One aspect of President Donald Trump’s foreign policy since January 2017 has been he has followed in the steps of Barack Obama in his aversion to the concept or even the use of the words “International Law”. Obama’s avoidance of the term and concept had much to do with some of his biggest foreign policy failures: Failure to enter the Paris Climate Accord or the nuclear agreement with Iran as a Treaty or Congressional-Executrive Agreement giving the agreements the status of binding commitments under international law. A Treaty would have required the advise and consent of 2/3 of the Senate, while a Congressional-Executive Agreement would have required the approval of both the House and the Senate by majority votes. Either would have established the agrement as a binding “treaty” as that term is defined in international law (The Vienna Convention on the Law of Treaties). This would have required some participation by some sympathetic Republicans, and their inclusion on the negotiating team.
The point is that Trump has simply continued Obama’s policy of downplaying international law.
Barack Obama probably understood that international law placed constraints on his own freedom of action. All signs suggest, at the same time, that Donald Trump doesn’t even understand what international law is.
To help Mr. Trump grasp the essential characteristics of international law, it will be useful to break down the term into its two constituent elements.
I. First, International Law is international.
By international, we should understand that its content is not determined by one or a small group of nations, but rather has been established by the state practice of many countries interacting with each other over the last 400 years.
Until the 20th century, the principal form of state practice was the establishment of customary law (explained in the the famous case of the S.S. Lotus, a case between France and Turkey decided by the Permanent Court of International Justice (PCIJ) in 1927. The PCIJ was the predecesssor to the current “World Court” or International Court of Justice (ICJ) established by the United Nations Charter (1945), and constituted in 1946.
Increasingly since the mid-20th century, multilateral treaties have led to the establishment of new norms of general applicability, both by becoming immediately binding on states which became parties to or ratified them, and through the process of “crystallization” of their norms into customary law as a result of their acceptance in state practice.
But in both cases of customary law and multilateral treaties, norms of international law came into being as the result of the actions of a large number of states. No one state could or can establish a new norm of international law by itrself.
This point is rather important when one considers the claims by the United States that is execution of “enemy combatants” on the territory of a foreign state is permitted under international law. The U.S. interpretation of the requirements of international law is not determinative. Nor is that of Russia, France, or any other country.
So, the fundamental concept that students must grasp is that international law is by its very nature international, that is, involving many countries, and is not just what one country asserts to be the case..
Mr. Trump and other beginners may initially have some difficulties in grasping the truly international nature of the processes by which norms of international law arise, are interpreted, and in some very specific ways enforced.
That is, however, the nature of the reality in which at this historical moment we are all living.
II. Second, international law is law.
International law is legally binding. When a norm is legally binding, it means that it must be followed. It may not be violated or deviated from without undermining the legal order of which it is a part. It is law just as domestic law is law, representing the expression of the community of states or the state community which it governs.
Compliance is not optional.
Of course, some will turn to a discussion of whether a norm which is not enforceable in the way a criminal law norm can be is indeed law. But one need only think of the countless violations of domestic law in this or that country, and the fact that such violations do not detract from the quality of the legal norm being “law”, or consider how the Constitution and its provisions remain law in the United States even when they may be violated by an individual, or even high officials. Again, such violations do not vary the legal nature of the norm or its status as “law”.
Both in terms of international law and domestic law, we need to distinguish between the question of whether a norm is a legal with the status of “law” and the question of compliance or enforcement. Many murders may take place in a lawless country, or in lawless zones of an otherwise civilized country, but such murders do not change the nature of the legal prohibition, the law against murder.
In short, the most important things to remember about international law are that it is international, and it is law.
Mr. Trump or other beginners may have difficulty in grasping that some norms that may constrain their freedom of action are international in nature. Or, even more basically, they may have difficulty in understanding the concept of law itself, which consists of community-based norms which set limits on their own behavior, and whose violation is likely to engender responses from members of the community.
Additional chapters to follow
The Trenchant Observer