“I don’t need international law,” Donald Trump told the New York Times. Asked what constrained him then he replied: “It depends on how you define international law. I’m not looking to hurt people.” Pressed further he said: “Yeah, there is one thing. My own morality. My own mind.”
Stephen Miller, Trump’s deputy chief of staff, told CNN: “We live in a world ... that is governed by strength, that is governed by force, that is governed by power. These are the iron laws of the world since the beginning of time.” Their National Security Strategy agrees: “The outsized influence of larger, richer and stronger nations is a timeless truth of international relations.”
International law is the set of rules and norms that regulates relations between states. The term was coined by the English political philosopher Jeremy Bentham in 1789, drawing on earlier European, Enlightenment and Scottish legal and political theorising. It developed in the nineteenth century to regulate relations between European imperial powers as they conquered and asserted control over the world.
International law was to become a crucial source of their legitimacy, laced with their global power. Justified by a hierarchical, Eurocentric “standard of civilisation” distinguishing between civilised, barbarous, criminal and failed states, they needed legal regulation and arbitration to mitigate their competition. It took two world wars in the last century to convince them – and the now supposedly post-imperial United States – that a new order with institutions founded on international law should be globally embedded to meet that need after 1945.
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The resulting United Nations charter and institutions were the template for this task of universalisation during the decades of decolonisation, Cold War, neocolonialism and globalisation that followed. International law became a central pillar of that global order, the lodestar of legitimacy for otherwise deeply opposed states, social forces and ideologies.
That was true even during the post-cold war unipolar moment for the United States after the collapse of European communist regimes in 1989-1991, notwithstanding its own serial breaches of such a legal code in Iraq and elsewhere. A new terminology of “rules-based order” and human rights evolved under presidents Barack Obama and Joe Biden reflecting this attenuated but still functional US commitment to international law and institutions.
That is why Trump’s brutal rejection of them so shocks transatlantic liberal opinion. The new US policy seems to confirm the historian Perry Anderson’s Marxist view that “on any realistic assessment, international law is neither truthfully international nor genuinely law,” because it is so tilted to the world’s powerful and so lacking in autonomous enforcement.
However, Anderson too acknowledges law’s legitimating function, presented by the distinguished Finnish scholar Martti Koskenniemi as a hegemonic technique in the Gramscian sense, since its exercise of power has always involved “the successful representation of a particular interest as a universal value”. The Trump administration’s transparent belief that might is right leaves it bereft of legitimacy among allies and adversaries alike.
Replying to Anderson, Koskenniemi sympathised with his left critique of international law; but the global penetration of the sovereign nation-state and associated concepts of contract and private property during centuries of imperial dominance means “nothing of importance can be accomplished without making claims about legal right, power and privilege.”
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If that is so, Trump’s demand for ownership of Greenland in the New York Times interview as the best way to satisfy him psychologically remains subject to others states’ acceptance or rejection. International law functions here as consistency, predictability and certainty, all of which are likely to be withheld from a rogue US, since transactional politics requires reciprocity. Seizing Venezuelan oil and minerals is no guarantee of ownership, since the US still has to rely on international rules to transport, process and profitably dispose of them, says Philippe Sands of University College London.
Law can be weaponised against a rogue US, just as it did with globalisation’s supply chains over the last generation. Power as law can be confronted by law as power. China’s principled defence of multilateral international law against the US in Venezuela and Greenland is striking here, contrasted with the contorted European responses to the first and hesitant rejection of the second.
At stake here is that other pillar of post-1945 order, the West. It is threatened by the disentangling of transatlantic relations under Trump, which puts Nato and the EU in jeopardy. An urgent Ukrainian settlement is central to that and requires direct EU diplomacy with Russia, heralding a radical recasting of the EU’s capacity and world role as an alternative pole of international legality.
Without a constructive reaching out to Asian, African and Latin-American regions and states, the EU will lack the leverage for a successful transition towards strategic autonomy from Trump’s powerful but rogue US.
