On February 1, 2017, the American Society of International Law offered the first in a series of free, nonpartisan, online briefings on “International Law and the Trump Administration.” The initial briefing examined “The Future of International Agreements” and was moderated by Michael Goldhaber, a journalist specializing in international legal matters. The expert commentators were Catherine Amirfar and John Bellinger, both former State Department lawyers (he in the George W. Bush administration and she in the Obama administration) and both currently practicing international law with major law firms. The hour-long program was geared to an audience of policy makers, journalists, and the general public.
Donald Trump has expressed negative views of international law, international institutions, treaties, and other international agreements. A draft Executive Order leaked after Mr. Trump became president would direct a review of all multilateral treaties to determine from which of them the Administration might choose to withdraw. Mr. Ballinger noted it is customary for a new administration to order a review of pending treaties in order to prioritize among them, but a review of all treaties both pending and in force would encompass hundreds of instruments and suggests a skepticism both commentators regarded as troubling. The specific benefits of treaties are many, the commentators observed, and the values of free and open societies are spread across the globe through treaties and other international agreements.
Ms. Amirfar described the three legal categories of international agreements and the standards for each coming into effect under U.S. law. Treaties require approval by a two-thirds vote of the Senate. Congressional-Executive Agreements are approved by a majority of the House and Senate. Sole Executive Agreements can be entered into (and withdrawn from) by the president, pursuant to Constitutional or statutory executive authority and without concurrent Congressional involvement. Boundaries between the types of international agreements are largely guided by tradition but can be subject to debate.
There is little legal precedent concerning the president’s unilateral power to withdraw from treaties and international agreements. In the past the Supreme Court (in Goldwater v. Carter, 444 US 996 (1979)) has found such treaty withdrawal to be a non-justiciable political issue not ripe for judicial review.
The panel explored the prospects for several international agreements, principles, and institutions that drew specific attention in the recent campaign: NAFTA, the Paris climate change agreement, the Iran nuclear deal, the World Trade Organization, the principle of sovereign immunity, the International Criminal Court, and U.N. Human Rights conventions. Each situation is different, and the difficulty of withdrawing from or modifying the U.S. position on each varies. For example, the Paris agreement is so minimally binding and aspirational that it has not been submitted to the Senate, so the president could essentially ignore it if he chooses. On the other hand, NAFTA (a Congressional-Executive Agreement) contains specific procedures for withdrawal on six months notice (it is not clear whether the president could act unilaterally to withdraw). But the economies of the parties to NAFTA are so intertwined that the practicality of withdrawal is questionable.
Both commentators expressed hope that once the full Cabinet is in place and a more normal process of consultation and inter-agency dialogue begins to take place the international system that has dramatically raised global standards of living will remain intact.
A video recording of the February 1 discussion can be viewed at www.asil.org/100days. The second briefing in the series, on “The United Nations and Its Specialized Agencies,” will take place on February 23, 2017, at 9:30 a.m. (MST).
Robert Thompson is a retired lawyer and business executive. He currently is president of the Tucson Committee on Foreign Relations.