Ralph Janik, University of Vienna, explains how the US President is dealing with some key issues regarding international law from an European point of view.
Be it the WTO, the prohibition of torture, or the Paris Agreement: The Trump administration has been launching numerous challenges to international law. Countless commentators have lamented the decline of multilateralism and the so-called “Liberal World Order.” We may indeed be witnesses of the comeback of19th century thinking on sovereignty and a return to Balance of Power Politics. Maybe they were never gone in the first place.
The US has a long tradition of challenging international law and its restraints on sovereignty.1 The Trump administration is obviously not an exception.2 Trump famously declared an “America First”-foreign policy during the presidential race already. Later, he called on other states leaders to follow the same path during his first UN General Assembly speech. 3 The list of actions and announcements lashing out against international law as is long: He openly admitted his belief in the efficiency of torture and his “love” for waterboarding; questioned the basic principles of international humanitarian law; declared that the US will withdraw from the Paris Agreement; repeatedly threatened to leave the WTO and started a trade war with virtually all of the US trading partners; and, finally, made the US the first country to pull out of the Global Compact on Migration and the only one to oppose the Global Compact on Refugees already at the preliminary stage of its adoption.
His skepticism towards international law and international institutions is flanked by advisors with often equally controversial views. Peter Navarro and Robert Lighthizer both share the idea of China as a central (economic and arguably also political and military) enemy and a hyperfocus on trade deficits. Trump’s replacement for National Security Affairs John Bolton also shows a disdain for international law – after all, he openly wondered whether there really is ‘law’ in international affairs in an academic article4 published during his time as Under Secretary of State for Arms Control and International Security Affairs and later became a notorious advocate of the Iraq war while furthermore successfully pushing for the removal of US’ signature to the International Criminal Court’s Rome statute. Jack L Goldsmith, who also served under the Bush administration (as Assistant Attorney General) – and thus not necessarily a staunch supporter of international law and multilateralism himself – even spoke of an “onslaught on international law and institutions.”5
The Supremacy of International Law
Such fundamental challenges to the very existence of international law and its status as “real”, “actual”, or “law properly so called” (John Austin) has been the subject of countless debates for most of its modern history – early attempts to prove that there is no such thing as international law go back as far as 1710 (!).6
However, since this paper is not the right place to lay out the details of this long-lasting debate, a short summary of its ultimate outcome and the arguments of the main proponents should suffice.
First, the issue has long been settled from the perspective of international law: States may not rely on their domestic legal order – including their constitution – to justify violations of treaties (Article 27 Vienna Convention on the Law of Treaties, VCLT) or breaches of international law in general (Article 32 of the ILC Articles on State Responsibility). In this regard, it does not matter whether a state’s constitution adheres to a monist or dualist view on the relationship between international and domestic law (in practice, the US clearly tends to dualism7 ): 8 Already the PCIJ made it clear that ‘a State cannot adduce as against another State its own Constitution with a view to evading obligations incumbent upon it under international law or treaties in force’ in the Treatment of Polish Nationals advisory opinion from 1932. 9 In so doing, the Court also found no need for making any findings on the different theories implemented in constitutional provisions on the status of international law and its effect in the domestic legal order.
As the ICJ’s provisional order to stay the execution of a German national (Walter LaGrand) in the LaGrand case10 between Germany and the US from 1999 has shown, nothing has changed since then. Furthermore, this case also once again made it clear that international obligations are binding on the state as a whole and thus also on the respective competent organ.11 Even although the US president lacked the competence to enforce the ICJ’s provisional order and since US courts are not constitutionally bound by these either – “respectful consideration” for its interpretations is sufficient12 –, the governor (of Arizona) was nevertheless obliged to render it effective. Since this did not happen, the US (through the state of Arizona) committed an international wrong. References to the constitution and the leeway it may grant to governors in such matters are irrelevant under international law.
Third, accepting the supremacy of international law does not mean that it will always also be effective. Adherence and enforcement, in particular if vital interests are at stake, will always remain the Achilles’ heel of international law. If one assumes that a state’s well-being is independent of moral considerations – an argument forcefully made by Posner and Goldsmith – states will only comply with international law for as long as it serves their interests; this view even rejects a moral obligation to obey international law. 13
Relatedly, proponents of a quasi-absolute understanding of sovereignty still argue that domestic law or at least a state’s constitution enjoy supremacy over international law. Such suggestions can rely on two key historic thinkers in particular: Emer de Vattel and G W F Hegel, who both based their findings on sovereignty on the Hobbesian theory of the state of nature:14 Since there exists no international Leviathan, ie a (“super-” 15) state above states, their sovereign rights “are actualized not in a universal will with constitutional powers over them, but in their own particular wills.” Agreement are thus not binding strictu sensu but “tainted with contingency”, as Hegel put it. He thus also rejected 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.” Unsurprisingly, Hegel described international law as mere “external public law” to express the corresponding thought of international law’s non binding character – a set of obligations which may be violated or unilaterally changed similar to domestic (constitutional) law.
US Sovereignty and International Law
The relationship between the US (constitution) and international law and institutions has always been a delicate subject. As it is well known, the US refused to join the League of Nations over fears of compromising its sovereignty, made its participation in the UN and its collective security system conditional on the veto power (just like all the other P-5 however16), abstained from the planned International Trade Organization or, some 50 years later, the International Criminal Court, and saw no problem with going to war in Iraq without any firm legal basis – to name just a few prominent examples.
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