international law and its institutions despite its disagreements.