International Law in the Age of Trump

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In the second month of Donald Trump’s presidency, we still know little about his foreign policy agenda. He regularly said things during the campaign that suggested a radical departure from longstanding tenets of U.S. foreign policy. And during his first month in office, he caused more than his fair share of diplomatic offense and confusion. But as the New York Times has reported, Trump’s foreign policy has already become more centrist. It’s fair to say, then, that we don’t really know what Trump will do on the international stage.

Still, there’s good reason to believe that the Trump administration will pose unprecedented challenges to international law. In this post, I’ll discuss the three principal ways in which the administration is likely to undercut the existing international legal order. My goal is simply to outline the distinct risks so that we can better appreciate them. I don’t at this point propose any solutions.

  1. Corroding Legal Norms

The first possibility is the most obvious one and has already received some attention: the United States might more readily violate substantive rules of international law or disregard accepted processes for making legally relevant decisions. International legal theorists sometimes claim that legal violations—particularly, high-profile violations by one of the most powerful countries—risk unraveling the entire enterprise of international law. For example, this is how Thomas Franck expressed his concerns about the George W. Bush administration in 2006: “When a community loses faith in law’s power to restrain and channel conduct, this perception propels the descent into anarchy.”

Even if that rhetoric is hyperbolic (and I think it is), repeat violations might corrode specific legal norms. After all, any interaction that puts a particular norm at issue communicates not only whether the norm was effective in the case at hand but also what the norm requires going forward and to what extent it reflects an operative commitment. If the United States repeatedly and blatantly violates a norm, and suffers little repercussion, it will, if nothing else, weaken that norm. In my view, this process of normative evolution is not necessarily bad. Eroded norms might be replaced by new ones that better reflect current problems or expectations. Even so, the transition could be destabilizing. And it would be undesirable if its effect is to increase the threats to global security or human lives.

To be sure, the United States has violated international law before. Reasonable people can disagree about the frequency of those violations, but they are all but certain to accelerate under the Trump administration. President Trump has made clear that he intends to put “America first.” He has also indicated that he defines America’s interests very differently than his predecessors. It’s not a stretch, then, to assume that putting America first means exploiting U.S. power to evade legal rules and processes that the United States has long accepted. Moreover, while other global actors might at times push back against the United States—while they might use international law to try to condemn or constrain it—its raw power could well frustrate these efforts.

Indeed, Trump’s key advisors seem intent on violating international law simply to show that they can. One of Trump’s first moves in office was to issue an executive order directing the Secretary of Defense to develop a new plan for defeating the Islamic State in Iraq and Syria (ISIS). The executive order states that the plan “shall include . . . recommended changes to any United States rules of engagement or policy restrictions that exceed the requirements of international law regarding the use of force against ISIS.” That provision is poorly drafted and not entirely clear. But it appears to be a remarkable, perhaps unprecedented, mandate to violate international law just for the sake of violating it. The United States claimed in December that its operations against ISIS already comply with international law, so the executive order seems to direct the Defense Department to recommend steps that exceed what international law now permits—not because international law interferes with a defined policy objective but because violating international law is itself the objective.

  1. Failing to Support Legal Norms

Given its insistence on putting America first and its corresponding antipathy for the existing international legal order, the Trump administration is also likely to shift the U.S. “long game” on international law. For decades, the United States has regularly taken steps to buttress the international legal norms that it values, even when its interests were not directly at stake. A well-known example dates back to the 1980s, when the United States took or threatened trade restrictions against states that intended to continue commercial whaling after the International Whaling Commission adopted a moratorium. Other examples involve economic or other measures against states that engage in gross human rights violations.

That practice understandably makes some international lawyers uncomfortable. It involves the United States throwing its weight around and at times acting unilaterally to press for the legal norms that it favors. As I’ve explained elsewhere, however, the practice can have real systemic value. It can induce other states to conform to norms that are generally accepted or otherwise in the common good. And even when it does not motivate a change in behavior, it can communicate that the targeted conduct is unacceptable — that the norms at issue are not entirely aspirational, even if they may not (yet) be fully effective. It can also trigger multilateral interactions that, in the long run, lead to stronger, more stable, or more widely supported legal arrangements.

The Trump administration seems disinterested in continuing that practice—in taking steps to uphold important legal norms even when U.S. interests are not specifically in play. The administration is extremely unlikely to stand up for human rights abroad. It is unlikely to take unilateral measures, as in the whaling example, to try to protect global public goods. It seems considerably less concerned than its predecessors with trying to influence Israel’s settlement policies. And the combination of its disposition toward Russia and its comments on U.S. defense alliances suggests that it is not interested in using its power to buttress even the prohibition of armed aggression. (Yes, I know that the United States itself has violated this prohibition. But it has also persistently helped to preserve it. In the near term, we should imagine a world in which the United States violates the prohibition itself and expends less effort to deter or respond to others’ violations. Some might say that this will reduce the U.S. hypocrisy; it will also mean less support for many basic international legal norms.)

  1. Disengaging from the Legal Enterprise

There is yet another way that the Trump administration is likely to weaken international law—and, here, I mean the entire enterprise, rather than just specific norms. The United States might, under Trump, simply disengage from international law. To appreciate why this could be so destructive, it’s useful to remember that international law is more than a set of substantive or procedural commitments. It is, at bottom, an argumentative practice. To participate in that practice, global actors must actually use the “language” of international law. They must employ its texts, methods, processes, and institutions to try to explain or justify their governance decisions and to have their disputes. If they do not, the practice will wither and stop serving its functions — whatever those functions might be.

 In the past, the United States has opted out of some international legal regimes, and it has violated the rules in others. But it has, on the whole, been enormously invested in the project of international law. In other words, it has insisted on speaking the talk even when it hasn’t clearly walked the walk. Take the practice of targeting to kill terrorism suspects away from “hot” battlefields. Some contend that this practice is unlawful. Even if it is, the United States has been intent on using international law to try to defend it. In this respect, the United States has long taken international law seriously; it has acted like international law matters, even when it hasn’t followed mainstream legal positions.

The Trump’s administration’s approach to international law will almost certainly be different. The administration, starting with the President himself, has shown nothing but disdain for any kind of legal culture at all. It prides itself on upending convention, it disregards established processes for making governance decisions, it regularly elbows out dissent, and as a general matter, it does not treat law as a legitimizing or delegitimizing force. Given that this is how the administration deals even with U.S. law, imagine how it will approach the practice of international law. Again, the concern here is not (or not only) that that the United States will more often violate the law. The concern is that the United States will be indifferent, if not openly antagonistic, toward to the whole enterprise of international law. The executive order that I discussed above is one sign of that disposition.

There are other signs, as well. As Paul Lekas noted on Just Security, a leaked draft of an executive order concerning detentions at Guantanamo Bay omitted any mention of Common Article 3. Omitting the provision is different from adopting tenuous or contestable legal arguments on why certain conduct does not violate it. To make such arguments, even unpersuasively, is to engage with the law and accept its normative relevance in the global order. By contrast, to ignore international law is to suggest that it does not matter. Further, the New York Times reported in January that the administration is preparing other executive orders to limit U.S. participation in various international institutions and multilateral treaties. Moreover, the U.S. State Department — the agency with expertise on and a long history of attending to international law — appears to have little influence in this administration and to be in disarray.

All of this reveals an administration that is at best ambivalent and at worst hostile toward the project of international law. While other countries are also, to varying degrees, checked out of this project, the fact that the United States has for so long played an outsized role means that the shockwaves of its disengagement would be significant.

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Adam Frost says

February 28, 2017

i can't help but feel that the bit about exceeding international law means he will change any restriction on US policy which goes beyond what international law requires, ie, the US will do absolutely everything it is allowed to under international law, ie taking away any restrictions on US military action which is not explicity mandated by international law. I feel like that is the true meaning of that executive order. there are currently restrictions on US engagement imposed on them not by international law, but voluntarily, in the name of humanity, but trump wants to repeal those provisions which exceed the demands of international law, reverting to the bare minimum standards required by international law. but i could be wrong. interesting article though!

Alessandra Asteriti says

February 28, 2017

Thanks, very interesting post. One question, on the executive order, that as you rightly say, is poorly drafted (quelle surprise). I had interpreted the sentence 'recommended changes to any United States rules of engagement or policy restrictions that exceed the requirements of international law regarding the use of force against ISIS' differently. I thought that 'exceed the requirements of international law' referred to the restrictions, not the changes. In other words, that the executive orders allowed to change the rules of engagement by lowering them to a minimum of compliance, eliminating those requirements in the rules that exceed the minimum standards of international law. It might be that I am being an optimist, and presuming that the White House does not promote actively breaching international law, but ensuring compliance only to the lowest available standards?

Kriangsak Kittichaisaree says

February 28, 2017

I also share AA's observation above. Brian Egan, Legal Adviser of the US Dept of State told the mtg of the Amer. Soc. of IL in March 2016: re US operations to capture or use lethal force against terrorist targets outside areas of active hostilities, in addition to the law of armed conflict (LOAC) these operations are governed by policy guidance (PPG) issued by President Obama in 2013 which imposes certain heightened policy standards in excess of LOAC for lethal targeting concerning the principles of distinction, proportionality, necessity, and humanity. The PPG establishes a threshold of 'near certainty' that non-combatants will not be injured or killed and the PPG also generally requires an assessment that capture of the targeted individual is not feasible at the time of the operation. The Trump Admin. may simply mean now the US will disregard the PPG and stick only to LOAC.

Jordan says

February 28, 2017

If the US repeatedly and blatantly violates a norm it will weaken the norm? Not necessarily, and not if the general patterns of practice and general patterns of opinio juris reaffirm the norm. When GW Bush admitted in 2006 that he had a "program" of "secret" detention, did he weaken the customary prohibition of secret detention under the laws of war, human rights law, the CAT, and, as the CAT Comm. has declared, crimes against humanity? He has not been prosecuted yet, despite such an admission of guilt, but one country cannot unilaterally weaken a norm of customary international law that continues to be supported by general patterns of practice and general patterns of opinio juris.

Nick Notan says

March 1, 2017

>> "As Paul Lekas noted on Just Security, a leaked draft of an executive order concerning detentions at Guantanamo Bay omitted any mention of Common Article 3. Omitting the provision is different from adopting tenuous or contestable legal arguments on why certain conduct does not violate it."

Actually, silence is much better than lies and misrepresentation; and previous US administrations were very often involved in the latter business, rather than in "adopting ... contestable legal arguments".

For example, I have collected about forty Western academic opinions concerning the constitutionality of power transition to Mr. Turchynov in Ukraine in 2014. I have not seen even a single opinion which would confirm that this transition was legal.

Then, Obama himself stated that the US had "brokered a deal to transition power in Ukraine".

However, the US State Department representative Ms. Psaki said in 2015:

"JEN PSAKI: ... As a matter of long-standing policy, the United States does not support political transitions by nonconstitutional means. Political transitions must be democratic, constitutional, peaceful and legal.


QUESTION: Recently in Kyiv, whatever we say about Ukraine, whatever, the change of government and then the beginning of last year was unconstitutional, and you supported it. The constitution was --

MS. PSAKI: That is also ludicrous, I would say."

P.S. With regard to silence and omissions, I am also familiar with one leak: the telephone conversation between Ms. Nuland and Mr. Pyatt, concluding with the notorious "XXXX the EU" tirade. Somehow, I have not heard there any discussion of the principle of non-interference, or Article 2(7) of the UN Charter, and similar norms there.

Should we believe that the actual order for setting up the putsch in Ukraine actually includes a lengthy discussion on the legal issues?

Volodymyr Machuskyy says

March 1, 2017

"Should we believe that the actual order for setting up the putsch in Ukraine actually includes a lengthy discussion on the legal issues?"

Ukrainian President Yanukovych fled from Ukraine.

Parliament of Ukraine (Verkhovna Rada) adopted a decision on the appointment of the Speaker of Parliament Oleksandr Turchynov acting head of state - until the election of a new President.

For this decision voted 285 deputies.

It is worth noting that according to the Ukrainian Constitution, in the absence of the President, his duties are assigned to the Speaker of Parliament.

Perhaps, this is not the best from a legal point of view. But the coup in October 1917 in the Russian Empire is far from perfect law, too.

Nick Notan says

March 1, 2017

Dear Volodymyr,

In your quote:

>> "Ukrainian President Yanukovych fled from Ukraine. Parliament ... adopted a decision on the appointment of the Speaker of Parliament Oleksandr Turchynov acting head of state ... ."

the order of events is apparently incorrect. Wasn't Yanukovych in Kharkiv, and in any case in Ukraine, when the Parliament voted to take away his powers?

I am not sure what Constitution version you meant in your comment. Have you taken into account the Constitutional Court's decision of 2010 restoring the Constitution of 1996? Let me remind you that the complaint, which led to this Court's decision, was filed by 252 deputies of Rada, and not Yanukovych. Shouldn't the Prime Minister have replaced President according to the Constitution of 1996?

May it be that some MPs voted under duress? See the BBC's movie: "Neo-Nazi threat in new Ukraine: NEWSNIGHT" for the swastika-wearing types, who roamed central Kyiv at that time.

In any case, did the Parliament have powers to relieve President from his duties, according to the procedure you described and your constitution version?

Let me show you some scholar opinions:

"The important point is that Yanukovych was deposed through extra-legal events." (Jens David Ohlin, Professor of Law at Cornell University)

"After all, Yanukovych was the elected president of Ukraine, and he was never unelected. He was driven out of office after being “impeached” by the Parliament. My understanding is that the impeachment did not follow constitutional procedures. If so, he was removed by a coup. (Eric Andrew Posner, Kirkland and Ellis Distinguished Service Professor of Law at the University of Chicago Law School)

"... given my current reading I cannot see a scenario in which both Yanukovych's removal and his replacement can both be seen as constitutional. Clay and I are ("very tentatively") considering this event to be a coup, albeit what Ulfelder has referred to as a "parliamentary coup." (Jonathan Powell, Asst. Prof, Dept. of Political Science, University of Central Florida; Clayton Thyne, Assoc. Prof. in the Political Science department at the University of Kentucky; Jay Ulfelder is a political scientist and the former research director of the Political Instability Task Force commission by the CIA).

Ok, since you wrote

>> "Perhaps, this is not the best from a legal point of view. But the coup in October 1917 in the Russian Empire is far from perfect law, too."

When did foreign states recognize those Bolshevik putschists as the government?

Are we in agreement that the transition of power in Ukraine in 2014 clearly lacked legality?

With regard to the essence of my first comment, are we in agreement that the State Department representative Ms. Psaki clearly lied when she said "As a matter of long-standing policy, the United States does not support political transitions by nonconstitutional means", and/or when she responded to the question concerning Ukraine in the way she did?

Monica Hakimi says

March 2, 2017

Thanks for all the comments. A few reactions:

(1) Adam, Alessandra, and Kriangsak make an excellent point: the directive in the ISIS executive order might be to find ways to do as much as, but no more than, international law requires. That interpretation would make the executive order less hostile to international law than I suggested.

Still, we should keep in mind that the U.S. position on international law will not necessarily be widely shared. So, even under the less hostile interpretation of the executive order, the U.S. might act inconsistently with (and weaken) more mainstream positions on what international law requires.

(2) Jordan and I seem to agree. What matters is not only what the United States does but also how others respond. (I meant to capture this point when I said "and suffers little repercussion." Perhaps that language was too opaque.)

(3) The conversation between Nick and Volodymyr seems largely tangential to my post, so I'll stay out of it.

Again, thanks for engaging with my post.

Heiko says

March 7, 2017

On Ukraine: "I have not seen even a single opinion which would confirm that this transition was legal."

Did this matter?

I am still more curious in arguments why the Ukraine did own the crimean peninsula before. Paper is patient.