During the 2016 presidential campaign, Donald Trump waged a rhetorical assault against the United States’ international legal commitments. Trump repeatedly claimed that he would tear up many international treaties—including the Iran Nuclear deal and all trade deals—and he also said he would adopt policies that would clearly violate other agreements—like promising to torture the families of terrorists. If Trump actually followed through on these promises, it would constitute a major break in the United States’ approach to international law. Which is why it’s worth asking at the end of his first 100 days: has Donald Trump’s promised assault on international law materialized?
I. Participation in International Institutions
Trump continues to say he will reduce the United States’ participation in international institutions. Two specific developments are worth noting. First, Trump’s budget proposal includes large cuts in America’s funding of international institutions. Specifically, the so called “skinny budget” released by the Trump administration calls for a 28% reduction in funding to international organizations. Since the proposal spares some defense-related spending—including funds to NATO and security assistant to Israel—the United Nations, OECD, and other organizations may suffer substantially larger cuts than 28%. Second, Trump has de-emphasized the State Department in a number of ways that could hamper the United States’ capacity for diplomacy and participation in international organizations. More concretely, failing to fill senior posts within the department and calling for dramatic cuts in the State Department’s budget.
Although the United States’ level of participation in, and provision of funding for, international organizations has waxed and waned over time, Trump’s requested cuts are dramatic. That said, it is possible that the cuts will not be fully enacted by Congress or that the administration will later back off from this strong position. In the first 100 days, however, Trump has continued to press his campaign promises to reduce the United States’ level of participation in international organizations.
II. International Economic Law
Trump is also continuing with his promise to change the United States’ approach to international economic law. One of Trump’s first moves after assuming office was to withdraw from a major regional trade agreement negotiated, but not ratified, during the Obama presidency known as the Trans-Pacific Partnership. The Trump administration is pushing forward with plans to renegotiate the North American Free Trade Agreement (“NAFTA”), and released a policy saying that it would focus on pursuing bilateral negotiations instead of large multilateral negotiations. There have also been announcements that existing agreements will be more aggressively enforced. Finally, the administration has announced that it may not comply with adverse World Trade Organization decisions and that it will explore ways to try to bypass the international adjudication the WTO offers when disputes with other nations arise.
This trade-policy agenda departs from prior administrations’ approaches to international economic law. Both Republican and Democratic administrations have pursued multilateral trade deals, so the rejection of the TPP and the policy to stop negotiating future multilateral treaties is a major change. A few caveats are worth making, however. First, it is possible that the policies that end up actually enacted will be less radical than the policies announced by the administration so far. For example, despite Trump’s repeated promises to tear up NAFTA, some commentators have argued that the changes from renegotiations may be relatively minor. Second, although prior administrations disregarded international trade commitments at times, I cannot think of any that have announced their plans to do so this explicitly. For instance, the United States does not always comply with adverse WTO decisions,1 but announcing a policy that the court may simply be ignored is a break with recent administrations. With those caveats in mind, this is an area where the Trump administration has continued to signal a break with past administrations.
III. Human-Rights Law
The Trump administration has taken several actions that indicate that international human-rights law may be made less of a priority than it has been in recent administrations. First, the administration has announced that it may withdraw the United States’ membership in the United Nations Human Rights Council (“UNHRC”) because the body has both included abusive governments and repeatedly criticizes Israel. Second, Secretary of State Rex Tillerson skipped the release of the States Department’s annual human-rights report. Third, a draft executive order has been released saying that the Trump administration is considering a moratorium on signing new multilateral treaties.
Although the administration is correct that the UNHRC does have many human-rights violators as members,2 and skipping a report’s release does not signal a change in policy, these policy changes do appear to represent a change in priorities. And, although it is true that the United States has ratified fewer and fewer multilateral treaties over recent years, that has largely been driven by Senate gridlock, not an imposed moratorium from the executive branch.
IV. The Laws of War
Candidate Trump repeatedly promised to take actions, like killing the families of terrorists, that would be clear violations of the laws of war. Since taking office, Trump has already altered United States interpretation of the laws of war in one way: bombing Syria. When Trump launched a missile attack on a Syrian airbase after Syria’s use of chemical weapons, the move went beyond any prior legal precedent on the use of force because, among other things, there was not international or domestic authorization or a claim that the bombings were to protect U.S. lives or property.
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Taken together, a few conclusions can be drawn from this record.
First, it is clear that since the campaign, Trump has walked back some of his hostility toward international cooperation and participation in international institutions in some instances. For example, Trump has already backtracked on promises to label China a currency manipulator (while saying he thinks it might help enlist Chinese assistance on North Korea), certified to Congress that Iran is complying with the nuclear deal (while also noting that Iran is not living up to the “spirit” of the deal), and shelved a drafted executive order to reinstate the Bush-era torture regime (while simultaneously claiming that torture is effective).
Second, it is possible that going forward, the policy changes may not be too radical. For instance, many of the statements and executive orders signed by the administration have not yet turned into actual policy. Moreover, the Trump administration has continued to comply with many of the United States’ international legal commitments.
Third, there is precedent for many of the changes announced by the Trump administration. It is also the case that many of the announced policies are more of changes in rhetoric than substance.
Finally, despite the softening of some positions, Trump has largely continued to criticize America’s international legal commitments and has already made a number of breaks from prior United States policies on international law. So, although Trump’s promised assault on international law has not fully materialized after just 100 days, there is ample evidence that it will continue.
* Assistant professor of law, University of Chicago Law School. Adam’s research interests lie at the intersection of international law, comparative law, and empirical legal studies.
1 See, e.g., Rachel Brewster & Adam Chilton, Supplying Compliance: Why and When the US Complies with WTO Rulings, 39 Yale J. Int’l L. 201, 206 (2014).
2 See Adam Chilton & Robert Golan-Vilella, Did the Creation of the United Nations Human Rights Council Produce a Better ‘Jury’?, 58 Harv. Int’l L.J. Online 7, 8 (2016).