by Ralph Janik
[Ralph Janik is a researcher at the University of Vienna Faculty of Law, Department of European, International and Comparative Law.]
The presidency of Donald Trump obviously has a manifest impact on international law. After all, he and his administration do not seem to be overly interested in observing international law. Does Trump’s “America First”-policy ultimately imply a comeback of Hegel’s conceptualization of international law as “external public law”?
Regardless of what one may think of him, Donald Trump is a phenomenon keeping virtually everyone with only the slightest interest in politics occupied. Researchers in a variety of fields can’t stop attempting to characterize him and his policies. A psychologist may elaborate on his narcissism, disagreeableness, and grandiosity (see this article in the Atlantic). From the perspective of international relations, most seem to think that he is simply erratic and mostly clueless while one may also distil a coherent Machiavellian foreign policy where unpredictability plays a key role. From a historical point of view, it makes sense to follow Walter Russell Mead’s classification of four types of US presidents by drawing parallels to Andrew Jackson. For an international lawyer, Trump may be described as an adherent of Hegel.
From Paris to Torture
At the outset, it does not seem as if Trump has a keen interest in international law and even less in observing it. Concerns regarding US participation in vital treaties and its adherence to international law in general that have been swirling around ever since the presidential race are currently rising to new heights (see e.g. this panel discussion with John B Bellinger III and Rosa Brooks). Some of the most important topics are the Paris Agreement, the Geneva Conventions, or the prohibition of torture.
As recently as end of January, a former climate change adviser of Donald Trump had stated that Trump “will definitely pull out of Paris climate change deal” and that an executive order could be expected shortly. Under international law, however, withdrawing from the Paris Agreement would be effective in 2020 while withdrawing from the UN Framework Convention on Climate Change entirely would take one year. It remains to be seen whether the US will comply with its obligations in the meantime considering that the Paris Agreement is silent when it comes to enforcement (see this blog post by Kate Birmingham Bontekoe).
Trump furthermore stated that “the soldiers are afraid to fight” because of the Geneva Conventions. At the same occasion, he also implicitly called for negative reciprocity in International Humanitarian Law (which is obviously unlawful; eg the preamble to Additional Protocol I states that it and the Geneva Convention “must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”) when stating that “[w]e can’t waterboard, but they can chop off heads […] I think we’ve got to make some changes, some adjustments.” He also repeatedly stated his belief in the efficiency of torture (“Absolutely I feel it works”).
In light of such statements, one cannot help but feeling taken back to the Bush era and the aftermath of 9/11. Interestingly enough, however, even two of the architects of what Jens David Ohlin described as an “Assault on International Law” and proponents of far-reaching executive powers, namely John Yoo or Eric Posner, have publicly stated that they are concerned because of Trump (I wonder whether Ohlin is currently contemplating a follow-up book).
Hegel and international law as “external public law”
Trump’s “America First”-policy, coupled with him openly questioning fundamental principles of international law seems to be based quasi-absolute understanding of sovereignty, where obligations of all sorts are often viewed as obstacles to national interest and national security.
This takes us back to the good old Monism vs. Dualism-debate. To sum up briefly, dualism purports that international law and public law are too different and entirely unconnected fields while monists assume that they are part of one and the same legal order, while the generally accepted view holds that sovereignty is restricted by the primacy of international law.
For Hegel, however, state law reigns supreme (see his Elements of the Philosophy of Right, §333). Like Emer de Vattel before him, he transposed the Hobbesian understanding of the state of nature to the international plane. In absence of an (international) Leviathan, the rights of states “are actualized not in a universal will with constitutional powers over them, but in their own particular wills.” Agreements are thus not binding in the strict sense but “tainted with contingency.” He tellingly termed international law as “external public law.”
Non-interventionism and Sovereignty
One may nevertheless argue that Trump has repeatedly shown flashes of non-interventionism and respect for a strict understanding of sovereignty similar to that of powerful traditionalist states like Russia or China. In his “America First” speech from April 2016 he emphasized his “desire to live peacefully and in friendship with Russia and China” and made clear that “war and aggression will not be my first instinct. You cannot have a foreign policy without diplomacy. A superpower understands that caution and restraint are really truly signs of strength.”
Yet, such amicable statements are arguably owed to political, not legal considerations. In this connection, it deserves to be mentioned that Hegel explicitly discussed Kant’s idea of perpetual peace by noting that it ultimately “presupposes an agreement between states” which “would always be dependent on particular sovereign wills.”
The denial of international law
Hegel’s monism is nowadays generally seen as a relic of the past. In particular Hans Kelsen, already in the first edition of his Pure Theory of Law from 1934, forcefully argued that “a monistic construction based on the primacy of the legal system of one’s own state is completely incompatible with the notion of plurality of coordinate states, equally ordered and legally separated from each other in their spheres of validity […] the primacy of the state legal system implies in the end not only the denial of the sovereignty of all other states, and thereby their legal existence as states (in terms of the dogma of sovereignty), but also the denial of international law.”
Trump offers yet another reason to engage with (international) legal theory (see also Andrea Bianchi’s blogpost). Judging from his first weeks in office, he seems to be following the footsteps of Hegel as a denier of international law. Knowingly or not, Trump is trying to make Hegel great again.