I’ve recently joined a new and dynamic group of young lawyers practising in different areas of public international law. The launch event at the FCO in November presented a diverse and enthusiastic group of young practitioners, and it was with pleasure that I attended their second event at Essex Court Chambers on Tuesday.
We were asked to submit questions on the theme in advance of the event, which was “Public international law in 2016 and beyond – key developments of the past year and expectations for the future”. For me, the electoral events of the last few months have been hard to ignore as potentially foreshadowing a sea change in international relations, and thus my question was:
If we view 2016 as having presented two contrasting trends – on the one hand, increased corporate engagement on human rights and international “soft law” norms, and on the other, a wave of nationalism that has been interpreted as a populist revolt against globalisation – which of these trends is more likely to win out in 2017? Put another way: is there a risk that the progress of companies in embracing their responsibility to respect human rights will be clawed back as a result of growing suspicion of international institutions and norms?
To support the first trend, I was thinking of the launch of the US National Action Plan and all the progress that my friends and colleagues in the business and human rights space have made in getting us to the current consensus. I have been heartened by the statements of many CEOs after the issuance of the shameful executive order suspending the refugee program and banning immigrants from seven predominantly Muslim countries. I am particularly encouraged by the oil and gas companies who have opposed the repeal of the Dodd-Frank transparency and reporting requirement, currently on the chopping block in Congress.
Although there are still battles to be fought, on the whole, businesses now seem to understand and accept the importance of transparency and respecting human rights.
By contrast, Donald Trump clearly doesn’t value either, and he is currently sitting in the White House wielding all the power that office bestows on him. What will this mean for the progress we’ve made?
On Tuesday night, we discussed this tension. We were reminded of the ICSID Argentina case from 2010 in which the tribunal stated that Argentina is subject to both human rights and bilateral investment treaty (BIT) obligations, and must respect both of them equally. There is nothing particularly contentious about this statement, and human rights considerations are increasingly considered in international arbitration. However, when we see Theresa May holding hands with Donald Trump in a show of her commitment to securing a BIT with the US, with no mention of human rights or civil liberties as values that underpin the “special relationship,” one can’t help but wonder whether the proposition that human rights obligations are on a par with BIT obligations would still be accepted as the norm.
There followed a good deal of speculation about the US approach to international relations: is the US lurching toward isolationism/protectionism/unilateralism? If we read the signs that indicate a move away from international obligations, the answer seems a clear yes. Insofar as international law acts as a constraint on the executive, it’s no surprise that the current President would seek to limit its application (despite the fact that the US Constitution provides that international law is the “supreme law of the land.”)
Some went so far as to say that the US approach under Trump is not only isolationist, but confrontational. Yes, there has been a pullback on multilateral trade deals like the TPP, but there has also been Trump’s contentious call with Taiwan, Secretary of State Rex Tillerson’s statement that China should be blocked from accessing its islands in the South China Sea, UN Ambassador Nikki Haley’s threat to “take names” of countries that don’t support the US, and the most recent catastrophic phone call with the Prime Minister of Australia.
Amidst the doom and gloom, there was hope for the future of international cooperation. Many believe the Brexit presents an opportunity to embrace new forms of multilateralism, for example by strengthening ties with the Commonwealth. China is taking advantage of the Trump administration’s rhetoric to assert its own influence in Asia and is seeking its own regional version of the TPP. It might not look like the world order we are used to, but there are no signs yet that the rest of the world will follow Trump down the unilateralist path.
In short, decades of progress grounding our international institutions and norms cannot be wiped away by one small orange hand.