Vol. 38 Associate Editor
In July 2016, the Permanent Court of Arbitration (PCA) in The Hague ruled against China over territorial claims in the South China Sea. China asserts sovereignty over a region containing the island of Taiwan, as well as areas claimed by China’s neighbors. China rejected the court’s ruling on the grounds that the PCA did not have authority to hear the case and maintains its claim on the territory. This stance by China parallels actions taken by other world superpowers (and permanent members of the United Nations Security Council) such as the United States, Russia, and United Kingdom, in which they also seem to ignore rulings by international tribunals. If the most powerful countries in the world feel free to disregard international law, there is a question of whether this is indeed a rising trend and what implications such a trend might have for the future of the international system. This inquiry is even more pertinent in light of shifting tides around the world and the new, outspokenly isolationist regime in the United States.
Critiques of China’s rejection of the ruling from the United States drew allegations of hypocrisy from China, particularly regarding the U.S.’s dispute with Nicaragua in 1986 and subsequent actions. Nicaragua brought its case to the International Court of Justice (ICJ), alleging that the U.S. had violated international law in supporting the Contras in their rebellion against the Nicaraguan government and by mining in Nicaragua’s harbors. The U.S. refused to participate in the proceedings despite the court’s rejection of its argument that ICJ didn’t have jurisdiction. Nicaragua was successful and the ICJ awarded reparations to Nicaragua. The U.S refused to pay the reparations and used its status as a permanent member of the UN Security Council to block six attempts by the Council at enforcing the judgment.
The U.S., however, is not the only permanent member of the Security Council to have flouted decisions by international tribunals. In 2014, the PCA ruled that Russia must compensate the Netherlands for violating the laws of the sea in the 2013 seizure of a Greenpeace ship that was protesting Arctic oil drilling. Thirty activists and journalists onboard were also detained. Russia did not participate in the proceedings, citing lack of jurisdiction, and refused to comply with the ruling. In 2013, the PCA had also ruled that the U.K. violated the laws of the sea by establishing a Marine Protected Area in the Chagos Islands. The government disregarded the verdict and the protected area remains in place today.
These few specific instances of resistance to the enforcement of international law by world superpowers does not necessarily equate with a movement away from the recognition of international courts. In fact, practitioners of international law estimate that “decisions, judgments and awards by international courts and tribunals are complied with in more than 95% of the cases, including by big powers such as the United States.” However, these actions can be viewed in the context of a world where states are withdrawing in other ways from the international apparatus.
November 2016 saw Russia withdraw from the Rome Statute, the treaty that created the International Criminal Court (ICC). While, like the U.S., Russia had never ratified the treaty so was not subject to the jurisdiction of the court, the move was symbolic of Russia’s withdrawal from the modern international community. This move followed rebukes of Russia by the court’s chief prosecutor, Fatou Bensouda, in her report on Crimea and proclaimed plans to investigate whether war crimes occurred in Georgia. Also announcing intentions to withdraw from the ICC are three African nations: Burundi, Gambia, and South Africa. The three members of the ICC cite a bias toward investigating African nations as a key reason for the departure. These events also coincide with a rise in isolationist sentiments in the West, most clearly evidenced by the Brexit referendum passing last June in the United Kingdom and the presidential victory of Donald Trump in the United States.
The U.S., while it has enjoyed a certain amount of exceptionalism, has remained a leader in international law since the liberal order took hold after World War II, championing the establishment of the current global system. In the weeks since President Trump was inaugurated on January 20, 2017, however, the future of that role is less than certain. He immediately began implementing a string of executive orders that followed through on various campaign promises, echoing “America First.” Trump has made statements reflecting his intention to withdraw from or renegotiate the Paris Agreement on Climate Change and the Iran nuclear deal. He has expressed is opposition to North American Free Trade Agreement (NAFTA) and quickly signed an executive order withdrawing from the Trans-Pacific Partnership (TPP) upon taking office. He has threatened to withdraw from the World Trade Organization (WTO) and is highly critical of the North Atlantic Treaty Organization (NATO).
Most startling, perhaps, is Trump’s attitude of blatant disregard for international law. Beyond his seeming intentions to withdraw from the international community, Trump has now made statements and signed executive orders that are in direct contravention to long-held international law. In the first week of his presidency, Trump said that the U.S. “should have taken the oil” from Iraq during the occupation following the 2003 US-led invasion. This would amount to pillage under international humanitarian law, explicitly prohibited in the Geneva Conventions (as well as in customary international law and U.S. law). Even more egregious, Trump expressed his support for the use of torture, specifically waterboarding, insisting he believes it “absolutely” works. There is no doubt that this stance is in direct opposition to the Geneva Conventions and the United Nations Convention Against Torture (CAT), to which the U.S. is a party, along with current U.S. law. Fortunately, Trump will defer to the CIA Director and Defense Secretary on the issue, both of whom have voiced opposition to the use of torture.
Most recently, and most impactful thus far, Trump signed an executive order temporarily banning refugees and immigrant or non-immigrant entry of all nationals of seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This is illegal discrimination based on nationality and an equal protection violation under the International Covenant on Civil and Political Rights. The order also shirks the U.S.’s obligations under international refugee law and flagrantly violates core requirements of the United Nations Refugee Convention and its 1967 Protocol.
In a time when the world is rapidly changing, with isolationist populist movements and realist sentiments on the rise and international liberalism waning, the character of the international system is likely to alter as well. Time will tell if the binds of international law can hold the current post-WWII international order together when other forces appear to be pulling it apart. Trump, Brexit, the rise of populist movements, and the retreat of Russia and China signal a splintering. While these challenges likely do not hark the end of liberalism, a shift in dynamics with some countries creeping to the forefront while others recoil is likely to be expected.
 Graham Allison, Of Course China, Like All Great Powers, Will Ignore an International Legal Verdict, The Diplomat (July 11, 2016), http://thediplomat.com/2016/07/of-course-china-like-all-great-powers-will-ignore-an-international-legal-verdict.
 America and International Law: Why the sheriff should follow the law, The Economist: Democracy in America (May 23, 2014, 9:45 PM), http://www.economist.com/blogs/democracyinamerica/2014/05/america-and-international-law.
 Ivan Nechepurenko & Nick Cumming-Bruce, Russia Cuts Ties With International Criminal Court, Calling It ‘One-Sided’, N.Y. Times (Nov. 16, 2016), https://www.nytimes.com/2016/11/17/world/europe/russia-withdraws-from-international-criminal-court-calling-it-one-sided.html.
 Somini Sengupta, As 3 African Nations Vow to Exit, International Court Faces Its Own Trial, N.Y. Times (Oct. 26, 2016), https://www.nytimes.com/2016/10/27/world/africa/africa-international-criminal-court.html.
 Ingrid Wuerth, International Law in the Age of Trump: A Post-Human Rights Agenda, Lawfare (Nov. 14, 2016, 3:31 PM), https://www.lawfareblog.com/international-law-age-trump-post-human-rights-agenda.
 David Smith, Trump withdraws from Trans-Pacific Partnership amid flurry of orders, The Guardian (Jan. 23, 2017, 12:46 PM), https://www.theguardian.com/us-news/2017/jan/23/donald-trump-first-orders-trans-pacific-partnership-tpp.
 Geoff Dyer, Donald Trump threatens to pull US out of WTO, Financial Times (July 24, 2016), https://www.ft.com/content/d97b97ba-51d8-11e6-9664-e0bdc13c3bef.
 Sonya Sceats, Trumpian Isolationism Could Help China Become a Leader in International Law, Chatham House: Expert Comment (Jan. 19, 2017), https://www.chathamhouse.org/expert/comment/trumpian-isolationism-could-help-china-become-leader-international-law.
 Sarah Saadoun, Trump, Iraqi Oil and International Law, Human Rights Watch (Jan. 27, 2017, 5:39 PM), https://www.hrw.org/news/2017/01/27/trump-iraqi-oil-and-international-law.
 Jane Mayer, Trump’s Tough-Guy Talk on Torture Risks Real Lives, The New Yorker: News Desk (Jan. 25, 2017), http://www.newyorker.com/news/news-desk/trumps-dangerous-fantasies-about-torture.
 James C. Hathaway, Executive (Dis)order and Refugees—The Trump Policy’s Blindness to International Law, Just Security (Feb. 1, 2017, 8:05 AM), https://www.justsecurity.org/37113/executive-disorder-refugees-the-trump-policys-blindness-international-law.
 Jamil Dakwar, All international laws Trump’s Muslim ban is breaking, Al Jazeera: Opinion (Feb. 2, 2017), http://www.aljazeera.com/indepth/opinion/2017/02/international-laws-trump-muslim-ban-breaking-170202135132664.html.
 See Robin Niblett, Liberalism in Retreat: The Demise of a Dream, Foreign Affairs, Jan.–Feb. 2017, at 17.