Implementation of International Law under Donald Trump
The election of Donald Trump as the United States President on November 8 2016 has cast a grim shadow on the future of the implementation of international law in the country. Despite the fact that the President-elect has not made definitive policy proposals regarding international law, he did make general statements on a variety of international agreements during his campaign (Amirfar, Donovan, Reid, Rivkin, & Goldsmith, 2016). The international agreements he commented on include the Iran Nuclear Deal, otherwise referred to as the Joint Comprehensive Plan of Action. He also made less flattering comments on international agreements pertaining to combating climate change as well as international trade agreements.
Mr. Trump has been extremely vocal about his disdain for the North American Free Trade Agreement and the Trans-Pacific Partnership. He has vowed to renegotiate or completely cancel the North American Free Trade Agreement claiming that the original terms put the United States at a disadvantage. Furthermore, he has vowed to pull out of the Trans-Pacific Partnership once he assumes office. At varying times of his campaign, he also told the public that he would cancel the Paris Agreement as well as stop all US contributions to the UN Climate Fund.
Threatening to pull out of the Paris Agreement and ceasing payments to the UN Climate Fund is particularly alarming for the international community. The Paris Agreement entered into force once 55 member nations of the UNFCCC that represent 55% of the global greenhouse emissions ratified the agreement (Northrop & Ross, 2016). The US is the second largest greenhouse gas emitter in the world, and its exit from the Agreement would lead to its collapse. Furthermore, the implementation of the Agreement is heavily reliant on the financial contributions of member countries. If the US stops making these contributions to the UN Climate Fund, then there will be a dire cash shortage for the UNFCCC to carry out its mandate.
It is expected that once Donald Trump officially takes office in January 2017, and is finally confronted with the realities of presidency, he will reconsider the statements he made during his campaign. However, there is a chance that he remains adamant about rescinding the country’s support for these international agreements that are considered legally binding. If this ends up being the case, the next question is whether he has the power as president of the US to withdraw the country from international agreements.
As president, Mr. Trump will have a wide range of powers vested in him, but it is important to point out that the powers will not be absolute. According to the Constitution of the United States, the president cannot make unilateral decisions on any matter related to international agreements or treaties. This is especially the case when it comes to international agreements that have already been ratified and received advice and consent from the Senate and Congress has already passed legislation to implement them.
The President-elect will have to work with Congress and the Senate in all matters pertaining to international agreements. Even though Republicans form the majority of the Senate and the House of Representatives, not all the Republicans share his view on foreign policy and tenets of international law. This is particularly evident when it comes to the North American Free Trade Agreement, with some Republican Party members publicly supporting the agreement.
Unilateral Executive Withdrawal of the US from International Agreements
To understand the scope of unilateral executive withdrawal from international agreements, it is important to point out that international agreements fall into three distinct categories under US law. These categories include:
1. Congressional Executive Agreements – these are approved and implemented by Congressional Acts. They require a majority in both the Senate and the House. Withdrawing from such agreements would require several significant changes to the country’s domestic law.
2. Treaties – these are international agreements whose ratification requires the consent of two-thirds of the Senate.
3. Executive Agreements – such agreements are entered at the sole discretion of the President under special circumstances. The President has to rely on present Congressional legislation, his Constitutional powers, or an already existing Senate advice/consent treaty. Furthermore, many experts believe that the president’s authority to enter into executive agreements is limited.
The President can withdraw unilaterally from executive agreements as long as he follows the withdrawal procedures set out in the individual agreements. The constitutionality of a president withdrawing unilaterally from congressional executive agreements or treaties is still being debated in the U.S. Supreme Court (Amirfar et al, 2016). Over the years, the Court has reiterated that the question of unilaterally withdrawing from treaties is a political question that is non-justiciable. This implies that the judicial system does not have the competence to settle the debate.
Furthermore, under international law, a nation can only withdraw from or terminate an international agreement if the treaty has such a provision or if all members privy to the agreement concur on the withdrawal. Without an implied or expressed withdrawal, the treaty will continue indefinitely. Failure to comply with an international agreement can be considered an implied withdrawal of the country.
The North American Free Trade Agreement is a congressional executive agreement. Article 2205 of the Agreement allows the country to withdraw if it gives a six-month advance and a written notice of withdrawal that should be presented to all members. However, it is extremely unlikely that Mr. Trump could unilaterally withdraw from the Agreement due to lack of Congressional support. In addition, the agreement was implemented through the NAFTA Implementation Act that has not stipulated measures for withdrawal. The House and the Senate would have to amend the Act to put in the withdrawal provisions. Mr. Trump could face heavy opposition if he attempts to present amendments to the Act before the Senate and the House.
Mr. Trump also suggested that he would withdraw from the World Trade Organization. There are numerous multilateral trade agreements that comprise the WTO, which include the General Agreement on Trade in Services, and the General Agreement on Tariffs and Trade. All the WTO treaties were congressional executive agreements. Mr. Trump will face the same challenges mentioned above if he remains adamant on withdrawing the United States unilaterally from the WTO.
It will be constitutional for the President-elect to withdraw the US from the Trans-Pacific Pact because the agreement was created under unilateral executive power. However, the country’s withdrawal will signify the collapse of the TPP for the other signatories. For the TPP to enter into force, at least six of the signatories comprising 85% of the gross GDP ratify the agreement. Due to the size of the US economy, her withdrawal would result in the collapse of the agreement, as the rest of the signatories will not be able to meet the 85% gross GDP requirement for the TPP to enter into force.
In matters related to the Paris Agreement, Mr. Trump will have a difficult time removing the country from the agreement. The Agreement has already entered into force and it precludes any nation from withdrawing its consent to the treaty during the first three years after the Agreement has entered into force. Once the three years have passed, the country wishing to rescind its commitment will have to notify other signatories of its intention to withdraw (Ramsey, 2016). Withdrawal will only take effect after a year since the receipt of notification. This means that Trump’s efforts to withdraw the country from the Agreement will only take effect after four years, by which time the next Presidential election will be underway.
As mentioned above, Congress and the Senate have the power to block President-elect Trump from unilaterally withdrawing from legally binding international treaties. He cannot withdraw from international treaties that are congressional executive agreements unless with the full support of the Congress and the Senate. It is thus recommended for the legislature and executive branches of the government to go against his wishes of withdrawing from international treaties by denying him the constitutional support he needs to do so.
It should also be noted that the President-elect is constitutionally banned from terminating treaties in violation of their terms. International treaties form an integral part of the supreme law of the land and it is the president’s duty to ensure that they are faithfully executed (Ramsey, 2016). Violating such treaties by withdrawing unilaterally does not constitute faithful execution.
Furthermore, US companies need to come out and strongly support these international agreements as such agreements have enabled the companies to easily gain access to foreign markets. Withdrawal from such international treaties will negatively impact their ability to conduct business internationally. In addition, withdrawal will make it difficult for them to challenge unfair business practices by other foreign governments before international tribunals. It is thus in their best interests to lobby against Trump’s moves to withdraw from such international trade agreements. Their commercial sustainability and that of the American economy as a whole is heavily dependent on the fulfillment of these international treaties.
Amirfar, C., Donovan, D., Reid, N., Rivkin, D., & Goldsmith, L. (2016, Nov 23). Client Update: The Outlook for International Law under President Trump. Debevoise and Plimpton. Retrieved on 2/12/2016 from http://www.debevoise.com/~/media/files/insights/publications/2016/11/20161123a_the_outlook_for_international_law_under_president_trump.pdf
Northrop, E., & Ross, K. (2016, Jan 21). ‘After COP21: What needs to happen for the Paris Agreement to take effect?’ World Resources Institute. Retrieved on 2/12/2016 from http://www.wri.org/blog/2016/01/after-cop21-what-needs-happen-paris-agreement-take-effect
Ramsey, M. (2016, Sept 29). Could President Trump Unilaterally Withdraw the U.S. from its International Agreements? The Originalism. Retrieved on 2/12/2016 from http://originalismblog.typepad.com/the-originalism-blog/2016/09/julian-ku-on-president-trump-withdrawing-from-international-agreementsmichael-ramsey.html