UPDATE: On November 8, 2016 Donald J. Trump was elected to be the 45th President of the United States of America. Coming off this victory, now is a time to refresh our knowledge on everything Trump wished to do to make “America Great Again”. To this end, it is relevant to bring to the forefront our first ever blog for Just Cogens. In it, Liam Elphick delved into the nuances of Trump’s campaign promises.
Trump has claimed, on various occasions, that he would:
- Ban all Muslims from entering America;
- Approve waterboarding and other horrific interrogation techniques “in a heartbeat”, and that “torture works”;
- Indiscriminately bomb areas where Islamic State operations are believed to be;
- Force Mexico to pay for a gigantic wall across its border with America; and
- Date his own daughter if he were not related to her.
Admittedly, the last one is probably not a breach of international law – but it does nonetheless reflect his tendency to reduce women to objects built for male desire, often Trump’s own desire, which one would assume is a tad contrary to the UN Convention on the Elimination of All Forms of Discrimination Against Women. But anyway, I digress.
The other four are definite breaches of international law – and substantial ones at that. Number 1 would breach an “immeasurable” number of treaties America has signed with other nations, notably with NATO countries, according to prominent American lawyer Palma Yanni. Number 2 is a monumental breach of the jus cogens norm that prohibits the use of torture, from which no state is permitted to derogate. Number 3 violates the international humanitarian law prohibition against indiscriminate attacks and the requirement to take precautions in attack. While number 4…I don’t even know where to start. Now yes, Donald Trump clearly does not care about what other countries think of America; but America should.
Though at times (OK…often) lacking in compliance or binding nature, international law is incredibly important for foreign relations. It is often used as the measuring stick by which state conduct can be deemed ‘acceptable’. For example, it is acceptable to use force against another state in self-defence; it is not acceptable to wage a war of aggression against another state. The UN Charter and laws surrounding use of force explicitly state that. States that violate international law repeatedly and violently create the perception that they are not playing by the rules; that they are pariahs that do not deserve the niceties, be it trade or otherwise, that states provide each other.
An America that brutally tortures, indiscriminately bombs, bans religious groups from entering their shores, forces other countries to pay for building walls for them, and treats any minority groups as sub-standard is a nation that is in severe violation of significant portions of international law. In the words of Jonathan Turley, a constitutional law expert at George Washington University, such eventualities “would make the United States a virtual pariah among nations”; an isolationist policy that would take place with rapid effect, in a throwback to early 20th century American foreign relations. But maybe winding back the clocks a century is exactly what the Donald wants.
Liam Elphick is a final year Law student at the University of Western Australia, and the President of the UWA International Law Club.