Oxford historian Margaret MacMillan asked in the pages of Foreign Affairs whether our troubled world order would be able to survive the disruptive Donald Trump. She wrote that “today’s order appears to be stronger and more resilient than its 1930s counterpart” but, clearly, “norms that were long considered inviolable have been flouted.” She means flouted long before Trump returned to the White House.
Evidence supports both observations. The rules on the use of force, human rights, the environment, and the economy are deeper and more comprehensive than a century ago. People around the world know they have human rights and are not going to forget regardless of the level of violation and disrespect. But disregard has been significant. The normative barriers to conquest, genocide, and catastrophic environmental damage have been declining for decades. One reason for the decline has been a strategy of flexible interpretation. International lawyers present a version of the rules that leaves national leaders free to pursue lawless policies while claiming to be law-abiding. The rationale is that it is better to have thin law than no law at all.
The strategy has backfired. Trump cares little for any law that might restrain him, even minimally. He fired 18 inspectors general in clear defiance of objective statutory requirements. All the IGs left. I asked a colleague why they did not fight to stay, given that it is the IG’s job to uphold the law, including the law that creates their mandate. She replied that the “norms in D.C. have changed”. There is an acceptance that the president has the power to defy statutes. Plenty of security personnel are willing to implement Trump’s orders, so there is fear and unwillingness to stand up to him. The legal community in the U.S. is waking up to the crisis facing the rule of law at home. The international legal community needs to respond to the crisis abroad.
This post focuses on the crisis regarding international law on the use of force. Others will take the lead on legal responses for violations of trade law, environmental law, human rights law, and health law. The available responses are not as robust as before the WTO Dispute Settlement Body was crippled by multiple U.S. presidents, and countermeasures became subject to little more than presidential discretion. With global cooperation, however, supported by the international legal community, the law can be rebuilt. Trump’s return provides the incentive to pull together and reaffirm the common ground of authentic international law upon which we need to stand.
On the use of force, already in 2022, as international lawyers voiced swift condemnation of Vladimir Putin’s invasion of Ukraine, Nico Krisch pointed out in After Hegemony that the U.S. and close Western allies had already “corroded” the prohibition on the use of force so severely it was no wonder Putin could kick it over with no compunction. My new article What Remains of Law Against War recounts similar views from the Global South and charges of a double standard.
The charges have merit. A double standard emerged as the Cold War ended. Until then, the United Nations Charter codification of the ancient prohibition on the use of force was honored in two significant ways: First, no government seriously challenged the actual meaning of the Charter prohibition or its limits for self-defense and Security Council authorization. Second, only one U.N. member had ever tried to conquer and eliminate the existence of another U.N. member. That attempt by Iraq in 1990 to conquer Kuwait was completely shut down by common action of the international community within 6 months.
Of course, the two accomplishments pale compared to the U.N.’s founding promise to “save succeeding generations from the scourge of war”, but when the Cold War ended things got much worse. “American exceptionalism” took hold leading to attempts to rewrite the prohibition on the use of force in favor of Western military intervention. Biden came closest to expressly claiming American hegemonic privilege under a “Rule Based International Order” (RBIO). Putin used similar terms in his cynical parody of Western use-of-force justifications when he invaded Ukraine to eliminate its independent existence. Almost a quarter of the U.N.’s membership refused to condemn the invasion.
Trump’s first two secretaries of state invoked the RBIO, but not Trump. In his second term, he has already asserted his personal power to impose tariffs, claim territory, ethnically cleanse Gaza, and use military force. The Economist calls it, “The New American Imperialism”.
For MacMillan: “What ultimately happens is likely to depend as much on the balance of forces around [Trump] as on his own use of power.” We in the international legal community are a “force” around Trump. But on one of the most important issues, war and peace, we have been divided on substance as well as the critical structural principle of sovereign equality. The RBIO evolved at the end of the Cold War as a claim that the U.S. as the leading democracy has the inherent power to replace the UN Security Council in authorizing the use of force. The RBIO replaces the principle of equality with a variation on virtue ethics—the democratic leader of the largest military state sets the rules. Biden created his own, secret rules for targeted killings, and, as late as October 24, 2024, with Trump nearing the presidency, Biden released the National Security Memo on AI committing to the standards of the “RBIO”, not international law.
The RBIO may well be history. Trump has no interest in fig leaves to obscure his contempt of law. He thereby lays bare the need for a unified approach—an end to double standards. Instead of looking for legal interpretations that allow maximum flexibility to national leaders wishing to use force, the peremptory status of law against war can again form the common understanding. The prohibition on force does not shrink. It is a natural law norm. Natural law is the bedrock and anchor of all law. In the aftermath of the catastrophic Second World War, international lawyers renewed their understanding of and reliance on natural law. They knew why the prohibitions on the use of force, genocide, torture, slavery, apartheid, and civilian targeting bind regardless of contrary state practice. The very precepts that the law binds and rests on principles of equality and good faith, all endure.
With this renewed knowledge in place, the remaining challenge is how to attract compliance. Social scientists explain that when leading states model compliance they generate emulation. Studies undertaken in the 1990s plainly had the United States in mind as a “leading state” that could effectively model compliance. Today, a leading state is one that honors international law in its foreign policy. South Africa has led a dramatic turn to the International Court of Justice in its effort to enforce the Genocide Convention. New Zealand is a leading state in banning nuclear weapons. Pacific Island nations are leading by using the tools of international law in the struggle against climate change. Austria, the Vatican, and others lead by turning to treaties to ban AI-enabled autonomous weapons, including nuclear weapons. Costa Rica, Ireland and many others qualify as leading states.
International lawyers are needed to expand the category by promoting authentic international law. We can speak truth and redefine power.
