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Trump and International Law: Making Hegel Great Again?

by Ralph Janik

[Ralph Janik is a researcher at the University of Vienna Faculty of Law, Department of European, International and Comparative Law.]

The presidency of Donald Trump obviously has a manifest impact on international law. After all, he and his administration do not seem to be overly interested in observing international law. Does Trump’s “America First”-policy ultimately imply a comeback of Hegel’s conceptualization of international law as “external public law”?

Regardless of what one may think of him, Donald Trump is a phenomenon keeping virtually everyone with only the slightest interest in politics occupied. Researchers in a variety of fields can’t stop attempting to characterize him and his policies. A psychologist may elaborate on his narcissism, disagreeableness, and grandiosity (see this article in the Atlantic). From the perspective of international relations, most seem to think that he is simply erratic and mostly clueless while one may also distil a coherent Machiavellian foreign policy where unpredictability plays a key role. From a historical point of view, it makes sense to follow Walter Russell Mead’s classification of four types of US presidents by drawing parallels to Andrew Jackson. For an international lawyer, Trump may be described as an adherent of Hegel.

From Paris to Torture

At the outset, it does not seem as if Trump has a keen interest in international law and even less in observing it. Concerns regarding US participation in vital treaties and its adherence to international law in general that have been swirling around ever since the presidential race are currently rising to new heights (see e.g. this panel discussion with John B Bellinger III and Rosa Brooks). Some of the most important topics are the Paris Agreement, the Geneva Conventions, or the prohibition of torture.

As recently as end of January, a former climate change adviser of Donald Trump had stated that Trump “will definitely pull out of Paris climate change deal” and that an executive order could be expected shortly. Under international law, however, withdrawing from the Paris Agreement would be effective in 2020 while withdrawing from the UN Framework Convention on Climate Change entirely would take one year. It remains to be seen whether the US will comply with its obligations in the meantime considering that the Paris Agreement is silent when it comes to enforcement (see this blog post by Kate Birmingham Bontekoe).

Trump furthermore stated that “the soldiers are afraid to fight” because of the Geneva Conventions. At the same occasion, he also implicitly called for negative reciprocity in International Humanitarian Law (which is obviously unlawful; eg the preamble to Additional Protocol I states that it and the Geneva Convention “must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”) when stating that “[w]e can’t waterboard, but they can chop off heads […] I think we’ve got to make some changes, some adjustments.” He also repeatedly stated his belief in the efficiency of torture (“Absolutely I feel it works”).

In light of such statements, one cannot help but feeling taken back to the Bush era and the aftermath of 9/11. Interestingly enough, however, even two of the architects of what Jens David Ohlin described as an “Assault on International Law” and proponents of far-reaching executive powers, namely John Yoo or Eric Posner, have publicly stated that they are concerned because of Trump (I wonder whether Ohlin is currently contemplating a follow-up book).

Hegel and international law as “external public law”

Trump’s “America First”-policy, coupled with him openly questioning fundamental principles of international law seems to be based quasi-absolute understanding of sovereignty, where obligations of all sorts are often viewed as obstacles to national interest and national security.

This takes us back to the good old Monism vs. Dualism-debate. To sum up briefly, dualism purports that international law and public law are too different and entirely unconnected fields while monists assume that they are part of one and the same legal order, while the generally accepted view holds that sovereignty is restricted by the primacy of international law.

For Hegel, however, state law reigns supreme (see his Elements of the Philosophy of Right, §333). Like Emer de Vattel before him, he transposed the Hobbesian understanding of the state of nature to the international plane. In absence of an (international) Leviathan, the rights of states “are actualized not in a universal will with constitutional powers over them, but in their own particular wills.” Agreements are thus not binding in the strict sense but “tainted with contingency.” He tellingly termed international law as “external public law.”

Non-interventionism and Sovereignty

One may nevertheless argue that Trump has repeatedly shown flashes of non-interventionism and respect for a strict understanding of sovereignty similar to that of powerful traditionalist states like Russia or China. In his “America First” speech from April 2016 he emphasized his “desire to live peacefully and in friendship with Russia and China” and made clear that “war and aggression will not be my first instinct. You cannot have a foreign policy without diplomacy. A superpower understands that caution and restraint are really truly signs of strength.”

Yet, such amicable statements are arguably owed to political, not legal considerations. In this connection, it deserves to be mentioned that Hegel explicitly discussed Kant’s idea of perpetual peace by noting that it ultimately “presupposes an agreement between states” which “would always be dependent on particular sovereign wills.”

The denial of international law

Hegel’s monism is nowadays generally seen as a relic of the past. In particular Hans Kelsen, already in the first edition of his Pure Theory of Law from 1934, forcefully argued that “a monistic construction based on the primacy of the legal system of one’s own state is completely incompatible with the notion of plurality of coordinate states, equally ordered and legally separated from each other in their spheres of validity […] the primacy of the state legal system implies in the end not only the denial of the sovereignty of all other states, and thereby their legal existence as states (in terms of the dogma of sovereignty), but also the denial of international law.”

Trump offers yet another reason to engage with (international) legal theory (see also Andrea Bianchi’s blogpost). Judging from his first weeks in office, he seems to be following the footsteps of Hegel as a denier of international law. Knowingly or not, Trump is trying to make Hegel great again.

Trump and the UN

by Kristen Boon

Like most policy issues in his campaign, Trump’s references to the UN and multilateralism have been brief.   If one searches for Trump & the UN, the main hit are statements made in 2005 that he could do a much better job renovating the UN than the UN itself!

Apart from disparaging remarks about the Paris climate change agreement, the TPP, NATO and NAFTA made in the heat of the campaign, there has been no consistent message about multilateralism. Moreover, as Deborah noted in her post earlier this week, he has already (thankfully) retreated from some of these remarks.

To the extent we can make predictions at this point however, an observation in an IPI editorial last week has merit:   “a Trump presidency may challenge a post-World War II American record of establishing long-term global security alliances.”  Although the Trump World Tower is directly across the street from the UN, it seems unlikely it will be much of a pied-a-terre for real engagement with the UN.

At present, we know his top pick for UN ambassador is Richard Grenell, a former UN Spokesman and current media strategist.   His writings and thoughts on foreign policy are available here.  We also know Trump plans to pull the US out of the Paris Agreement that only entered into force in early November. Although Ban Ki Moon has gone on record to say that he is “sure [Trump] will understand …. [and] make a good and wise decision” and shift course on global warming and climate change, a source in the Trump campaign said it was “reckless” for the agreement to enter into force before the election.

There will be important reputational effects for the US as it seeks to withdraw from this treaty, particularly if the normal exit process is disregarded. That is to say nothing of the effect on the world’s climate. Moreover, the statement runs up against a basic tenet of international law that the legal entity in international law is the state, and the government is only the representative of the state.   The Obama Administration was clearly within its rights to sign the accord, and any “recklessless” must be attributed to Trump.    Unfortunately, Trump’s determination to upend the Iran deal may have a similar effect: destabilizing an important pact that took years to engineer while threatening to open up the nuclear race once again.

A few issues to watch as Trump takes over the presidency in the new year include the effect of a more like-minded approach between the US and Russia at the UN.   If Trump and Putin engineer a rapprochement, some of the recent deadlocks we have witnessed between the super-powers will evaporate, and may reinvigorate partnerships at the UN.   But what would this look like in practice? Less opposition to Russia’s expansionist tendencies?  Less use of the veto?   More opposition to references to human rights, protection of civilians in Security Council resolutions? Less activism? Shifting priorities for which regions the Security Council should engage with? Certainly for Syrians, the Trump presidency does not seem hopeful.   Yesterday Asad called Trump a natural ally in the fight against terrorism.

Moreover, institutions that challenge the US – take for example, the signal that the ICC may open an investigation into events in Afghanistan that implicate Americans – will both test his diplomatic mettle and provide easy fodder for critics of international institutions.   Trump’s relationship with the new Secretary General Antonio Guterres will also relevant. As both assume new leadership roles, their view on issues like migration and refugees could not be more diametrically opposed.  With two of the five P5 states (the UK and US) moving towards a more isolationist position, the global appetite for multilateralism has changed significantly, and the effects on dynamics within the UN will clearly be profound.

President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

Dualism is Overrated – As is Monism: A Response to Julian Ku

by Odile Ammann and Benedikt Pirker

[Odile Ammann is a PhD candidate at the University of Fribourg, Switzerland and a visiting researcher at the University of Oxford. Benedikt Pirker is a Senior Lecturer (Maître d’enseignement et de recherche) at the University of Fribourg, Switzerland, where he teaches and does research in international law and EU law.]

In his Opinio Juris blogpost of November 3, Julian Ku contends that “dualism may save the United Kingdom from Brexit.” To make this claim, he starts by emphasizing an alleged correlation between dualism and a State’s propensity to “violat[e] international law obligations by failing to enforce those obligations (usually treaties) domestically.” However, according to Ku, the decision of the High Court of Justice of England in Wales in Miller v Secretary of State for Exiting the European Union of November 3 tells us otherwise, namely that dualism “makes it harder [for a State] to withdraw from [its] international obligations.” Ku places an emphasis on the High Court’s statement that while the conduct of foreign affairs (and more specifically “the making and unmaking of treaties”) is a prerogative of the Crown, the Crown cannot change domestic law when making use of these powers. More specifically, the Crown, in using these powers, “cannot without the intervention of Parliament confer rights on individuals or deprive individuals of rights” (Miller, paragraphs 32 and 33; see also para. 89).

We argue that, contrary to Julian Ku’s assessment, dualism is overrated – as is monism, for that matter. In other terms, the domestic procedure that governs the State’s withdrawal from its international obligations does not hinge on whether a State is monist or dualist. It may be equally difficult (or easy) for dualist States to withdraw from (or to violate) their international obligations as for monist States.

Our response has three parts. First, we show that Miller is not a case about dualism. Instead, it addresses the question of the domestic procedure that applies when the State terminates an international agreement. Secondly, neither dualism nor monism encourage (or hamper) the State’s termination of its international obligations. In a third step, we draw an example to Switzerland to demonstrate that monism creates a number of challenges, too, as regards the termination of international agreements and, more generally, State compliance with international law. We also highlight the fact that the Swiss law on the termination of treaties is similar to the procedure identified by the High Court in Miller. In short, neither monism nor dualism encourage or discourage a State’s termination of its international obligations.

I. Miller v. Secretary of State is not a case about dualism

Some passages of the High Court’s decision in Miller could indeed suggest that the case is about dualism. Besides stressing that 1. the Crown cannot, when exercising her prerogative powers to make or unmake treaties, unilaterally change domestic law (para. 32), the High Court notes that 2. domestic courts do not have the power to interpret international law, since “treaties […] are not self-executing,” (para. 33) and 3. that domestic courts cannot examine the legality of the Crown’s exercise of her prerogative powers (para. 33).

Only the second point is a consequence of dualism, however. The issue at stake in Miller does not pertain to the relationship between domestic law and international law, of which monism/dualism is only one aspect besides the issue of rank and direct effect (three distinct issues that are often conflated in practice). Nor is the question one of international law (e.g. the question of the UK’s right under international law to withdraw from the EU), as the Court rightly clarifies (para. 55 f). Rather, and as Aurel Sari’s response to Julian Ku’s post already convincingly suggests, the High Court’s decision is mainly concerned about determining the appropriate domestic procedure to trigger art. 50 of the Treaty on European Union – a procedure that does not hinge on whether a given State is monist or dualist, but rather on the domestic separation of powers.

Ku’s post is pointing at a conjunction of two facts: first, due to dualism, the United Kingdom’s treaty obligations need to be implemented by a domestic statute in order to be valid in the domestic legal order; second, under UK constitutional law, this domestic statute then takes on a life of its own, as the Crown cannot alter it unilaterally. This second point, however, is not a logical consequence of dualism. Dualism per se does not make it more difficult for a State to alter its international obligations. In monist States, domestic law may create similar hurdles, as the Swiss example shows (below, III.). 

II. Neither monism nor dualism allow inferences as to the termination of international obligations under domestic law

As Ku notes, most of us have, at some point, read that dualism encourages violations of international law, while monism is conducive to compliance with international law. However, such phrases spark confusion instead of providing clarity, and they do so for a number of reasons.

To begin with, the notion of “compliance with international law” is indeterminate, especially given the absence of an international court with general jurisdiction that could clarify what States’ international obligations require in practice. Second, monism and dualism pertain to the conditions under which an international legal obligation takes effect in the domestic legal order, but have no bearing on whether State organs 1. actually apply international law (or, in dualist States, the version thereof transposed into domestic law), 2. interpret domestic law in conformity with international law, so as to avoid normative conflicts, and 3. grant international law direct effect. Courts in monist States may be reluctant to apply international law, they may emphasize rather than downplay or avoid conflicts between domestic and international law, and they may refuse to grant international law direct effect – and vice versa. In other terms, monism or dualism should not be taken to mean more than they actually do. Thirdly, the distinction between monism and dualism is not an on-off-switch: rather, it allows for a range of intermediary forms, and whether a State is monist or dualist can vary depending on the norm, source and substantive area of international law that is at stake. One example is what Melissa Waters calls “creeping monism,” i.e. the tendency of some courts in dualist States to rely on international human rights treaties although these treaties have not been incorporated into domestic law.

Importantly, the fact that a State is dualist or monist allows no inference as to the domestic procedure that applies to the termination of international agreements. As a matter of fact, a dualist State may have an analogous procedure to a monist one, as is the case of the United Kingdom and Switzerland (below).

III. A Brief Comparison with Swiss Monism

Neither dualism nor monism have a bearing on the procedure through which States can enter into international legal obligations and withdraw from them under domestic law. Switzerland provides an illustration of this. It also shows that monism does not necessarily go along with compliance with international law (taking into account the fact that the notion of compliance leaves room for indeterminacy, see above, II.). Switzerland is a monist State: contrary to the United Kingdom, international treaties do not require to be transposed into Swiss law to have effect in the Swiss legal order.

First, the Swiss case illustrates that monism does not ensure compliance with international law. Under Swiss law, constitutional amendments must only respect “peremptory norms of international law”, while they can conflict with non-peremptory norms. This risk has materialized through a number of popular votes that have triggered constitutional amendments, while conflicting with some of Switzerland’s international obligations. Moreover, due to the special system of judicial and constitutional review in place in Switzerland, federal laws that conflict with international law must in principle be applied by the courts (art. 190 of the Swiss Constitution). The Swiss Federal Tribunal accepts that domestic laws enacted with full legislative intent to deviate from international obligations take precedence over such obligations (so-called Schubert practice), although the Tribunal has later created some exceptions to this rule, e.g. in the case of domestic laws conflicting with obligations of international human rights law or under the Swiss-EU Agreement on the Free Movement of Persons.

Second, monist and dualist States may have (at least in some respects) analogous laws as regards the domestic procedure to enter into international agreements. In Switzerland, for instance, the federal government has the competence to enter into some international treaties, considered to be “of limited scope” (art. 7a para. 2 and 3 of the Federal Government and Administration Organization Act, FGAO), without an intervention of the federal parliament. In spite of the fact that Switzerland is monist, this competence has proven controversial in some instances. One example pertains to the so-called “UBS-Agreement” of August 19, 2009, initially concluded by the federal government based on its independent powers. Shortly after the Swiss Federal Administrative Court had found that the treaty would have required the approval of the federal parliament, the parliament, in a somewhat awkward pirouette, approved the treaty a posteriori.

Moreover, and notwithstanding the monism of the Swiss legal order, the issue of which authority has the power to terminate international agreements remains unclear (see e.g. Blum/Nägeli/Peters (BNP); Keller/Balazs). Some authors argue that treaties of limited scope can be terminated unilaterally by the Swiss government, while a flexible approach with parliamentary approval is advocated fort he case of „important“ treaties (BNP, S. 542 f.). Other authors consider that parliamentary approval is always required in the context of treaty termination (see the references in Keller/Balazs, footnote 107).

The possibility of terminating international agreements is often raised in the Swiss political debate (see e.g. BNP, p. 552 with further references). Already in 1988, Swiss parliamentarian Hans Danioth requested the federal government to consider withdrawing from the European Convention on Human Rights, and even as Switzerland was celebrating its 40th anniversary of ECHR ratification, some members of the federal government and of the federal parliament were still advocating withdrawal, even if their views were isolated. Swiss voters will soon be required to express their opinion on a proposed constitutional amendment based on which existing international agreements that conflict with the Swiss Constitution must be renegotiated or terminated. On the other hand, the question as to whether a specific international agreement should be terminated is rarely explicitly put to vote, presumably due to its political sensitivity and, hence, of its slight chances of succeeding at the ballot box. The practice of some political parties to avoid the issue of termination, while triggering votes that may eventually require a renegotiation of international agreements, is criticized by some as a way of misleading voters (see e.g. BNP, p. 557).

The Swiss popular vote of February 9, 2014 “against mass immigration” shows that in practice, dualist States like the UK face similar challenges as monist States. The vote led to a constitutional amendment pursuant to which immigration must be subjected to quantitative restrictions – a regulation that flies in the face of the Swiss-EU Agreement on the Free Movement of Persons. While a “Switzerleave” is not up for discussion given that Switzerland is not an EU member, the federal government has three months left to renegotiate its Agreement on Free Movement with the EU – a situation that British negotiators may find eerily familiar.

To conclude, the power of dualism to act as a safeguard against Brexit (or, more generally, against States withdrawing from their international obligations) is overrated – as is monism. What is decisive in this regard are the mechanisms in domestic law to anticipate and address conflicts between domestic and international law. In this respect (and despite the obvious differences that exist between their respective legal orders and the international obligations they have taken on), Switzerland and the UK might well have things to learn from one another in the course of the next few months.

Trump and International Human Rights #1: The Man and the Government

by Peggy McGuinness

As I recover from the gut-punch delivered last Tuesday, I plan to get back to blogging – something I have put aside for other priorities in the past years. The times and the issues are urgent, and I am anxious to engage with our readers and colleagues around the world at what I see as an extremely fragile period for the U.S. and the globe.  Trump is not a normal president-elect, and we are not in normal times.  In that spirit I plan to resist attempts to normalize Trump. This will the first in an ongoing series on the Trump transition and US engagement with international human rights.

For over 40 years, the U.S. has maintained a bipartisan commitment to the promotion of human rights around the globe.  The depth and the breadth of that commitment has, to borrow a phrase from President Obama, zigged and zagged.  It has bent to presidential national security policies and priorities, and the scope of what is meant by “human rights” has been subject to ideological interpretation by particular administrations.  But a commitment to the broad international project of human rights has remained a constant and ingrained feature of U.S. foreign policy.  Will President-elect Trump – who campaigned on a deeply isolationist rhetoric that explicitly disclaimed an interest in the human rights practices of other states – maintain this commitment?  It will take some time to fully understand the implications of a Trump presidency on US human rights policy, but I want to start by discussing two dimensions to U.S. foreign policy engagement with international human rights:  presidential policy and the human rights bureaucracy.

Let’s be frank:  We have no idea what Trump’s “policy” on human rights – or much else for that matter – will be, since he campaigned on virtually no policies in the traditional sense.  So we start with Trump himself.  We know that he is a man who has acted and spoken as a bigot, sexist and misogynist.  He is a man who admires authoritarian and anti-democratic regimes.  He is a man who has – at least implicitly if not explicitly – emboldened racists and anti-Semites among his supporters, groups that are a very small but sadly resilient element of American politics.  And he has among his closest advisers leaders of the so-called alt-right movement that fuels vile conspiracy theories, including the racist “birtherism” movement against President Obama that Trump himself used as the platform that launched his political campaign.  He has never, as far as I am aware, in his long public life, expressed genuine empathy or concern for the suffering of others.  And the scope of his business interests, the details of which remain largely undisclosed, poise him to embody as president the kind of personal corruption and conflicts of interest that the U.S. usually makes the focus of its anti-corruption and good governance efforts. He has acted and spoken in ways that would subject him, quite properly, to criticism and condemnation by the U.S. government if he were a foreign leader.  Trump, the man, is no defender of human rights.  At best, Trump is an empty vessel, a self-absorbed “bullshit artist” (hat tip:  Fareed Zakaria). At worst, Trump’s contempt for democratic norms and institutions poses a serious danger to American democracy and his rhetoric and behavior will completely undermine the ability of the U.S. to speak with any authority – moral or otherwise —  on questions of human rights.

Given the range of possibilities here, my first question is whether Trump can be constrained, in the ways Michael Glennon argues all presidents are constrained(and in the way Deborah suggested earlier), by the institutions of the government he will lead?  Throughout the executive branch, at the Departments of State, Defense, Homeland Security, Labor, Commerce and Justice, as well as the intelligence agencies and the national security staff at the White House, hundreds of lawyers, diplomats and other government officials monitor and report on the human rights practices of governments all over the world.  Hundreds more work on creating, funding and implementing projects designed to promote human rights, democracy and the rule of law .  This federal “bureaucracy of international human rights” cannot be easily or swiftly dismantled.  The central human rights institutions and networks within the Executive Branch (the Bureau of Human Rights Democracy and Labor, for example) are creatures of statute and of congressional funding priorities.  And it is not clear the Republican House or Senate are interested in eliminating or restructuring of these.  Keep in mind that funding for democracy promotion and other rule of law programs was a favorite of the George W. Bush administration.

The Republican party platform suggests that one dimension of the US commitment to human rights may receive special attention: International Religious Freedom. The US Commission on International Religious Freedom – a favorite of the evangelical right — will continue to be funded, and the platform further states:

At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada* threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

(*I am not familiar with the anti-religion policies in Canada that are referenced here, but maybe a reader can help me out.)  This is a robust statement in favor of reinforcing the UDHR and ICCPR rights that are mentioned in the 1998 International Religious Freedom Act, the statute that created both USCIRF and the office of International Religious Freedom at the State Department. But it also includes some strong language regarding genocide that would trigger  U.S. obligations under the Genocide Convention.  The platform goes on to endorse continuing engagement on anti-human trafficking programs (and, presumably, continuing the annual trafficking report required by Congress).  As to the broader question of human rights diplomacy, the platform states:

The United States needs a radical rethinking of our human rights diplomacy. A Republican administration will adopt a “whole of government” approach to protect fundamental freedoms globally, one where pressing human rights and rule of law issues are integrated at every appropriate level of our bilateral relationships and strategic decisionmaking. Republican policy will reflect the fact that the health of the U.S. economy and environment, the safety of our food and drug supplies, the security of our investments and personal information in cyberspace, and the stability and security of the oceans will increasingly depend on allowing the free flow of news and information and developing an independent judiciary and civil society in countries with repressive governments such as China, Russia, and many nations in the Middle East and Africa. 

Supporting rule of law projects that promote the “free flow of news and information” and develop “an independent judiciary and civil society” is precisely what the human rights bureaucracy within the Executive has been doing for at least three decades under presidents of both parties.  But if the Republicans want to pitch this as a “radical rethinking,” that’s fine by me.  (They may even want to share their view on a free press with the President elect.)

Taken together, I think it unlikely that the Trump administration will dismantle the bureaucracy of human rights – at least not soon, and certainly not in areas that are important to the Republican Congress.  But unlike the national security functions whose purpose lies at the heart of immediate security and safety of the American people, the human rights bureaucracy can be deeply damaged by the tone and priorities set by the President and his key foreign policy appointees – State, Nat’l Security Adviser, DHS, and the UN Ambassador, among others.  And of course, more than ever, the actual human rights practices of the U.S. at home – issues of domestic rule of law, criminal justice, gender equality, LGBT rights – will either strengthen or weaken the ability of the U.S. to practice human rights diplomacy abroad.  Appointments at the Dept. of Justice and nominees for the bench will send the clearest signal on that front.

 

 

 

The Unknown Unknowns

by Deborah Pearlstein

While I would like to be able to offer some meaningful insight into what we might expect from the foreign policy of Donald Trump, I don’t think it’s possible to overstate at this stage the depth of current uncertainty surrounding what he will actually do. Part of this uncertainty is a function of his preternatural ability to take every position on every topic. (Latest case in point: After Trump repeatedly criticized NATO as overpriced and obsolete over the course of his campaign, we learned from President Obama today that Trump assured the President in their oval office meeting that “there is no weakening” in America’s commitment “toward maintaining a strong and robust NATO alliance.”) Another part of the uncertainty flows from the apparent depth of Trump’s own ignorance of the possibilities of the executive branch. (Again only the most recent example, the Sunday Wall Street Journal reported of Trump’s meeting with President Obama: “Mr. Trump seemed surprised by the scope [of the duties of running the country], said people familiar with the meeting. Trump aides were described by those people as unaware that the entire presidential staff working in the West Wing had to be replaced at the end of Mr. Obama’s term.”)

And then there is the scope and strength of the federal bureaucracy – the career professional staffs of the Departments of State, Defense, Justice, Homeland Security, the intelligence agencies, and more – who, to judge by both newspaper reporting and my entirely non-scientific and idiosyncratic Facebook feed, are grappling mightily with whether to stay or go in the face of extraordinary new leadership. As U.S. Presidents have found time and again (and as I’ve written about in the context of the military in particular, e.g., here), this apparatus makes it difficult sharply to turn the ship of state even with the clearest of intentions and the greatest of bureaucratic skill. There is little indication (as yet) that the incoming administration has either. This is hardly intended to offer comfort or reassurance; I am incapable of greeting with anything but dread the election of a President who has, for example, openly advocated policies that would violate the law – including torturing prisoners with waterboarding “and a lot worse,” and killing the families of those he thinks threaten the United States. It is intended as a check on my own worst speculative instincts. And as a plea to those who are part of that apparatus to start out, at least, by trying to stay.

Homage to California? (More on What Calexit Teaches Us About Secessionist Movements)

by Chris Borgen

Law professors should not be political prognosticators.  That’s probably something on which we can all agree.  Nonetheless, here’s my prediction: despite the current buzz (see also, this), California will not secede from the United States. Sorry, Silicon Valley Hamiltons.  However, the “Yes California” movement, spurred on by a Trump presidential victory can be instructive on the law,  psychology, and incentives behind more robust secessionist movements around the world.

As Julian mentioned in a post earlier today, the “#Calexit”  movement is seeking a referendum on secession in 2019.  The  group’s website states:

“As the sixth largest economy in the world, California is more economically powerful than France and has a population larger than Poland. Point by point, California compares and competes with countries, not just the 49 other states.”

In our view, the United States of America represents so many things that conflict with Californian values, and our continued statehood means California will continue subsidizing the other states to our own detriment, and to the detriment of our children.

Although charity is part of our culture, when you consider that California’s infrastructure is falling apart, our public schools are ranked among the worst in the entire country, we have the highest number of homeless persons living without shelter and other basic necessities, poverty rates remain high, income inequality continues to expand, and we must often borrow money from the future to provide services for today, now is not the time for charity.

This statement, and much about the movement, is like a study in secessionist politics, albeit with a sun-kissed white wine and Jacuzzis twist.  OK, that Jacuzzi quip may be snarky, but I wanted to attach an image to this idea: the yearning for Calexit, such as it is, is an example of a wish for a “secession of the successful” (to use a term political geographers John O’Loughlin, Gerard Toal, and Rebecca Chamberlain-Creanga used to describe the attempted  Transnistrian secession from Moldova, actually). These types of separatist movements, in which the separating group wants to stop paying rents to the central government and/or keep resources within their own territory for themselves, are generally called “tax exits.”

The Transnistrian, Slovenian, and Croatian separations or or attempted secessions all had elements of tax exits. (See P. Collier & A. Hoeffler, ‘The Political Economy of Secession’, in H. Hannum & E. F. Babbitt (eds), Negotiating Self Determination (2006), 46 (concerning Slovenia and Croatia)). This is not even a solely a phenomenon of nation-building.  In the U.S., we have even had new towns made up of wealthy neighborhoods that separated themselves from existing municipalities over tax allocations.

Perhaps the best analogy, though, is Catalonia.  Relatively wealthy,  a large export economy, and the hub of creative industries in Spain, Catalonia even looks like parts of California (or vice versa). A common complaint is that wealth generated in Catalonia is redistributed by the national government to regions that are economically weak.

Now, here’s what the Calexiters argue:

Since 1987, California has been subsidizing the other states at a loss of tens and sometimes hundreds of billions of dollars in a single fiscal year. As a result, we are often forced to raise taxes and charge fees in California, and borrow money from the future to make up the difference. This is partly why California presently has some of the highest taxes in the country, and so much debt. Independence means that all of our taxes will be kept in California based on the priorities we set, and we will be able to do so while repaying our debts and phasing out the current state income tax.

You can’t state more clearly that a tax exit is a significant motivating factor for Calexit.

So, if a majority of Californians say “yes to California,” do they have a right to become their own country under domestic law or international law?

Julian answered the domestic law question in his post.

As for international law, the right to self-determination is described in Article 1 of both the International Covenant of Civil and Political Rights Covenant and the International Covenant on Economic, Social and Cultural Rights:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, while Catalans, for example, can make a credible argument that they are a distinct people with their own language and culture and a heritage as a significant nation in European history, Calexiters are mainly upset about the recent election and would like to hang on to more tax revenues.  Those are disputes over policy, but not claims of an independent national identity.

Regardless, since the birth of the United Nations, diplomats and jurists emphasized that a right of self-determination does not provide a remedy of secession outside of the context of decolonization. A broad right to secession would have clashed with a cornerstone of the UN, the territorial integrity of states. Outside of the context of decolonization, the right of self-determination for communities that are within already existing states is understood as a right to “internal” self-determination: the pursuit of political, cultural, linguistic, and other rights within the existing state (in this case, the U.S.).

However, secession is not in and of itself illegal under international law (although it may be linked to an act that is breach in international law, such as a military intervention by another state: think Russia invading Georgia to assist South Ossetia.)

While secession may be neither a right nor illegal under international law, secessionist acts are usually illegal under domestic laws.  Taken together, whether or not a secession is successful begins as a domestic political struggle, framed by the legal system of the pre-existing country and sometimes implicating international law due to intervention by other countries (or if the secession becomes a non-international armed conflict, but that’s another story).

All this sounds quite exotic in the context of some tech industry founders applying their credo of “disruption” to national politics. (I’m just waiting for the first Calexiter to say he or she aims to “break shit.”)  The short answer is that there is no right for California to secede under either domestic or international law.

However, the rhetoric of self-determination is enticing to would-be nation-builders and Calexiters make many of the same mistakes as other tax exit secessionists:

First, they assume there is a clear path to secession, when that is rarely the case.  Talk to the Catalans about this.  They have mustered hundreds of thousands of people in the streets in (more…)

Would Secession by California and Oregon Be Legal?

by Julian Ku

imgresFollowing Donald Trump’s stunning election victory, ballot measures are already being proposed in California and Oregon to secede from the United States.  Ordinarily, one can just chuckle at these measures as the actions of a radical fringe, but it would be hard to overestimate the depth of anger and opposition to a President Trump in states like California, where he lost by probably 20 percentage points.  If such a measure got on the ballot, we might see a serious campaign akin to Scotland’s 2014 referendum on staying in the United Kingdom.

But it seems settled under US constitutional law that unilateral secession from the United States is unconstitutional.  In the 1869 case Texas v. White, the U.S. Supreme Court ruled:

When Texas became one of the United States, she entered into an indissoluble relation. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Some might argue, however, that a unilateral secession by California is authorized by the international law right of self-determination.  This is a much more difficult point to analyze, but I think that neither California nor Oregon would qualify to exercise this murky international law right, at least with respect to seceding.  The Canada Supreme Court’s decision in the Quebec case is probably most on point here.

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity.

In other words, international law guarantees to every state its “territorial integrity” and it can’t be overridden by “self determination” unless serious freedoms or discrimination against residents in the seceding region are being infringed.  Moreover, this right has generally only been exercised by states under colonization or foreign occupation.  The right might also exist if the state is facing the threat of egregious human rights violations (e.g. Kosovo), but the right in even that circumstance is controversial globally.

But I will admit I am not an expert on the international law of self-determination. If anyone has a good argument for why California or Oregon qualifies to exercise this right under international law, please feel free to share in the comments.

So I am going to go out on a limb here to say that a referendum to secede California or Oregon from the United States is both unconstitutional and unauthorized by international law.  Still, just getting such a measure on the ballot would be significant because they would force the U.S. government to take a position on the legality of such measures. This could affect US government positions on foreign self-determination movements in places like Hong Kong, for instance.

We live in interesting (and dangerous) times.

Opinio Juris and the Trump Presidency

by Chris Borgen

A couple of weeks ago a group of Opinio Juris bloggers held a round-table discussion at St. John’s University Law School about the international law and policy issues facing the next American President. In front of a full room, we considered issues ranging from relations with China and Russia, to the future of national security policy, human rights, international trade agreements and the UN.  We fielded questions from the audience, went past our scheduled closing time, and still had not answered all the questions in the room. It was clear that there is a need and a desire for intelligent discussion on these and other issues of international law and U.S. policy. There were, and are, significant questions of law and policy before the American public.

Now we know who the next President will be. Sustained and informed commentary about international law and the United States’ role in the world has never been more relevant.  We founded Opinio Juris as a forum for engaged and intelligent discussion on a broad range of international legal issues.  We have fostered a dialogue with voices from varying political, legal, and national perspectives. Among the hundreds (if not thousands) of issues we have covered, we have had commentary by sitting Department of State Legal Advisers on Bush Administration policies in the War on Terror and also concerning the U.S. operation against Osama Bin Laden during  the Obama Administration, as well as expert observations from the negotiations in Paris leading to the climate change agreement (see, for example, 1 and 2), examinations of the development of international criminal law, analyses of the  work of international courts and tribunals, emerging technologies and international law, and conversations about U.S. policy on the conflict in Syria. For the last eleven years we have tried to reflect upon the breadth and depth of international law and policy.

As the U.S. begins its transition into what will be the Trump Administration, we will continue to provide commentary that is informed by expertise in international law and is engaged with the policy debates of our time. A brief scan of the list of initiatives Donald Trump listed in October as the priorities for his first 100 days in office is full of international legal implications. He stated that on his first day in office, among other things:

* FIRST, I will announce my intention to renegotiate NAFTA or withdraw from the deal under Article 2205

* SECOND, I will announce our withdrawal from the Trans-Pacific Partnership

* THIRD, I will direct my Secretary of the Treasury to label China a currency manipulator

* FOURTH, I will direct the Secretary of Commerce and U.S. Trade Representative to identify all foreign trading abuses that unfairly impact American workers and direct them to use every tool under American and international law to end those abuses immediately…

* SEVENTH, cancel billions in payments to U.N. climate change programs and use the money to fix America’s water and environmental infrastructure

Additionally, on the first day, I will take the following five actions to restore security and the constitutional rule of law:

* FIRST, cancel every unconstitutional executive action, memorandum and order issued by President Obama

* SECOND, begin the process of selecting a replacement for Justice Scalia from one of the 20 judges on my list, who will uphold and defend the Constitution of the United States

* THIRD, cancel all federal funding to Sanctuary Cities

* FOURTH, begin removing the more than 2 million criminal illegal immigrants from the country and cancel visas to foreign countries that won’t take them back

* FIFTH, suspend immigration from terror-prone regions where vetting cannot safely occur. All vetting of people coming into our country will be considered extreme vetting.

This is only part of the list. For example, other statements from President-elect Trump or his surrogates have concerned whether the new administration would honor U.S. obligations under the Geneva Conventions and international humanitarian law, the future of NATO, and commitments to address climate change, to take three examples.  As the transition proceeds and President-elect Trump’s actual agenda takes shape, we will assess and address the international legal issues implicated by his proposals and stances. More generally, we will continue to thoughtfully consider the expansive international legal and policy issues facing the U.S. We hope to add to an informed public discourse.

We started this website as a forum for debate and discussion about international law and policy. Almost 10,000 posts later, this conversation has never been more important and we look forward to hearing what you have to say in the days and weeks to come.

How President Obama Gave President-elect Trump the Power to Undo the Iran Deal and Paris Agreement

by Julian Ku

As regular readers of this blog probably guessed, I did not support Donald Trump for President (I didn’t support Hillary Clinton either, but that’s another story). I did, however, take the possibility of his election seriously and published a couple of posts (see this one here) analyzing the legal issues raised by his campaign promises to withdraw from existing U.S. international agreements such as the Iran Nuclear Deal, the Paris Climate Change Agreement, and the North American Free Trade Agreement.

In general, I concluded in my prior posts that President-elect Trump has the clear constitutional authority to withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement without seeking the approval of Congress.  It is somewhat less clear, but it is certainly possible that a President-elect Trump has the constitutional authority to withdraw from trade agreements like NAFTA without Congress, but that is less certain.

It is important to keep in mind that the reason a President Trump can unilaterally withdraw from the Iran Nuclear Deal and the Paris Climate Change Agreement is that President Obama chose to avoid submitting either agreement to Congress or the Senate for approval.  Indeed, President Obama’s lawyers went even farther to clarify that the Iran Nuclear Deal was a nonbinding political agreement and that the emissions targets in the Paris Climate Change Agreement were also legally nonbinding.

This important concession was made to avoid any need to submit these controversial agreements to approval by a (very) hostile Congress.  At the time, the legal sophistication and dexterity of the Obama team’s strategy was lauded, and I supported their legal position even though I disagreed with the policies embodied in the agreements.  But I warned that the cleverness of their legal positions came at a price: a future President could unilaterally undue both agreements without the approval of Congress and without even incurring US violations of those agreements since both are largely legally nonbinding.

Well, the day to pay the cost of this strategy is at hand.  Trump has won the presidency and there is no legal obstacle to his unilateral reversal of two of President Obama’s signature foreign policy achievements.  No filibuster will save them. And President Obama will have no one to blame but himself and his legal team for this fact.

The larger lesson from this saga is that legal rules and processes matter more than even we lawyers acknowledge.  A smart political achievement that cuts the corners on the law will come at a cost.  Past and future presidents should probably keep this in mind.

New Report on European Counterterrorism Practice

by Deborah Pearlstein

Anthony Dworkin, a senior policy fellow at the European Council on Foreign Relations, has an interesting new report out about developing ways in which European governments are using force abroad to combat the threat of terrorism of various sorts. The study is full of useful data points so is worth reading in its entirety, but I write here briefly to emphasize a conclusion it does not reach. The way the study is pitched at the outset of Dworkin’s blog post about its issuance – emphasizing the convergence of U.S. and European counterterror legal theories – those reading quickly might imagine it to support the view that various European powers have at long last embraced the United States’ novel post-9/11 legal theory of a global, non-international armed conflict (NIAC) against Al Qaeda, the Taliban and associated forces. But the study itself makes clear that while France and Britain, for instance, have come to use force in Syria and Iraq for various reasons, it is not the case that their engagement in this conflict reflects an acceptance of the concept of a global NIAC. See, for example, this section:

“In one important respect, however, European governments involved in counter-terror wars have stopped short of the expansive legal position adopted by the United States. EU member states (including France, despite the rhetoric used by government officials) are united in rejecting the notion of a single transnational armed conflict with the ISIS or al-Qaeda network. In the words of one British official, they continue to treat these terrorist groups as presenting a series of ‘specific threats in specific locations….’ This approach reflects both a strategic view about the most effective approach to fighting terrorist organisations and a legal analysis that rejects the notion of a geographically unbounded armed conflict against a non-state group.”

Recent practice of a few European states to be sure bear on other important questions of, for example, the extent of the embrace of the U.S. “unwilling or unable” theory of overcoming sovereignty objections to the use of force; and, for example, how international human rights law is thought to inform state use of force in self-defense against terrorist groups. But those looking for evidence of European support for the existence of such a thing as a transnational NIAC won’t find it here.

International Law and the U.S. Election: Trumpxit, Syria and State Marijuana Laws

by Julian Ku

Those of us here in the US are pretty obsessed with tomorrow’s U.S. presidential election (and from what I can tell, those of you outside the States are pretty interested as well). International law has not been a huge issue in the election, but I do think tomorrow’s result could have at least three big impacts on the international legal system.

Trumpxit

As I have noted in earlier posts, Republican nominee Donald Trump has been notable for pledging to renegotiate and possibly terminate numerous U.S. international agreements.  Most clearly, he has pledged to withdraw from the Paris Climate Change Agreement and the Iran Nuclear Agreement. He has also pledged at various times to withdraw from the North American Free Trade Agreement, the US-Japan Defense Treaty, and the North Atlantic Treaty Organization.

As a legal matter, there is no doubt in my mind that a President Trump would have the legal power to terminate the Paris Agreement and the Iran Agreement on his first day in office without any authorization by Congress.  Both of those agreements were concluded as sole executive agreements, and most of the provisions are also legally nonbinding political agreements.

I also think that under existing US precedent, a President Trump could unilaterally terminate US participation in NATO and the US-Japan Defense Treaty.  As I noted earlier, the US Supreme Court in Goldwater v. Carter refused to block a similar presidential termination of the US-Republic of China (Taiwan) Defense treaty and although that case is not entirely clear, it seems likely that the president can do this on his own.

As I also noted, however, it is much less clear if the President can unilaterally withdraw from NAFTA and other trade agreements because those agreements have been codified by statute.  This would raise the “Brexit” scenario currently embroiling the UK.

In any event, I think “Trumpxit” is probably one of the biggest consequences of electing the GOP nominee because his powers in this area are largely unilateral and do not require Congress.

US Military Action in Syria

As Deborah has explained on this blog in recent weeks, the US is currently engaged in some sort of “armed conflict” in Syria that doesn’t seem to clearly fit into the Geneva Convention’s categories for either international or non-international armed conflicts.  On a domestic legal front, the US Congress has not specifically authorized the action in Syria as well, making its domestic legality questionable at the very least.

The next President will have to decide how to frame the Syria conflict under international and US constitutional law. My guess is that both Clinton and Trump would follow the Obama approach of treating the conflict as a non-international armed conflict against the Islamic State that is authorized by the 2001 congressional authorization for the use of force.  But this is something the next President will have to engage with seriously, since there continue to be serious doubts about the legality of US actions in Syria.

More US Violations of Drug Control Treaty

Five more US states have referenda tomorrow to legalize recreational marijuana.  If approved, this would mean nine US states plus the District of Columbia have legalized recreational marijuana, and many more have legalized medical marijuana.

It seems clear that continued non-federal enforcement of marijuana prohibitions in these states would violate US obligations under drug control treaties.  There are at least three that arguably conflict with legalized marijuana: The 1961 Single Convention on Narcotic Drugs, the 1971 Convention on Psychotropic Substances, and the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.  As this fine Brookings Institution report notes, the US is going to be in clear violation of these treaties soon and needs to renegotiate them to accommodate US state laws.  Presumably, this is on the agenda of the next President (low on the agenda, but on there somewhere).

Ratification of the Law of the Sea Treaty

Most projections indicate the US Senate will remain deeply divided (maybe even 50/50) between Democrats and Republicans.  If so, I don’t think there is a high likelihood that proponents of US ratification of the UN Convention for the Law of the Sea will have enough votes to push it over the 67 vote threshold.  We may see another effort, however, if the Democrats unexpectedly pick up a strong majority of seats (say in the 53 plus range).  There continues to be strong support in the US Navy and in US energy circles for US ratification so it is still on the agenda.

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I am sure I am missing a few issues. Readers should feel free to add in the comments any other international law issues that are likely to be affected by tomorrow’s results.