Foreign policy without International Law

Since the Thirty Years War (1618-1648), the Peace of Westphalia (1648) and the foundational writings of Hugo Grotius, nations have paid attention to international law in managing their international affairs, even when violating its norms.

Yet not until the 20th century did governments take on the central task of using international law not just to limit war, but actually to prohibit it. The First Hague Peace Conference in 1899 pursued the goal of using arbitration to settle disputes  The original goal of many was to set up a system of mandatory arbitration.  They had to settle for a voluntary system, establishing the International Court of Arbitration where nations participated on a voluntary basis. These nascent efforts did not prevent Europe from stumbling into World War I  (1914-1918).

In 1919, nations established the Permanent Court of  International Justice (PCIJ) with a similar goal, as part of the new League of Nations which also sought to outlaw the immediate resort to war, though not ultimately banning it outright. The League of Nations and the PCIJ were agreed to at the Versailles Peace Conference in 1919. Due to opposition in the Senate, however, the United States never joined the League or the PCIJ.

In 1928, led by the United States and France, the Kellogg-Briand Treaty was signed, which banned both the threat of and resort to war.

Notwithstanding these efforts to limit the ravages of war, Benito Mussolini came to power in Italy in 1922, and invaded Ethiopia in 1935. The League (i.e., it’s nation-state members acting together), despite some successes in resolving border disputes after its creation, proved incapable of preventing or reversing Italy’s military aggression against Ethiopia..

In 1936, Adolf Hitler led Germany to re-militarize the Rhineland (the area west of the Rhine River), in open violation of the terms of the 1919 Versailles Treaty.  In the background, the Spanish Civil War (1936-1939) cost the lives of millions as Germany and Italy used military force to support the rebel forces of Francisco Franco, the Soviet Union provided military backing to the Republican forces, and the major powers in Europe did not intervene with the excuse that the international law of neutrality prevented them from doing so. In the U.S., “America First” and other isolationists made sure the U.S. did not get involved in these European affairs.

Japan invaded Manchuria in in 1931, and other parts of China n 1937.

Adolf Hitler acted to bring down the existing international order, remilitarizing the Rhineland in 1936, as noted, and forcing the union {Anschluss) of Austria and Germany in 1938.  The German onslaught continued with the seizure of the Sudetenland (the German-speaking area of Czechoslovakia) in October 1938 under the fig leaf of “The Munich Pact”; the invasion of the rest of Czechoslovakia in March 1939, and finally the invasion of Poland in September 1939, setting off World War II.

After WWII, the nations of the world founded the United Nations in 1945, and the continued existence of the World Court (now the International Court of Justice); and in Article 2 paragraph 4 they prohibited the use of force across international frontiers except in self-defense.

For 70 years, the U.N. Charter was the basis of an international order which prohibited the use of force, and if it didn’t stop all illegal uses of force, at least it helped contain the wars that did occur.

Now, the prohibition of the use of force is becoming frayed, just as international legal norms were increasingly violated by Japan, Italy, and Germany in the 1930’s.  The United States invaded Iraq in 2003, in violation of Article 2 paragraph 4 of the U.N. Charter.  Russia invaded enclaves in Georgia in 2008, which it continues to occupy today.  Russia seized the Ukrainian peninsula known as The Crimea in February and March 2014, purporting to annex it in 2014. In the succeeding months, Russia invaded the Donbas region in the eastern Ukraine and continues its intervention there, which to date has cost some 13,000 lives.

Saudi Arabia, the UAE, and Egypt launched a quarantine of Qatar in 2017, in violation of the international law norm prohibiting intervention in a country’s internal affairs.

Russia has intervened militarily—and decisively—in Syria, joining and enabling Bashir al-Assad in the wanton commission of war crimes and crimes against humanity.

In the South China Sea, China has built up its military presence in violation of international law.

The United States uses tariffs to pressure other countries in flagrant violation of the international law norms of the World Trade Organization. Other countries begin to follow America’s example. Trade wars are in progress or loom.

So, the world is a mess, and becomes more of one as nations increasingly act without regard to international law.

The situation is fraught, and seems similar to that in August 2014, as war loomed.

Regrettably, many leaders seem uninterested in learning from history, and about mistakes which should not be repeated.  As the U.S. and Russia allow the Intermediate-Range Forces missile (INF) Treaty to be expire,  a new and extremely dangerous nuclear arms race accelerates.

Meanwhile North Korea continues to build its ballistic missiles, and Russia continues its cyber-war activities against the U.S.  And the Hormuz Strait becomes an extremely dangerous military flash point in the U.S.-Iran confrontation.

The question seems to be not whether a foreign policy crisis will occur, but when, and where it will take us, and at what cost.

Should nations be paying attention to history and international law?  Of course.  Will they?  That is an entirely separate question.

The Republican foreign policy elite has been neutered by the U.S. President.  The Democratic foreign policy elite has no one to talk to in the current administration. The President’s total domination of the daily news cycle means there is no time for, or interest in, these deeper foreign-policy questions.

The leaders of Russia, the U.S., and China, and many other countries, increasingly ignore the pertinent norms of international law when making decisions, and don’t even bother to offer international legal justifications for their states’ actions.

Against the  backdrop of history, and previous international efforts to prevent war, what could possibly go wrong?

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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