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Who Will Fill America’s Shoes?

Who Will Fill America’s Shoes?

Richard N. Haass

Richard N. Haass, President of the Council on Foreign Relations, previously served as Director of Policy Planning for the US State Department (2001-2003), and was President George W. Bush’s special envoy to Northern Ireland and Coordinator for the Future of Afghanistan. He is the author of A World in Disarray: American Foreign Policy and the Crisis of the Old Order.

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NEW YORK – It is increasingly clear that US President Donald Trump represents a departure when it comes to America’s global outlook and behavior. As a result, the United States will no longer play the leading international role that has defined its foreign policy for three quarters of a century, under Democratic and Republican presidents alike.

We have already seen many examples of this change. The traditional US commitment to global organizations has been superseded by the idea of “America first.” Alliances and security guarantees once regarded as a given are increasingly conditioned on how much allies spend on defense and whether they are seen to derive unfair advantage from trade with the US.

More broadly, foreign trade is viewed with suspicion – supposedly a source of job loss rather than an engine of investment, job creation, growth, and stability. Immigration and refugee policies have become more restrictive. Less emphasis is being placed on promoting democracy and human rights. More dollars are going to defense, but fewer resources are being devoted to supporting global health or development.

This is not to be confused with isolationism. Even Trump’s America will continue to play a meaningful role in the world. It is using military force in the Middle East and Afghanistan, increasing diplomatic pressure on North Korea to rein in its nuclear and missile programs, and renegotiating the North American Free Trade Agreement with Canada and Mexico. And the policies of states, cities, and companies will translate into an American commitment to climate change, despite Trump’s decision to abandon the Paris agreement.

Still, a shift away from a US-dominated world of structured relationships and standing institutions and toward something else is under way. What this alternative will be, however, remains largely unknowable. What we do know is that there is no alternative great power willing and able to step in and assume what had been the US role.

China is a frequently mentioned candidate, but its leadership is focused mostly on consolidating domestic order and maintaining artificially high economic-growth rates to stave off popular unrest. China’s interest in regional and global institutions seems designed mostly to bolster its economy and geopolitical influence, rather than to help set rules and create broadly beneficial arrangements.

Likewise, Russia is a country with a narrowly-based economy led by a government focused on retaining power at home and re-establishing Russian influence in the Middle East and Europe. India is preoccupied with the challenge of economic development and is tied down by its problematic relationship with Pakistan. Japan is held back by its declining population, domestic political and economic constraints, and its neighbors’ suspicions.

Europe, for its part, is distracted by questions surrounding the relationship between member states and the European Union. As a result, the whole of the continent is less than the sum of its parts – none of which is large enough to succeed America on the world stage.

But the absence of a single successor to the US does not mean that what awaits is chaos. At least in principle, the world’s most powerful countries could come together to fill America’s shoes. In practice, though, this will not happen, as these countries lack the capabilities, experience, and, above all, a consensus on what needs doing and who needs to do it.

A more likely development is the emergence of a mix of order and disorder at both the regional and global level. China will promote various trade, infrastructure, and security mechanisms in Asia. The 11 remaining members of the Trans-Pacific Partnership may launch their trade pact without the US.

Less clear is whether China is prepared to use its influence to restrain North Korea, how India and Pakistan will avoid conflict, and the resolution of Asia’s many territorial disputes. It is all too easy to imagine an Asian and Pacific future characterized by higher spending on arms of all types – and thus more susceptible to violent conflict.

The Middle East is already suffering unprecedented instability, the result of local rivalries and realities, and of 15 years during which the US arguably first did too much and then too little to shape the region’s future. The immediate danger is not just further deterioration in failed states such as Yemen, Syria, and Libya, but also direct conflict between Saudi Arabia and Iran.

Europe may be something of an exception to such trends, as the election of President Emmanuel Macron in France has given rise to a government that is committed to reforming the EU. But the EU itself faces an uncertain future, given Brexit and slow-motion crises in Italy and Greece, not to mention the potential for additional Russian mischief or worse.

To all of this, one could add the meltdown in Venezuela and the all-too-familiar horrors in South Sudan and the Democratic Republic of the Congo. And then there is the growing gap between global challenges such as how to govern cyberspace, and the willingness of governments to work together to address them.

There is no little irony in this global turn of events. For decades, many countries criticized US policy, both for what it was and what it was not. These same countries now face the prospect of a world in which American leadership is likely to be less of a factor. It is far from clear that they are prepared for such a world, or that they will find themselves better off in it.

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http://www.dipublico.org/106237/who-will-fill-americas-shoes/

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The Venezuela Crisis at the Organization of American States: Between Withdrawal and Suspension

The Venezuela Crisis at the Organization of American States: Between Withdrawal and Suspension

by Alonso Illueca

[Alonso Illueca is a lawyer and adjunct Professor of law at Universidad Catolica Santa Maria La Antigua and Universidad del Istmo Panama.]

On May 31, 2017, the Meeting of Consultation of Ministers of Foreign Affairs (MCMFA) of the Organization of American States (OAS) will take place to consider the situation in Venezuela. This meeting was convened by the Permanent Council’s (PC) through resolution 1079/17 and based on the OAS Charter, articles 61 and 62 (see here). For several months, Venezuela has been under political turmoil. This state of affairs threatens the country’s democratic order and institutions. Moreover, Venezuela’s ongoing bid for withdrawal from the OAS is detrimental to Inter-American multilateralism. An effective Venezuelan withdrawal would set a precedent for future cases and weaken the OAS position vis-à-vis other regional organizations (CELAC). The current situation and the upcoming MCMFA provides an opportunity to consider the tools that international law provides to the OAS and it’s member States for preserving the organization’s membership. This article offers a perspective on some of the available options to the OAS for maintaining its status as the foremost regional agency of the American Hemisphere.

Venezuela’s withdrawal from the OAS

As a response to the PC resolution 1079/17 and the upcoming MCMFA, the Venezuelan Foreign Minister announced that the country would present a “letter of resignation” (in Spanish only) to the OAS. This letter, dated 27 April 2017, claims that the OAS is acting as an instrument for United States’ interventionism and presents to the Secretary General of the OAS (OASSG) the official notification of Venezuela’s definitive withdrawal from the organization. It is important to note that Venezuela stressed its willingness to comply with the “denunciation” procedure established in the OAS Charter.

Article 143 of the OAS Charter establishes that a withdrawing party must provide a written notification of its intentions to the OASSG, and after two years of such notification the withdrawal becomes effective. Additionally, it states that after this period the State concerned “shall cease to belong to the Organization after it has fulfilled the obligations arising from the present Charter”. With the aforementioned letter, Venezuela has only complied with one of these requirements. All things considered, Venezuela would cease to be an OAS Member State on 27 April 2019, as long as it fulfills its obligations under the OAS Charter.

The Venezuelan crisis and the Inter-American Democratic Charter

From a practical perspective, the Venezuelan government has interrupted the country’s democratic order twice, at least, since the start of crisis. First, by failing to convene a revocation referendum as established in the Venezuelan Constitution (in Spanish only). Second, by suspending the powers of the National Assembly through the Government controlled Supreme Court (see PC Res. 1078/17). This “suspension of powers” was later revoked.

With regard to the interruption of the democratic order, it is necessary to consider the paramount importance given to democracy in the OAS’ structure. The preamble of the OAS Charter considers democracy as an indispensable condition for the stability, peace and development of the region. It also lists among its essential purposes “to promote and consolidate representative democracy, with due respect for the principle of non-intervention.” Moreover, it mentions among its principles the effective exercise of representative democracy.

The OAS Charter provides for the suspension of member States whose democratically elected governments have been overthrown by force. In 2001, the Third Summit of the Americas expanded this provision by adopting the Declaration of Quebec City, containing the “democracy clause,” which establishes that “any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summits of the Americas process.” On September 11 of the same year, the Inter-American Democratic Charter (IADC) was adopted. Article 19 of the IADC further expands the democracy clause to all the organs and bodies of the OAS, including the General Assembly (GA), the MCMFA, specialized conferences, commissions, and working groups. Further, article 20 establishes that prior to suspending a member State, the PC may undertake diplomatic initiatives to restore democracy.

In its more than 15 years of history, the IADC has been invoked in situations involving Venezuela (2002), Nicaragua (2004, 2005), Ecuador (2005, 2010), Bolivia (2005, 2008), and Honduras (2009). Only once a State has been suspended through the IADC. In 2009, Honduras right to participate in the organization was suspended in a special meeting of GA, after OASSG’s diplomatic had initiatives failed (AG/Res. 2 (XXXVII-E/09)). It is important to note that, while suspended, Honduras continued to be a Member of the Organization, obliged to fulfill its obligations.

The OAS’ dilemma: What to do next? Is it too late?

In 2016, the OASSG invoked the IADC (art. 20) with regard to the situation in Venezuela (here). In a recent NY Times article, he called for free and fair elections in Venezuela as a mechanism for avoiding their suspension from the OAS by way of the IADC. The OASSG concluded that suspension is the last resource in the regulatory framework of the IADC. In the same vein, the PC, when enacting resolution 1078/17, decided only to undertake diplomatic initiatives under the IADC, by inter alia considering convening the MCMFA. As mentioned above, the upcoming MCMFA was called upon by the PC (resolution 1079/17) and seems to be part of the diplomatic initiatives considered by resolution 1078/17 undertaken prior to adopting the last resort measure (suspension).

In this sense, it seems that the OAS’ diplomatic initiatives and even the “suspension” option came a little too late, as Venezuela has already initiated its withdrawal process from the organization. Had the GA convened in special session and suspended Venezuela’s participation in the OAS, prior to the issuance of Venezuela’s withdrawal letter of 27 April 2017, any subsequent denunciation attempt would had been ineffective.

Nevertheless, the withdrawal clause of the OAS Charter may prove useful in constraining Venezuela from exiting the organization. When a State decides to withdraw from a treaty, it needs to comply with the procedure agreed upon or obtain the consent of all the States parties (see, 1969 Vienna Convention on the Law of Treaties (VCLT) art. 54). In the case at hand, the OAS Charter requires the State concerned to notify its intentions to the SG, wait a mandatory period of 2 years, and fulfill its obligations arising from the Charter. The latter requirement could be interpreted narrowly to include financial obligations only (Venezuela has approximately an 8 million dollar debt with the OAS), which is the generally held view, or be expanded to include the principles and purposes included in Charter dealing with democracy.

The second option could potentially add some extra burden to Venezuela’s right to withdraw. If this option is analyzed in conjunction with the paramount importance given to the IADC in each of the documents issued by the PC or the OASSG, it could be argued that among the obligations for Venezuela arising from the Charter are the ones supporting representative democracy. Nonetheless, considering that this is the first time that a State withdraws from the OAS, there are no factual precedents on which to draw upon. Consequently, when considering this question, resort to the VCLT’ general rule and supplementary means of interpretation (art. 31-32) would be necessary. In any event, the OAS Secretary of Legal Affairs stressed that the main obligation of Venezuela would be to pay the debts it owes to the organization.  He also articulated that Venezuela would remain a full member of the organization with all its rights and obligations, at least, for the next two years.

Besides its many shortcomings, the IADC is yet to be considered a legally binding instrument (see Perina). It provides for collective action in cases of “unconstitutional alteration of the constitutional regime” through diplomatic initiatives and suspension. In the case of Venezuela, collective action is currently limited to diplomatic initiatives. However, it remains difficult to understand which would be the practical effect of suspension if Venezuela has already decided to withdraw from the organization. In this sense, would the suspension of the membership suspend the 2-year denunciation notice period? A case with some similarities, if any, is the one North Korea and its withdrawal from the Non-Proliferation Treaty (NPT). In that case, the withdrawal was unilaterally suspended by North Korea for 10 years. For many reasons, North Korea’s status in the NPT remains contested until today. However, it differs from the case of Venezuela because the decision to suspend the withdrawal was taken by the withdrawing State, not implicitly ordered by the organization in question.

Conclusion

Some analysts suggest that the OAS’ ongoing role in the Venezuelan crisis has compromised its natural role as a prospective mediator. In shaping its own practice the OAS and its Member States must consider the principles and purposes of the organization and the applicable rules of international law. Nevertheless, the OAS and its legal experts may have a unique opportunity for shaping regional practice with regard to the law of treaties and the regulatory framework of the IADC.

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http://www.dipublico.org/106118/the-venezuela-crisis-at-the-organization-of-american-states-between-withdrawal-and-suspension/

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North Korea and the Law on Anticipatory Self-Defense

North Korea and the Law on Anticipatory Self-Defense

Media reports over the last few weeks indicate that the already tense relationship between North Korea and the United States is getting worse. Now that North Korea is nearly ready to test an intercontinental ballistic missile, the United States has said that it will get more confrontational. U.S. Secretary of State Rex Tillerson even suggested that U.S. military action against North Korea is “on the table.” Such talk is sometimes part of a broader strategy to pressure other countries to negotiate, whether at the Security Council or elsewhere. But it can also be a precursor to war. And it comes at an acute time for the law on anticipatory self-defense.

As readers of this blog no doubt know, Article 51 of the UN Charter recognizes that states have an “inherent” right to use force in self-defense “if an armed attack occurs.” There is an ongoing debate about whether and, if so, when Article 51 permits states to use force to avert an attack that has not yet occurred. Claims for interpreting Article 51 expansively—to permit defensive force even if the attack is only speculative—have been made with respect to “rogue” states that are developing nuclear weapons. In this post, I situate the North Korea case within that debate and explain why the United States might find it to be a particularly challenging case in which to press its expansive claim.

I. The Law on Anticipatory Self-Defense

A. A Restrictive Position

 The majority view on anticipatory self-defense is probably a restrictive one: that anticipatory self-defense can be lawful only if an attack is truly “imminent”—as in, about to occur. Under this view, states may not use force unilaterally to nip in the bud latent threats or attacks that are still conjectural. They must instead address those situations using non-forcible means or by obtaining the UN Security Council’s authorization.

That position finds support in various authoritative texts, including texts that specifically address situations involving the acquisition of nuclear weapons. In 1981, Israel bombed an Iraqi nuclear reactor that seemed ready to produce weapons-grade uranium. The UN Security Council “strongly condemn[ed]” the operation as a “clear violation of the Charter.” In 2004, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change likewise asserted that anticipatory self-defense is lawful “as long as the threatened attack is imminent” (para. 188). The Panel distinguished those cases from situations in which “the threat in question is not imminent but still claimed to be real: for example, the acquisition, with allegedly hostile intent, of nuclear weapons-making capability” (para. 188). It explained that non-imminent threats ought to be addressed without force or through the Security Council.

Indeed, the Security Council has repeatedly taken steps to prevent specific states from acquiring nuclear weapons. The Council has issued numerous resolutions condemning or authorizing sanctions against North Korea for conduct relating to its nuclear program. Likewise, the Council authorized sanctions against Iran, until it agreed to subject its program to stricter international oversight. And after the 1991 Gulf War, the Council imposed intrusive measures on Iraq to prevent it from obtaining nuclear weapons. This practice shapes expectations about the proper locus of decisionmaking authority. It suggests that the decision to sanction a state that might be acquiring nuclear weapons falls, at least in the first instance, to the Security Council, not to states acting unilaterally.

The debate surrounding the 2003 Iraq war arguably also supports that view. Part of the justification for the war was that the use of force was necessary to contain Iraq’s nuclear program. The United States claimed to be acting pursuant to the Security Council’s authorization. But most states disagreed with that claim and vociferously condemned the war. They did not believe that the Council authorized the use of force or that force without the Council’s authorization was justifiable in this instance.

B. A Permissive Position

However, the restrictive position on anticipatory self-defense is being contested. As Michael Reisman and Andrea Armstrong showed in their 2006 article, several states have expressly claimed the right to use force in anticipatory self-defense, without limiting that right to truly imminent attacks. In December 2016, the United States drew on Sir Daniel Bethlehem’s piece in the American Journal of International Law to articulate this legal position:

When considering whether an armed attack is imminent …, the United States analyzes a variety of factors. These factors include ‘the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.

Notice that “imminence” here does not have its ordinary meaning. By the United States’ account, it would permit defensive force to prevent attacks that are still fairly conjectural.

In January 2017, the United Kingdom endorsed a very similar legal position. U.K. Attorney-General Jeremy Wright purported to limit the most expansive implications of the U.K. claim. He underscored that “[i]t is absolutely not the position of the UK Government that armed force may be used to prevent a threat from materialising in the first place.” But his language just begs the question of when a threat has materialized. In the context of nuclear weapons, the threat could be said to materialize—and to justify defensive action—once a state that has demonstrated a hostile intent comes close to acquiring nuclear weapons. At that point, the risk of a potentially devastating attack increases. And waiting for the threat to become more operational might deprive the defending state of a meaningful opportunity to protect itself, without significant death or destruction. The U.S. and U.K. legal position thus creates space to justify anticipatory actions against states like North Korea.

To be sure, most states have not expressly endorsed that position. But as Jacob Katz Cogan and I have shown, most have also stayed silent in the face of actions that reflect it. Two examples are particularly relevant to the North Korea case. First, in 2007, Israel reportedly attacked a partially constructed nuclear facility in Syria. Although the UN Security Council condemned a very similar operation in 1981, states were almost completely silent about the 2007 action. Second, media reports indicate that Israel and the United States repeatedly attacked Iran’s nuclear program, as the Security Council was pressuring it to accept more international oversight. These attacks varied in their severity, but at least some of them caused physical destruction or death. Again, the response was muted.

My point here is not that the permissive position on anticipatory self-defense is the best articulation of the law. My point is that the law on anticipatory self-defense is potentially in flux. It might already be shifting or might soon shift from the restrictive position toward the more permissive one. Moreover, for the time being, a state that uses force in anticipatory self-defense might be able to calibrate its action such that it falls in a legal grey zone—in which it foregoes the legitimizing effect of having the law on its side but also avoids the verbal or material blowback of a violation. The operation would not be widely accepted as lawful, but neither would it be widely treated as unlawful.

II. The Prospects for U.S. Strikes against North Korea

Given that the United States has itself advanced the permissive position on anticipatory self-defense, North Korea could present something of a test case. The United States might try to exploit the legal grey zone or press for its position on the law. Those moves are unlikely to succeed for at least three reasons. First, using force to curtail North Korea’s nuclear program would be operationally difficult and present a serious risk of an escalation in violence. Antony Blinken, a State Department official in the Obama administration, recently explained:

Much of North Korea’s nuclear complex is concealed underground, inside mountains or in places unknown to United States intelligence. Meanwhile, the country is making rapid progress with mobile missiles powered by solid rocket fuel that can be rolled out of hiding and prepared for launch in minutes.

Moreover, as Max Fisher put it, “[a]lmost any plan would bring a high risk of unintended escalation to all-out war, analysts believe.” Thus, low-level, one-off operations—of the sort that were used against Syria and Iran—appear to be infeasible against North Korea. This matters from a legal perspective because other countries might have a harder time averting their gaze if the anticipatory action is a major military operation or risks triggering a broader war. Indeed, part of the justification for permitting anticipatory force in this context is that the operation mitigates the damage that would occur if the nuclear threat becomes more operational. That justification is less convincing if the anticipatory action itself causes or leads to enormous damage.

Second, the Trump administration has shown little interest in, and has at times been outright hostile toward, international law and international institutions. Those who have a stake in preserving these arrangements and who worry about their deterioration during a Trump administration thus have reason to push back against the United States—to resist an operation that they might otherwise tolerate because they view it as evincing a blatant disregard for the law. The 2003 Iraq war might be instructive. Once the United States indicated that it was prepared to go to war, no matter whether it obtained a contemporaneous Security Council resolution authorizing force, other states (both on and off the Council) were more intent on isolating the United States and demonstrating their own commitment to the Council’s primacy in this area.

Third, the United States might now try to rally other states to support or tolerate a defensive operation. But this would require a serious diplomatic effort. The United States would likely have to persuade its allies that the alternatives to defensive force—including action through the Security Council—are either inadequate or infeasible. At the moment, the United States seems ill-prepared to undertake this effort. The U.S. State Department is, by many accounts, in disarray and sidelined from U.S. foreign policy decisionmaking. Moreover, Secretary Tillerson reportedly has isolated himself from career officials who might otherwise guide him in developing an effective diplomatic strategy.

III. Where Does This Leave Us?

To be sure, the United States might still use force to try to curb North Korea’s nuclear threat. This scenario would try the jus ad bellum’s resilience and the United States’ commitment to it. Though the United States has violated the jus ad bellum before, it has also consistently engaged with and demonstrated its overall support for the regime. I argued last month that there are reasons to believe that the Trump administration will be different.

Alternatively, the United States might forego military action against North Korea. In this event, North Korea’s nuclear program would still present a serious security threat. And again, the United States would be, at least for the moment, poorly positioned to lead a broad-based, multilateral initiative to contain that threat. Unless other countries step into the breach, the situation on the Korean Peninsula is likely to deteriorate even further.

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http://www.dipublico.org/105600/north-korea-and-the-law-on-anticipatory-self-defense/