Jack Goldsmith catalogs the ways in which Trump or (more likely) his subordinates hope to undermine international law, including:
— Gutting State Department capacity
— Eliminating domestic agencies related to international relations
— Increase in termination of international agreements
— Disengagement from international organizations
— Disengagement from international courts
— De-emphasis on international human rights law in U.S. foreign policy
— Actions closer to the (controversial) legal line on jus ad bellum and jus in bello
What should we make of these goals? They are all related to the ideas in an essay entitled America and the Liberal International Order by Michael Anton, a White House national-security official. The essay is an attack on liberal internationalism—it strikes many familiar chords, there is nothing radical about it. Anton argues that while the effort to create a liberal international order made sense after World War II, it no longer serves American interests. Anton blames Democratic presidents for perpetuating this order for ideological reasons, and Republican foreign policy types for failing to resist it.
Although Goldsmith is right that no president has never taken office with quite such a negative agenda for international law, one should also recognize that many items on Trump’s agenda (if that is what it is) have precedents. George Bush famously “unsigned” the Rome treaty, which created the International Criminal Court, while Ronald Reagan repudiated the Nicaragua decision of the International Court of Justice and withdrew the United States from the ICJ’s mandatory jurisdiction. Under Bush, the United States refused to participate in the Human Rights Council; Trump may do the same.
These and other actions were as much gestures designed to appease anti-internationalists in the Republican party, Anton’s predecessors, as to advance policy goals. And while Democratic presidents Obama and Clinton gave rhetorical support to liberal internationalism, these presidents also violated international law, including fundamental norms designed to protect human rights and prevent war, when American interests called for it. Of all the things that Goldsmith mentions, only the neglect of the State Department is unprecedented (as far as I know).
Even so, I expect that Trump will have a rough time advancing his goals. Reagan sought to downgrade human rights at the start of his administration, but gave in to resistance from Congress, the public, and powerful organizations. He also realized that he could use the rhetoric of human rights to his own ends, to batter the Soviet Union, while ignoring human rights claims against the United States, which was propping up dictatorships around the world.
The organizations, institutions, and treaties that Trump or Trump’s subordinates might like to dismantle have many constituents. Anton doesn’t seem to realize that the resources that the United States devotes to promoting “liberal internationalism” are tiny and the effect is mostly symbolic. Underneath the rhetoric, the United States has usually pursued its economic and security interests in a hard-nosed fashion. Indeed, even foreign aid—which is on the chopping block—is usually used to advance American security interests, for example, in Afghanistan. When Trump officials finally realize that foreign aid is mostly used to advance American security interests by buying support or acquiescence, not to create socialist utopias in banana republics, expect it to be uncut.
So what is left? Not much. That is why so many of Trump’s aspirations are to refuse to enter treaties that the United States has always refused to enter (from the Convention on the Elimination of all Forms of Discrimination Against Women to the UN Convention on the Law of the Sea). Bush, too, couldn’t withdraw the United States from the ICC treaty because the United States had never ratified it—hence, the pointless action of “unsigning” the treaty.
While Trump officials might intend a joyous bloody onslaught, they will find little to unleash their onslaught against.