President-elect Trump, foreign policy, and the defense of core American values

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Posted By: The Observer November 14, 2016

Developing

Given Donald Trump’s inexperience in foreign policy, he may not understand or appreciate certain fundamental principles and realities that are essential for the maintenance of international peace and security, on the one hand, and the defense of core American values, on the other.

During the transition period and the early days of his administration, the risk of his taking hasty, ill-considered actions that undermine the security and reputation of the United States are great, particularly in view of what he has said about Vladimir Putin and improving relations with Russia, and regarding the use of torture.

It is useful now to begin to lay out these core values and interests. They include:

1. THE U.N. CHARTER AND INTERNATIONAL LAW

Upholding the United Nations Charter in general, and its prohibition of the illegal use of force across international frontiers set forth in Article 2 paragraph 4 and Article 51 of the Charter have been central tenets of U.S. foreign policy since 1945,  This includes upholding and seeking to strengthen international law, and compliance with international treaties to which the United States is a party.

While not always adhered to in practice, they have remained guiding principles of U.S. foreign policy.

Mr. Trump needs to understand why relations with Russia have become strained. It is as a direct result of the military invasion and annexation of the Crimea in the Ukraine in February and March 2014, and the invasion and continued occupation of the eastern Ukraine between April and August 2014 by Russian forces.

APPLICATION: THE CRIMEA

Under no conceivable circumstances should the United States “recognize” the Russian annexation of the Crimea.

To do so would be to undermine the prohibition of the illegal use of force, giving other countries hopes that they, too, might invade other countries and one day achieve recognition of their military conquests.

It is worth recalling that the United States never recognized the Soviet military invasion and annexation of the three Baltic countries of Lithuania, Estonia and Latvia in 1940.

Given the way that international law works, U.S. recognition of the Russian annexation of the Crimea would, for example, lend legitimacy to Chinese territorial claims in the South China Sea and elsewhere, giving hope to the most extreme leaders in the Chinese government that they, too, might invade and annex foreign territory.

This could include the Exclusive Econonomic Zone and the Continental Shelf of other countries in violation of international law, including the Law of the Sea Convention and South China Sea Arbitral Award of July 12, 2016.

APPLICATION: ECONOMIC SANCTIONS AGAINST RUSSIA

The United States and the European Union have adopted coordinated economic sanctions against Russia in response to its invasions of the Crimea and the eastern Ukraine in 2014.

Lifting these sanctions while Russia continues to occupy invaded territory of the Ukraine would eliminate the main elements of pressure on Russia to fully implement the Minsk II Protocol of February 12, 2015 (regarding the eastern Ukraine), and the necessity of holding a U.fN.-supervised referendum in the Crimea to regularize the legal status of that territory under international law.

2. INTERNATIONAL HUMANITARIAN LAW AND THE PROHIBITIONS AGAINST WAR CRIMES AND CRIMES AGAINST HUMANITY

APPLICATION: SYRIA

Cooperating with Russia and the Syrian government in actions which involve the commmission of war crimes will make the United States liable under international law for the commmission of those crimes. That could eventually expose Donald Trump to be tried as a war criminal in 10 or 20 years in one of the countries he travels to.

3. THE DEFENSE OF INTERNATIONAL HUMAN RIGHTS

APPLICATION: TORTURE

The U.S. is a party to the U.N. Convention Prohibiting Torture. During the campaign, Donald Trump publicly advocated the reintroduction of torture as a U.S. policy. He should be aware that continuing to do so, and implementing torture policies, could one day make him a defendant in an international criminal case brought in another country which is a party to the convention.

Appointment of former officials who were instrumental in the execution of the torture policy under President George W. Bush , such as José Fernández, wouuld be a grave error, compromising the legitimacy of the Trump administration early and unnecessarily.

Worth noting is the fact that George W. Bush doesn’t seem to spend that much time traveling abroad these days.

See
“George W. Bush cancels visit to Swiss charity gala over fears he could be arrested on torture charges,” Daily Mail, January 31, 2016 (UPDATED: 19:55 EST).

(to be continued)

Implications: The Need for a Go-Slow and Cautious Approach on Foreign Policy

At the very least, these and other considerations argue for a go-slow approach by President-elect Donald Trump. An example to keep in mind was the quick approval by John F. Kennedy of the Bay of Pigs invasion of Cuba in 1961, which was a total fiasco and one which helped lead to the Cuban Missile Crisis in October 1962.

Caution, listening carefully to analysis and points of view from outside his entourage, from officials in government and other experts, should mark Trump’s transition and early months in the presidency. How good a president he could be may be determined by how well he adheres to such advice.

Trump has a number of areas in foreign policy where he could conceivably improve on the policies of Barack Obama, but it will take time for him to understand the issues and the consequences, if he is so inclined.

The Trenchant Observr

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About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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