In a previous post, written before Donald Trump’s inauguration as President of the United States, I wrote about the various measures – particularly those targeting America’s allies – that he threatened to implement, and whether those measures would be compatible with the principle of non-intervention under customary international law. In that post, which was based on my AJIL article on non-intervention and coercion, I explained the elements of the non-intervention rule: an (1) interference with another’s state’s reserved domain (2) that is coercive in character, and how the coercion element in particular can be understood in two different ways: as coercion-as-extortion and as coercion-as-control.
It is this extortion model of coercion that is particularly apposite in analysing whether the actions that Trump has taken, or threatened to take, in the past month or so, are contrary to the principle of non-intervention. The barrage of measures against America’s closest allies has been shocking, although it should have surprised no one. Not only is this how Trump is wired, but coercive measures are, in fact, more likely to work (at least in the short term) against a state’s allies rather than against its adversaries.
Using coercive measures against America’s allies is to my mind unquestionably bad policy. With regard to Ukraine, it is also unquestionably immoral. But, the question nonetheless remains whether these measures are also illegal, and especially whether they violate the prohibition of intervention in other states’ internal or external affairs. (Which is not to say that this legal question is the most important one).
As I have previously explained, in the coercion-as-extortion model the non-intervention principle is violated through the combination of a demand, a threat, and a harm – do what we say, or else. The demand has to constitute an unjustified interference with a state’s reserved domain, those matters on which it has the choice to decide freely. The threat is the essence of extortion, yet there is a core threshold question here – what kind of threatened or implemented harm crosses the boundary between permissible pressure or influence and impermissible coercion.
There are, in my view, three possible approaches to defining this threshold of harm:
First, that only harms that states specifically agree on count as coercion – but that minimalist approach runs against the whole idea of the generality of legal rules, and states have not endorsed it.
Second, that only harms that are already illegal under some other rule of international law constitute coercion. Thus, threatening unlawful force is coercive. Or, so-called hostage diplomacy – arbitrarily detaining some innocent citizens of another state, and otherwise violating their human rights, in order to compel their state to do or not do something – is coercive. Or, economic measures that violate WTO law, or regional trade treaties, would cross the threshold of harm for coercion for the purpose of the non-intervention rule as well.
The third approach – which is to an extent complementary to the second – is to say that even lawful harms can become coercive, if their impact on the target state is sufficiently severe. Thus, a threatened or implemented economic measure that is legal on its own would become illegal, as prohibited intervention, if it is coupled with a demand that intrudes upon the victim state’s internal or external affairs. The prohibition of intervention would thus prohibit not only conduct that is prohibited already, under some other rule, but also conduct that would otherwise be lawful were it not for its purpose – compelling the victim to comply with an illegitimate demand.
How, then, do the measures that Trump has taken, or threatened to take, against Mexico, Canada and Ukraine square under these three approaches?
Extorting Mexico and Canada
Recall that a violation of the non-intervention rule requires that both elements of that rule be met: interference with the target state’s reserved domain and coercion. In the extortion paradigm, the interference with the reserved domain manifests through the demand made by the coercing state to the target state. It is that demand that must relate to the target state’s internal or external affairs, those ‘matters in which each State is permitted, by the principle of State sovereignty, to decide freely’ (to quote the ICJ in Nicaragua). When it comes to Mexico and Canada, therefore, the first question is what exactly the United States is demanding that these states do.
One issue in that regard is that Trump and his administration often make contradictory statements, and that we, for obvious reasons, are not privy to what they’ve said privately to their Mexican and Canadian counterparts. One set of demands that Trump has made relates to inhibiting the flows of migrants and the opioid drug fentanyl through Mexico and Canada into the United States.
On its face, this demand is not obviously illegitimate. However, not only have both states already made numerous efforts to curb these flows, but the Canadian government has now explicitly accused the US of using these issues as a pretext. As this New York Times story reports:
After President Trump imposed tariffs on Canada on Tuesday, Prime Minister Justin Trudeau made an extraordinary statement that was largely lost in the fray of the moment.
“The excuse that he’s giving for these tariffs today of fentanyl is completely bogus, completely unjustified, completely false,” Mr. Trudeau told the news media in Ottawa.
“What he wants is to see a total collapse of the Canadian economy, because that’ll make it easier to annex us,” he added.
The report, based on several inside sources, adds that during one of their conversations Trump told Trudeau that ‘he did not believe that the treaty that demarcates the border between the two countries was valid and that he wants to revise the boundary. He offered no further explanation. […] Mr. Trump also mentioned revisiting the sharing of lakes and rivers between the two nations, which is regulated by a number of treaties, a topic he’s expressed interest about in the past.’ (See also this interview of the Canadian foreign minister by Christiane Amanpour, in which the minister makes similar claims about pretextual reasons for the tariffs and other measures).
If the Canadian account of Trump’s real demands and intentions is right – and I see no reason to doubt that it is – then the demands in question clearly are illegitimate interferences with Canada’s reserved domain. On a more modest account, Trump is trying to extort Canada for territorial and other concessions. On a broader one, Trump is trying to annex Canada as such. Indeed, on this latter understanding of Trump’s intentions, the various measures against Canada might be seen not only through the coercion-as-extortion paradigm, but also through the coercion-as-control one – attempting to destabilize Canada and thus deprive it of its ability to control its political and social system – but I will not develop this point here.
The issue then becomes whether the threatened and implemented harms cross the required threshold. I’ve explained the three possible approaches to that threshold above. On the first, minimalist approach, there have apparently been discussions within the Trump administration on whether to use military force against the cartels in Mexico without Mexico’s consent. There has also been some sabre-rattling with regard to Canada. At this stage, however, I don’t think we can say that the US has reasonably clearly threatened Canada or Mexico with unlawful force, and so we are not within a situation that the minimalist approach to coercion-as-extortion could cover.
Trump’s principal tool of extortion against Mexico and Canada have so far been the tariffs, enacted and then suspended (twice). With regard to Canada, there has apparently been at least one more tool – a threat to kick Canada out of the Five Eyes intelligence sharing pact. This threat is especially pernicious, in that the threatened harm – which is not imminent, but is real nonetheless – is a reduction in Canada’s ability to protect its citizens from terrorism or other hostile acts.
Under the second approach to the coercion-as-extortion threshold, the measures in question would be coercive if they violated some other rule of international law. It is certainly possible to argue that this would be the case. Trump’s tariffs, for instance, are facially at odds with the regional USMCA free trade agreement, the successor to NAFTA that Trump himself had signed the last time he was in office. Similarly, were the US to cut off intelligence sharing with Canada while the Five Eyes agreement was still in force between the two states, this would likely breach the sharing provisions of that agreement (which is secret in its current iteration, making my analysis tentative).
However, there are arguments that the US could make that might preclude reliance on the second, illegality-based approach to the threshold of harm for coercion. For example, the Five Eyes agreement might have a provision that allows for easy termination. Similarly, Art. 32.2(b) USMCA contains a broad security exception that Trump would surely rely on (saying that nothing in the Agreement can ‘preclude a Party from applying measures that it considers necessary for the fulfilment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests.’) While I am not a trade lawyer, this kind of self-judging security exception seems broader than its equivalent in WTO law. While it could reasonably be construed as including a good faith requirement, and while Canada could therefore argue that Trump’s invocations of migrant and fentanyl flows are mere bad faith pretexts, the illegality of the tariffs does not seem like a completely slam dunk case.
Which brings us to the third approach – that even otherwise lawful measures can be coercive if their actual or anticipated effects are serious or severe. This, essentially, is the approach taken in the EU’s Anti-Coercion Instrument. As I explained previously, this approach is conceptually coherent, but it is also necessarily less determinate than the previous two. A restrictive understanding of that approach would treat as sufficiently severe only those sanctions resembling the embargos against Cuba, Russia, Iran or North Korea, which have comprehensive impacts on the target state’s economy and society. On this position, a 25% general tariff, while undoubtedly economically damaging, would likely not be severe enough, at least not unless it is combined with other measures. However, a state could reasonably adopt a much more flexible understanding of severity, which could encompass such tariffs, again especially if combined with other measures, such as the suspension of intelligence sharing.
To conclude, when it comes to the reserved domain element of prohibited intervention, it is easier to argue that this element is met with regard to Trump’s demands against Canada than with respect to Mexico. As for the coercion threshold, as things stand it is not obvious that the measures that the Trump administration has so far taken or threatened against Mexico and Canada cross that threshold. But an arguable case can be made that the threshold has been crossed – obviously we also need to see how the situation will evolve.
Extorting Ukraine
This brings us to Trump’s extortion of Ukraine, where – putting aside his appalling treatment of President Zelenskyy in the Oval Office – the first question again is what, exactly, is it that America demands of Ukraine. There appear to be three such demands, or sets of demands, all of which undoubtedly transgress upon Ukraine’s reserved domain.
First, the US demands that Ukraine concludes some form of peace agreement with Russia. In and of itself, this demand would not be illegitimate. But what kind of peace is America requiring Ukraine to agree to? It is apparently one in which Ukraine would have to make all sorts of concessions to Russia, a state that flagrantly violated the prohibition on the use of force in Article 2(4) of the UN Charter. In other words, the US appears to be forcing a victim of aggression to accept a peace that would reward the aggressor. It would be categorically illegitimate, for example, to compel Ukraine to renounce its sovereign title over Crimea or other occupied Ukrainian territories.
Second, the US at least at one point demanded that Ukraine pay it an enormous amount of money – 500 billion dollars – from the exploitation of its rare mineral resources. Trump had cast this demand as a form of payback to the American taxpayer for the assistance the US had provided to Ukraine. Had the US assistance been a loan, it would not be unjustified for the US to demand that money to be paid back. But it was not a loan. A gift can’t be unilaterally and retrospectively transformed into a loan (regardless of the severity of its terms). It is unclear whether, at present, the US maintains this kind of exorbitant demand. The deal that was supposed to be signed at the White House before the meeting with Zelenskyy blew up did not contain a demand for Ukraine to pay money to the US, and was framed as the setting up of a fund for reconstructing Ukraine – albeit all of this depended on the conclusion of further agreements, which may well have included financial transfers from Ukraine to America.
Finally, on several occasions now the US seems to have demanded that Zelenskyy resign and/or that Ukraine should conduct a presidential election in the middle of a war, contrary to its own constitution. US officials have approached opposition leaders in Ukraine in an apparent attempt to persuade them to argue for an election, an attempt which has been rebuffed. To the extent that the US persists with this demand, it would undoubtedly be interfering with Ukraine’s reserved domain, which paradigmatically include a state’s control over its own political system.
What, then, about the coercion element of non-intervention? Bearing in mind the three possible approaches to the threshold of harm in coercion-as-extortion, the US has not threatened to use force against Ukraine to compel it to comply with its demands. The measures it has taken so far include: (1) the suspension of arms transfers to Ukraine; (2) the suspension of ongoing intelligence sharing arrangements; (3) suspending the sharing of satellite imagery collected by private companies pursuant to US government contracts; and (4) apparent threats to cut off Ukraine’s access to Starlink, which is essential for its military operations. Finally, and perhaps most appallingly, the Trump administration appears to be considering (5) revoking the temporary protected status of some 240,000 Ukrainians in the United States, who would then have to go elsewhere.
There is no doubt that all of these measures are coupled with Trump’s illegitimate demands, i.e. that they are part of a policy of extortion. To quote Ben Wittes:
It’s hard not to see this as a pressure tactic directed at the Ukrainian government—and at Volodymyr Zelenskyy personally. Full pressure on all fronts. Fall in line and cooperate as the United States barters Ukraine’s fate with the genocidal Putin, and maybe some of that aid will start flowing again; maybe some of that intelligence Ukraine depends on will become available; and maybe we’ll let a whole lot of economically productive Ukrainians remain in the United States for another few months. But step out of line again, and we will make Ukraine feel it even at the level of children we have stepped up to shelter.
“And I’ll be making the decision pretty soon.” [Trump had said]
This is gangster stuff. And while nothing about it is surprising, given who Trump is, it’s perilously close in a moral sense to hostage taking.
Under the second approach to the threshold of harm in coercion-as-extortion, the threatened or implemented measures would need to be illegal under some other rule of international law in order to constitute coercion. The problem here, however, is that measures (1)-(4) are almost certainly not illegal per se – the US did not assume any legal obligation to provide weapons or intelligence to Ukraine. The revocation of protection under (5) could violate US obligations under refugee law or human rights law, but this would depend on how exactly this was done.
This leaves us with the third, severity-based approach. And here I think we can reasonably say that, in a relationship of dependency between Ukraine and the United States, which the US is now exploiting, the harm that is being inflicted on Ukraine is the removal of its ability to protect its people from death and injury at the hands of Russia. This is similar to the threat to kick Canada out of the Five Eyes, with impacts that are both several orders of magnitude greater and much more immediate. In other words, this is akin to hostage-taking; the US is using Ukrainian lives as bargaining chips. I, for one, do not see much difficulty in arguing that these threatened or implemented harms are severe enough to constitute coercion. These impacts are much more obviously severe than those of a 25% tariff against Mexico or Canada. But it is only under the third conception of the coercion threshold, which covers otherwise lawful acts, that coercion could be said to exist. Coupled with Trump’s illegitimate demands, such coercion violates the principle of non-intervention – that is, the US is intervening in Ukraine’s internal and external affairs.
Conclusion
The principle of non-intervention is the rule of international law that provides the best fit for the kinds of extortionate conduct that the Trump administration is engaging in. Whether the rule does indeed cover these types of policies depends on how the threshold of harm in the demand-threat-harm dynamic of coercion-as-extortion is conceptualized. It is clear that most of Trump’s demands of America’s allies are illegitimate, in the sense that they transgress upon their reserved domain, those matters on which they can decide freely. What is less clear is whether these threatened or implemented measures are coercive. On a minimalist approach, only threats or uses of force (or associated acts) of the kind that Russia has done to Ukraine would count as coercion. On a middle approach, the coerciveness of these measures would depend on their legality under other rules of international law. On a more expansive, severity-based approach of the kind adopted by the European Union, Trump’s actions could be regarded as coercive, especially against Ukraine.
To be clear, I am not saying that Mexico, Canada or Ukraine should make legal arguments in resisting Trump’s extortion, let alone that if they did so these arguments would prove effective in deterring Trump. All I am saying is that if they wanted to, these states, and other states in a similar position, do have that option. We will see what they will do, and, if the non-intervention rule is invoked in this context, what the approach to the harm threshold would be.
I am pretty sure that there will be a Part III in this series, probably sooner rather than later!
