Foreign Affairs has an article titled
A World Without RulesThe Consequences of Trump’s Assault on International Law
Oona A. Hathaway and Scott J. Shapiro (both law professors at Yale)
From the beginning of his presidency, Donald Trump has threatened to destabilize the international legal order.
Do Oona & Scott think it was previously stable? There has never been an 'international legal order' which wasn't unstable. Indeed, there would be no commercial law and very little criminal law if society were in a stable equilibrium.
Early in his second term, he claimed he would “take back” the Panama Canal, make Canada the 51st U.S. state, acquire Greenland, and “own” Gaza.
So what? Biden would make similar tall claims about fostering Democracy.
Foreign policy experts shook their heads, reluctant to take Trump seriously.
i.e. senile, stupid, hacks wrote some stupid articles.
After all, his declarations seemed erratic and poorly thought out. Yet even speaking the words did damage.
Indeed, just thinking thoughts- or looking like you might one day think thoughts- does damage. But so does farting or looking like you might suddenly fart.
As we argued in Foreign Affairs last summer, Trump’s threats reflected a troubling lack of commitment to the legal structure the United States and its allies created 80 years ago.
Troubling to whom? Useless shitheads.
The norm against the use of force, embodied in the UN Charter, was already under strain.
The invasion of Iraq put paid to it.
But Trump’s open disregard of this prohibition threatened to trigger its collapse.
Because of the danger that someone would go back in time and get Bush & Blair to invade Iraq.
That was before the United States invaded Venezuela and kidnapped its president, Nicolás Maduro, on January 3.
As Obama kidnapped Osama or the first Bush captured and incarcerated Noriega.
The military operation, undertaken without UN Security Council authorization, without congressional authorization, without a claim of self-defense, and without even a plausible legal rationale, represents the most harmful attack yet on the rules-based order.
Which simply doesn't exist. Ask the Crimeans or East Ukrainians.
It is not just the existing international legal system that is in jeopardy now. At risk is the survival of any rules at all—and with them any constraints on the exercise of state power.
Rules which provide focal solutions to coordination games are self-enforcing. Those which aren't 'incentive compatible' are mere puffery.
THE RISE AND FALL OF WORLD ORDER
Before countries renounced the right to war, first in the 1928 Kellogg-Briand Pact
hilarious!
and then again in the UN Charter in 1945, waging war was perfectly legal and legitimate.
It continued to be. What changed was Trump's recognition of the Golan Heights as Israeli territory which Biden confirmed. Morocco's claim to the 'Spanish' Sahara is another example.
It was the main way in which countries resolved their disputes with one another. But even during this time, war was constrained by law.
Very true. There is a law which says it is cool to detonate so many nukes that all life on earth is destroyed.
War, in its lawful conception, was understood as a last resort undertaken to enforce or defend a state’s rights.
Whereas the Super-powers understood blowing up the whole fucking world was an even better way to defend their rights.
Killing, seizure of property, and destruction were permitted only if the entire endeavor was justified by law.
Blowing up the entire world is permitted and justified by law. You can't refuse to pay your taxes on the grounds that some of your tax dollars will be spent on vast nuclear arsenals which can destroy all life on earth.
At the beginning of the twentieth century and for centuries before that, a country could not simply say it wanted another’s land.
Yes it could. This is still the case.
According to customary international law, as interpreted and popularized by the so-called father of international law, Hugo Grotius, in the early seventeenth century, a state had to offer a legal justification before it could go to war.
No. It could supply this at a later date if surprise was an essential component in securing victory. But anyone can offer a legal justification for anything.
Violence was acceptable, but only if it was necessary to vindicate a legal right.
A claim to a legal right. But anyone can have such a thing with regard to anybody at all. Grotius was sent to prison by his own people. He illegally escaped and ran away. This was very naughty of him.
Sovereigns had to argue that another country had failed to pay a debt, unacceptably interfered with trade relations, violated a treaty obligation, or committed some other wrong that was considered an acceptable cause for war.
Acceptability doesn't matter. Winning does. People who don't accept that you have conquered and enslaved them stop being able to accept anything other than a bullet to the back of the head.
This practice received formal legal sanction by the states that signed the Peace of Westphalia in 1648, when they recognized that those who would go to war must make “a lawful Cognizance of the Cause.”
Also, Ambassadors must not bite each other. Anyway, Westphalia has nothing to do with Anglo-Saxon jurisprudence. England was consumed by Civil War. It wasn't a signatory to any of the Westphalian treaties.
Sovereigns took this obligation seriously, always issuing war manifestos to explain their reasons for entering a conflict as fighting began.
Some did some of the time. Some didn't any of the time.
They did this with the understanding that without such a claim, violence is not war. It is crime: murder, assault, kidnapping, and theft.
All of which were perfectly legal if committed on darkies in distant lands. On the other hand, if you were a pirate, it might be a good idea to pay a bit of cash for 'letters of marque' otherwise your ill gotten gains might be confiscated by the State.
For the past eight decades, legitimate grounds for war have been much more narrowly defined.
by useless tossers.
The current international system rests on the premise that the use of force by one state against another is prohibited, even criminal, unless undertaken in self-defense or with collective authorization by the UN Security Council.
everything turns out to be self-defence. Saddam might have WMD. Maduro might be selling drugs to our kids. Afghans may be refusing to let girls go to school. That's totes triggering for our women.
War is not considered a discretionary policy instrument, and the unlawful use of force does not give the perpetrator legal rights.
Nor does the lawful use of force if the other guy kicks your fucking head in.
Whereas conquering territory used to be enough to gain title to it, if a state today acquires another’s territory through an illegal use of force, the rest of the world is under a duty not to recognize its claims of sovereignty over the territory.
That may be true, de jure. It has never been true de facto. Turkey still has a goodly portion of Northern Cyprus. It is still a NATO member.
Countries have violated these rules, sometimes gravely. But even rule-breaking states have offered legal rationales, recognizing that other states—and their own citizens—believe that killing people and taking their land and property requires justification, not merely power.
But justification is easily supplied. Sadly, if you can't hold what you try to grab, justification can't help you.
The Trump administration is no longer trying to work within this system.
Nor did the first Trump administration. So what?
For the past year, it has been attacking and dismantling the legal infrastructure of the existing order. It is sanctioning judges and lawyers who work at the International Criminal Court so that crimes cannot be prosecuted.
It is curbing a nuisance- nothing more.
It is throwing up trade barriers,
which any country is entitled to do
breaching World Trade Organization agreements and retreating from the norm of free trade that once underwrote global stability.
No. The idea was that 'free trade' would make us richer and richer thanks to Intellectual Property and 'exorbitant privilege' etc. Sadly, though a few got very rich, many in the US ended up worse off.
It is failing to pay its dues to the United Nations and withdrawing from or violating countless treaties.
Which it is perfectly entitled to do.
And it is openly threatening sovereign states and territories—Venezuela today, Colombia, Cuba, Greenland, and Mexico tomorrow—not with lawful UN Security Council–authorized measures but with unlawful unilateral force and coercion.
If it is unlawful, why aren't these two Law Professors trying to bring a suit against Trump? There are people in the US who say they are 'sovereign citizens' and thus it is unlawful for the police to arrest them for being drunk while driving.
Because so many countries depend on the United States for their defense, their economic stability, or both, all but a few have been mere bystanders to the destruction.
As have these two Law Professors.
NO MORE RULES
Trump rules. Maduro drools.
It would be bad enough to return to the prewar international system,
when the Kellogg-Briand pact had abolished war?
in which states engaged in looting and conquest openly and unapologetically.
rather than in a furtive and shame-faced manner?
It was a time when leaders launched wars based on the violation of a vast array of legal rights—and the people suffered the consequences of the widespread violence that followed.
This doesn't happen if you have enough nukes to blow up the world. What these two cretins don't get is that NATO has had a first-strike offensive doctrine. My point is that things got worse, not better, after 1945. Wars are survivable. Nuclear holocaust- not so much. But that was the world into which these two cretins were born.
But what may be in store could be even worse.
Nuclear holocaust. These guys have been living in a fantasy world for the last five decades. What the Ukraine war teaches is- 'if you have nukes, don't give them up.' If Taiwan really wants to be independent, it must do what North Korea did- viz. get nukes.
In the short term, the world faces deep instability; leaders may sometimes invoke the postwar rules but may also increasingly ignore them, depending on what is convenient. This is a recipe for unrelenting conflict,
No. There are red-lines when it comes to the nuclear powers.
as states would be in doubt about what the rules are and therefore unsure of how to avoid provoking violence.
This is silly. States know that any rule has exceptions or loopholes. Still, if you fuck with a stronger power, you may get your ass kicked.
Until a clear set of rules takes hold, the world will be a profoundly dangerous place.
Not if you can blow up the world. That's the danger which focuses the minds of grown-ups. Law Professors are welcome to talk puerile shite. After all, lawyers often have to stand in front of a judge talking utter bollocks.
A longer-term possibility is a world in which states are no longer prohibited from resorting to force and at least one superpower acts as if there are no rules at all.
In other words, what if the world remains what it is?
In this world, not only would the rules be unpredictable, they would depend entirely on the impulses of whoever happens to command the most coercive power at a given moment.
The world is already unpredictable- up to a point. But one rule hasn't been broken- viz. direct military conflict between two nuclear powers. You can have 'plausibly deniable' terrorist or proxy attacks. But you don't have and haven't had direct conflict. Why? One side or the other would implement a first strike.
U.S. officials have discarded the idea of legal constraints altogether.
If there is no legal constraint on stockpiling enough nukes to blow up the world, then legal constraints don't matter in the slightest.
What is worrying is that the Trump administration seems to be ushering in such a world. The day after the United States kidnapped Maduro and his wife in Venezuela, the senior Trump aide Stephen Miller explained the administration’s thinking in an interview with the CNN host Jake Tapper. “We live in a world, in the real world, Jake, that is governed by strength, that is governed by force, that is governed by power,” Miller said. “These are the iron laws of the world since the beginning of time.”
Putin had hinted that he might do nuclear proliferation into Latin America. Trump is willing to appease him up to a point. But the US military needs to show it can do force projection of a very sophisticated type such that no one is tempted to go down that road. One could say action against Saddam had a similar basis. Don't forget, North Korea was once included in the 'axis of evil'. Then they tested nukes and delivery systems. Trump is affable to the fat fuck who rules that country. I suppose Trump will use the excuse of the current unrest in Iran to hit a few more installations connected with the regime's nuclear ambitions.
Neither Miller nor anyone else in the administration offered any real legal justification for launching a military assault on Venezuela—an operation that killed at least 75 people.
Maduro had been indicted just like Noriega.
There has been no legal justification, either, for the plan Trump announced on social media to seize “between 30 and 50 MILLION Barrels” of Venezuelan oil.
In other words, legal justifications only matter to guys who might get paid a little money for providing them. The same is true of Voodoo justifications. Why did Trump not pay some nice Voodoo practitioner to say 'Baron Samedi commands the rendition of Maduro'? Is it because Trump is RACIST? No. It is because Voodoo practitioners illegally entered Mar e Lago and ate his puppy dog.
Instead, the State Department shared an image of the U.S. president emblazoned with the words “This is OUR Hemisphere,” and Trump styled himself in a Truth Social post as the “Acting President of Venezuela.” Now, the administration has begun to turn its sights on Greenland. A White House statement issued days after the capture of Maduro claims that the United States “needs” Greenland and that acquiring the territory is a “national security priority.”
Why? China is increasingly turning to the Arctic as a cheaper and shorter route to Europe & America. Also it avoids 'choke points' like the Malacca straits or the Red Sea. This means Greenland would be a valuable acquisition for 'belt & road'. Greenlanders would like a bidding war with the EU, China & America having to raise their offers. Trump is pre-empting that bidding war. Europe now has the choice of either surrendering their claim or else putting boots on the ground (rapid deployment capacity). But this is a bad time to try this because Russia is increasing pressure on Ukraine. In other words, if the EU does nothing while Trump raises the number of US troops in Greenland, then, de facto, it is American. The Greenlanders will have to accept whatever the US chooses to offer them. China will be frozen out.
What is so troubling about the Trump administration’s words and actions is not just that the administration is breaking the law.
This may trouble those who make their living from the law. It doesn't affect any one else.
And it is: the intervention in Venezuela clearly violates the UN Charter’s prohibition on the use of force.
But the US has a Security Council veto.
But more than that, U.S. officials have discarded the idea of legal constraints altogether.
No. US officials expect American soldiers to obey orders. The law is a tool of government. 'Lawfare' as championed by Law Professors is a chimera.
The only constraint, Trump said in an interview with The New York Times last week, is his “own morality.”
In which case, we are all truly fucked.
There is no real argument to defend the government’s behavior. No pretense. No attempt to persuade. When a policy is announced in an online post, without explanation or justification, one has the unsettling sense that its makers see no need to bother cloaking it with a lie. A system of rules can survive some hypocrisy, but nihilism will bring it down.
Law Professors want politicians to pretend that what they teach means something. But practitioners of Voodoo have a similar desire.
At the same time, the Trump administration is acting as though the threat or use of force alone can grant it legal entitlements.
Whereas my legal entitlement not to be mugged isn't based on the threat or use of force by the Police.
Gunboat diplomacy, roundly renounced when war was outlawed, has returned.
It returned in 1989 when Panama was invaded.
The United States is using oil blockades, coercive seizures, and military threats to extract political and economic concessions from other countries.
As it was doing to Iraq between 1990-2003.
This is an attempt to assert that power alone creates rights, regardless of reason.
Rights without the power to enforce them are empty. That's the reason Laws and lawyers can't achieve very much.
A world in which the powerful no longer feel the need to justify themselves is not merely unjust.
If you are going to rape and kill a baby, kindly have the decency to employ a Law Professor to write up a justification for your actions.
It is barbaric: operations to kill, steal, and destroy are severed from any claim of right. That world does not have a legal order at all.
In other words, if you went to Law Skool in the hope of suing the Federal Government until it gave up all claim to 'Turtle Island' and evacuated the White and Black population from the territory of the continental USA, then you wasted your money and your time. You should have sued the Government to implement free and compulsory gender reassignment surgery on all practicing male heterosexuals.
It has only force, guided by one man’s whims.
Which is what the US Constitution permits provided Congress & SCOTUS backs POTUS. Law Professors, like Voodoo practitioners can do shit about this.
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