Some of Donald Trump’s cabinet-level officials have invoked international law in criticizing the actions of other states. To her credit, U.S. Ambassador to the U.N. Nicki Haley has forcefully invoked international law in criticizing the actions of Russia in the Ukraine and in Syria.
In fact, Haley and others have pushed the U.S. to adopt positions based on international law that are much stronger than those Barack Obama took during his time in office.
Generally, Obama studiously avoided the use of the words “international law”, speaking instead of things like “international norms”, within a framework laid out in his Nobel Prize acceptance speech in Oslo in December 2009 which reserved to him the unilateral power to observe such norms or not, if necssary in his view to defend the interests of the country.
A remnant of Obama’s influence can be found in all the talk by Western leaders of the importance of upholding a “rules-based international order”. Importantly, international law and the U.N. Charter don’t give individual states the option to follow the rules or not, which Obama in his formulation reserved to himself.
Fortunately, President Trump has officials on his national security team, including military men, who appreciate the importance of international law.
Yet it is too early to breathe a sigh of relief on that score, because it is unclear whether and the extent to which Trump has learned about international law, and its binding nature. It’s one thing for Nikki Haley to assert the Russian sanctions will remain in place until Russia gives up the Crimea and withdraws from the eastern Ukraine, and quite another to assume that Donald Trump would not throw the principles the sanctions seek to uphold to the wind, in some “deal” with the Russians.
Significantly, President Trump seems to chafe at the constraints the Constitution and domestic laws impose on his own freedom of action.
Indeed, in office he has appeared so far to have an authoritarian character which is neither respectful of the truth, nor of the separation of powers and constitutional and other domestic legal restraints on his behavior.
It is precisely because of his character and attitude toward domestic legal constraints that it is important to pay very close attention to his actions, as they unfold each day during his presidency.
It is difficult to imagine the Trump administration supporting international law in an enduring manner so long as the President’s own attitudes toward domestic legal limitations remain so in doubt.
He is not likely to be persuasive with other nations in invoking international law in justification of U.S. actions, or in criticizing the actions of other states, so long as his veracity and credibility are fundamentally in doubt.
To construct new international norms and regimes to deal with new situations (e.g., cyber warfare or cyber intervention in the elections of other countries), the president’s veracity and credibility, and the trust by foreign leaders he engenders, will be indispensable.
Without illusions, one can only hope that he will evolve in a positive direction, or that whoever replaces Trump — whether through elections or after his removal from office — will have a deep understanding and appreciation of international law, and use both to build a more hopeful and safer world.
The Trenchant Observer