Trumping International Law? Implications of the 2016 US presidential election for the international legal order

Any assumptions about the implications of the 2016 US presidential election for international law are premature and tentative. There is no proper foreign policy programme against which one could evaluate the future policy of the new administration. We know from Trump’s announcements and from a foreign policy speech of 27 April 2016 that he opposes the Paris Agreement, the WTO, NAFTA, TTP and TTIP as well as the nuclear deal with Iran. Thus, political analysts immediately described the election of Trump as ‘the beginning of a new and darker global order’ and announced the end of the post-World War II order. International lawyers assume that a post-human rights agenda lies ahead. Do we finally face the end of the liberal international order and globalization more generally?

Of course, there are also other voices: those who compare a possible withdrawal of the US from the Paris Agreement to its non-participation in the Kyoto Protocol; those who hold that globalization is anyway inevitable; those who stress that populism in Latin America, where opposition to globalization was very strong, is in decline again; those who compare Donald Trump with Ronald Reagan; and those who count on new technologies and the young generation. If it was just for the election of Trump I would probably share the idea that his policy may only represent a temporary slump in the overall progressive development of the international legal order. However, the symbolism of Trump’s election is not an isolated incident but fits into a more general pattern. Certain phenomena indicate that we currently observe a crisis of international law of unusual proportions which requires us to reassess the state and role of law in the global order [See Krieger/Nolte, The International Rule of Law – Rise or Decline?]

During the last 25 years international law has seen significant developments which led many observers to suggest that it has changed its character. These developments consisted in a higher degree of institutionalisation and a tighter network of rules. International law witnessed the conclusion of key multilateral treaties, the widening and deepening of the legal protection of the individual as well as a rise of international adjudicatory bodies and adjudication more generally. Since the 1990s many international lawyers shared a certain expectation that these processes would continue. The evolving understanding of basic legal concepts, such as international community, right to democratic governance or universal human rights standards relied on the idea that international law would be developing in a specific direction. The perception of this direction was strongly influenced by a liberal view of the State and the international order where global governance substitutes the State.

For some years, this idea has increasingly been confronted with important indications for a challenge to, or a change of direction of, international law. Thus, it is quite likely that some of the shifts we will witness are changes we may have witnessed under Hillary Clinton’s presidency, too. But it is the strong symbolism that may make Trump’s election work like a kind of fire accelerant for the lingering shifts in the global order. It is not unlikely that in the coming years the international legal system, as it has been carved out since 1990, will be subjected to a kind of stress test. As a result we may see which parts of it are resilient and which parts have not yet crystalized into firmly established legal rules. We may be prompted to reconsider the role that international law plays in the global order and assess whether it is being transformed into a type of international law different than the one which has developed since 1990 or even 1945.

I would like to highlight three major fields where I assume that we will witness such shifts and where we will test the resilience of international law: the danger of a domino effect for multilateral institutions, the rejection of certain liberal values on a global scale, and the emergence of a new power concert. When speaking of shifts I do not intend to convey any normative judgment on whether these transformations are desirable or whether international law is ‘inherently good or bad’, needs to be preserved or should be abandoned.

Danger of a domino effect for multilateral institutions

Trump’s intention to withdraw from symbolically important multilateral treaties, such as the Paris Agreement, does not stand alone. It fits into last year’s long list of setbacks for core international institutions, such as the EU and Brexit, the withdrawal of South Africa, Burundi and Gambia from the ICC or Russia’s withdrawal of its signature from the Rome Statute. Even if negotiations will result in a soft Brexit and even though Russia would probably not have submitted to the jurisdiction of the ICC anyway, what is important here is the signal which these developments send. It is not inconceivable that the Brexit at least contributed to South Africa’s decision to withdraw from the ICC. For decades a withdrawal from major multilateral treaties or institutions seemed a taboo. Upon the introduction of the withdrawal clause into the EU treaties most European lawyers argued that this was a dead letter rule. This perception has dramatically changed. In this light, the Russian withdrawal of its signature must above all be seen as an invitation to join and to push for the momentum of withdrawals. Such a momentum would gain even more power if Trump realized his intentions.

While we will probably not see waves of withdrawals, making withdrawals a realistic perspective may alter conditions for renegotiating the fabrics of multilateral agreements. The danger that numerous States might withdraw will enlarge the room for negotiations and strengthen the impact of smaller States. In the current climate, options for African States to change certain settings within the ICC fabric have become much more realistic. A recent EJIL:Talk! post argued that, at the 2016 Assembly of States Parties in The Hague, possible shifts in interpretations became visible which might considerably reverse the debates, for instance with a view to head of state immunities. A realistic threat of withdrawal may also affect courts’ jurisprudence and foster more cautious sovereignty- or consent-based interpretations of international law.

Rejection of certain liberal values and related political concepts

Another field where we may see major shifts concerns those rules which are seen to enshrine liberal values. But again, the election of Trump may only accelerate developments which are already underway.

A pertinent example are those human rights which are not firmly established within western societies themselves, such as LGTBI rights or women’s rights, in particular reproductive rights. After all, parts of the populist agenda are directed against such liberal values. Changes at the level of national and international law may mutually reinforce each other. With the case Roe v Wade the US Supreme Court influenced the interpretation of reproductive rights world-wide. Thus the impact of the Trump administration on the composition of the Court is not only of concern for the United States. Transnational advocacy and global constitutionalism may not only work in favour of liberal rights. Faith-based conservative US-related NGOs have increasingly acted as an amicus curiae in the proceedings before the European Court of Human Rights, inter alia in cases concerning LGTBI rights. The UN Human Rights Council has dealt with the topic of traditional values where Russia and states with a strong Catholic or Muslim background advocated for an interpretation of human rights in the light of such values [e.g. UN Doc. A/HRC/RES/16/3]. Another example may be the recent UN debate on the mandate of the Independent Expert on Sexual Orientation and Gender Identity. The mandate faced resistance from African States. It is not unlikely that with the Trump administration we will witness new and uncommon alliances of movements rejecting certain liberal values on a global scale.

Moreover, the whole debate on R2P and liberal interventionism may undergo significant changes. It was one of Trump’s explicit policy goals to ‘end the current strategy of nation-building and regime change’. In his foreign policy speech of 27 April 2016 Trump said: ‘Finally, I will work with our allies to reinvigorate Western values and institutions. Instead of trying to spread ‘universal values’ that not everyone shares, we should understand that strengthening and promoting Western civilization and its accomplishments will do more to inspire positive reforms around the world than military interventions.’ But again, such a change is already underway. There are many voices assuming that a significant amount of the state-building efforts in the last decade are not sustainable. Ever since the controversial military operation in Libya, China and Russia are highly critical of the concept of an international responsibility to protect since they fear R2P is used as a pretext for regime change. Discussions in the Institut de Droit International suggest that the concept of humanitarian intervention has not been established as a legally recognized exception to the prohibition of the use of force.

These developments do not imply that humanitarian concerns and human rights will not matter any longer but rather that we may see more clearly which of the interpretations furthered by what actors have crystalized into universally accepted legal rules and which relied on the power of the US and other Western States in the unipolar period of the 1990s. What was part of a certain historically contingent political discourse and what will remain as a legal rule in a medium-term perspective? Stephan Hopgood, for example, has argued that the remainder of the whole R2P debate will boil down to the concept of ‘civilian protection’.

Further challenges may be ahead for the most fundamental community interests of the international legal order. Trump apparently advocates a policy of closer co-operation with Russian President Putin. This is said to imply lifting sanctions against Russia despite the purported annexation of Crimea. If the United States under President Trump even recognized Russian sovereignty over Crimea, the symbolism of this act would entail severe negative repercussion for international law. After all, the United States introduced the 1932 Stimson doctrine on non-recognition into international law. It is still a central part to the whole complex of the prohibition of the use of force. A decision by the US to violate the duty of non-recognition would amplify the process of norm erosion in this field. Already in 2013, UN GA Res 68/262 calling upon states not to recognize any alterations of the status of Crimea was only passed with 100 yes-votes, 11 no-votes and 58 abstentions including Brazil, India, and South Africa.

A new power concert

If, finally, Trump’s America First approach should indeed signal the end of a US-led international (legal) order we might witness the emergence of a new power concert. Discourses on a multi- or zeropolar world had already foreshadowed such a development. After all, not only the approach of the US Administration will affect the global order, but also the manner in which other actors respond to it. China’s increasing willingness to influence international law-making processes and Russia’s policy in Eastern Europe are witnesses to changes which may foster the return of a balance of power model built on separate spheres of influence. It is telling that Trump’s 2016 foreign policy speech contains language reminiscent of the wording used in times of the international law of peaceful co-existence.

So, will the international legal order just turn ‘back to normal’? Were the last 25 years an historical exception, rather than the rule of a constant progressive development of international law? If this should be the case, at least there is no instant need to develop new legal institutions as in 1919 or 1945. The institutions and the law are there to deal even with a different global order and to restrain power within such a power concert. After all, the UN Charter was conceived for such a situation.