You may be aware that Mr Donald J Trump, the chap from the American Apprentice, has become the 45th President of the United States and therefore one of the most powerful people in the world. A tad surprising, but still, it’s a welcome distraction from all that Article 50 business; plus it allows Brits to once again look across the pond and shake their heads with disbelief.
So with that in mind, it’s worth considering what exactly Mr Trump believes in. We shall focus on perhaps his most infamous policy idea: building a “great, great wall” between the US and Mexico at the expense of… Mexico. Specifically, Trump’s campaign website lists as point 1 of his 10-point plan on immigration:
“Begin working on an impenetrable physical wall on the southern border, on day one. Mexico will pay for the wall.”
In a 2-page document (because if there’s one thing Mr Trump is known for, it’s cerebral and thorough policy preparation) explaining how Mexico will be compelled to pay, Trump’s team argues that regulation 31 CFR 130.121 of Section 326 of the Patriot Act forces financial institutions to demand identity documents before opening accounts or conducting financial transactions. Trump says this regulation could be re-defined to include wire transfers and money transfer companies like Western Union. Because Mexico receives around $24bn annually in remittances from Mexican workers in the US, they will want to pay a one-time fee of $5-10bn for the wall in return for the continued allowance of these remittances.
The plan has been labelled “moronic” by leading international relations journal, Foreign Policy, and has been criticised by Forbes.
Building a territorial wall is perfectly within the legal right of any sovereign nation (Bush Jr’s Secure Fence Act of 2006 allowed for a more modest barrier) – the Chinese perfected the idea, although it is not recorded whether having the Mongols pay was mooted. The issue then, is having Mexico foot the bill.
Mr Trump has not asserted any legal obligation on Mexico to do so (e.g. as reparations or a debt) – it is rather a bit of political strong-arming.
Now as a preliminary point, while controversial, the proposed amendment could potentially be passed given the Republicans’ (Trump’s party) continued control of both houses of Congress (the US legislature). The barrier, pun intended, would come from international law.
The US is bound by the judgments of the International Court of Justice. In the widely-known case of Nicaragua v. United States of America, the ICJ stated: “the principle [of non-intervention] 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.” This authority, combined with the soft law of the UN Charter, Article 2(4) and Article 41 (outlawing coercive methods on sovereign nations and outlining that only the UN Security Council has authority to engage in non-armed force coercion) would make the measures taken by Trump a violation of international law… not that this would necessarily matter to Mr Trump or his supporters.
We wait to see what legal obstacles may come from this and other Trump promises. In the meantime if you would like advice in relation to your legal requirements and options, please contact us on 0845 543 5700 or contact us.