Trump and Weaponization of Treaty Termination — Constitutional and International Legal Issues.

Trump and Treaty Termination (Oct. 2018)

President Trump is aggressively terminating treaties. The U.S. Constitution establishes procedures for treaty making but says nothing about treaty termination. This treaty-making power is shared with the Senate. Little case law addresses the issue of treaty termination, which raises significant international law and constitutional issues impacting U.S. foreign policy and national security.

The following are some announcements concerning terminating treaties that the Trump administration made just this October:

  • The Trump administration announced pulling out of the 1955 bilateral treaty with Iran. This announcement came immediately after the International Court of Justice ruled in Iran’s favor and awarded it provisional measures in Iran’s action contesting renewed U.S. trade sanctions.
  • At that time, the administration declared that it would review all treaties that give the International Court of Justice (ICJ) jurisdiction to decide disputes with the U.S.
  • Also at that time, the administration declared that it would no longer be bound by the Vienna Convention on Diplomatic Immunity’s “optional clause,” which the U.S. accepted as giving the ICJ jurisdiction over treaty disputes involving the U.S.
  • Immediately afterward, the administration announced its intention to withdraw from the 144-year-old International Postal Treaty (Universal Postal Union).
  • Most recently, this month, the Trump administration announced it will withdraw from the Intermediate-Range Nuclear Forces Treaty (INF) with Russia.

 

Of course, the administration previously withdrew from the multilateral nuclear agreement with Iran, threatened to withdraw from the North American Free Trade Agreement, continuously threatens to withdraw from the World Trade Organization, and refused to continue negotiating the Trans-Pacific Partnership on the administration’s first day in office. The administration continuously threatens to withdraw from various bilateral trade deals. This threat of treaty termination is made alongside the administration’s threats to withdraw from a host of multilateral organizations and other diplomatic undertakings.

So, what’s the relevant U.S. constitutional law concerning the president’s authority to terminate treaties?

In 1979, the Supreme Court upheld President Carter’s unilateral withdrawal from the defense treaty with Taiwan. It considered treaty termination to be a non-justiciable “political question.” In a subsequent case involving the termination of the Anti-Ballistic Missile treaty by President Bush in 2002, a federal district court held that treaty termination was also a non-justiciable question. However, keep in mind that even though broad deference is made to the president in foreign affairs, the Supreme Court’s Curtis-Wright Case of 1936 clearly makes this point. More recent cases have consistently reviewed executive actions that affect national security. Witness the recent federal cases concerning President Trump and various immigration matters.

Proponents of broad presidential power concerning treaty termination argue that such power is implicit in the president’s foreign affairs and diplomatic powers. This statement is true to an extent. However, it does not extend to all cases of termination, such as those concerning non-self-executing treaties that have been implemented via congressional legislation. This is especially true concerning treaties or executive agreements regarding trade issues, where Congress has exclusive authority and where the agreements are implemented through congressional legislation.

The Trump administration’s aggressive use of treaty termination amounts to a weaponization of this power that has not previously occurred.

No matter what the domestic legality of the termination of a treaty may be, presidential termination does, in fact, terminate the agreement between the U.S. and its treaty partner. However, this termination may well be a violation of the treaty if it does not comply with the withdrawal provisions of the treaty, and such termination would place the U.S. in violation of international law.

International lawyers, foreign policy experts and Congress, among others, need to seriously review this matter. Because treaties create international and domestic laws, Congress should have major input in their formation and termination. Of course, the violation of international law raises serious foreign policy and national security concerns for the entire nation.

 

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The International Criminal Court & the U.S. — Time for a Reassessment?

   

     What’s the deal with John Bolton blasting the International Criminal Court on the eve of 9/11 celebrations this week?

     He needs to get over his paranoia of international courts, international rules and multilateral institutions. These have developed over the past 120 years and are in the national interests of the United States. It’s part of “American Exceptionalism” and has been a cornerstone of American foreign policy for years.  

     In fact, the United States might want to reconsider cooperating with the court as it did during the Obama administration, and even joining it. Perhaps it could do this with formal Senate treaty reservations as we go forth in this century.

     Russia and China are not members of the International Criminal Court. Do we really want to be the other major country not a member of this court? I understand the concerns of the U.S. military and intelligence communities at the time that the treaty came into force at the beginning of the U.S. military actions in Iraq and Afghanistan. We have already investigated this, and our conclusions are clear. It’s been almost 20 years and time for a realistic reassessment.

     To answer the above question, Bolton’s diatribe fits perfectly within President Trump’s and his administration’s myopic view of laws, judges, courts and prosecutors — at all levels — state, federal and international. It’s only getting worse. Just read President Trump’s disparagement of the International Criminal Court in his recent speech to the General Assembly.

     It was strange the way that Bolton gave his speech at the Federalist Society. This is a conservative legal group that has espoused from its founding respect for rules and courts. It is also strange that he gave his talk when nothing much has happened. A lot has changed in the Middle East since 2002. This is when the Bush administration launched military operations in Iraq and Afghanistan.  It’s when the Bush administration along with the neocons decided to “unsign” the Treaty of Rome and not to present it to the U.S. Senate for ratification.

     Articles 5, 12 and 13 of the Treaty of Rome address the issue of jurisdiction. Article 5 lists as subject-matter jurisdiction the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Article 12 provides as a precondition to jurisdiction that a state needs to be a party to the treaty. Article 13 seemingly expands this jurisdiction to crimes committed within a signatory state by forces of a country not a signatory of the treaty. (Think, Afghanistan.) If the U.S. Senate considers the treaty, it can, of course, adopt a formal reservation precluding this provision.

     There is a whole range of particular treaty provisions concerning preliminary determinations by the court over admissibility and jurisdiction.  They provide for a broad range of state challenges. There is no reason that the United States could not challenge and successfully any issue concerning our use of force in Afghanistan. (Iraq is not a member of the court so no actions would lie in U.S. actions taken in Iraq.)

     Limited court appearances for the purpose of challenging jurisdiction is well known and accepted. The jurisdiction decisions in international tribunals are always treated as preliminary matters before addressing merits of the dispute.

     It is in the national interest of the United States to cooperate with the court, and if any challenges arise, the U.S. has valid arguments against the exercise of jurisdiction. Simply put — the U.S. is not a party to the Treaty of Rome, and any exercise of jurisdiction violates the most basic provision of international law. If a state does not consent to jurisdiction, there is no jurisdiction. There is no violation of national sovereignty. In addition, even under the particular terms of the Treaty of Rome, jurisdiction can be found not to exist. Appearance in a court proceeding does not mean consent to jurisdiction nor acceptance of any provisions of a treaty.

    We have a lot of lawyers in the Dept. of State and Justice Dept. that can make these arguments and prevail. We also have lawyers serving in U.S. embassies throughout the world who can be of assistance.

    The U.S. should not be afraid of legal challenges. In the long run, they make for a better system.  For the first time various member states of the ICC have recently requested consideration of a prosecution. Specifically, five Latin American countries and Canada have requested the court to consider prosecuting Venezuelan officials for human rights abuses. Wesley Clark, former NATO Supreme Allied Commander,  declared that John Bolton was dead wrong. In fact, we have previously cooperated with the International Criminal Court in its investigations. The International Criminal Court is a historical development starting with war crimes trials by victorious countries after World War Two and prosecutions by ad hoc tribunals after the Yugoslav wars of the 1990s.

      It is in the national interest of the United States to stand up for our exceptionalism and the international rules-based system that it has championed. 

 

“Protecting American Constitutionalism and Sovereignty from the International Criminal Court.” (White House) (Sept. 10, 2018).
“Bolton is Dead Wrong on the ICC.” Washington Post (Sept. 25, 2018).
 
   

 

 

 

 

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CHINA AND TRADE — Recent Articles in CHINA AND WTO REVIEW.

    

 

These are a few recent articles of mine appearing in a leading international journal published in Korea focusing on China, trade and the WTO.

 

Malawer, “Trump’s China Trade Policies: Threats and Constraints.” 3 China and WTO Review 109 (No. 1) (March 2017).

Malawer, “Trump Trade — One-Year — Belligerent Rhetoric but Still Unsettled.” China and WTO Review (March 2018).

Malawer, “Trump’s Tariff Wars and National Security — A Political and Historical Perspective,China and WTO Review (Sept. 2018).

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“Interview with Dr. Stuart Malawer – Excellence in International Law.” Journal of East Asia and International Law (Spring 2018).

 

International Lawyer Excellence Award (June 2018)

 

 

 

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GLOBAL TRADE AND THE U.S. — Some Op-Eds from the New York Law Journal (2011-2018).

    Global Trade

       Some of my articles (commentary) printed in the New York Law Journal (2011-2018).

 

Malawer, “Trump, Trade and National Security.” New York Law Journal (March 26, 2018).  

Malawer, “Looking at the Trans-Pacific Partnership.” New York Law Journal (December 8, 2015). 

Malawer “Confronting Chinese Economic Espionage with WTO Litigation.New York Law Journal (2014). 

Malawer, WTO Litigation and China.” New York Law Journal (2013). 

Malawer, “Chinese Corporate Investments & State Economic Development  in the U.S.” New York Law Journal (2011).

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U.S. in Global Affairs — U.S. and International Law — Op-Eds in the Richmond-Times Dispatch.

Law and World (Gavel)

     Some of my recent editorials /Op-Eds in the Richmond-Times Dispatch (2016-2018) on the U.S., global affairs and law.

 

Malawer, One Year In — Trump’s Trade Legacy,” Richmond Times-Dispatch (January 7, 2018). 
Malawer, “New Federalism, Foreign Affairs and Trump.Richmond-Times Dispatch (June 17, 2017). 
Malawer, “Trump, Trade and Virginia.” Richmond-Times Dispatch (Nov. 11, 2016).
Malawer, “Obama, Trade Enforcement and China.” Richmond-Times Dispatch (June 19, 2016).
Malawer, “US Global Tax and Global Trade.” Richmond-Times Dispatch (April 7, 2016). 
Malawer, “Is the Iranian Hostage Agreement Good Diplomacy and Law?” Richmond-Times Dispatch (January 31, 2016).

Some older ones …………….

         Malawer, “President Needs Fast-Track Authority.” Richmond Times Dispatch (Feb. 16, 2014).
         Malawer, “State Universities and Econ. Development.” Richmond-Times Dispatch (Jan. 29,  2012).
Malawer, “States Must Seek Direct Foreign Investment.” Richmond Times-Dispatch (June 19, 2011).
 

 

 

 

 

 

 

 

 

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New Article …. “Trump’s Tariff Wars.”

 

New article discussing President Trump’s tariff actions …………… Malawer, “Trump’s Tariff Wars and National Security — A Political and Historical Perspective,China and WTO Review (Sept. 2018).

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International Lawyer Interview — Stuart Malawer

Interviewed by the editor of the Journal of East Asia and International Law (Spring 2018) as its International Lawyer of distinction. Interview for International Lawyer.

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