International Law in the Age of Trump

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.

2. 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.)

3. 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.