By Nick Laneville
November 1, 2016
Throughout his campaign to be the next President of the United States, Donald Trump has expressed a range of views on foreign policy. Issues that have been particularly pronounced in his rhetoric in this area are those of collective security, immigration, and trade. This blog post will attempt to explain his positions on those issues, and, where possible, envisage the outcomes of his policy decisions if they were to be enacted.
Donald Trump has expressed serious discontent with the manner in which the United States and its allies orchestrate collective security. Particularly, he takes issue with the way in which the North Atlantic Treaty Organization (NATO) is run. He contends that the United States pays far more than its share while other members unfairly enjoy the fruits of the United States acting as the “policemen of the world.” In the first presidential debate, he noted that the United States “pay[s] approximately 73 percent of the cost of NATO,” and he submits further that too few of the 28 member states spend the requisite 2% of GDP on defense.
His position is that “[t]he countries [that the United States is] defending must pay for the cost of this defense – and, if not, the U.S. must be prepared to let these countries defend themselves.” The removal of U.S. support from nations that are allegedly not paying their share could indeed incentivize them to change course and begin upholding their obligation to spend on defense. However, such removal could mean a bleak and short future for NATO. If the United States, as the strongest military power in NATO, refuses to honor its obligation under Article 5 of the Washington Treaty which essentially commits it and all of the other members to collective self-defense should an armed conflict break out, then the credibility and force of the Organization will take a serious hit. The looming threat of an expansionist Russia, bordered by small (and in this hypothetical scenario, former) unprotected NATO members such as Estonia, could indeed lead to some tense diplomatic situations if collective security is disrupted.
The full extent of Donald Trump’s immigration plan is beyond the scope of this post, but certain aspects of his plan do have effects on foreign policy, so those are addressed here. Perhaps the flagship policy of Donald Trump’s campaign has been “The Wall” that he intends to build along the southern boarder of the United States, and, unsurprisingly, this is likely the policy that would have the greatest impact on foreign relations and policy.
Particularly, the means by which Trump intends to pressure Mexico into paying for the wall may have an impact on United States-Mexican relations (and others). To that end, he has suggested the promulgation of a proposed rule under the Patriot Act which would limit the ability of Mexicans to transfer funds to Mexico from the United States. The rule would require aliens wishing to wire money outside of the United States to affirmatively prove by relevant documentation that they are in the United States legally. Because Mexico receives, approximately $24 billion USD per year in remittances from Mexican nationals living abroad, “the majority of that amount com[ing] from illegal aliens,” Mexico will want to avoid the enactment of this rule which would curb the flow of these remittances. The United States will then offer to not enact the rule in exchange for Mexico paying the $5-$10 billion USD to build the wall.
This plan is a difficult one to square with law as it stands in the United States. First, Trump’s proposed interpretation of the text of the Patriot Act would likely be subject to controversy and litigation. His proposal necessitates an expansion of the definition of the term “account” in the Patriot Act to include wire transfers, while the text expressly carves wire transfers out of that definition, holding that “Account does not include: (A) A product or service where a formal banking relationship is not established with a person, such as check cashing[ or] wire transfer[.]” Expanding that definition would likely require legislative action, which would, at the very least, delay this program.
Secondly, the impact of forcing aliens to prove that they are in the United States legally before they can transfer money abroad will not only impact Mexicans and Mexico. The proposed ruling will impact all aliens wishing to transfer funds, which could have a dilatory and negative impact on individuals and businesses that operate in the United States, but do not have United States citizenship.
Trump has stated that China is one of the United States’ primary adversaries in trade, frequently accusing it of unfair trade practices which harm domestic markets and industries. He has suggested that a means by which to change the dynamic of the United States’ trade relationship with China would be to impose (or at least threaten to impose) steep tariffs on China. This, however, would not be a tenable approach as it is a clear violation of Article I:1 of the General Agreement on Tariffs and Trade (“GATT”). He has also suggested that China is unfairly subsidizing its exports to the United States and dumping goods, which could be grounds for the legal imposition of higher tariffs on Chinese products assuming a finding by the relevant agencies that China is either engaging in unfair trade practices or that its actions are causing injury to the domestic market.
An alternative route that Mr. Trump has proposed is to pull out of the World Trade Organization altogether. While this would permit him to raise tariffs on China, this would also have some other rather catastrophic effects on American and global trade. It would mean a rescission of the covered agreements and all of the benefits that accompany those including the low tariffs that the United States benefits from through the GATT and the General Agreement on Trade in Services. It would require a renegotiation of tariff levels through free trade agreements with all of the members of the WTO whom the United States does not already have agreements with, and even some of the nations with whom it does have agreements. Extracting the United States from the World Trade Organization would be like the Brexit, but far more complex and with fewer benefits.
Donald Trump has consistently disparaged the trade agreements that the United States is party to, and has said that he will change the commitments that the United States has made under those. What is unclear is how, and to what extent he intends to do that. In Gettysburg, Pennsylvania on October 22, he proclaimed that every single United States trade agreement will be unwound if he is President, but again, it is unclear to what extent those will be “unwound.” A complete overhaul of all trade agreements would be quite an undertaking, and its outcome would be impossible to determine at this juncture.
(Nick Laneville is the Senior Articles Editor for Volume 32 of the American University International Law Review.)