International Law and the Trump Administration

The Trump administration has conspicuously—and surprisingly—complied with international law during its first months. For example, yesterday’s climate order notably does not announce a withdrawal from the Paris Agreement, despite campaign promises to do so. Perhaps the Trump administration realizes that international law supports its policy positions on the South China Sea, North Korea, Iran, and on other vitally important issues. Or perhaps the President recognizes that the “art of the deal” rests upon a framework for generating compliance with deals—and that law, including international law, is an important way of doing so. Or maybe violations of international law will begin tomorrow. It is still too early to know for sure.

Nevertheless, the President’s record so far with respect to international legal obligations gives surprising reason for optimism, as the Paris Agreement illustrates. Consider the United Nations, to whichthe Trump administration has signaled it will cut funding dramatically. While doing so may have a variety of negative policy effects, the United States is not under a legal obligation to fund many of the programs that it currently does. In directing a re-assessment of funding to the United Nations, the Trump Administration has at times apparently distinguished between voluntary contributions, which are apparently slated for very large across the board cuts, and legally mandatory contributions, which may be evaluated differently. Even legally required contributions to peacekeeping operations, which total $2.5 billion annually, could be curtailed without violating U.S. legal commitments simply by reducing overall expenditures. Under-performing missions could be eliminated, thus bringing down the overall peacekeeping budget. This appears to be the approach the administration is taking.

To be sure, some Republicans have long favored curtailing mandatory U.S. funding to the United Nations, and the U.S. has been in arrears on its mandatory payments during various administrations, including under President Obama. Although full payment with U.N. obligations thus seems unlikely, nor is it a dramatic departure from past practice.

The administration did signal a retreat from future international legal obligations in a draft executive order declaring a moratorium on new multilateral treaties. But the moratorium, if imposed, would not be very significant in practice. The draft executive order would be to put a stop to new treaties, meaning international agreements approved by a supermajority of the Senate, with an exception for treaties implicating issues of “international concern”—such as national security, trade and extradition. But we have already seen a major slow-down in international agreements that successfully go through the advice and consent process in the Senate, which approved 20 treaties during the Obama administration and 163 treaties during the eight years of the Bush 43 administration. At most, President Trump will continue a trend that has been well underway for years.

Finally, the Trump administration has not violated international law, at least not yet. Here, the Paris Agreement, mentioned above, is the most important example. President Trump did withdraw from the Trans-Pacific Partnership, but that agreement had not entered into force. International law not only permits but sometimes requires withdrawal from a convention not yet in force; as long as a state remains a signatory, it cannot act contrary to the object and purpose of the treaty under Article 18 of the Vienna Convention on the Law of Treaties. Notably, both of the President’s executive orders on immigration contained language specifically designed to ensure compliance with U.S. international legal commitments such as those imposed by the Convention Against Torture. See, for example, article 12(e) of the March 6, 2017 order and Section 5(e) of the January 27, 2017 order. Whether or not these provisions bring (or brought) either of the immigration orders fully into compliance with international law is not entirely clear, but then again, their compliance with domestic constitutional law was and is not clear either.

Looking forward, it would also be possible for the President to withdraw from the international nuclear deal with Iran, known as the Joint Comprehensive Plan of Action, without violating international law, because that agreement is not legally binding. Similarly, yesterday’s executive order on climate change may all but ensure that the United States will not meet its pledges under the Paris Agreement, but failure to do so is not a violation of that Agreement. The Agreement does bind the United States to report on its emissions, to undergo international review, and to establish future benchmarks for emissions. These binding commitments fall short of requiring the United States to reduce emissions, but they are non-trivial, potentially significant obligations.

Jack Goldsmith recently argued that “we are witnessing the beginnings of the greatest presidential onslaught on international law and international institutions in American history.” In support, he cites numerous important developments including gutting of State Department capacity, the elimination of important domestic organizations related to international relations, and disengagement with international courts. It is true that formal compliance with international law, even if it does continue, may pale in overall significance when compared to these broader developments. But formal compliance with international law is important. And it also serves U.S. interests around the world, as we seek to ensure compliance with international law from countries such as North Korea, Russia, China, Iran, and others.