The UN is widely regarded as an embarrassment and even a disgrace. International law is honoured in the breach. Unless and until the international system can be reformed, a sharp dose of American realism may be the only way for states safely to conduct international relations. Reliance upon International law that fails all tests of robustness may lead us to dangerous illusions and alleviate diplomats from the important responsibilities of their profession, namely talking to avert war.
By Matthew Parish
How should European nations react to the US federal government of President Donald J. Trump? It is common to hear views of widespread abhorrence, but these may just be expressions of objection to style rather than substance. Anyway stylistic abhorrence must be put to one side. The United States is the most important ally of the European Union, and the American people are afforded by their constitution the right to elect whoever they wish. Trump’s domestic policies are not the Europeans’ affair. But his administration’s foreign policy is of relevance to Europe, because it affects European foreign policy as well. So what is Trump’s foreign policy? How can it be characterised in a way that assists European nations in understanding and reacting to it?
Trump himself has described foreign policy as “America First”, but that in itself is barely of assistance in understanding its philosophy. Every state’s foreign policy is to advance its own interests. The question is how it proposes to achieve this. Then there are a series of caricatures about Mr Trump. It is said he is protectionist, imposing tariffs on imports. It is said he is unpredictable, organising, cancelling then re-organising a summit with the leader of North Korea. It is said he is a poor diplomat. All these criticisms are misplaced, except perhaps the last one; but that is because the foreign policy style might be construed as a repudiation of some precepts of conventional diplomacy; and also a repudiation of some aspects of international institutions.
I am going to suggest that the Trump White House has a distinctive foreign policy style, that is predictable; unwarlike; non-protectionist; and with a distinctive view of both international treaties and multilateral cooperation. The perspective espoused is distinctive to a specific strain of Republic foreign policy thinking in the United States. The reason many Europeans find it so confounding is that it represents a way of thinking about foreign policy problems that is not popular or even well-known in Europe foreign affairs and academic circles; and it is different from the various US approaches to foreign affairs observed since at least President George H. W. Bush onwards. Once it is understood, what may be the prevailing foreign policy dynamic in Washington, DC for the next six and a half years may be better accommodated in both European capitals and international organisations.
Reduced to its most fundamental terms, a state can adopt three stances to any specific foreign policy issue. Firstly, it can do nothing or seek to sever connections. (This is “isolationism”.) It is increasingly difficult for any state to do this: and that in itself is a progressive trend since the end of World Two, accelerated since the end of the Cold War. There are several reasons why isolationism is increasingly hard. Developments in technology render global projection of military force ever easier. There are more aircraft carriers globally than ever previously. Trade tariffs are at historical lows (notwithstanding the United States’ recent 2018 imposition of tariffs on aluminium and steel). Hence countries’ economies are intertwined.
Although multilateralism has recently lapsed at the local level (the United Nations is on the decline), a host of regional cooperation treaties and organisations have proliferated. Travel and communications are more straightforward than ever, and they will become increasingly so. Systems of politics and senses of national identity preclude states’ mergers; the trend is against that, as globalisation has caused empires to collapse and rendered the price of state secession lower. There are more states that there ever have been. But even a large state, such as the United States, cannot operate in isolation. Events around the world have consequences for the United States, which must react to them. “American First” does not mean America alone.
Secondly, a state can choose to project its military power abroad in pursuit of more or less idealistic objectives. I say idealistic as opposed to self-interested, because it is seldom in a state’s interests to go to war in any objective sense of the word. Wars are hugely expensive, people die, they are unpredictable, the commitment often lasts far longer than one might ever imagine, and the objectives – save where a state is invaded – are virtually never sufficiently important to a state’s welfare to justify the uncertain cost and colossal risk.
The United States has a unique geographical isolation that renders the prospect of its being invaded virtually zero. Hence when the United States goes to war, it virtually always does so out of some sense of principle, imagined altruism or, to capture the vocabulary of the twentieth century, as “the world’s policeman”. ISIL was attacked in the name of combatting Islamist barbarism. Iraq was invaded to eliminate “weapons of mass destruction”, notwithstanding that there was no realistic prospect of Iraq ever using those weapons (had It possessed them) against the United States. The state justifications of the continuing involvement of the US in the war in Afghanistan vary, but they all revolve around the importance of democratising the country and prevent the return of a harmful strain of political Islam.
President Trump and his staff do not undertake foreign policy within these precepts. They do not consider foreign policy to be a sphere within which principle is the overriding determinant. For this reason, I anticipate his to be one of the most peaceful, war-free US Presidencies. Such limited military interventions as tiger White House has ordered so far have been in response to Syrian poison gas attacks, and important have been one-off strikes, not entailing greater US military participation in Syria which the US President is against. President Trump is pursuing a policy of foreign military disentanglement more forcefully than his predecessor Barack Obama did. In turn his approach to international cooperation is less principled.
It may seem odd to associate abandonment of principle in foreign policy with demilitarisation. Surely an unprincipled state, the thought might be, is more prone to reports of ruthless or even conscienceless military aggression to achieve its foreign policy goals? But this would be a false inference, resting upon elision of two meanings of the word “unprincipled”. US foreign policy under Trump represents a departure from what went before in the sense that the US President is no longer willing to treat international law and global rules in the same way as his predecessors. In this sense it is unprincipled; this entails that the Trump administration will not embrace imagined legal-political principles of an imagined global order that, in the opinion of the Trump administration, does not really exist and its just an illusion created by the structures of international law and international organisations. Yet Trump is not unprincipled in the sense of being immoral, reckless or habituated towards causing unnecessary suffering if it pursues his goals. In this context, “unprincipled” does not mean “evil”.
The European perspective upon the international order has grown from its experiences in the development of the European Coal and Steel Community into the European Union. This was, from the stater, an exercise in creating a genuine international legal order with an administrative superstructure, including a court system to oversee and adjudicate legal disputes. The European project was always a Progress exercise in federalisation, and this requires a philosophy base upon the rule of law: legal rules that are unambiguous or subject to judicial clarification; laws that remain binding indefinitely far into the future; resolution of disputes using impartial courts.
None of those concepts are alien to the United States, of course. The USA has a strong tradition of judicial independence, and a system of federal courts of recognised integrity. What is distinctive about the contemporary US approach to foreign policy is that it does not recognise these principles as applicable in the sphere of international relations. The United States has a completely different view of international law. It does not believe that international law has much do do with courts or law at all. This is a view propagated widely in US law schools and amongst right-leaning policy think tanks in Washington. But it is quite alien to Europeans. Hence it must be explained.
Europeans imagine that international law has the same dynamic as European law, namely creation of a supranational rule of law infrastructure. International law comprises international treaties and the instruments propagated by international organisations. The European temptation is to treat this field as another branch of law. Accordingly European diplomacy has changed over the period since the end of World War Two. Diplomats in Europe are now captured within the net of legalism, and this has affected the way they approach problems in foreign policy. European diplomats now appeal to international treaties as though they were laws and they expected states actually to comply with them. There is a temptation to view institutions like the UN Security Council and/or the UN General Assembly as legislatures, in parallel with the European Council (that actually is a legislature, in the sense that it issues EU-wide Regulations and Directives that courts will enforce). Hence there is almost a sense of outrage within European circles when states violate treaties. Indignation then creeps into diplomacy.
At the same time, sensing the moral force of international law, European diplomats try to legislate for every foreign policy problem. The pretence develops that international law scholarship is part of international law. (This must be nonsense: people who write about international law are neither judges nor legislators, and have no place prescribing the contents of international law. Their opinions are only as persuasive as their reasoning: no more so.) Then, when the relevant “legislation” cannot be pushed through the UN Security Council, the scholarship develops a legal life to its own. UN Secretary General Boutros-Ghali’s project to permit humanitarian military intervention in the absence of an authorising UN Security Council Resolution, “An Agenda for Peace” (1992), was an example of this kind of exercise in transforming diplomacy into a branch of international law.
It is easy to understand why diplomats find the legalisation of their discourse desirable: it lends rhetorical force to what they say. Even better, because there are very few international courts of integrity outside the European system, diplomats get to serve as judges in their own cause, themselves pronouncing both upon the contents of international law (and hence the international political order and how it should be) and upon whether their own states, and/or other states, are in compliance with it. Diplomats therefore get to act as lawyers in the modern world, but without the aspect of the lawyer’s job that makes it so risky: the danger of a judge determining that the lawyer was wrong. For international treaties, there is almost never such a judge (UNTLOS being one of the few exceptions).
The recent prior US administrations all, to a degree, bought into this model of the development of international relations and conduct of diplomacy. The Trump administration represents a sharp break with the past. In this philosophical view prevailing within the current White House, international law is illusory insofar as it pretends to be a branch of law enforced by courts and judges and prescribing formal rules, applicable indefinitely far into the future, that governs how states ought to react. Instead international law is just what is always used to be: another species of diplomatic instrument.
Consider the following. International law, in substantial part, is not written by lawyers. It is written by diplomats. Treaties don’t even look like law. They are full of ambiguities, many of them intentional to give the pretence of agreement where there is none. They miss subjects out they ought properly to cover if they are laws. They are seldom amended or reconciled to complement one-another, as are laws. They are not drafted in a legislative process. The only international court that exists to adjudicate general disputes in international law (and there is only one in the whole world – the International Court of Justice in The Hague) is optional. Any state can decline its jurisdiction. There can be no law if judicial adjudication is optional. Only one of the five permanent members of the UN Security Council has accepted the Court’s jurisdiction. (This is the United Kingdom. Since the UK no longer has a Judge on the Court since February 2018, that country’s acquiescence to the Court’s jurisdiction may also be curtailed.)
Before the growth of the United Nations as the world’s leading progenitor of international law, international treaties were always understood only to be vaguely binding. They were approximate records, to be observed for as long as the parties found it convenient. Everyone would interpret them in different ways, as befitted what they found useful. The idea of impartial judicial adjudication was silly. The idea that states could not withdraw from treaties was silly. Treaties were only enforceable in the same way as contracts without law: as a series of repeat-play games extended over an indefinite duration. As soon as the end of the Treaty term was anticipated, the incentive to comply would be reduced.
The US Government believes that this is how international treaties still are. To the extent that diplomats or international lawyers diplomats are outraged. The Americans, they say, are tearing down the structures of contemporary international disputes, and international law and the United Nations are fomenting rather than mitigating global confrontation. International law is used as a series of d’excuses of principle to perpetuate conflict, in the name of protecting human rights down the barrel of a gun. “America First” means not permitting US foreign policy to become hostage to this kind of chicanery.
We should conclude with a few comments about the WTO . It is false to say that Donald Trump is protectionist. On 9 June 2018 he gave a speech in Quebec City in which he advocated zero global tariffs. He believes in the freest possible trade. That is because he is a businessman; and for the same reason he understands treaties, as with commercial bargains, to be workable only as indefinite repeat-play games. Trump’s complaint is that with the actual tariff levels contained in the General Agreement on Trade Tariffs (GATT). He believes that prior US administrations negotiated these tariff levels badly on behalf of US interests, so that other states received disproportionate advantage and hence US industry is now withering. He calls for renegotiation.
Viewed through the contemporary US foreign policy lens, that is a legitimate position. European astonishment is premised upon the notion that the WTO is part of an immutable edifice of international law that, once signed, must be complied with unless and until amended. The position of the US administration is that the only negotiating leverage it has to procure the GATT’s amendment is (1) to raise tariffs on foreign imports to the United States; and (2) to block the WTO’s dispute settlement system by resisting renewal of judicial appointments.
The European will surely soon acknowledge that these are effective points of negotiating leverage. While they might find moral abhorrence in the American position, it seems a realistic one. More broadly, the recent traditionally conceived system of international law, operated under the auspices of the United Nations, has failed us. The UN is widely regarded as an embarrassment and even a disgrace. International law is honoured in the breach. Unless and until the international system can be reformed, a sharp dose of American realism may be the only way for states safely to conduct international relations. Reliance upon International law that fails all tests of robustness may lead us to dangerous illusions and alleviate diplomats from the important responsibilities of their profession, namely talking to avert war.
Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He has published two books and over 250 on the subject. In 2013 he was elected as a Young Global Leader of the World Economic Forum and he has was listed as one of the three hundred most influential people in Switzerland. He is currently a candidate of the United Kingdom of Great Britain and Northern Ireland for appointment to a position of Under Secretary General of the United Nations with an agenda for institutional reform.
The views expressed in this article do not necessarily reflect the views of TransConflict.