Trump and an International Law Strategy — More Litigation?


Why is it that Qatar recently filed legal actions in both the World Trade Organization and the International Court of Justice to enforce its international legal rights (against the UAE blockade) and the Trump administration has filed no cases, whatsoever, in the ICJ and only 1 or 2 in the WTO concerning a myriad of perceived global grievances? 

     A number of cases have been filed against the U.S. in the both the WTO and in the ICJ and the U.S. has not responded by counter litigation.

   Wouldn’t filing such cases by the US be at least good optics supporting int’l litigation and judicial tribunals as a means of settling disputes rather than undiplomatic language, bluster, and unilateral threats?

     After all the U.S. was the primary architect of both the ICJ and the WTO which reflect U.S. exceptionalism and its defining adherence to a rules-based system and protection of rights by judicial mechanisms.    

   If you recall Iran recently filed a case against the U.S. in the ICJ concerning execution on its assets (of its central bank). This involved a case by private plaintiffs in U.S. domestic courts attempting to satisfy judgments against Iran for its acts of  international terrorism. Why hasn’t the U.S. responded by filing its own cases addressing a myriad of complaints against Iran?

    By the way even the Philippines filed a case against China over the South China Sea in the Permanent Court of Arbitration (which it won recently). Again why hasn’t the U.S. responded with its own case over law of the sea issues in the South China Sea?

     It seems to me that a legal strategy focusing on international tribunals is in the U.S. national interest. It is pursuant to historical American values of promoting the rule of law and reliance upon litigation to settle disputes. It would do wonders in giving U.S. diplomacy a firmer grounding in international law.

Of course, this would be a steep hill to climb by the Trump administration that has gone out of its way to terminate treaties, to lambast multilateral institutions and to almost totally neglect international judicial institutions.

    Nevertheless, such litigation would provide invaluable experience for the many lawyers in the U.S. Department of State before resigning and entering private practice.


About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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