Is Trump’s Border Wall a Violation of Law? by Geoffrey A. Hoffman
A recent poll reported that the majority of Texans oppose the building of Donald Trump’s proposed “border wall” between the U.S. and Mexico. Trump believes he can “make” Mexico “pay for” the wall. How Mexico will be made to pay for the wall has not been articulated in any clear way. Politifact has written about the border wall proposal, and noted that Donald Trump’s website suggested that remittances to Mexico ($24 billion) could be curtailed and used as leverage. According to Donald Trump’s website, Mexico “could make a one-time payment of $5 (billion)-10 billion to ensure that the $24 billion continues to flow into their country…”
Let’s explore the implications. Is this proposal to build an extensive border wall with the threat that the nation on the other side of the border must be made to pay a violation of U.S. or international law? First, let’s think about the rationale for requiring Mexico to pay for a wall on the U.S. side of the border in the first place. What this appears to logically assume is that Mexico (as a sovereign country) is somehow liable for our immigration enforcement issues. If they were not liable, then why would we be asking them to pay for anything in the first place? Assuming for the sake of argument there were some genuine liability, then a country can attempt to collect on a debt from another sovereign. A recent decision by a federal court in the U.S. related to Argentina’s decision in 2001 to stop paying debts relating to about $80 billion dollars.
Of course the situation with a border wall is not in any way analogous to Argentina’s failure to make good on their debts. The border wall proposal contains a very big and tacit presupposition which has been articulated as at the heart of Trump’s conspiracy theory: that Mexico is “sending” their “worst” – criminals, rapists, etc. as he famously declared. Trump has also said (incorrectly) that these elements are being “pushed into the United States by the Mexican government.” He also stated (incorrectly) that “tremendous infectious disease is pouring across the border.” There is no data to support these false claims. Deliberate efforts on the part of the Mexican government would have to be proven before any decision to force Mexico or any other country to pay for a wall could be countenanced.
The actual issue is not whether we should build a wall or not. The antecedent issue is whether there is any possible legal basis to even make the proposal that Mexico foot the bill. A similar point can be drawn regarding Trump’s points about “taking the oil” in Iraq after we made a decision for our troops to depart that country. In that context, Trump speculated that U.S. forces could be left in the country to guard oil fields which would then be extracted and appropriated by the U.S. The rationale for this according to an interview with Trump was simply, “To the victor go the spoils.” But, as many experts correctly pointed out, exploiting a foreign country’s oil resources in such a fashion would be a war crime, a clear violation of international law and also cause a cascade of negative foreign policy repercussions. As the Democratic Candidate for President, Hillary Clinton pointed out, the U.S. “does not invade other countries to plunder and pillage.”
So what is the basis for Trump’s rationale to make Mexico pay for an imagined impregnable border wall? It cannot be “To the victor go the spoils.” There is no “debt” surrounding the wall which must be repaid to the U.S. from Mexico. Given these facts, is Trump’s proposal a violation of either domestic or international law? For the following reasons, I think there is ample authority to suggest an answer in the affirmative.
First, the threat to curtail or prevent “remittances” would represent a direct interference with individual private monetary transactions flowing out of the U.S. into Mexico. This could arguably be a violation of federal criminal law, specifically 18 U.S.C. 1962, which prohibits racketeering or “through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.”
On the international law side of the equation, could a threat by Trump to “force” Mexico to pay for the proposed wall constitute a threat of force prohibited by Article 2(4) of the United Nations Charter. Under that provision, “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” Art. 2(4). It is unsettled whether the prohibition on the “use of force” in the UN Charter includes non-military force such as economic coercion as envisioned by Trump. The majority view is that it does not. A minority view would allow for economic coercion to be included in the definition of threat or use of force. But Trump’s proposal certainly could be unlawful under other principles of customary international law or “Jus Cogens” –a preemptory norm universally declared by the international community as a norm to which no derogation is permitted.
Economic coercion of the kind proposed by Trump is arguably a violation of international law. The use of economic sanctions may be appropriate in some circumstances and has been used as a valid way to impose punishment on regimes who have themselves violated humanitarian norms. Chapter VII of the UN Charter and, in particular Article 41, allows the Security Council to impose sanctions or so-called “measures not involving the use of armed force” on a country in response to a threat of the peace, breach of the peace, or act of aggression. Economic sanctions are listed specifically in the non-exhaustive list of sanctions in Article 41. But Trump’s proposal is not a permissible use of non-military force in response to a breach of the peace or act of aggression.
Trump appears to be violating a principle of international law set forth by the International Court of Justice (ICJ) in Nicaragua v. United States of America, [1986] ICJ Rep 14. In that case the court stated: “the principle [of nonintervention] forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States. . . .Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.” A coercive policy of preventing remittances from flowing into Mexico would be an impermissible and unlawful violation of the principle of non-intervention.
In addition, Article 52 of the Vienna Convention on the Law of Treaties provides that a State may not be coerced into assuming an international obligation. Article 52 specifically deals with the issue of coercion occurring at the time of the conclusion of a treaty and protects a nation from entering into a treaty through coercion, threats of force or the use of force. His proposal could be a violation of our treaty obligations, including NAFTA or other treaties which prohibit parties from engaging in technical barriers to trade or “unnecessary obstacles” to trade.
There are occasions where the U.S. has used the threat of economic sanctions and even imposed sanctions on specific countries and those sanctions have been approved by the international community. The current proposal by Trump to impose economic coercion on Mexico cannot be reasonably compared to the sanctions which the current U.S. administration has imposed, for example, on Russia after the annexation of Ukraine. Likewise, the sanctions imposed against Iran also were not done unilaterally but through the will and approval of the international community of nations through the Security Council of the United Nations.
It is clear that Trump’s proposal and his threat of economic coercion connected with his border wall, if it were carried out by a future possible President Trump, would subject the United States to opprobrium throughout the world. It would also constitute a potential violation of domestic law, international law, and/or customary international law or Jus Cogens. It is a great risk to countenance such behavior from a possible future president. His ideas are grandiose, conspiratorial, and likely illegal and will lead to a crisis in our own country, as well as abroad. Don’t be fooled by Trump’s misdirection of the issues. The future may not forgive us.
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Geoffrey A. Hoffman is a professor at the University of Houston Law Center and director of the Immigration Clinic. Institution is listed for identification only. The views expressed are the author’s own and in his personal capacity.
KJ