Poor Yorick: Talmon on Trump and International Law

I’ve been meaning to write for a while now about Stefan Talmon’s brilliant new article for the Chinese Journal of International Law, which is entitled “The United States under President Trump: Gravedigger of International Law.” It’s rare you see an international lawyer of Talmon’s eminence and care give an article such a provocative title, so you know he must be truly appalled by Donald Trump. Here is the abstract:

The United States’ recognition of Israeli sovereignty over the Syrian Golan has been widely considered a flagrant breach of international law. This illegal act gives reason to examine the relationship between the United States under President Trump and international law more generally. Unlike its predecessors, the Trump administration has not just violated international law whenever U.S. economic, political, or strategic interests demanded it to do so, it has rather challenged international law and its institutions as such, and has actively undermined them. The attitude of the Trump administration towards international law and its institutions is marked by an unparalleled contempt or disdain. This article delivers a powerful “J’accuse” against this international law nihilism.

If I have any criticism of the article, it’s that Talmon finished it just a bit too soon. The past couple of weeks have witnessed two particularly striking examples of gravedigging. The first, of course, is the Trump administration’s announcement on Tuesday that it no longer considers Israeli settlements in the West Bank to be per se illegal under international law. Marty Lederman does an excellent job at Just Security demonstrating that the announcement is inconsistent with decades of US policy and has been rejected again and again by the Security Council, the ICJ, and nearly every state in the world. (And indeed, in the past couple of days alone the US position has been condemned by the UN, the EU, Germany, and even BoJo’s United Kingdom.)

The second example is the Trump administration’s decision to use combat troops to guard oilfields in eastern Syria. The idea that the US would seize oil belonging to Syria has rightfully been condemned as the war crime of pillage, with Gen. Barry McCaffrey almost breaking the internet by tweeting, “WHAT ARE WE BECOMING…. PIRATES?” It’s worth noting, though, that Trump’s decision also makes a (further) mockery of the jus ad bellum. The idea that American troops can indefinitely occupy Syria in “self-defense” against ISIS has always been unpersuasive. But not even that strained justification applies to seizing Syria’s oil supply. Revealingly, the Pentagon can’t seem to settle on an explanation, one day claiming that taking the oil is necessary to prevent ISIS from using the oil to fund its operations, the next contending that the US wants to ensure oil revenue goes to Syrian rebel forces. The latter is per se illegal (kind of like Israel’s settlements), and the former has two problems. The first is that Trump regularly insists that ISIS has been completely destroyed, so it’s difficult to see why the US needs to defend itself against a non-existent entity. The second is that even if ISIS still exists (hint: it does), seizing Syria’s oil is not a proper act of self-defense under even the most capacious interpretation of armed attack, necessity, and proportionality.

Both the settlement announcement and recent US activities in Syria simply reinforce Talmon’s central point, which is that the Trump administration is doing everything it can to bury international law once and for all. Read Talmon’s article and pass it along to everyone you know.