It’s not just about the 2012 Magnitsky Act. President Donald Trump’s recent affirmation of support for Saudi Arabia–even with incontrovertible evidence of Saudi criminality in the Jamal Khashoggi murder–reflects willful indifference to much wider sources of pertinent law. Both international law and the laws of the United States were flagrantly violated by this official American affirmation.
In part, this legal violation was effectively “dual level.” This is because US law is never entirely separable from international law; indeed, it even incorporates this pre-existing law. Such authoritative incorporation follows from certain (1) express Constitutional requirements; (2) specific Supreme Court rulings-; and (3) the more general but equally compelling convergence of customary legal norms.
A nation’s legal behavior must be knowledge-based and fair-minded, not a merely seat-of-the-pants ramble about nationalistic “greatness.” The incorporation of international law or the “law of nations” into United States law is vital. This significant conclusion flows directly from Article 38 of the binding 1945 Statute of the International Court of Justice.
There is more. Under the always mutually reinforcing rules of national and international law–rules formally known as “peremptory” or “jus cogens” norms because they permit “no derogation”–an American president has no recognizable right to ignore or implicitly support egregious violations of human rights. This blanket prohibition obtains for fully any reason. It includes absolutely any supposed interest of geopolitics (e.g., Saudi Arabia represents a lesser evil than Iran) or of presumed economic advantage (“Thank you Saudi Arabia for lower oil prices”).
Jurisprudentially, it all goes back to the beginnings of the American Republic. Among other still-relevant documents, the US Declaration of Independence codifies a social contract that sets limits on the authority of anygovernment, especially on those primary matters concerning “natural” human rights. As justice, which for Americans is necessarily based on “natural law,” commits every human society, the specific rights that are referenced, articulated and partially enumerated by the Declaration of Independence can never be reserved only to Americans.
Such rights, from the historical and documentary standpoint of the United States, are now and forever universal. They are never subject to modification or diminution by a sitting president. They may never be shelved on account of any current policies, especially such a grievously misconceived posture as “America First.”
However much it remains unrecognized in the Trump White House, a jurisprudence based upon our Higher Law background is still very much in force for the United States. For Mr. Trump to glibly suggest otherwise, as he did recently regarding Saudi Arabia, and which he has done previously in regard to affirmations of US support for different law-violating regimes (e.g., the President’s refusal to condemn Russian and Syrian war crimes) is illogical and self-contradictory. Even discounting very specific “Magnitsky” prohibitions, any such suggestion undermines the immutable and universal jurisprudence from which the Declaration of Independence and US Constitution so plainly derive.
Distressingly few Americans are even aware of this basic US history and its corollary jurisprudence, but the pertinent facts and law remain valid nonetheless. For those readers who might like to look behind the news, however, the philosophical conveyance of natural law thinking into American Constitutional theory was largely the result of John Locke’s Second Treatise on Civil Government. In 1776, a then future American president named Thomas Jefferson relied very heavily upon this Treatise to craft his Declaration of Independence.
Without Locke’s specific intellectual example, the 18th century American cry for “self-determination” would have sounded very different.
In important matters of national legal obligation, history always deserves a conspicuous pride of place. While fellow seventeenth-century English philosopher Thomas Hobbes had regarded the natural law and national civil law as coextensive, Locke echoed a more than two thousand year tradition with a stirringly contrary view. This opposite view was that a country’s domestic law must be kept scrupulously consistent with pre-existing natural law. Indeed, without such a mandatory consistency, any so-called domestic law was simply not fit to be called law.
It is not enough for an American president to justify any alleged ally’s multiple crimes against human rights in terms of mutually gainful geopolitical goals. Accordingly, Mr. Trump should grasp and promptly reaffirm the most fundamental legal expectations of the United States. Regarding recent Saudi Arabian crimes, and assorted derelictions of other law-violating regimes, this president finally needs to understand an invariant and perpetual premise of American justice: Respect for universal human rights is a long-codified legal obligation of the United States and should never be disregarded for narrowly personal or presumptively “nationalistic” benefit.
For whatever reasons, President Donald Trump continues to think and act against the United States’, and his own, interests. Moreover, as is evident from America’s established tradition of concern for worldwide human rights, such misconceived thinking undermines the most basic values and ideals of a nation long committed to “justice for all.” While every country must continue to live with the corrosive legacy of fragmented international relations–a fearful inheritance originally bequeathed at the Peace of Westphalia in 1648–each state must inevitably acknowledge the interdependence of all states. Embracing such indispensable acknowledgment, each state–including the United States–could still navigate safely amid an historic anarchy.
Correspondingly, by standing together with a murderous regime in Riyadh, US President Donald Trump expressly rejected global interdependence and launched yet another incoherent salvo against global law and justice. It can never be proper or purposeful for any American president to stand in support of a regime that plainly slaughters a US-based newspaperman. Yet, it is precisely such a stand that Donald Trump’s recent defense of Saudi Arabia’s gangster-like killing of Washington Post journalist Jamal Khashoggi evidenced.