“Eliminating Female Genital Mutilation After Nagarwala”

Eliminating Female Genital Mutilation After Nagarwala

*By Jordan T. Leonard

According to the United Nations International Children’s Emergency Fund (“UNICEF”), Female Genital Mutilation (“FGM”), is practiced primarily in Africa, the Middle-East, and parts of Southeast Asia, such as Indonesia.[1] However, FGM is a world-wide problem and UNICEF suggests FGM is also practiced in “Colombia (South America), India (Asia)” and other countries in the Middle East.[2] More than two-hundred-million girls and women have been affected by FGM.[3]

FGM includes “‘all procedures involving partial or total removal of the female external genitalia or other injury to the female genital organs for non-medical reasons.’”[4] The World Health Organization (“WHO”) groups FGM into four categories. The first category involves “[p]artial or total removal of the clitoris and/or the prepuce.”[5] The second category involves “[p]artial or total removal of the clitoris and labia minora, with or without excision of the labia majora.”[6] The third category involves the “[n]arrowing of the vaginal orifice by cutting and bringing together the labia minora and/or the labia majora to create a type of seal, with or without excision of the clitoris. In most instances, the cut edges of the labia are stitched together, which is referred to as ‘infibulation.’”[7] The fourth category more broadly includes “[a]ll other harmful procedures to the female genitalia for non-medical purposes, for example: pricking, piercing, incising, scraping and cauterization.”[8]

The practice of FGM has been condemned by the international community through multiple treaties and conventions.[9] UNICEF argues Article 25 of the Universal Declaration of Human Rights prohibits FGM because it “violates the right to health and bodily integrity.”[10] UNICEF also argues that FGM can violate the United Nations Convention on the Elimination of All forms of Discrimination against Women, if FGM is understood “as a form of violence against women.”[11] Similarly, UNICEF argues FGM could possibly be defined as torture, thus violating the Convention against Torture, and Other Cruel, Inhuman, or Degrading Treatment or Punishment.[12] Last, UNICEF argues FGM violates the Convention on the Rights of the Child “since FGM is regarded as a traditional practice prejudicial to the health of children and is, in most cases, performed on minors.”[13]

UNICEF’s list, however, may not be complete. For example, the International Covenant on Civil and Political Rights (“ICCPR”), which the United States is a party to, contains language which arguably obliges the United States to ban FGM.[14] The ICCPR and FGM have recently been thrust into the lime light due to a recent decision by the Eastern District of Michigan titled United States v. Nagarwala (“Nagarwala”).[15]

At issue in Nagarwala was 18 U.S.C. § 116 (“the statute”), a federal law which banned FGM.[16] According to the decision, Congress enacted the statute in pursuance of Articles 3 and 24 of the ICCPR.[17] Article 3 reads “[t]he States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”[18] Article 24 reads:

[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State. 2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has the right to acquire a nationality.[19]

Based on this language, Congress enacted the statute, which reads in part “ . . . .whoever knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years shall be fined under this title or imprisoned not more than 5 years, or both. . . .”[20] Congress found it had the authority to enact the statute under its Article I powers, Section 5 of the Fourteenth Amendment, and the treaty clause of the Constitution.[21]

Specifically, Congress made five findings justifying this conclusion:

(1) the practice of female genital mutilation is carried out by members of certain cultural and religious groups within the United States; (2) the practice of female genital mutilation often results in the occurrence of physical and psychological health effects that harm the women involved; (3) such mutilation infringes upon the guarantees of rights secured by Federal and State law, both statutory and constitutional; (4) the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control; (5) the practice of female genital mutilation can be prohibited without abridging the exercise of any rights guaranteed under the first amendment to the Constitution or under any other law. . .

The Congressional findings seem to focus on religious freedom concerns. The first and fifth findings show Congress understood FGM could potentially implicate religious freedom but found that this particular law did not infringe on the Free Exercise Clause.[22] This finding is important because, as a general matter, heightened scrutiny is not triggered under the Free Exercise Clause if a law is neutral and generally applicable.[23] Therefore, so long as the law is truly neutral and generally applicable it should pass muster for Free Exercise considerations.[24]

However, the statute still must be justified under Congress’ enumerated powers. Congress cited its authority under the treaty clause, Article I, and Section 5 of the Fourteenth Amendment. The Nagarwala Court found the treaty clause justification did not pass Constitutional muster for two reasons. First, the court found the statute prohibiting FGM was not closely related to the language of Articles 3 and 24 of the ICCPR. It opined “[t]here is simply no rational relationship between Article 3 and the FGM statute. The latter does not effectuate the purposes of the former in any way.”[25] Further, the court found the link between Article 24 and the statute weak—

Article 24 is an anti-discrimination provision, which calls for the protection of minors without regard to their race, color, sex, or other characteristics. As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting children on a nondiscriminatory basis.[26]

Nonetheless, the Nagarwala Court reasoned the statute would be unconstitutional, even if the statute was closely related to the treaty, because it violates federalism principles. [27]

Here, the court looked to the Senate’s understanding of the ICCPR, and to precedent of the Supreme Court. First, the Nagarwala Court found the Senate’s understanding was that the ICCPR would be implemented in line with American concepts of federalism—“[t]he proposed understanding serves to emphasize domestically that there is no intent to alter the constitutional balance of authority between the State and Federal governments or to use the provisions of the Covenant to ‘federalize’ matters now within the competence of the States.”[28]

Further, the court looked to Supreme Court precedent. In Bond v. United States, a “defendant was charged with violating the Chemical Weapons Convention Implementation Act, which Congress passed to effectuate the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction.”[29] There the Court indirectly addressed issues of federalism. In Bond, the Court opined:

[e]ven if the treaty does reach that far, nothing prevents Congress from implementing the Convention in the same manner it legislates with respect to innumerable other matters-observing the Constitution’s division of responsibility between sovereigns and leaving the prosecution of purely local crimes to the States. . . Absent a clear statement of that purpose, we will not presume Congress to have authorized such a stark intrusion into traditional state authority.[30]

The Nagarwala Court found FGM similar to the facts of Bond.[31] Therefore, it found that “[a]pplication of these principles to the present case leads to the conclusion that Congress overstepped its bounds by legislating to prohibit FGM.”[32]

Next, the Nagarwala Court analyzed four relevant factors to determine if the statute met confines of the Commerce Clause.[33] First, the court evaluated the economic nature of FGM.[34] Second, “whether the statute contains ‘a jurisdictional element limiting the reach of the law to a discrete set of activities that has an explicit connection with, or effect on, interstate commerce.’”[35] Third, whether “there are sufficient congressional findings (third factor) or other evidence of a substantial effect on interstate commerce.”[36] And fourth, whether there is a link between FGM and interstate commerce.[37]

Here, the Nagarwala Court found Congress lacked authority to enact the statue under the Commerce Clause. First, the court distinguishes FGM from other commercial activity like possessing marijuana[38] and child pornography.[39] The court found there was not an interstate market for FGM, but instead, asserted “the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states. This is not a market, but a small number of alleged victims.”[40] Further, the court argued that FGM was not a form of healthcare, but a form of physical assault.[41] The Nagarwala Court strongly concluded “FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.”[42]

Under the second and third factors, the Nagarwala Court found no jurisdictional element which required proof of a relationship to interstate commerce.[43] The court explained

The cases indicate that the absence of a jurisdictional element is unimportant if there are sufficient congressional findings (third factor) or other evidence (fourth factor) of a substantial effect on interstate commerce. In the present case, however, there are no congressional findings other than the pro forma ones that accompanied passage of the statute. However, these are not findings as much as unsupported conclusions, and they do not begin to compare with the extensive findings made, for example, by both houses of Congress in Norton, Raich, and Perez. Nor are these the type of detailed, record-based findings that “would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye.”[44]

As for the fourth factor, the court asked “whether there is a rational basis for finding that FGM has a substantial effect on interstate commerce.”[45] The Nagarwala Court found “[t]here is no evidence that FGM is a commercial activity, and there is no evidence that anyone beyond the mothers of the nine girls alleged in the third superseding indictment is in the market for this ‘service.’” [46] Therefore, the court concluded the statute was unconstitutional because “Congress had no authority to pass this statute under either the Necessary and Proper Clause or the Commerce Clause.”[47]

It should be noted that the Nagarwala Court did not seem to evaluate the statute under Section 5 of the Fourteenth Amendment. However, the Supreme Court has taken a very limited view as to the extent Section 5 of the Fourteenth Amendment expanded the legislative authority of Congress. For example, The Supreme Court in Morrison v. United States held:

Section 5 of the Fourteenth Amendment, which permits Congress to enforce by appropriate legislation the constitutional guarantee that no State shall deprive any person of life, liberty, or property, without due process or deny any person equal protection of the laws. . . also does not give Congress the authority to enact § 13981. Petitioners’ assertion that there is pervasive bias in various state justice systems against victims of gender-motivated violence is supported by a voluminous congressional record. However, the Fourteenth Amendment places limitations on the manner in which Congress may attack discriminatory conduct. Foremost among them is the principle that the Amendment prohibits only state action, not private conduct.[48]

Therefore, it is unlikely that the Nagarwala Court would have upheld the statute under the Fourteenth Amendment.

FGM is a problem which affects the United States both internationally and domestically.[49] More than two-hundred-million girls and women have been affected by FGM,[50] and many international conventions and treaties address the issue.[51] How can the United States address FGM at the national level after Nagarwala? Option one is to appeal the Nagarwala decision to the Sixth Circuit Court of Appeals. Another option, however, may allow the Federal Government to prohibit the practice of FGM without infringing on the police power of the states. Instead of Congress outlawing FGM itself, Congress could incentivize states to prohibit FGM.

In South Dakota. v. Dole, South Dakota challenged a federal law which withheld highway funds if a state’s drinking age was under twenty-one years. The state argued the law violated the Twenty-First Amendment “which grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.”[52] However, the Court upheld the law because “Congress has acted indirectly under its spending power to encourage uniformity in the States’ drinking ages. As we explain below, we find this legislative effort within constitutional bounds even if Congress may not regulate drinking ages directly.”[53]

The Court reasoned that under Article I, § 8, cl. 1 of the United States Constitution, “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’”[54]  The extent of Congress’ spending power, though not unlimited, may regulate “objectives not thought to be within Article I’s ‘enumerated legislative fields,’ [but] may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.”[55]

Under Dole, Congress’s spending power over FGM would be subject to “several general restrictions.”[56]  First, the “exercise of the spending power must be in pursuit of ‘the general welfare.’”[57] Second, if “Congress desires to condition the States’ receipt of federal funds, it ‘must do so unambiguously . . . , enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.’”[58] Third, “conditions on federal grants might be illegitimate if they are unrelated ‘to the federal interest in particular national projects or programs.’”[59] Fourth, the Court noted “other constitutional provisions may provide an independent bar to the conditional grant of federal funds.”[60]

Last, Congress may not compel states to enact legislation. In National Federation of Independent Business v. Sebelius, the Supreme Court “asked whether ‘the financial inducement offered by Congress’ was ‘so coercive as to pass the point at which ‘pressure turns into compulsion.’”[61] There, the Supreme Court concluded that a loss of less than half of one percent of a state’s budget was evidence of “encouragement” because the decision to enact legislation “‘remain[ed] the prerogative of the States not merely in theory but in fact.’”[62] In Sebelius, however, the Supreme Court held that a federal law which would cut nearly all of a state’s Medicaid funding (nearly 20% of a state’s budget) was not “encouragement,” but a “gun to the head.”[63] The Court ultimately held “[t]he threatened loss of over 10 percent of a State’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.”[64]

Therefore, with these parameters in place, Congress is free to encourage the states to eradicate the practice of FGM—meeting our domestic and international obligations. In fact, many states (including Michigan[65]) have enacted legislation prohibiting the practice of FGM. However, according to the AHA Foundation, twenty-three states still have yet to enact legislation prohibiting FGM.[66] Further, even though many states have enacted legislation, these laws can be strengthened to better protect women.[67] Incentivizing the states to enact legislation prohibiting FGM would certainly be a start to increasing the number of states which prohibit the practice.

Conclusion

FGM is a problem for young women around the world. Although the Federal government has enacted legislation criminalizing the practice—it is rarely used[68]—and was recently found unconstitutional in a District Court decision.[69] The government may potentially appeal the decision, or it can look for other ways to address the problem of FGM. Here, it is suggested that Congress enact legislation to encourage the states to enact their own legislation prohibiting FGM. Currently, just over half the states have enacted legislation against FGM.[70] This is unacceptable. By encouraging the states to enact legislation prohibiting FGM, pressure will be placed on state governments to enact legislation, bringing the issue to the forefront and in the end better protecting women.

[1] Female Genital Mutilation (Feb. 2018), https://data.unicef.org/topic/child-protection/female-genital-mutilation/.

[2] Id.

[3] Id.

[4] Id. (quoting World Health Organization, Eliminating Female Genital Mutilation: An interagency statement, WHO, UNFPA, UNICEF, UNIFEM, OHCHR, UNHCR, UNECA, UNESCO, UNDP, UNAIDS, WHO, Geneva (2008) at 4).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. (the language of Article 25 is not clear on the subject of FGM. The language UNICEF cites reads: “‘everyone has the right to a standard of living adequate for health and well-being.’”)

[11] Id.

[12] Id.

[13] Id.

[14] See Generally United States v. Nagarwala, No. 17-CR-20274, 2018 U.S. Dist. LEXIS 197494, at *6 (E.D. Mich. Nov. 20, 2018).

[15] Lucas Mikelionis Law banning female genital mutilation ruled unconstitutional; Michigan doctors cleared of charges (Nov. 21, 2018), https://www.foxnews.com/politics/federal-judge-rules-law-banning-female-genital-mutilation-is-unconstitutional-dismisses-charges-again-michigan-doctors; Eli Meixler Federal Judge Rules U.S. Ban on Female Genital Mutilation Is Unconstitutional (Nov. 21, 2018), http://time.com/5460982/michigan-judge-female-genital-mutilation-ban-unconstitutional/.

[16] See Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *3.

[17] Id. at 6-7.

[18] International Covenant on Civil and Political Rights and Optional Protocol, Article III, (https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf).

[19] Id. at Article 24.

[20]  Female Genital Mutilation, 18 U.S.C.S. § 116 (1996) (amended 2013). (LexisNexis, Lexis Advance through PL 115-281, approved 12/1/18)

[21] Id. Congressional finding: (6).

[22] Id. Congressional finding: (1)-(5).

[23] See Emp’t Div. v. Smith, 494 U.S. 872, 879-80 (1990)

[24] But see Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (holding laws passed with religious animus warrant heightened scrutiny).

[25] Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *7.

[26] Id. at 8.

[27] Id.

[28] Id. at 9 (citing Report of the Senate Committee on Foreign Relations dated Mar. 2, 1992, 17-18). See also United States Senate Report on ratification of the International Covenant on Civil and Political Rights; background; resolution of ratification. Senate Exec. Rpt. 102-23 of March 24, 1992 at IX (“Text of Resolution of Ratification”).

[29] Id. at 10-11.

[30] Id. at 11-13 (quoting Bond v. United States, 572 U.S. 844, 855-856 (2014)).

[31] Id. at 14.

[32] Id. at 13-14.

[33] Id. at 25 (quoting Norton v. Ashcroft, 298 F.3d 547, 555-56 (6th Cir. 2002)).

[34] Id. at 32.

[35] Id. at 35.

[36] Id. at 36.

[37] Id.

[38] See generally Gonzales v. Raich, 545 U.S. 1 (2004).

[39] See generally United States v. Chambers, 441 F.3d 438 (6th Cir. 2006).

[40] Nagarwala, 2018 U.S. Dist. LEXIS 197494, at *32 (internal citations omitted).

[41] Id. at 33. Cf. United States v. Morrison, 529 U.S. 598 (holding the Violence Against Women Act was not justified under the Commerce Clause).

[42] Id. at 34.

[43] Id. at 35-36.

[44] Id. at 36 (citing United States v. Lopez, 514 U.S. 549, 563 (1995)).

[45] Id. at 37.

[46] Id.

[47] Id. at 39.

[48] Morrison, 529 U.S. at 601.

[49] See Lucy Westcott Female Genital Mutliation on the Rise in the U.S. (Feb 6, 201,5 8:29 AM), https://www.newsweek.com/fgm-rates-have-doubled-us-2004-304773 2/6/2015 at 8:24 a.m. (accessed January 1, 2019).

[50] Female Genital Mutilation, (Feb. 2018), https://data.unicef.org/topic/child-protection/female-genital-mutilation/

[51] Id.

[52] South Dakota v. Dole, 483 U.S. 203, 205 (1987) (quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 110 (1980)).

[53] Id. at 206.

[54] Id. (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).

[55] Id. at 207.

[56] Id.

[57] Id.

[58] Id. (quoting Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981)).

[59] Id. at 207-08 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978) (plurality opinion)).

[60] Id. at 208.

[61] Top of Form

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 580 (2012)Bottom of Form (quoting Dole, 483 U.S. at 211).

[62] Id. (quoting Dole, 483 U.S. at 211-12).

[63] Id. at 581.

[64] Id. at 582.

[65] Mich. Comp. Laws Serv. § 750.136 (LexisNexis, Lexis Advance through 2018 Public Act 364)

[66] FGM Legislation by State, https://www.theahafoundation.org/female-genital-mutilation/fgm-legislation-by-state/.

[67] Id.

[68] Nagarwala, 2018 U.S. Dist. LEXIS 197494, at n. 7.

[69] See generally Nagarwala, 2018 U.S. Dist. LEXIS 197494.

[70] Id. at 38.

“The United States’ Hard Lesson in Soft Power”

The United States’ Hard Lesson in Soft Power

The United States current foreign policy posture is a substantial departure from that of previous administrations, which is likely to its detriment.[i]  Certain shifts in foreign policy based upon ideology are typical upon an administration change.  However, the Trump administration’s shifts are more akin to a departure from paradigmatic constructs that have typically transcended ideology.[ii]  As a result of this departure, the United States is suffering losses to the critical power dynamics of “hard power” and “soft power.”[iii]  Hard power refers to a nation’s use of military force, sanctions, or economic action to exert a degree of control over an entity.[iv]  Conversely, soft power refers to a nation’s ability to induce action based upon various factors, such as: diplomacy, reputation, culture, or ideological appeal.[v]  The United States’ most significant loss has been the depletion of its soft power, which is particularly concerning as it is inordinately valuable, finite, and difficult to accrue.[vi]  As a result, the United States’ current posture has longstanding soft power implications, which ultimately harm its international standing and influence beyond the duration of the foreign policy posture.

The Trump administration’s diplomatic posture has adversely affected the United States’ soft power.  Specifically, the Trump administration is operating without critical State Department positions filled, and in some instances has yet to even nominate individuals for confirmation.[vii]  Moreover, the Trump administration’s State Department has experienced a substantial departure of career diplomats, and significant turnover at the top of its hierarchy – most notably with President Trump’s removal of Secretary of State, Rex Tillerson, in early 2018.[viii]  As a result, the United States’ typical level of diplomacy has been absent, which has created a void that other nations may capitalize upon.[ix]  Consequently, the United States is ceding soft power to other entities with its absence.

The United States has also suffered soft power losses due to the Trump administration’s substantive diplomatic actions.  For example, the United States adopted a more aggressive stance in the United Nations, which has prompted criticism throughout the international community.[x]  Similarly, the President has engaged allies abrasively at meetings and summits.[xi]  The totality of the President’s precise conduct is unknown, but public statements made at such events, as well as ally reactions, are indicative of an issue.[xii]  For example, the President addressed North Atlantic Treaty Organization (NATO) members on two occasions, in which he criticized member commitments and failed to affirm the United States’ support for its collective defense article, which prompted inordinate concern amongst allies.[xiii]  In the aftermath of the NATO Summit, Germany’s Chancellor, Angela Merkel, stated that Europe could no longer rely upon allies with certainty, which was widely interpreted as a poignant criticism of the United States.[xiv]  President Trump later committed to NATO’s collective defense article, but the episode undermined the faith critical allies had in the United States.[xv]  Thus, the United States lost soft power due to the diplomatic failure.

Relatedly, some United States’ recent diplomatic actions have unnecessarily harmed allies, which has created concern amongst allies when conducting diplomacy with the United States.  One example is that President Trump shared national security intelligence that was the product of a clandestine Israeli operation with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergei Kislyak.[xvi]  The intelligence revealed looming terror plots by al-Qaeda that utilized explosive devices concealed in laptops, which Israel considered sufficiently critical to warrant sharing with the United States.[xvii]  President Trump shared the particular details of the intelligence with Minister Lavrov and Ambassador Kislyak, who subsequently reported to Russia.[xviii]  As Russia maintains a close relationship with Iran, which is a hostile adversary of Israel, it is believed the intelligence was relayed to Iran, which may have then been able to identify and eliminate the Israeli sources.[xix]  As a result of this diplomatic oversight, allies are concerned whether information shared with the United States may be improperly relayed to others.[xx]  Thus, the United States’ reputation for dependability and trustworthiness has diminished – and may struggle to recover, which is detrimental to the United States’ soft power.

The United States similarly suffered soft power blowback due to its diplomatic efforts, or lack thereof, in the recent United States-Canada-China arrest-extradition politicization scenario.[xxi]  The United States’ initial diplomatic action in this scenario was an informal request to Canada to arrest a Chinese national, Meng Wanzhou.[xxii]  Canada complied with the request and charged Wanzhou with bank fraud, while the United States’ prosecution loomed in the background.[xxiii]  The United States initially declined to comment on the development, then denied involvement as it never filed a formal request, and then President Trump implied that he could use it to leverage the event in trade negotiations with China.[xxiv]  As a result of the lattermost action, President Trump undermined United States diplomacy, as the statement undermined the rule of law and diplomacy.  Moreover, China detained Canadian nationals as retaliation, which the United States has not addressed.[xxv]  As a result, the United States has appeared to eschew traditional diplomacy and abandoned an ally to suffer consequences alone, which arose from a joint action with the United States.  Accordingly, this lack of diplomatic action and unity undermined the United States’ reputation for dependability and trustworthiness, which adversely affects its soft power.

The United States diplomatic and policy approach to international agreements has resulted in substantial soft power blowback.  One prevalent example is the United States’ approach to the Joint Comprehensive Plan of Action, or “Iran Nuclear Deal.”[xxvi]  In 2015, the United Nations’ Security Council and Iran reached an agreement on limitations for Iran’s nuclear energy program.[xxvii]  The Obama Administration committed the United States to the Iran Nuclear Deal in a State Department memorandum, but did not approach it as an executive agreement nor treaty.[xxviii]  In 2018, the Trump Administration reneged on the United States commitment to the Iran Nuclear Deal, as the agreement was not subject to congressional approval, and imposed sanctions on Iran.[xxix]  The other parties to the Iran Nuclear Deal criticized this approach and lamented the United States lack of commitment.[xxx]  As a result, the United States’ reputation for dependability, trustworthiness, and commitment was undermined, which is detrimental to its soft power.

The United States suffered from similar reputational, and thus soft power, losses with its approach to the North America Free Trade Agreement (NAFTA).[xxxi] Specifically, the United States initiated the re-negotiation due to perceived frustrations with its fairness, which undermined the international community’s view of America’s commitment to agreements.[xxxii]  Thereafter, the United States continued to inflict reputational harm with its negotiation tactics.[xxxiii]  Specifically, the United States hardly negotiated throughout the process, but rather maintained high demands, such as the removal of the agreement’s dispute resolution mechanisms.[xxxiv]  As a result, the entire re-negotiation process was largely stagnant, which was exacerbated by the United State use of tariffs to attempt to compel acquiescence to trade terms.[xxxv]  The state of affairs prompted Canada and Mexico to shift priorities to other trade agreements that omit the United States; openly question whether the United States could be relied upon to fulfill their commitment; and engage the United States’ individual member states on the issue of trade.[xxxvi]  Accordingly, the United States approached trade negotiations with allies in a manner that further alienated allies, avoided bona fide diplomacy, demonstrated an unwillingness to adhere to its obligations, and displayed a lack of good faith action.  Eventually, the United States, Canada, and Mexico agreed to a revised version of NAFTA, which is now known as the United States–Mexico–Canada Agreement, after the United States relented on its high demands, but the reputational harm was already done.[xxxvii]    Therefore, the United States’ soft power has diminished, which subsequently limits the United States’ ability to maintain or develop critical international interests.

The United States’ soft power depletion can also be attributed to a series of presidential miscues that created diplomatic or foreign policy issues.  One notable example is President Trump characterized African nations in a derogatory manner, which prompted social and diplomatic consequences.[xxxviii]  Another notable example is President Trump failed to condemn, or even acknowledge, Saudi Arabia Crown Prince Mohammad bin Salman’s involvement in the killing of Jamal Khashoggi – despite confirmation from the United States’ intelligence community.[xxxix]  As a result, the United States’ appeared willing to sacrifice fundamental ideals due to tentative geopolitical considerations.  Consequently, the United States’ reputation for dependability and commitment to principles was tarnished, which diminished its soft power.  Accordingly, the United States’ capacity to facilitate the favorable resolution of international issues was reduced.

The preceding analysis is derived from merely a sample of the United States’ recent foreign policy actions and miscues.  The examples used are not outliers or otherwise an aberration from the recent norm, but rather apt representations of the United States’ current foreign policy woes.  This upheaval of the United States’ longstanding approach to foreign policy has endangered the United States’ soft power, and likely carries consequences that extend beyond the current foreign policy posture.  However, only the passage of time can reveal whether the soft power decline will remain a sustained issue.

 

[i] Natasha Bach, Under President Trump, the U.S.’s ‘Soft Power’ is Waning, Fortune, 2018, http://fortune.com/2018/07/13/us-soft-power-ranking-fourth-place/; Daniel L. Byman, Recovering from the Trump foreign policy, Brookings Institute, 2018, https://www.brookings.edu/blog/order-from-chaos/2018/06/18/recovering-from-the-trump-foreign-policy/; Hal Brands, Not Even Trump Can Obliterate America’s Soft Power, Bloomberg, 2018, https://www.bloomberg.com/opinion/articles/2018-01-18/not-even-trump-can-obliterate-america-s-soft-power.

[ii] Id.

[iii] Joseph S. Nye, Jr., Soft Power, Foreign Policy, 153-71 (1990).

[iv] Id.

[v] Id.

[vi] Id.

[vii] Doyle McManus, Almost Half the Top Jobs in Trump’s State Department Are Still Empty, The Atlantic, 2018, https://www.theatlantic.com/politics/archive/2018/11/state-department-empty-ambassador-to-australi/574831/.

[viii] Tracy Lee, Influential Diplomat Steps Down Amid Large-Scale Exodus at State Department, Newsweek, 2018, https://www.newsweek.com/state-department-trump-tillerson-white-house-797365; Nicole Gaouette, Kaitlan Collins, & Dan Merica, Trump fires Tillerson, taps Pompeo as next Secretary of State, CNN, https://www.cnn.com/2018/03/13/politics/rex-tillerson-secretary-of-state/index.html.

[ix] Id.; see generally David Nakamura & Carol Morello, ‘To what end?’: Trump’s disruptive diplomacy inspires fears over U.S. standing abroad, The Washington Post, 2018, https://www.washingtonpost.com/politics/to-what-end-trumps-disruptive-diplomacy-inspires-fears-over-us-standing-abroad/2018/07/17/b6ec6b48-892b-11e8-a345-a1bf7847b375_story.html?utm_term=.eeac252e895d.

[x] See Nick Bryant, Nikki Haley: Aggressive envoy who shook up United Nations, BBC News, 2018, https://www.bbc.com/news/world-us-canada-45805343.

[xi] Jarrett Blanc, Here’s Why World Leaders Are Laughing at Trump, Politico, 2018, https://www.politico.com/magazine/story/2018/09/25/donald-trump-un-speech-laughing-unga-iran-220620; Zachary Cohen, Michelle Kosinski, & Barbara Starr, Trump’s barrage of attacks ‘beyond belief,’ reeling NATO diplomats say, CNN, 2018, https://www.cnn.com/2018/07/11/politics/trump-nato-diplomats-reaction/index.html.

[xii] Id.; Eileen Sullivan, Trump Questions the Core of NATO: Mutual Defense, Including Montenegro, The New York Times, 2018, https://www.nytimes.com/2018/07/18/world/europe/trump-nato-self-defense-montenegro.html.

[xiii] Id.

[xiv] Damien Sharkov, Angela Merkel: Europe Can No Longer Rely Upon U.S. Protection, Newsweek, 2018, https://www.newsweek.com/europe-cannot-fully-rely-us-protection-anymore-says-germanys-merkel-919410; Henry Farrell, Thanks to Trump, Germany says it can’t rely on the United States.  What does that mean?, The Washington Post, 2017, https://www.washingtonpost.com/news/monkey-cage/wp/2017/05/28/thanks-to-trump-germany-says-it-cant-rely-on-america-what-does-that-mean/?utm_term=.25ea43174c4b.

[xv] Id.; Alastair Macdonald, Trump says committed to NATO as allies up spending, Reuters, 2018, https://www.reuters.com/article/us-nato-summit-trump-commitment/trump-says-committed-to-nato-as-allies-up-spending-idUSKBN1K21C8.

[xvi] Howard Blum, What Trump Really Told Kislyak After Comey Was Canned, Vanity Fair, 2017, https://www.vanityfair.com/news/2017/11/trump-intel-slip; Adam Goldman, Eric Schmitt, & Peter Baker, Israel Said to be Source of Secret Intelligence Trump Gave to Russians, The New York Times, 2017, https://www.nytimes.com/2017/05/16/world/middleeast/israel-trump-classified-intelligence-russia.html.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] In a row between China and America, Canada gets trampled, The Economist, 2018,   http://www.economist.com/the-americas/2018/12/22/in-a-row-between-china-and-america-canada-gets-trampled.

[xxii] Id.

[xxiii] Id.

[xxiv] Id.; Julia Gordon, Sijia Jiang, & Anna Mehler Paperny, Trump intervention comment may be gift to Huawei CFO, Reuters, 2018, https://www.reuters.com/article/us-usa-china-huawei-tech-meng/trump-intervention-comment-may-be-gift-to-huawei-cfo-idUSKBN1OC07J.

[xxv] Id.; Steven Lee Myers & Dan Bilefsky, Second Canadian Arrested in China, Escalating Diplomatic Feud, The New York Times, 2018, https://www.nytimes.com/2018/12/12/world/asia/michael-spavor-canadian-detained-china.html.

[xxvi] Mark Landler, Trump Abandons Nuclear Deal He Long Scorned, The New York Times, 2018, https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-nuclear-deal.

[xxvii] Id.; Michael R. Gordon & David E. Sanger, Deal Reached on Iran Nuclear Program; Limits on Fuel Would Lessen With Time, The New York Times, 2015, https://www.nytimes.com/2015/07/15/world/middleeast/iran-nuclear-deal-is-reached-after-long-negotiations.html?module=inline.

[xxviii] Id.; Landler, supra note xxvi.

[xxix] Id.

[xxx] Id.; James McAuley, After Trump says U.S. will withdraw from Iran Deal, allies say they’ll try to save it, The Washington Post, 2018, https://www.washingtonpost.com/world/backers-of-iran-nuclear-deal-wage-last-ditch-blitz-seeking-to-sway-trump/2018/05/08/9b15e3f0-523e-11e8-a6d4-ca1d035642ce_story.html?utm_term=.e7b70ab84197.

[xxxi] Catherine Porter, For Canada and U.S., ‘That Relationship Is Gone’ After Bitter NAFTA Talks, The New York Times, 2018, https://www.nytimes.com/2018/10/03/world/canada/trudeau-trump-nafta.html.

[xxxii] Id.

[xxxiii] Id.

[xxxiv] Allison Martell & Julie Gordon, Dispute resolution in focus as NAFTA talks drag, Reuters, 2018, https://www.reuters.com/article/us-trade-nafta-dispute-explainer/dispute-resolution-in-focus-as-nafta-talks-drag-idUSKCN1LG2XZ.

[xxxv] Id.; Katie Lobosco, Trump faces mounting pressure to lift tariffs on Canada, Mexico, CNN, 2018, https://www.cnn.com/2018/11/20/politics/steel-aluminum-tariffs-usmca/index.html.

[xxxvi] Id.; John Paul Tasker, Trudeau urges governors to stand with Canada on trade while agreeing to ‘modernize’ NAFTA, CBC, 2017, https://www.cbc.ca/news/politics/trudeau-speech-governors-meeting-pence-1.4205000.

[xxxvii] Id.; see Bill Chappell, USMCA: Trump Signs New Trade Agreement With Mexico And Canada To Replace NAFTA, NPR, 2018, https://www.npr.org/2018/11/30/672150010/usmca-trump-signs-new-trade-agreement-with-mexico-and-canada.

[xxxviii] Julie Hirschfield Davis, Sheryl Gay Stohlberg, & Thomas Kaplan, Trump Alarms Lawmakers With Disparaging Words for Haiti and Africa, The New York Times, 2018, https://www.nytimes.com/2018/01/11/us/politics/trump-shithole-countries.html.

[xxxix] Eric Schmitt & Nicholas Fandos, Saudi Prince ‘Complicit’ in Khashoggi’s Murder, Senators Say After C.I.A. Briefing, The New York Times, 2018, https://www.nytimes.com/2018/12/04/us/politics/cia-senate-khashoggi-.html?emc=edit_na_20181204&nl=breaking-news&nlid=53042306ing-news&ref=headline.

Brexit Stage Left: The Possibility and Consequences of a No-Deal Brexit

Brexit Stage Left: The Possibility and Consequences of a No-Deal Brexit

By: Victoria Wunder

On 23 June 2016, a referendum was held that asked voters a single question: should the United Kingdom remain in the European Union, or should they leave it?[1] Of the 72.2% of U.K. voters who participated in the referendum, 51.9% voted in favor of the U.K. leaving the E.U., and 48.1% voted to remain.[2] This outcome was a shock to many, and the split—dubbed “Brexit”—will impact both the U.K. and the E.U. in a number of ways, even more so if no deal is reached.[3]

The European Union is a coalition of twenty-eight countries that trade with each other as a “single market” and allow the citizens of member states to cross borders with no restrictions, amongst other benefits.[4] The United Kingdom, made up of England, Scotland, Wales, and Northern Ireland, has been a member of the E.U. since 1973, when it was still known as the “European Economic Community.”[5] The 2016 referendum was just the start of the U.K.’s split from the E.U.[6] To leave the E.U., the U.K. had to invoke Article 50 of the Treaty of Lisbon, which allows the pair two years to come to an agreement as to the terms of their separation.[7] The U.K.’s Prime Minister, Theresa May, invoked Article 50 on 29 March 2017, which means that the U.K. will officially leave the E.U. at 11p.m. on 29 March 2019.[8] Though there are campaigns within the U.K. to abandon Brexit altogether, politicians in the country are currently focusing on how, not whether, the split will happen and what the relationship between the E.U. and the U.K. will look like when it does.[9]

Brexit negotiations commenced a year after the initial referendum, on 19 June 2017.[10] A 585-page withdrawal agreement has been created to govern how the U.K. will leave the E.U., but not what will happen once it does.[11] The deal sets forth how much the U.K. will have to pay to divorce from the E.U. (some 39 billion pounds), how U.K. citizens abroad will be treated, how E.U. citizens living within the U.K. will be treated, and how to avoid the return of a physical border between Northern Ireland and the Republic of Ireland (an issue that has featured prominently in the negotiations thus far).[12] The deal would also institute a transition period to allow the U.K. and E.U. to hammer out a trade deal and allow businesses the opportunity to adjust to the impending changes, which would last from the time the U.K. formally exits the E.U. on 29 March 2019 until 31 December 2020.[13] Included with this deal is a non-binding, 26-page “statement of future relations”—an aspirational document meant to paint a rough picture of the U.K. and E.U.’s future relationship in a number of areas, notably trade and defense.[14] The leaders of the 27 remaining E.U. countries have signed off on the agreement, which now needs to be passed in both the European and U.K. Parliaments, respectively.[15]

However, at this time, it looks the deal that the Prime Minister and the E.U. leaders have created may not pass through the British Parliament.[16] It is unclear whether the Prime Minister will be able to garner enough support from members of her own Conservative party or those of other parties to ensure the deal’s passage.[17] If the deal does not pass through Parliament, a no-deal Brexit is the most likely scenario (and likely the worst scenario for Britain).[18] It is also possible that a new way forward could be suggested by Parliament members, that the deadline could be extended (so long as all 27 E.U. member states agree), or that Brexit could be cancelled altogether.[19] Due to the Prime Minister’s invocation of Article 50 of the Treaty of Lisbon, U.K. law right now requires that the country exit the E.U. on 29 March.[20] However, with no deal, the U.K.’s exit from the E.U. could bode ill for the country.

The European Union’s President, Donald Tusk, has called the current deal “the best possible, in fact the only possible one,” signaling that the entity is unwilling to negotiate the Brexit deal further, and certainly is unwilling to negotiate a new deal from scratch.[21] This means, that if the current deal fails to pass, a no-deal Brexit is the most likely outcome, or, perhaps, the only outcome, if a new deal is not approved by the 29 March deadline (a deadline that draws nearer each passing moment). On 29 March 2019 the U.K.’s membership in the E.U. expires, and 3 million E.U. citizens living in the U.K. and 1 million U.K. citizens living in member states lose their automatic rights and protections at the stroke of eleven.[22]

The effects on the U.K. (and to some extent, the E.U.) will be vast and complicated. Everything from fisheries to health care to higher education (not to mention free trade and foreign policy) stands to be impacted by a no-deal Brexit. A number of the U.K.’s doctors and nurses—some 122,000 of them—are leaving the country: as E.U. nationals, their future is uncertain, and they are off in search of greater stability.[23] Fewer E.U. nationals are applying to positions the medical field in the U.K., whereas before they could have made up 1/3 or more of the applicant pool.[24] There simply are not enough British doctors and nurses to cover the need.[25] It is not only the healthcare industry that is struggling to recruit: businesses from construction companies to coffee shops are struggling to hire new employees, and top universities fear they may not be able to keep those that they have.[26]

One of the major issues that has presented itself over the course of the Brexit negotiations is how the border between Northern Ireland and the Republic of Ireland will be handled. At the moment, both the Republic of Ireland and Northern Ireland (as part of the U.K.) are part of the E.U., and the border between the two is open and features no checkpoints, allowing people and goods to move across it easily.[27] Once the U.K. leaves the E.U., the border between the two Irelands will necessarily change, and how and to what degree that change will occur has been the focus of intense debate.[28] There is an argument as to whether the border should be a “hard border” or a “soft border.”[29] The E.U. argues that it must protect the single market from tainted goods, and fears that without adequate checks, unwanted or low quality products could slip into the market “via a Britain-Northern Ireland route.”[30] Unless this issue can be resolved in some other, less formal way between the E.U. and the U.K., once the U.K. leaves the Union the border between Northern Ireland and the Republic of Ireland will rise to that of a full customs border, a situation which would likely be practically and politically untenable for Irish citizens.[31] In the agreement as it stands now, there is a “backstop” provision regarding the Irish border.[32] If an alternative agreement cannot be reached, Northern Ireland will remain in the single market and there will be no customs checks at the Irish land border; instead, there will be customs checks between Northern Ireland and Britain, a situation that both Northern Ireland and Britain are obviously in opposition to, as it would place a customs check within the U.K. itself.[33]

The greatest consequence of Brexit will be economic, and will affect both the U.K. and the E.U. Most experts believe that the U.K. will actually be economically worse-off post Brexit, at least at first break.[34] A number of economic projections have also been made, however, that show that the U.K.’s economy will be negatively affected by Brexit well into the future.[35] Brexit’s stunting of economic growth and overall negative affect on the economy will be due in large part to the barriers to trade that will be in place upon the U.K.’s adieu.[36] It is impossible to predict to what extent these barriers will affect the U.K. and E.U. economies, as the meat of the trade deals and much of the two entities future relationships will be worked out in the future, when (and if) the current Brexit deal is cemented (additionally, new deals will likely need to be inked with member countries individually).[37] Exactly how the economy fairs will depend upon Brexit’s impacts on related sectors, such as productivity, migration, and foreign investment.[38]

In all, the impacts of Brexit upon the United Kingdom, European Union, and the world are as of yet unknowable, but certain to be profound. If Brexit does occur, and the current deal is accepted, a long road must still be traveled to stabilize the relationship between the U.K. and E.U. member states. If the current deal is not accepted, the road grows significantly longer, and, perhaps, more perilous. As we stand by and witness history, we can only wonder what its consequences may be for the future.

 

[1]Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC News (Nov 26, 2018) https://www.bbc.com/news/uk-politics-32810887.

[2] Brexit: Impact Across Policy Areas, House of Commons Library, 18 (2016), http://dera.ioe.ac.uk/27171/1/CBP-7213.pdf.

[3]  Id.

[4] Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC News (Nov 26, 2018) https://www.bbc.com/news/uk-politics-32810887.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Brexit: Your simple guide to the UK leaving the EU, BBC News, (Nov 26, 2018) https://www.bbc.com/news/uk-46318565.

[12] Id.

[13] Id.

[14] Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU, BBC NEWS (Nov 26, 2018) https://www.bbc.com/news/uk-politics-32810887.

[15] Brexit: Your simple guide to the UK leaving the EU, BBC News, (Nov 26, 2018) https://www.bbc.com/news/uk-46318565.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Jen Kirby, EU to UK: Take the Brexit Deal or Else, Vox, (Nov 30, 2018) https://www.vox.com/2018/11/30/18119620/brexit-deal-uk-european-union-g20-may.

[22] Id.

[23] Katrin Bennhold, Where Brexit Hurts: The Nurses and Doctors Leaving London, The New York Times (Nov 21, 2017) https://www.nytimes.com/2017/11/21/world/europe/nhs-brexit-eu-migrants.html.

[24] Id.

[25] Id.

[26] Id.

[27] Samantha Hawley, Brexit: The Irish Border Issue that Could See the U.K. Crash Out of the European Union, ABC News (Dec 2018), https://www.abc.net.au/news/2018-10-19/explainer-brexit-and-the-irish-border-issue/10393818.

[28] Id.

[29] Lisa O’Carroll, Brexit and the Irish Border Question Explained, The Guardian (Sept 2018), https://www.theguardian.com/uk-news/2018/sep/19/brexit-and-the-irish-border-question-explained.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Examining Economic Outcomes After Brexit, Rand Corporation https://www.rand.org/randeurope/research/projects/brexit-economic-implications.html.

[35] Gemma Tetlow and Alex Stojanovic, Understanding the Economic Impacts of Brexit, Institute for Government (Nov 2018), 4 https://www.instituteforgovernment.org.uk/sites/default/files/Economic%20impact%20of%20Brexit%20summary.pdf.

[36] Id. at 7.

[37] Id.

[38] Id. at 10.