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The promise (and premise) of international law is that of a global order based on principles, rationality and the peaceful resolution of disputes. International law insulates us from raw power, brute force, and the crude but simple — and often compelling — conclusion that might makes right. In the absence of some international police force, it is also an abstraction whose power and effect depends solely on moral authority and respect for an ideal.

Good luck with that. The idea was most famously — at least reputedly — dismissed by Soviet dictator Josef Stalin who is said to have replied to urgings to stop persecuting Catholics to win them over in the fight against Nazism with, “The pope? How many divisions does he have?”

International law has taken a beating in recent years. Some violators are governments that no one expects to honor their commitments: North Korea has ignored international law throughout its history, regularly reneging on agreements whether treaties or business contracts. Pyongyang owes billions of dollars to creditors after defaulting on loans in the 1980s. Its nuclear weapons program is an explicit violation of the Nuclear Nonproliferation Treaty.

Consistent with Stalin’s dismissive mindset, Russia has made plain its disdain for international law, whether by annexing Crimea or by murdering dissidents. While its predecessors chose at times to ignore legal constraints, the Putin government has dispensed with any veneer of respect for law and instead has taken actions that make plain its contempt for such amorphous restraints. It may not admit its criminal behavior, but it hasn’t hidden it either — leaving visible (or radioactive) trails for investigators to follow.

While China proclaims its support for the existing international order, it has more frequently shown that it has little use for international law. Perhaps the most striking example is Beijing’s dismissal of the 2016 ruling by the Permanent Court of Arbitration on the legitimacy of China’s claim to sovereignty over islands in the South China Sea that are also claimed by the Philippines. The Chinese government undermined the rule of law in that case in two ways: first, by asserting a claim that is based on history and has no basis in international law, and second, by dismissing the legitimacy of the tribunal that heard the case and then ignoring the ruling that it issued.

Ultimately, there has been little expectation that those governments would support a system that imposed external constraints on their use of power. Much more disturbing has been the growing disregard for international law among governments that have been pillars of the world’s legal order and its most vocal defenders. In recent weeks, the governments of the United Kingdom and the United States have flatly rejected the notion that they are constrained by international law, insisting that their national sovereignty trumps all other considerations.

The most blatant assertion of national prerogatives occurred earlier this month, when British Prime Minister Boris Johnson announced that his government could override the agreement it had reached with the European Union on the terms of their divorce. In that deal, struck in October 2019, Britain agreed to allow some EU rules to apply to Northern Ireland — part of the U.K. — to ensure that Brexit would not create a hard border between Northern Ireland and Ireland, which would violate the Good Friday Agreement, the peace deal that ended decades of violence in the troubled province. Since the point of Brexit was to end EU control over the U.K., supporters of Brexit in Northern Ireland counter that this undercuts the point of the divorce and separates the province from the rest of the United Kingdom.

Facing a seemingly insoluble dilemma, Johnson’s government proposed legislation — the U.K. Internal Market Bill — that allows it to “disapply” parts of the October agreement. Brandon Lewis, Britain’s Northern Ireland secretary, bluntly conceded in comments to Parliament earlier this month, that “this does break international law in a very specific and limited way.”

That unleashed a furor within the U.K. Every former British prime minister and many party grandees decried Johnson’s willingness to ignore the country’s legal commitments. In a joint letter, former prime ministers Tony Blair and John Major called the bill “shocking,” adding that it has “given the EU genuine reason to question whether Britain can be relied upon in any future trade agreements,” a concern voiced by the other former occupants of 10 Downing St.

That should also trouble Japanese trade negotiators as they celebrate the deal they struck earlier this month with their British counterparts. They must wonder if London will honor an agreement in which Japan purportedly gets 80 percent of the estimated £15 billion (¥2 trillion or $19.5 billion) boost to trade for both countries. That faith assumes yet more significance if Tokyo and London hope to use the agreement to prepare the way for Britain to enter the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP).

Across the Atlantic, U.S. President Donald Trump has shown a disregard bordering on contempt for international law throughout his tenure in the White House. His administration has violated treaty obligations in its trade policy — last week, the World Trade Organization ruled that U.S. tariffs against China are illegal — and its treatment of refugees and immigrants. Two years ago, the International Court of Justice also ruled that the U.S. violated international law when its sanctions against Iran did not provide sufficient exemptions for exports of humanitarian and civil aviation supplies. Trump has made it clear that he would go further — he would like to ban Muslims, recommence waterboarding and “a hell of a lot worse.” Jack Goldsmith, a leading conservative legal scholar who served in various positions in Republican administrations, claims that since Trump has taken office, “we are witnessing the beginnings of the greatest presidential onslaught on international law and international institutions in American history,” a view that is widely shared by scholars and practitioners of international law and international relations.

Johnson insists that his government’s readiness to ignore international law is “an insurance policy,” only to be used if the Brexit deal threatens British sovereignty. (That raises the question of why it would have struck a deal only months ago if it had such a concern.) For his part, Trump has no use for any agreement he didn’t negotiate, and his “America First” approach takes as its starting point the supremacy of national sovereignty over international legal obligations.

While contemporary history is studded with moments in which the United States ignored or flouted its international obligations, Washington has far more frequently abided by international law. Monica Hakimi, a professor of law at the University of Michigan Law School, marvels that “The remarkable thing about the post-Cold War period is that the world’s unquestioned superpower has taken seriously international law’s claim of authority over it.” Yes, the U.S. has taken controversial positions on international law, sometimes violated international law and even resisted the application of international law in particular cases, but, “on the whole, the United States has acted like having international legal authority for its decisions matters. It has worked hard to establish and maintain this authority.”

A readiness to be bound like any other state has been central to U.S. standing and authority in the world. Few appreciate how novel the forthright rejection of the “might makes right” formula is. Far more common is the logic, articulated in the Melian dialogue in Thucydides’ “History of the Peloponnesian War,” that “the strong do what they can, the weak suffer what they must.” The most important element of the Free and Open Indo-Pacific, the regional order that Japan, the U.S. , Australia and other countries support, is a rules-based system that includes all nations. It is a pointed contrast to a system in which some governments deem themselves exempt from those constraints.

A disregard for international law undermines core foreign policy positions, destroys trust and the ability to negotiate treaties and conduct diplomacy generally. It erodes a government’s international standing and legitimacy. Given the challenges that the world faces and the plain and growing need for cooperation and structured engagement to solve them, the assault on international law seems not only pointless but self-defeating and dangerous.

 

Brad Glosserman is deputy director of and visiting professor at the Center for Rule Making Strategies at Tama University as well as senior adviser (nonresident) at Pacific Forum. He is the author of “Peak Japan: The End of Great Ambitions” (Georgetown University Press, 2019).

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