Reengaging on Treaties and Other International Agreements (Part I): President Donald Trump’s Rejection of International Law

President Donald Trump campaigned and rose to power on an “America First” platform. During his presidency, he has made clear that his vision of America First often means America alone. For a while, it seemed the rhetoric might remain just that—rhetoric. But over the course of Trump’s time in office, his administration has systematically withdrawn from international treaties, organizations, arrangements, and fora. In addition, he has largely put the breaks on joining any new agreements. His administration submitted only five treaties for Senate consent—a sharp drop compared to prior administrations.

If Joe Biden defeats Trump on November 3 and assumes office, he will face the question of how to revive U.S. participation on the international stage, including through rejoining many of the international agreements and organizations from which the Trump administration has withdrawn.

This article examines the Trump administration’s decisions to withdraw from international agreements, to make clear the scope of the project ahead. A second article will consider the options for reversing those decisions and reengaging in these international agreements once again.

President Trump’s Rejection of International Law

It is now clear that the Trump administration has waged an assault on international law unparalleled in the post-war era. It has embraced what has sometimes been called the “new sovereigntist” critique of international law. According to this view, international treaties give too much authority to foreign States and international organizations, taking away power that should instead belong to domestic political institutions. To those who hold this view of international law, almost any constraint is too much, even if entirely voluntary and revocable and even if the agreement promises to bring significant reciprocal benefits.

When the president announced in June 2017 he was withdrawing the United States from the Paris Agreement on climate change, for example, he argued it was a threat to American sovereignty, stating, “I was elected to represent the citizens of Pittsburgh, not Paris.” When the administration withdrew from the nonbinding Global Compact on Migration later that year, Secretary of State Rex Tillerson echoed this view: “we simply cannot in good faith support a process that could undermine the sovereign right of the United States to enforce our immigration laws and secure our borders.” And in 2018, then-National Security Advisor John Bolton launched a broadside on the International Criminal Court, to which the United States is not even party, declaring that it “unacceptably threatens American sovereignty and U.S. national security interests.”

As Scott Shapiro and I argue in our book, The Internationalists, the sovereigntist view of international law that the Trump administration has embraced fundamentally misconceives how international law actually functions. International law, in fact, largely exists to promote and protects State sovereignty. International treaties, after all, are made by States to promote their collective interests—including achieving goals that they could not achieve on their own. Trump’s decision to pull the United States out of an array of international arrangements has therefore not protected American sovereignty but has instead made us into voluntary outcasts.

Having become voluntary outcasts, can we reverse course? Is it possible to repair the damage done by an administration that has abandoned the international institutions once understood to be central to American influence in the world? To answer that question (which I take up in Part II), we first need to understand the toll the last three years has taken.

Trump Administration Withdrawals

As noted above, the Trump administration has not just stalled new commitments to international agreements, it has actively withdrawn from a number of treaties. The accounting offered below breaks the agreements into three categories: (1) nonbinding arrangements and international organizations, (2) executive agreements, and (3) Article II treaties. As explained in Part II, rejoining each type of arrangement requires different procedures and poses different legal and political challenges.

Nonbinding Arrangements & International Organizations

First are nonbinding arrangements and international arrangements. Nonbinding arrangements are just what they sound like—they do not create binding commitments. But they can nonetheless be extraordinarily important. They are used in a wide array of contexts to establish diplomatic commitments and they even mimic in some instances many of the features of a binding international arraignment, so much so that the State Department has issued guidance on how to try to avoid confusion about the nature of an agreement. The nonbinding arrangements and international organizations that the Trump administration withdrew from include:

  • Joint Comprehensive Plan of Action with the P5+1 and Iran: The JCPOA is a non-binding arrangement (or set of “political commitments”). Trump withdrew the United States from the JCPOA in May 2018.
  • N. Human Rights Council (UNHRC): The Human Rights Council was created by the U.N. General Assembly in 2006. During the Obama administration, the United States won one of the 47 seats on the Council and actively participated in its work. The Trump administration withdrew from the UNHRC in June 2018, apparently in protest of the Council’s criticism of Israel’s treatment of Palestinians.
  • Global Compact for Safe, Orderly and Regular Migration: The Trump administration withdrew from participation in this non-legally binding process in December 2017.
  • Global Compact on Refugees: The Trump administration withdrew from this non-legally binding process in November 2018.
  • UN Relief and Works Agency (UNRWA): Established pursuant to U.N. General Assembly Resolution 194 (1948). The United States made voluntary funding donations to the UNRWA out of general humanitarian funds provided by the State Department’s Bureau of Population, Refugees, and Migration, but announced that it would cease doing so as of August 31, 2018.

Executive Agreements

Executive agreements, which create binding legal obligations on the United States under international law, are commonly grouped into one of three categories based on the type of authorization that supports the agreement. (1) A “sole executive agreement” is concluded by the president on his or her own constitutional authority without any express congressional authorization or approval. (2) An “ex ante congressional-executive agreement” is authorized in advance by statute, treaty, or agreement and concluded by the president without subsequent congressional review or approval. (3) An “ex post congressional-executive agreement” is approved by a majority of Congress after it is negotiated by the president, usually through the passage of ordinary legislation. (Some argue there is an additional category that is referred to as “Executive Agreements+”: an agreement made by the executive branch that neither relies on an independent presidential power nor is specifically authorized by Congress. Its legal justification, instead, is that it “complements” or is “consistent with” existing federal law, and thus requires no additional congressional action. For these purposes, such agreements would mirror the sole executive agreement category.) Trump has withdrawn from three prominent executive agreements: 

  • The Paris Agreement: This agreement was concluded as an executive agreement pursuant to the 1992 Framework Convention (an Article II treaty); many provisions are non-binding. The United States submitted its formal intention to withdraw on November 4, 2019, which will go into effect on November 4, 2020.
  • World Health Organization (WHO) Constitution: The United States joined the Constitution of the World Health Organization with an understanding that it could withdraw by providing one year’s notice and after meeting its financial obligations to the organization. On July 6, 2020, the United States delivered its formal intent to withdraw effective July 6, 2021.
  • United Nations Educational Scientific and Cultural Organization (UNESCO) Constitution: The United States joined through domestic legislation passed in 1946. The United States officially withdrew from UNESCO on December 31, 2018, after announcing its plan to withdraw in October 2017. The withdrawal occurred pursuant to Article II(6) of the UNESCO Constitution. When the United States previously withdrew from UNESCO in 1984 and then rejoined 18 years later, it did not seek new congressional authorization instead relying on the statutory authorization that had allowed the initial U.S. entry into UNESCO in 1946.

Article II Treaties

Article II treaties are treaties negotiated by the president and then submitted to the Senate for its “advice and consent,” as specified in Article II of the Constitution. Such agreements are by far the most difficult to make. In the past there has been substantial disagreement about the power of the president to unilaterally withdraw from agreements that takes two branches to make. Whether there are actions Congress might take to constrain or respond to withdrawals is a matter of ongoing debate. The fact remains, however, that presidents have successfully withdrawn from such treaties on their own. Never before Trump, however, has a president withdrawn from Article II treaties in such numbers. Specifically, Trump has withdrawn from an unprecedented five Article II treaties in three years:

  • Intermediate-Range Nuclear Forces Treaty: The United States signed in December 1987 and ratified in June 1988. The Trump administration announced its intent to withdraw in October 2018. The United States formally withdrew in August 2019, pursuant to Article XV of the treaty, after providing six months’ notice.
  • Treaty on Open Skies: The United States signed in March 1992 and ratified in November 1993; the Treaty did not enter into force until 2002, 60 days after the deposit of the 20thinstrument of ratification. The Trump administration filed formal notice of withdrawal on May 22, 2020. The withdrawal will become effective six months from that date (November 22, 2020).
  • Optional Protocol of the Vienna Convention on Diplomatic Relations: The United States signed in June 1961 and ratified in November 1972. The Trump administration announced its intention to withdraw from the Protocol in October 2018. The Protocol does not explicitly state rules for withdrawal. The United States has stated that this means that withdrawal is immediate, whereas the Vienna Convention on the Law of Treaties (VCLT) (to which the United States is not a party, but which is considered indicative of customary international law) provides that withdrawal would only be allowed if the treaty by its nature implies that withdrawal is permitted or the parties intended it. The VCLT also provides that in such cases, parties must give at least 12 months’ notice of intention to withdraw.
  • Treaty of Amity, Economic Relations, and Consular Rights with Iran: The United States signed in August 1955 and ratified in September 1956. The Trump administration announcedS. withdrawal in October 2018, following a decision by the International Court of Justice that the United States had violated the treaty. Withdrawal was effective October 3, 2019, because there was a one-year period for the treaty to end following written notice under Article XXIII.
  • New START: The United States signed in April 2010 and ratified in February 2011; the treaty is up for extension on February 5, 2021. The Trump administration has signaled that it does not intend to extend the treaty, but it has not yet withdrawn.

In addition to the withdrawals outlined above, the Trump administration has threatened withdrawal but not (yet) made good on the threat for a number of agreements. In two cases—the Universal Postal Union, one of the longest-standing and most successful international organizations the world has known, and the Korea-United States Free Trade Agreement—he threatened withdrawal, but dropped plans to withdraw after claiming a concession had been made. The president has also threatened to withdraw from the World Trade Organization (WTO) and the North American Treaty Organization, but has not taken concrete steps to carry out those threats. In the case of the WTO, however, the administration has vetoed new members of the WTO Dispute Settlement Appellate Body, thus rendering it unable to hear any appeals. While this does not constitute withdrawal from the organization, it does threaten the ability of the organization to function as intended. Canada and the European Union forged a work-around deal to avoid the block and save the WTO dispute settlement process from complete collapse, but the organization remains hobbled by U.S. intransigence.

There are, moreover, a number of agreements the United States had not yet ratified, which the United States has “unsigned” or otherwise signaled intent to withdraw from under Trump, including the Arms Trade Treaty (signed in September 2013, not ratified; Trump announced signature “withdrawal”); Trans-Pacific Partnership (signed in February 2016, not ratified; Trump “withdrew signature” in January 2017; consensus of the remaining parties would be required for the United States to rejoin); and the Transatlantic Trade and Investment Partnership (TTIP) (negotiations abandoned).

Having outlined the scope of Trump administration’s withdrawals, I turn in the next Part to consider what Biden, if elected president, could do to reverse course.

Image: President Donald Trump receives a standing ovation while announcing his decision for the United States to pull out of the Paris climate agreement in the Rose Garden at the White House June 1, 2017 in Washington, DC. Photo by Chip Somodevilla/Getty Images

 

About the Author(s)

Oona Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School and Director of the Center for Global Legal Challenges at Yale Law School. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow her on Twitter (@oonahathaway).