HISTORICALLY, the State of the Union address has evolved from focusing on purely domestic issues to becoming a way for the US president to affirm America’s role in the international comity of nations, assuring allies of America’s commitment and dissuading rival states from seeking to act against its interests. As president, Donald Trump adopted a markedly different tone in his first address, which presented a disquieting vision of America’s future international role, one informed by an isolationist — arguably xenophobic — and highly reductionist view of international law. We’ve already begun to see this being realised over the course of Trump’s first 12 months.
Last month, Trump declared that the US recognised Jerusalem as the capital of Israel. When the international community responded at the UN, the US countered by vetoing the resolution condemning this move at the UN Security Council, and threatening states who voted in favour of a similar resolution at the UN General Assembly. This, in spite of the fact that both America’s recognition of Jerusalem as Israel’s capital and its subsequent veto of the UNSC resolution are in direct violation of pre-existing UNSC resolutions on Jerusalem. The US has also agitated for an end to the Iran nuclear deal, the arrangement by which the EU, with UN support, engaged with Iran, helping to pave the way for an end to almost 40 years of diplomatic isolation for Iran, and move towards decreasing global nuclear weapons counts. The US, under Trump, has also withdrawn from the Trans-Pacific Partnership (TPP) and the Paris Climate Accord, both marking shifts in foreign policy from the tack adopted by the Obama administration.
Recent steps taken by the US seem to signal an end to its ‘persona’ as an advocate of international law.
It must be stated at the outset that many acts of unilateralism are, generally speaking, legal under international law; while the US decision to favour Jerusalem as Israel’s capital raises certain serious issues, the applicable international law has no bearing on America’s decisions to withdraw from the TPP or the Paris pact. These are, by and large, political and policy decisions which are usually informed by domestic and international realities and are made in the furtherance of broader strategic goals. The decisions made by the Trump administration, however, appear to be informed entirely by domestic concerns — playing to a political support base at home — and only serve to delegitimise international law and weaken it as an equitable body of law.
Since the close of the Second World War, the US has presented itself as a staunch advocate of international law despite being hegemonic itself. While it has attempted to avoid any liability upon itself, such as following the ‘Nicaragua vs United States’ case before the International Court of Justice, historically the US has acted in a manner affirming the application of and respect for international law.
The American threats to withhold aid to states that voted against the declaration of Jerusalem being the capital of Israel fall within murky waters: on one hand, the US is not obligated to provide aid to other states — it does so purely in order to advance its own strategic interests. On the other hand, threatening to withdraw aid from poorer or struggling states risks placing coercive pressure on them, distorting their decision-making and unduly influencing their sovereignty.
In law, domestic and international, parties are bound by their duty to negotiate in good faith; in international law this can be considered a duty to refrain from interfering in, unduly influencing, or attempting to sabotage or work against a treaty the state is party to. The US is in the process of breaching this duty in relation to the Iran deal. In the context of its declaration of Jerusalem as Israel’s capital, America’s manoeuvring was, at the end of the day, to support a state carrying out unilateral aggression; occupying and appropriating the land of another people in violation of international law.
These and other recent steps taken by the US seem to signal an end to the US ‘persona’ as an advocate of international law and an attempt to return to a more overtly hegemonic time. These are violations of the general principles underpinning the international legal framework, and while these may be violations of softer law — and not more overt or tangible violations such as the illegal use of force or aggression — they still represent a threat to global peace and security. By working to stymie the workings of the UN, using its veto at the UNSC and threatening states that voted to condemn the move at the UNGA, the US acted in contravention of the spirit of the comity of nations and the implementation of and respect for international law — cardinal principles underpinning the contemporary international politico-legal framework. Contemporary US ‘foreign policy’ — if it can be termed as such — has compromised the international legal framework. This ‘America First’ muscularity, however, while arguably popular with Trump’s support base within the US, risks America’s privileged position under international law.
As a hegemonic state the US has, over the past several decades, positioned itself to its own advantage under international law. Its status as an international actor, and its presence at the UNSC, the IMF, and World Bank, are the result of decades of selective and strategic employment and interpretation of international law. This was, in turn, predicated upon the general notion that international law is law, and must therefore be respected. The isolationist policies and rhetoric now emanating from Washington, however, runs roughshod over established international law. This is a position which could, in the longer term, prove to be very costly for the US.
China has already taken great strides in presenting itself as pro-international law, taking the lead on the TPP and making climate change and renewable energies a domestic and international priority. With other powers on the rise the US is losing the luxury of being a superpower in a unipolar world, particularly when it is actively eroding the framework within which it enjoys such a privileged position.
Sikander Shah is former legal adviser to Pakistan’s foreign ministry, and faculty, Lums Law School. Abid Rivzi is an expert on international law.
Published in Dawn, February 6th, 2018