It has been a busy, and turbulent month for President Trump. With a series of executive orders, he has made it clear that campaign promises of a wall with Mexico, withdrawal from the Trans-Pacific Partnership (TPP) and immigration ban on Middle Eastern nations were not meant in jest. There are wide-reaching implications of these decisions for US Constitutional and International Law.
On 27 January 2017, President Trump signed an executive order on immigration. It suspends the Syrian refugee program, prioritises refugee claims on the basis of religious persecution (allowing Trump to prioritize Christians over Muslims) and bans the entry of dual-nationals and visitors from seven majority-Muslim nations for 90 days. These countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. It is interesting to note that Middle Eastern nations where Donald Trump has business ties are excluded from the ban.
The order has triggered widespread backlash, both domestically and internationally. It has also been brought before the courts, with Justice Robart of the Federal Court granting a nationwide temporary restraining order on the immigration ban. On Thursday 9 February 2017, a three-judge panel of the 9th US Circuit Court of Appeals unanimously upheld the ban and expressed concern about religious discrimination against Muslims. The court rejected the administration’s claim that review of the Executive Order is beyond its authority. At this stage, it is unclear whether President Trump will issue a Supreme Court challenge or create a “brand new order”. This is definitely a case to watch.
On just his fourth day in office as the newly sworn in President of the United States of America, Donald Trump, signed an executive order to end the United States’ participation in the Trans-Pacific Partnership. While the multilateral trade agreement was already facing an uphill battle to gain approval from a Republican controlled Congress, the executive order likely puts the final nail in the coffin for US involvement in what would have been one of President Obama’s signature international policy achievements.
The move came just days after Chinese President Xi Jinping advocated for free trade at the World Economic Forum in Davos, Switzerland. The TPP excluded China from its membership and was seen by many as a way of the United States expanding its influence in the Asia Pacific region and buttressing China’s growing influence. The withdrawal may leave the door open to expanded Chinese influence on trade in the region and increases the likelihood of a free trade agreement headed by China coming into being.
NAFTA and the World Trade Organisation
On his third day in office Donald stated that he would use meetings scheduled with Canadian Prime Minister Justin Trudeau and Mexican President Enrique Peña Nieto to begin renegotiating NAFTA. After a series of exchanges that resulted in Mexico’s President Enrique Peña Nieto cancelling his trip to Washington D.C the White House proposed a 20% tax on all imports from Mexico in order to finance the building of a wall along the US-Mexico border, one of Donald Trump’s central campaign policies.
The proposal stands in stark contrast to the principles of trade outlined not only by NAFTA but also America’s commitments under the World Trade Organisation (WTO) treaties. The NAFTA treaty does contain exceptions and while it is possibly that the Trump White House might use the National Security sub-exception to justify the tax, it is unlikely that such an argument would hold up in the dispute settlement procedure of the treaty. A similar exception is contained in the WTO treaties but the tax would likely be similarly unsuccessful in a WTO Dispute Resolution Panel. Having likely unsuccessful dispute resolution claims against it in either or both NAFTA and/or the WTO could accentuate ongoing friction between America and its trade partners abroad as well as in North America.
South China Sea
US-China relations have again been in the spotlight in Donald Trump’s first week as President with his Press Secretary, Sean Spicer, stating that the US would “make sure that we protect our interests” in the South China Sea.
$4.5Tn in trade passes through the South China Sea every year and the region is subject to competing maritime claims by China, the Philippines, Vietnam, Taiwan, Brunei and Malaysia. These maritime claims coincide with territorial claims over islands and other features in the region. An international tribunal formed under the United National Convention on the Law of the Sea (UNCLOS) found that China’s claims to many of the islands by virtue of its ‘nine-dash line’ had no basis under international law but the finding was rejected by China. A number of freedom of navigation exercises have been carried out in the wake of the freedom of navigation protected by UNCLOS and have led to tension between China and the US. That tension has escalated with the prospect of a Trump Presidency.
The comments by Sean Spicer come only a fortnight after the then-unappointed Secretary of State, Rex Tillerson, likened China’s island building to the Russian takeover of Crimea. Chinese media responded by saying the US risked a “large-scale war” if it attempted to block access to the islands. Sean Spicer’s comments continue the more confrontational approach to the situation by Donald Trump into the White House.
During the Presidential campaign there were reports that a Trump White House would withdraw from the Paris Agreement but no action has yet been taken to follow through on this. The Agreement builds on the United Nations Framework Convention on Climate Change and aims to reduce greenhouse emissions and limit global warming to under 2 degrees Celsius. The United States ratified the Agreement in September 2016 and the Agreement reached the threshold number of countries required for it to come into effect on 5 October 2016. The Agreement came into force on 4 November 2016.
The New York Times reported on 22 November 2016 that the then President-elect would not repeat his statements about abandoning the Agreement and that he stated: “I have an open mind on it.” The White House policy page on climate change was removed from the White House website on the day of President Trump’s inauguration and the flexible nature of the Agreement itself leaves room for a Trump White House to be largely inactive in upholding the agreement but no formal moves have yet been made to end US involvement.