A Primer on International Law for Mr. Trump, and other beginners

Rough draft

Introduction

One aspect of President Donald Trump’s foreign policy since January 1017 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 fiving 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 on the negotiating team.

The point is simply t5hat 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 trhe 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 (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 whichbecaem 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.

Thhis point is rather important when one considers the claims by the United States that is execution of “enemy combatant” on the territory of a foreign state is permitted under international law.  The U.S. interpretation of the requirements of international law is not determination. 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 a 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 remains law in the United States even when they may be violated by an individual, or even a 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

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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