Ukraine, South China Sea: Donald Trump and the U.S. failure to defend international law

It comes as no surprise that President Donald Trump, who has demonstrated little regard for law in general, has failed spectacularly to uphold and defend International Law.

The Kerch Strait and the Sea of Azov

See

Ivo H. Daalder, “Russia’s Crimea Campaign Enters the Kerch Strait,” The Chicago Council on Global Affairs, December 13, 2018.

Matthew LaFond and Hayden Gilmore , “Russia is trying to undermine Ukraine’s sovereignty,” The Hill, December 15, 2018 (07:00 AM EST).

Editorial, “Russia Attacks Ukrainian Ships and International Law; A provocation that could tighten Russia’s illegal hold on Crimea.,” New York Times, November 26, 2018.

The recent failure to stand up to Vladimir Putin after Russian aggression against the Ukraine in the Kerch Strait and the Sea of Azov is a powerful case in point. Russia fired on three Ukrainian naval vessels in the Kerch Strait leading to the Sea of Azov. Most of the 24 Ukrainian sailors taken into custody along with the three naval vessels have been transferred to Moscow, where they await trial on criminal charges.

There can be little doubt about Russia’s aggression and violation of international law. But Trump and the United States have not reacted forcefully, and the Ukrainian sailors remain in a Moscow jail.

The pattern is highly reminiscent of earlier Russian acts if aggression, beginning in Georgia in 2008, and continuing up to the Russian military invasion and takeover of the Crimea in February, 2014, which provoked a mere “slap on the wrist”in terms of U.S. and EU sanctions. In the face of such weak opposition, Putin sent irregular forces into the eastern Ukraine region known as the Donbas (Donetsk and Luhansk provinces) during the summer, and regular Russian military units beginning in August. On September 5, the EU and then the U.S. adopted strong sectorial sanctions against Moscow, while the Minsk protocol aimed at halting further Russian advances was signed in Minsk, on the same day. As the first Minsk Protocol collapsed, the so-called Normandy Quartet (Germany,, France, Russia, and Ukraine) signed the Minsk II Protocol on September 12, 2015. Russia and its puppet regimes in Donetsk and Luhansk did not comply with all of the agreementś provisions (e.g., restoration of control of the border to the Ukraine), but the Minsk II Protocol did confine most of the fighting to the two Donbas provinces.

Now, with the Kerch Strait incident drawing attention to aggressive Russian moves in the Sea of Azov, including apparent attempt to limit shipping out of the Ukrainian port of Mariupol, the lawless nature of Russian behavior has raised renewed fears that Russia may invade additional areas in the Ukraine, particularly those between the Donbas and the Crimea.

See

Andre Higgins, “Russia Slowly Throttles a Ukrainian Port,” New York Times, December 14, 2018.

In March, 2014, Russia purported to “annex” the Crimea, in flagrant violation of international law, and now pretends that it is Russian territory.

Russia argues that since the territory on the Crimean side of the Kerch Strait is now Russian, while the territory on the other, eastern side is admittedly Russian territory, the entire Kerch Strait is Russian territory, and that Ukraine violated its sovereignty when it sent the three naval vessels into the strait.

The only flaw in this argument is that the Western side of the Kerch Strait is Ukrainian territory seized by Russia by military force. A basic tenet of international law is that territory cannot be acquired by the illegal use of force.

Moreover, there is a 2003 treaty between the Ukraine and Russia that specifically provides for joint administration of the Kerch Strait.

Finally, the 1980 Law of the Sea Convention, to which both the Ukraine and Russia are parties, clearly establishes rules for free navigation through international straits. The Kerch Strait is clearly one such strait, because it is bounded by Ukrainian territory on the western side and Russian territory on the eastern side. Russia’s annexation by force has no bearing on the issue under international law, despite Russian claims of sovereignty over land they seized by military force.

The South China Sea

In the South China Sea, China has similarly violated international law by building out reefs and islands, militarizing them, and claiming they are sovereign Chinese territory. President Trump and the United States have limited their responses to verbal protestations and occasional assertions of freedom of navigation through contested waters. Chinaś actions in the south China Sea have thus been allowed to proceed, in the famous manner of the salami technique, without upsetting U.S.-China relations.

Failure to Uphold Fundamental Norms of International Law

What is missing here, in both cases, is a firm determination by the United States to uphold some of the most fundamental and important provisions of international law.

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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