In 1990, when the European Journal of International Law (EJIL) had its first issue, its founders, including myself, obviously stressed in their first editorial the link between international law and the construction of the European Union. The socio-political context in which the Journal had just been launched was very different from that which prevails today. Admittedly, there was already a certain convergence between the Western bloc and the countries of Eastern Europe, which had only a short time before been dominated by the Soviet Union. But this rapprochement was the opposite of the one we are now facing with the spectacular convergence between Russia and the United States led by Donald Trump. Right at the end of the Cuban crisis (1962), the USSR, inspired by Minister Gromyko, had proposed to its Western partners ‘peaceful coexistence’ between antagonistic blocs. The favorable response to this initiative led to the adoption by the United Nations General Assembly of the famous Declaration on Friendly Relations between States (UNGA Res. 2625).
Twenty years later, by the time the EJIL was initiated, it seemed that the fruits of this initiative would be reaped in several stages, marked in particular by the progressive control of nuclear weapons and the adoption of solidarity-based solutions to the management of areas of interest for the international community of States as a whole (Antarctica, Outer Space, the Seabed). The twin towers of Manhattan were still standing for another eleven years, but everyone thought they were immovable.
EJIL began at the very beginning of the decade of the nineties, a decade which, with the benefit of hindsight, can almost be said to mark the golden age of the international legal order founded in 1945 with the United Nations. It was during this period that the Framework Convention on Climate Change was adopted, as well as the founding convention of the WTO, the Criminal Tribunals for the Prosecution of Crimes Committed in the Former Yugoslavia and Rwanda and the Rome Convention establishing the International Criminal Court. This same period was also marked by the common affirmation of an extension of the concept of the law of peace-keeping to a law of peace-making, as explained in the ‘Agenda for Peace’ proposed by UN Secretary-General Boutros-Boutros Ghali. Moreover, the promotion of peace was itself correlated with that of the ‘right to development’ declared several years before and East and West seemed to be striving to meet the concerns of the South. In this way, even the intra-European conflicts that had already erupted in the Balkans, although still fueling lively tensions between East and West, were resolved in relation to a common reference point: respect for international law, the development of which everyone unanimously seemed to favor.
The current situation is radically different. At the time, the United States asserted itself as the guardian of international law; under Trump’s presidency, it has now become the main threat to its dismantling. Since the chaotic but resolute start of his second term, the current tenant of the White House has systematically shown that he intends to ignore or disregard the most fundamental principles of this law, which is our common law, the law of the international community as a whole, as it includes not only the States but also the international civil society in the broadest sense.
For instance, Mr. Trump is ignoring the principle of prohibiting the acquisition of foreign territory by force, as his comments on the acquisition of the Panama Canal and Greenland clearly suggest. Obviously convinced that relations between sovereign states boil down to ‘deals’ similar to those he conducted in the New York property market, he persists in envisaging the integration of Canada into the country he leads under conditions that are still rather obscure, despite the vigorous protests of the government authorities and the near unanimity of the population concerned. In this way, without the slightest scruple, he disregards the equal sovereignty of States, including the prohibition of intervention in the internal or external affairs of other States, the right of peoples to self-determination, as illustrated by the way in which it envisages the future of the territory of Gaza, the legal status of which was only recently recalled by the International Court of Justice. He sees no difficulty whatsoever in displacing, even by force, a population already suffering extreme hardship into the territory of sovereign countries that have already carefully declared their opposition to this type of operation. Respect for the most fundamental rights of the individual and for what the ICJ has called ‘the fundamental principles of humanitarian law’ (Case concerning Military and Paramilitary Activities in and against Nicaragua, 1986, para. 218) are not treated any better, as the aforementioned Palestinian example shows, even if we must, of course, make a clear distinction between the fate of the Palestinian population concerned and the actions attributable to Hamas, itself responsible for a series of crimes against humanity initiated on 7 October 2023, the perpetrators of which must be punished, as must as all those committed in the same region. Yet the current occupant of the White House wants to hamper the work of the International Criminal Court, just as he wants to paralyse the work of the World Health Organisation, UNESCO and the World Trade Organisation, among others, not to speak of the United Nations as a whole. Multilateralism makes no sense. Moreover, the same President has shown that he does not consider the United States to be bound by the treaties to which it is a party. Examples of this are his decisions to unilaterally increase customs tariffs on Canada and Mexico, to which he is nonetheless bound by a well-known tripartite trade treaty.
It is against this background that Donald Trump has once again targeted the European Union, seeing it as an institution designed to ‘screw his country’. As in his first term, he displays a persistent ignorance of, or radical misunderstanding of, the aims of the Union, which he sees only as an over-successful commercial competitor. For this unsubtle man, whose only criterion of legality is the conformity of the actions of others with the idea he has of America’s interests, the European Union, far from being first and foremost an ally, is primarily a rival to be destroyed; all the more so as the EU intends to regulate the actions of the major American technology companies, including in the field of artificial intelligence. This is an unthinkable ambition for the libertarian oligarchs who now surround the American president, as well as for himself! Hence the desire to unilaterally hit European exports with exorbitant customs duties, in clear violation of the obligations arising from the WTO’s founding agreements and its own practice.
In short, the first few weeks of Mr Trump’s second term in office have already made it clear that he simply wants to set about systematically destroying the entire legal order that was recast on a universal scale, largely on the initiative of the United States itself, in 1945, with the creation of the United Nations system; an order supported on a regional scale by the creation of regional organizations and unions, of which the European Union is the most successful example until proven otherwise. To replace it with what? He hasn’t told us yet, but it would no doubt be a return to a kind of state of nature in which relations between states would once again be governed by force, tempered, at least for the strongest, by the art of the ‘deal’, of which he himself is convinced to be a master.
Who can find in the history of international relations after the collapse of the Third German Reich a precedent of such magnitude? Even when they violated the provisions and rules of international law, states, including the United States, have always tried to hide behind legal arguments to demonstrate at least that they still intended to act within the framework of international law.
Faced with such an undertaking to demolish the foundations of international law, many will no doubt spontaneously think of Cicero’s question in the first of the Catilinearum: Quo usque tandem abutere patientia nostra? How much longer are you going to abuse our patience? Are we going to allow this brutal President to deliberately ignore in his initiatives the fact that there is an international legal order with its conventional and customary rules, its procedures and its institutions, starting with the first, the United Nations Organization, itself founded on a Charter? How long is he going to ignore that this Charter does include a certain number of fundamental and substantial principles, including the principle of the sovereign equality of States, the duty of peaceful cooperation, the right of peoples to self-determination, the obligation to respect fundamental freedoms, and the obligation not to use force?
Admittedly, specialists in international law, in Europe and the rest of the world, are no more than mere individuals. One would be tempted to say that they represent no one but themselves. In any event, their protests alone are for sure incapable of stopping the excesses of the leader of the world’s greatest power. But the role of doctrine, including that of its youngest researchers, is primarily to analyze the practice of States and international organizations in the light of the norms of international law currently in force. In this respect, EJIL, which is European and precisely devoted to international law, has a double reason for scientifically denouncing the systematic violations of their international obligations by Mr Trump’s United States. As a matter of fact, this is indeed what the EJIL has already begun to do on quite a regular basis, even before the start of Trump’s second term, particularly in the EJILTalk! blogs, with remarkable consistency and reliability. This denunciation takes on particular value in view of the unprecedented nature of the American President’s chaotic behavior and the singular extent of his carefully nurtured ignorance of the law of the international community as a whole, of which the specialists in this law are themselves a part and are naturally inclined to assert themselves as defenders.
Moreover, contrary to what has been defended for too long by a rather narrowly formalist positivist doctrine that I have criticized elsewhere, contemporary international law, which is itself based on the Charter, whether or not it is referred to as its ‘constitution’, comprises, alongside a unity based on its forms, another unity; this one is material, based on the substantive content of its most fundamental norms, which belong to imperative law or jus cogens. Yet it is precisely these norms that Mr Trump holds in the deepest contempt. One might therefore wonder whether the doctrine is not thus confronted with a new type of international wrongful act, the theory of which would almost have to be drawn up, that of a kind of ‘generic wrongful act’ which consists in demonstrating, by his behavior and his words, that this law simply does not exist, or that it no longer does, which, for the moment, is the characteristic of the aforementioned person, but speaking as the head of one of the States that have historically actively contributed to the construction of the international rule of law, at least after the Second World War.
There was a time, in 1970, when the discovery of the mineral wealth of the deep sea (a wealth that was then thought to be all too easily exploitable) prompted the United Nations General Assembly to adopt a solemn Declaration on the Seabed as the ‘common heritage of mankind’ (UN.Res.2749), precisely in order to protect this wealth from the appetites of the most powerful States. Today, it is no longer just the Seabed but the body of fundamental principles of international law, if not even the international rule of law as such, that must be solemnly designated as the Common Heritage of Mankind. We are all custodians of it.
