International Law after Trump

The Trump administration seems to have forgotten about international law. This has led to an enormous failure on the part of the United States to defend basic principles of international law when they are violated, as in the Russian aggression against Ukrainian naval vessels in the Kerch Strait and Russian strangulation of the Ukrainian port of Mariupol and others in the Sea of Azov, or Chinese violations of international law in the South China Sea.

Also of great importance has been the failure to build new international regimes with treaties and within the framework of international institutions. The withdrawal from the 6-party nuclear agreement with Iran is a case in point, as is the withdrawal by the U.S. from negotiations to establish the Trans-Pacific Partnership.  The withdrawal from the Paris Climate Agreemen is another example.

Finally, the Trump administration’s disdain for international law has allowed it to pursue policies that are in flagrant violation of fundamental norms of international law. One telling example has been the imposition of tariffs on China and other products on the wholly specious rationale that they are authorized under a national security exception in the GATT or World Trade Organization charter.

Other examples abound. The U.S. has not responded at a high level to apparent threats by Russia against the independence and territorial integrity of Belarus.

See

Anne Applebaum, “Why the world should be paying attention to Putin’s plans for Belarus,” Washington Post, Jan. 4, 2019.

In a normal world, with a normal presidency of the United States, critics of U.S. policy and advocates of international law would direct rational appeals to the White House, stressing the extent advocated policies advanced U.S. interests.

But  today we do not live in such a rational world.  The situation is increasingly reminiscent of that  in Europe in the 1930’s, when Adolf Hitler and Germany were intent on ripping up the existing international order.

We do not have a rational president, or what is worse, we have a president who takes guidance from our principal adversary, Russia, led by Vladimir Putin.

So what are we advocates of international law and what is now commonly referred to a “a rule-based international order” to do?

1. First, it seems that rational appeals directed to Donald Trump and his administration are a waste of time.

His recent statement asserting it was “right” for the Soviet Union to have invaded Afghanistan in 1979 and overthrown the existing government revealed his ignorance of history, his disdain for international law, and the likelihood that he is simply passing on Vladimir Putin’s talking points. Said Trump:

“Russia used to be the Soviet Union. Afghanistan made it Russia, because they went bankrupt fighting in Afghanistan. Russia. … The reason Russia was in Afghanistan was because terrorists were going into Russia. They were right to be there. The problem is, it was a tough fight. And literally they went bankrupt; they went into being called Russia again, as opposed to the Soviet Union. You know, a lot of these places you’re reading about now are no longer part of Russia, because of Afghanistan.”

–Aaron Blake, “Trump’s bizarre history lesson on the Soviet Union, Russia and Afghanistan,” The Washington Post, Jan. 2, 2019.

See also,

David Frum, “Why Is Trump Spouting Russian Propaganda? The president’s endorsement of the U.S.S.R.’s invasion of Afghanistan echoes a narrative promoted by Vladimir Putin,” The Atlantic, Jan. 3, 2019.

The fact that younger generations are ignorant of history, and don’t take the trouble to look it up, was dramatically illustrated by the New York Times, which did not publish a timely story on Trump’s remarks of January 2, and then published a “he-said-she said”account on January 3, quoting Afghan officials who disputed Trump’s remarks.  See

Alan Yuhas, “Afghan Leaders Dispute Trump’s Claim That Soviets Invaded to Fight Terrorists,” New York Times,
Jan, 3, 2019.

It is sad indeed to see that the New York Times has sunk to the level of “he said-she said” journalism, and is too lazy or ill-educated or ill-staffed to tell its readers what the historical facts are relating to an outrageous Trump statement filled with distortions and lies.

This article represents one of the most dramatic failures of journalism at The New York Times in recent memory.

To be fair to the author of this article, its defects should have been caught by a senior editor, and corrected.  In fact, someeone at the New York Times must have noticed that they missed a big and important story. On January 4, the paper published an AP story to cover the omission:

See

The Associated Press, “AP FACT CHECK: Trump’s Afghan Comments Inaccurate, New York Times, Jan. 4, 2019.

The key point here is that the New York Times did not itself refute or comment on Trump’s ignorance and distortions of history. The Soviet invasion of Afghanistan in 1979 was a gross violation of the U.N. Charter’s prohibition of the international use of force (Article 2 paragraph 4), led to widespread condemnation and sanctions, and resulted to a U.S. boycott of the 1980 Olympics in Moscow.

If Trump approved of the Soviet invasion of Afghanistan, why wouldn’t he approve of the invasion of the Crimea, or eastern Ukraine? If he approves, or does not object, why should the Russian sanctions be maintained (e.g., against Oleg Deripaska)?

2. Second, our arguments should be addressed to Republican Senators and Congressmen, in a determined effort to wean them away from the lawless approach of Trump and to bring them back within the fold of those who, like Republicans and Democrats after World War II and for some 70 years since then, have striven to build a rational world which limits the risks of nuclear war and armed conflict between superpowers and other states. This can be done by building support for existing international law and institutions, and developing new legal norms and regimes to face the challenges of the world in the 21st century, from climate change to genetic engineering.

3. Third, we should direct our arguments to leaders and populations of other countries who may share our vision of an ordered, rational world based on international law and institutions. It will be helpful to them, in their own struggles, to know that American foreign policy experts and elites, and one major political party, who have supported such a vision for at lest 70 years have not given up on international law and institutions. It is important that these U.S.leaders and experts speak out, loudly and consistently, to reaffirm our vision of a rational world built on the foundation of the United Nations Charter, international law, and international institutions.

The pendulum some day will swing back toward a world of rationality. Leaders will remember the horrendous sacrifices of two world wars which were the product of previous power-politics approaches to international order. And other more recent events, such as the invasion and war in Iraq, and the war crimes committed in Syria and Yemen.

We should not worry too much about Trump or his tweets as we work with others to strengthen international law and institutions.

Trump has demonstrated again and again a contempt not just for international law, but for law itself.

As he resorts to increasingly authoritarian methods to secure his goals, such as the possible declaration of a national emergency to divert defense department funds from defense to building his fantasy wall along the southern border, or imposes arbitrary tariffs on China and other countries using a similarly specious national security justification, advocates of law and international law must fiercely resist these illegal actions at every turn, in the courts, in the Congress, and in the arena of public opinion.

Now is the time for all who believe in the vision of a rational world, anchored by the Constitution and the rule of law at home, and international law and institutions abroad, to speak out.

LOUDLY. REPEATEDLY.

And to articulate for new generations, and for those who have forgotten, the underlying rationales of their positions.  A good starting point would  be to recall the words of the Preamble of the U.N. Charter.

In an argument based on reason, we and they will prevail. But we must struggle, at every turn, to maintain and strengthen the population’s belief in facts, in science, in analysis, and in public policy based on such facts and science and analysis.  We must struggle to support those who insist on public policy based on the truth of the circumstances in which we, and the world, now live.

And we must demand that our leading newspapers, like the New York Times, hire staff who have a sense of history, and have editors who can distinguish the truly significant news from the constant flow of information across the newswires.

We are still waiting for the opinion of The New York Times on Trump’s statement regarding the Soviet invasion of Afghanistan.

Or should we simply rely on The Washington Post and other news sources that seem up to the task of informing a democratic society?

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.