In late January, The Washington Post released a draft Trump administration executive order (EO) that places a “moratorium” on U.S. commitments to multilateral treaties. The EO proposes a process to review — and potentially rescind — U.S. commitments to international agreements “that purport to regulate activities that are domestic in nature.”
Our research suggests that the EO would signal that the Trump administration is hostile to international law — especially human rights law.
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/02/07/unlike-all-previous-u-s-presidents-trump-almost-never-mentions-democratic-ideals/?utm_term=.43903a413529″]Unlike all previous U.S. presidents, Trump almost never mentions democratic ideals[/interstitial_link]
The EO proposes adding an extra step to the treaty ratification process. A new executive committee would review treaties before they come to the president’s desk for signature. The president would then proceed as usual — and make international treaties “with the advice and consent” of the U.S. Senate, as specified in the Constitution. Next, the Senate would need to approve the treaty with a two-thirds majority vote.
The added step is likely to slow the U.S. adoption of international law. But not by much — the ratification process is slow and deliberate by design, requiring presidential signature and Senate approval.
The administration seems to be targeting two human rights treaties
The executive order appears to be motivated by concerns related to two human rights treaties: the Convention on the Elimination of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). The concerns, and the treaties themselves, are not new. Several elected officials have strong views on the roles women play in society and the rights of families to make decisions about their children, and do not want these roles determined by international treaties.
The Senate has not recommended ratification of the CEDAW or the CRC in the 30 and 25 years since they opened for ratification, respectively. Since few people expect the Senate to ratify human rights or environmental treaties, the EO does not change much regarding the adoption of either treaty.
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2017/01/30/most-of-trumps-executive-orders-arent-actually-executive-orders-heres-why-that-matters/?utm_term=.672d0e9fc92a”]Most of Trump’s executive orders aren’t actually executive orders. Here’s why that matters.[/interstitial_link]
But is there a larger potential rollback of existing treaties?
The EO also tasks the Treaty Review Committee to “[r]eview all treaties that have been ratified and are currently in effect, and recommend to the president whether the United States should continue to be a party to such treaties (Section 2(a)(iii)).” In other words, the EO would also allow the president to roll back international obligations to which the United States — in particular, the Senate — determined to be in the national interest.
Here’s where the executive order may be signaling the Trump administration’s hostility to international law in general. The extra scrutiny and advisement of treaty ratification procedures suggest that President Trump intends to keep his campaign promises to reduce and/or eliminate U.S. obligations to environmental and human rights treaties.
Presidents have the capacity under domestic law to withdraw from multilateral treaties — and presidents have terminated treaties unilaterally, although such moves customarily involve Senate advice. Because international treaties “made under the Authority of the United States shall be the supreme Law of the Land (U.S. Constitution, Article VI),” withdrawals must be done in accordance with the terms set out in the treaty itself.
The European Union has a secession procedure, for instance, which involves giving notice, negotiating the process of withdrawal, and garnering the approval of other members. The Paris Agreement allows parties to withdraw after the agreement has been in force for three years. To withdraw from a treaty without following the proper procedures is to violate international law, which is normatively a violation of U.S. law.
How might the Review Committee proceed?
The proposed Review Committee could recommend withdrawal from human rights treaties ratified by the U.S. Senate — treaties such as the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Convention for the Elimination of Racial Discrimination (CERD).
But none of these three treaties include explicit secession clauses. When North Korea announced in 1997 that it would withdraw from the ICCPR, the U.N. Secretary-General pointed out that the ICCPR makes explicit no formal process for withdrawal, and thus, signatories cannot withdraw from the treaty.
Even if the United States cannot formally withdraw its commitments to international human rights treaties, the Trump administration could follow in the footsteps of North Korea, acting as if it is no longer obligated to international law, both in word and repressive deed. And much of the power of international law is not in the obligation itself but in the expectations that it creates among relevant audiences.
Yes, public perception of the role of international law in government action matters. Imagine, for example, that the United States withdraws support from the Convention Against Torture. Although government torture would remain illegal under U.S. domestic law, international treaties help strengthen the perceived legitimacy of victims’ claims against the government.
[interstitial_link url=”https://www.washingtonpost.com/news/monkey-cage/wp/2016/07/15/womens-rights-in-africa-grow-stronger-after-conflicts-heres-why/?utm_term=.d89e2b2765bd”]Where do African women have more power? Surprise — in countries emerging from war.[/interstitial_link]
When victims of rights violations think that courts are emboldened to protect them, they are more likely to bring suit against authorities — even more likely than they would have been under domestic laws alone. Victims think that international law helps their case and that the government is at least to some extent constrained by it.
In our book, we argue the public belief that treaties such as the Convention Against Torture bring legitimacy to claims and causes governments to repress less. Because courts are more likely to hear claims of rights violations when governments are committed to international treaties, executives violate rights less to avoid legal costs. Our research, available ungated here, shows that leaders who are secure in power are especially likely to be constrained by obligations to human rights treaties.
With the 2020 election a long way off, the Trump administration is in a strong position of power. Yet our work suggests that the administration — with an independent court system and a portion of the populace ready to use legal means to oppose its policies — has meaningful grounds to expect that human rights treaties would bind repressive practices.
This expectation of constraint may lead the administration to opt out of future or existing obligations that constrain executive policies, particularly those that might be considered rights violations. This may be one reason for the proposed executive order — and potentially a step backward in the protection of human rights in the United States.
Courtenay R. Conrad is an associate professor of political science at the University of California at Merced.
Emily Hencken Ritter is an assistant professor of political science at the University of California at Merced.