Wade Mansell, Emeritus Professor
Kent Law School
In 2005, Emily Haslam and I published a paper in Social & Legal Studies that considered the arguments made by John Bolton about his understanding of public international law and the place of the USA within it (see here for a freely downloadable copy).
At the time of writing this and another article, I felt that while the fundamental questions which Bolton posed about the very basis of international law were of at least philosophical interest, his views were topical only in a discussion of the place accorded to international law under the presidency of George W Bush (2001 – 2009). Perhaps unfortunately, his relevance has been revivified with the election of President Trump, making it important to look again at his views. As we noted in 2005, even within American international law jurisprudence, Bolton’s position was extreme – questioning the very existence of international law, as law, and arguing that there was no way that the USA should feel bound by it if it was not in its interests to do so. His was an assertion that the king had no clothes and he invited all to observe the nudity.
Although shortly after the Trump presidency began, Bolton’s name had been suggested as a potential Secretary of State, this did not happen (for reasons which remain unclear – according to one source it was because President Trump loathed his moustache). Now however, he has been appointed as ‘Assistant to the President for National Security Affairs’ in the Executive Office of the President and will take up his position in April 2018. This follows earlier appointments in the Bush administration as temporary US Ambassador to the UN (temporary because his appointment was never confirmed by the Senate where the Democratic opposition was too strong) and as US Under Secretary, Arms Control and International Security.
As it is in the Office of the President, Bolton’s new appointment will require no Congressional approval. Essentially he will become President Trump’s principal advisor on matters of national security. This is why it is relevant once more to consider what sort of advice concerning international law he is likely to proffer. Here, it is crucial to remember that John Bolton has consistently expressed a belief that the United States can do what it wants without regard to international law, treaties or the political commitments of previous administrations. It is now more than twenty years since he claimed that the United States was not bound by the provisions of the UN Charter and could, if it wished, renege on its undertaking to pay its dues to the UN. Indeed, he once famously commented that while the UN consisted of 38 floors, it could lose 10 of these and no one would notice! There is no indication that his views on such matters have changed.
With regard to the international agreement with Iran, offering trade and other concessions in return for Iran agreeing to suspend its ‘nuclearisation’, Bolton has argued (as has President Trump) that it is a ‘terrible deal’ and that the US should withdraw its agreement even though it is not claimed that Iran is in breach of its obligations under the treaty. The position that Bolton has taken, reflecting that of Israel, rather favours a unilateral strike intended to destroy any Iranian nuclear capability existing or potential. Bolton’s rather remarkable view of the sanctity of treaties was that they are only ‘binding’ upon the US as long as it is in the interests of the USA that they should be so. This remarkable position denies the entire basis of international law and pacta sunt servanda.
As to North Korea, in February 2018, Bolton’s expressed view was that it was ‘perfectly legitimate’(given his views on international law, this is a strange phrase) for the US to strike first in response to what he perceived as the current ‘necessity’ posed by North Korea’s nuclear capability. If the proposed talks between President Trump and the North Korean president do take place, it will be for John Bolton to advise President Trump.
Concerning the proposed decision to move the US Embassy in Israel from Tel Aviv to Jerusalem – a move opposed by almost the entire international community – John Bolton has said, ‘I believe that recognizing Jerusalem as Israel’s capital city and relocating our Embassy there on incontestably Israeli sovereign territory would be sensible, prudent and efficient for the United States government. Indeed, fully regularizing the American diplomatic presence in Israel will benefit both countries, which is why, worldwide, the U.S. Embassy in virtually every other country we recognize is in the host country’s capital city’. It should be added however that he did at least make clear that his comments referred only to West Jerusalem, and not to Jerusalem, East of the Green Line.
In other speeches he has further opined that the ‘two state solution’ (allowing for a Palestinian state to co-exist with Israel, its territory to be a negotiated West Bank and Gaza) was no longer an option and suggesting that a solution might be found by conceding Gaza to Egypt, and returning the West Bank (or what remained of it after ‘negotiations’) to the state of Jordan. The implicit assumption of this proposal seems to be the once official position of Israel, that there is no such a people as ‘Palestinians’ who are better recognised as ‘Arabs’.
Of course, the fact that John Bolton has expressed these views, generally while not in a position of state power, does not mean that he will pursue them in his new role. He has indeed suggested that his new role will dictate new views. However, there is a consistency in what he has expressed in the past which could be summarised as anti-globalisation and pro-constitutional self-interested nationalism. He has always opposed conceding powers to the international community, arguing that such concessions detract from the ability of the United States to take its own democratically determined decisions. One clear example of this, which does seem to chime with the current policy of President Trump, concerns the World Trade Organisation and the treaty commitments undertaken by the parties (including, of course, the US). Bolton has advocated ignoring the agreed WTO dispute resolution mechanism which would enable the US to retaliate against trading partners without submitting to adjudication – as President Trump is now attempting to do.
A final example concerns the UN Paris Agreement on climate change. For anyone who hoped that President Trump might reverse his decision to withdraw from the Paris Agreement, John Bolton’s reported response upon hearing of the President’s intention is instructive. He thought that it was an excellent idea, noting that ‘[t]he Paris accord is a self-licking ice cream cone. Its purpose is to exist,’ and adding that ‘[t]he overall effect on climate by any reputable scientific analysis is zero.’ He also rejoiced in the rejection of any cession of constitutional governance authority to international organisations.
One commentator, not unreasonably, has suggested that Bolton’s view of international law was that it was something that should not be allowed to enable the world’s Lilliputians to constrain the American Gulliver. In the light of the above, his appointment to the Trump White House should be greeted with some trepidation.