Threat of treaty domino effect
If the US starts acting in a way seen by others as a violation of the international legal order, why wouldn’t others follow suit, asks Professor Alberto Costi
When he is trying to be optimistic, Professor Alberto Costi from Victoria University of Wellington’s School of Law thinks of the US president as not so much Donald Trump as Donald Duck.
Before highlighting the threat Trump poses to the post-World War II global rules-based order the US itself led into existence, international law expert Costi told the audience at his talk at the capital’s Wellington Club about some of the more reassuring continuities between Trump and other recent US presidents.
In some respects, the administration has not changed that much, said Costi.
“Try to imagine a duck. A duck is floating on the surface of the water and its little legs move it forwards. That was very much how the Barack Obama administration worked. There was not always a lot outside on the surface but under the surface a lot was done by the Obama administration. With Donald Trump, it’s a duck but reverse duck: under the surface it’s very, very smooth, and smooth sailing most of the time, but with all this rhetoric outside.”
Republican President Ronald Reagan used the Trump-like slogan “Let’s make America great again” in his 1980 campaign for the White House and after he was elected “did his best to undermine” Democrat predecessor President Jimmy Carter’s human rights and foreign policy, said Costi.
“He refused to sign the Convention on the Law of the Sea, he withdrew from the International Court of Justice compulsory jurisdiction, he refused to pay United Nations dues and he also withdrew from UNESCO.”
However, said Costi, Reagan did not entirely abandon these focuses of international engagement, instead following more of an à la carte approach.
“He selected the rules he would respect. Although he refused to sign the Convention on the Law of the Sea, he made it clear the US would comply with most of the rules of the treaty. Reagan rejected the International Court of Justice’s involvement in the US dispute with Nicaragua; however, his administration accepted the jurisdiction of the court in a dispute with Canada.”
Similarly, Costi cautioned that unilateralism is “a bit too easy a term” to hang on Trump, “because the US has worked with allies in some respects—for example, the second set of strikes in Syria done in coordination with France and the United Kingdom”.
Labelling Trump an isolationist is simplistic too, said Costi, citing Trump’s consultation with South Korea, Japan and other allies over North Korea.
“I think Trump knows where isolating the US can work and where it cannot work. There is a certain degree of consultation as well in Yemen with some of the Gulf states.”
On the negative side of the ledger, Costi put Trump’s rhetoric at rallies and elsewhere (“obviously he’s been a champion tweeter”) and such measures as launching trade wars with traditional US allies like Canada and the European Union and relocating the US embassy in Israel from Tel Aviv to Jerusalem.
“When you look at international agreements, there has been, one could think, a withdrawal from almost everything: the TPPA; the Paris Agreement [on climate change]; the Iran Agreement [on the country’s nuclear capability]; NAFTA [North American Free Trade Agreement]; UNESCO.
“There seems to be a personal animus against those agreements. The danger from here is that when you have these agreements it allows for certainty. We know what the obligations of the players are. The problem with reviewing these agreements is on what basis is there a need to review them?
“It’s very interesting that under George W Bush over 130 treaties went before the Senate and were ratified. Under Obama, there were only 20, but that was because of the hostility the Senate and House of Representatives led by Republicans had towards the president. Under Trump, I might be wrong, but there’s been no new treaty sent to the Senate. The only approved treaty was the treaty allowing the accession of Montenegro to NATO. No treaty priority list has been submitted by the Trump administration.
“And when you look at all these treaties Trump found not to be in the interest of the US, what will be next? Will it be the International Covenant on Civil and Political Rights? Will it be the Convention against Torture? Who knows? There really is this risk of instability.”
Expanding on that risk, Costi warned of a ‘domino effect’.
“If the US starts acting in a way perceived by others as being a violation of the international legal order, why wouldn’t others follow suit? Respect for international law is always based on the concept of reciprocity. If the US is perceived to be violating treaties and not engaging with international institutions, some other countries would ask themselves, ‘Why shouldn’t we do the same?’”
Trump is reducing international law to “the service of the state” and “cherry-picking” what to follow and what not, said Costi.
“I think it is very important to allies of the US [including New Zealand] to continue to repeat their support for the rule of law, the multilateral system and the UN as well. It’s important because the more we reiterate our support for these values the more allies understand the importance of preserving the post-1945 international order. The more we do that the less we legitimise a piecemeal approach to international law.”
International institutions need to be supported and enforced, said Costi. “Any rhetoric to the contrary is a danger to international law.”
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