International Law At Vanishing Point | Vijay Kumar

Notwithstanding the retreat by Trump, the full-blown trade war between two economic powerhouses, the USA and China, would go on, and it would be extremely hazardous to predict the outcome. The overwhelming majority of economics mavens, however, concur that there would be no winner in this chaotic and insane trade war, and the question is which country would suffer most. This writer, being not an economist, will refrain from commenting on economic fallouts except quoting the perceptive and apt comment of Larry Summers, the renowned Harvard Economist, and Treasury Secretary in Bill Clinton’s administration that “Trump formula to Economics is what creationism was to evolutionary Science, Astrology to Astronomy and RFK Jr. (Present Secretary of Health) is to Vaccine Science”. Therefore, I would confine myself to the grave implications for international law and the rule-based international order by a flurry of executive fiats issued by Trump.

The Trade War ignited by Trump has resulted in the collapse of the rule-based world order that had been operative since the end of the Second World War and with the establishment of the United Nations.

The imposition of tariffs on the goods imported into the US is grounded on the principle of reciprocity. The reciprocal policy is invoked by Trump when the world order is grossly asymmetrical. The policy of reciprocity has relevance only when all countries are economically equal. When the economic powers of the countries are vastly disparate, reliance on reciprocity would be economically iniquitous and morally repugnant. The U.N., even in its moment of weakness, has passed a resolution urging the U.S. to exempt poor countries from tariffs.

Crippling Of Unique Role of U.N.

Notwithstanding the undemocratic structure of the Security Council and powers conferred on its P-5 Members to veto any resolution, the United Nations, through its charters, has provided a robust legal framework. The formulation of the Universal Declaration of Human Rights (UDHR) almost at the inception of the UN in 1948 has provided a template for the Bill of Rights in newly emerged independent countries in Asia and Africa, including India, after the end of the Second World War. This was followed by two famous instruments formulated in 1966: The International Covenant on Economic, Social and Cultural Rights (ICESCR) and The International Covenant on Civil and Political Rights (ICCPR). These pivotal instruments of UN were supplemented by numerous others treaties and reference may be made to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979 and the Convention against Torture (UNCAT) in 1984. Thus, the normative norms formulated by the UN became the bedrock for enhancing gender justice and human rights.

It is true that the UN remained powerless vis-à-vis the US and the erstwhile USSR during the Cold War. It is also true that other P-5 Members like England, France and China never cared two hoots for the UN. Yet, the UN, through its numerous Inter- Governmental organizations, such as International Court of Justice (ICJ), World Health Organization (WHO), Human Rights Council (HRC), International Labour Organization (ILO) and hosts of others, including International Criminal Court (ICC), established in 2002 in pursuant to Rome statue, interrogated the abuse of power and provided humanitarian aid and remained active in almost all crises ranging from wars to the recent Covid pandemic. The ICC, despite lacking teeth of enforcement power, has lived up to it’s role by issuing warrants of arrest against two dreadful aggressors and war-mongers in the present time, Putin and Netanyahu, through bold interpretation even when Israel and Russia are not signatories to the Rome statue.

Even globalisation, though grounded in neo-liberalism, resulted in the creation of the World Trade Organisation (WTO), an efficacious forum for adjudication of trade disputes between countries. Therefore, rule-based order, though not perfect, was yet functional. But Trump’s return to the White House, second time in November 2024, has rendered the entire structure of international norms for dispute settlement upside down. In the process, the UN has become impuissant, and the appalling consequence is that ‘rule of law’ has been substituted by ‘might is right’.

Backsliding of Democracy

The transactional and imperial functioning of Trump has fateful implications for democracy, liberalism and even constitutionalism. The domineering style of Trump’s functioning will embolden the play–pen dictators like Putin and Netanyahu and will entrench the power of brazen-facedly rightist leaders like Victor Orban (Hungary), Meloni (Italy) and others of their ilk, who are out to debilitate the democratic norms and ethics.

Even within the US, the Congress is virtually rendered ineffectual. As the Republicans have a majority in both the Senate and the House of Representatives, and given the shameful capitulation of even classic Republicans before Trump, the Congress is not performing the democratic role and function of legislative oversight and interrogating the unilateral function of the President. This has resulted in a collapse of the structure of “Checks and Balances” embodied in the cardinal Constitutional principle of ”Separation of powers”. Thus, the backsliding of democracy in America in the wake of the return of Trump is unmistakable.

Pusillanimity of Indian Govt

China is retaliating with a counter-tariff policy; so is Canada. The England Prime Minister, Stammer and the French President, Macron and some other leaders are voicing their concerns. Similarly, countries like Brazil and South Africa and even Australia are opposing the Trump’s unilateralism. But the Indian Government, and Prime Minister, Narendra Modi, are maintaining complete, disquieting and even humiliating silence in false hope that ingratiating with the megalomaniac Trump would result in India being spared from protective Trumponomics. In the process, morality in foreign policy is being eroded, and the result is that India has lost the opportunity to lead the Global South.

Jeremy Bentham, the propounder of political theory of “utilitarianism”, who is also regarded as founder of theory of “legislation”, wrote, rather pejoratively, that “natural law/ international law is nonsense on stilts” The autocratic functioning of Trump has vindicated it by converting it into tragic reality with terrible denouement for equitable and humane ; peaceful and democratic world order.

(Author: Vijay Kumar, Senior Advocate, Supreme Court of India and author of a recent book, The Theory Of Basic Structure: Saviour of The Constitution And Democracy)