Commenting on withdrawal of the Trump’s administration from international treaties including the JCPOA, the Mehr News Agency from Iran interviewed Professor Larry Backer, the professor of law and international affairs at the Pennsylvania State University. Professor Backer says the withdrawals may provide substantial opportunity for China and for regional powers like Iran.
Q: Some believe President Trump’s exit from international treaties is a threat to liberalism. What is your take on this?
A: It is indeed true that the international settlement achieved after the end of the Second World War was grounded in a well-structured multilateral internationalism. But in a sense, the periodic exiting and re-entry of states within international organizations and in international treaties or conventions reflect conventional moves in the governance of those systems and in the constant negotiating that marks development of legal structures and objectives of nations. The withdrawals, by themselves, do not threaten the system, though they may provide substantial opportunity for large states like China, and the possibilities of greater political roles for regional powers like Iran.
Q: What can be the possible effects of Trump’s walking away from international treaties on international law and international legal customs?
Under ordinary circumstances, the American exit form some international treaties and some international organizations does not threaten the stability of the international order. Rather it reflects the use of a political tactic to move international consensus and the administrative behaviors of those organizations in a direction preferred by the United States and its allies. In the short term, these actions are disquieting but not yet perilous. The simple answer is that the effect will very much depends on the reaction by the rest of the community of nations. If it has a more fundamental objective—not to reshape but to destabilize the current system—than that is a conversation suitable for the global community to begin.
Q: Trump’s exit from Paris Climate Accord, TPP, NAFTA and possibly from the JCPOA is in contradiction with multilateralism. Can such an approach guarantee the US power?
The answer is unclear but it will reshape the US power. In fact, the idea is that the US might be better able to compete with rising powers—China, the BRICS and regional powers like India and Iran—were it freed from the restraints it had imposed on itself in constructing the post 1945 global economic order.
Q: Some say Trump’s measures to walk away from international regimes are very wise because these regimes no longer serve the US interest anymore. What do you think of this?
My sense suggests that there is unlikely to be consensus and something like a coherent strategic vision guiding these actions. It is more likely that these American moves are made as a result of internally driven short term opportunistic thinking that—if the Americans are lucky—will back into a plausible strategy that advances American interests. Almost all great states especially in times of challenge, will choose to engage or withdraw form multilateral activities to advance their interest in increasing or preserving their dominance. Trump’s measures are nothing more than that.
It is indeed true that the international settlement achieved after the end of the Second World War was grounded in a well-structured multilateral internationalism. That internationalism was based on projects of legalization of the political sphere—especially with respect to the rules for conventional (and later unconventional) warfare and for the protection of the dignity and human rights of individuals (and later groups). Both, of course, were direct responses to what was seen as the perversions of the prior apex state system by the German Third Reich (ethno-nationalism and human rights) and Imperial Japan’s East Asian Co-Prosperity Sphere (national chauvinism, hierarchy and militarism). Legalization of the politics and norms that served as the basis for the proper relations among states and for the limits of state power against their own people required both the imposition of firm law-state structures inside states and a construction of legal relationships among states. To the later end, it is true, international treaties were necessary. The necessity was not solely for the protection of world security and stability, but for the socialization of politics (and war) within of law, and disputes resolution through tribunals. It is in that sense, for example, that the Nuremberg trials and those in Tokyo were meant to set a template—legal-judicial collective action to preserve consensus based rule systems among the community of states. Over the years that template has been filled in by a large number of international agreements and structures, including the ever widening institutional governance and oversight structures of international public organizations. It follows, of course that at a very general level, exiting international treaties and their institutional structures could imperil the liberal order so painstakingly constructed.
But the simple insight does not tell the entire story. The effort to legalize politics (and war) has perversely enough also served to politicize law. Where law, especially in the form of international law and norm making structures, is politicized (and I believe necessarily politicized within the structures of liberal internationalism), then it would follow that a number of political practices emerge within the international liberal order. These practices cluster around the characteristics of law systems within liberal states. They include issues of negotiating terms, the interpretation and application of laws and norms through the administrative institutions established for that purpose, the of control of the structures within which law is administered, and the constant efforts to assert greater influence over law making, interpretation and the structures of administration. These are what pass for the modern, conventional and byzantine behaviors of states within the institutions established for the interactions of the community of states. The system was not designed to be bloodless or to operate with the soulless precision of a well programmed machine. It was meant to channel the old clashes of states into the language and narratives of law, and of the administrative state, now transposed into the international arena. As such it was to be messy, loud, clumsy and sometimes painfully foolish. But it was meant to be all those things within a confined operating space (that is a space for acceptable behaviors) that avoided or minimized the destructive effects of war. (I once wrote a little about this in “The Führer Principle of International Law: Individual Responsibility and Collective Punishment,” Penn State International Law Review 21(3): 509-567 (2003)).
In a sense, then, the periodic exiting and re-entry of states within international organizations and in international treaties or conventions reflect conventional moves in the governance of those systems and in the constant negotiating that marks the dynamic development of legal structures around policy, ambition and objectives of nations that cooperate and compete amongst themselves. Unless it becomes clear that long term strategic planning aimed at the destruction of the system is being attempted, the withdrawals, by themselves, do not threaten the system, though they may provide substantial opportunity for large states like China, and the possibilities of greater political roles for regional powers like Iran.
With the answer to the first question in mind the answer to the question becomes simple but unstable: Under ordinary circumstances, the American exit form some international treaties and some international organizations does not threaten the stability of the international order. Rather it reflects the use of a political tactic to move international consensus and the administrative behaviors of those organizations in a preferred direction that is in a direction preferred by the United States and its allies. Every state in the UN system has resorted to the use of these tactics and others and it merely reflects the dynamic but stable characteristic political behaviors of states within international bodies. But in this case the answer may be more unsettling. If the object of these withdrawals is part of a systematic and well thought out process of undermining, attacking and ultimately undoing the current system of international relations—of the careful and well thought out administrative apparatus of the liberal international order created after 1945—then indeed, the peril is great. The peril is great for the United States if these fundamental actions are undertaken without robust democratic participation by the US electorate and its representatives in government, and if it undermines long term interests. It is perilous for the system if it loses its key anchor. But it also provides an opportunity to reshape that system in another image. Imagine the irony of a state like China stepping into the shoes of the Americans and reorienting but retaining the current system to suit its own policy and political orientation! One would then produce a situation of the 1960s but with the roles of the United States and the People’s Republic reversed. But this is all speculation. It is unclear, in the present circumstances what the long-term objectives are. In the short term, the actions, relatively few and isolated, are disquieting but not yet perilous.
The simple answer is that the effect will very much depends on the reaction by the rest of the community of nations. Recall that the United States walked away from international organizations in the early 1980s in a similar fashion (though the ideology of the times and the objectives were somewhat different). At that time, calculated withdrawal was meant to challenge the increased dominance of the world bodies (and their law and norm making potential) by the Soviet bloc and their allies among developing states. This ascendancy was seen as a threat to US interests and those of its key allies. But more fundamentally, it was seen as a threat to the normative foundations under which the international system was set up. It was a key moment for the realization of those normative objectives—globalization was about to burst onto the scene and with it the ascendancy of markets based decision making. It was to serve as the last phase of post WW2 internationalization: to couple the legalization of politics with the shift in the language of administration from that of politics to the language of economics. As a result, law served as the form of politics, but economics provided the language within which politics and law would be administered. At the time, the tactic worked and the system remained stable and under the socio-cultural management of the United States and its allies (with appropriate room for regional expression to the extent it did not damage core objectives or the core functioning of the system).
With the answer to your second question in mind, the response to this question follows easily. The answer is unclear but the scope of the gamble it implies is enormous. Until now, the liberal order has been based on the sort of systemic multilateralism that I have written about before (see e.g., here). Yet that foundation is itself a function of the strategic decisions made in the first decades after WW2. So the interesting question is whether the liberal order is inevitably tied to a particular vision of multilateralism or whether there are a range of or variations that can still support the vision post 1945. The Chinese, for one, believe that the liberal order supports a substantial number of variations, including their own. Regional powers—the BRICS, Iran, and East Asia—also have put forward variations, usually more of less state based and more or less grounded in state engagement with economic activity. But then so do the Norwegians for example. And so, apparently, so may the current American administration. Most of the conventional American elites, children of the old vision, have reacted badly to this shift—their preference has been to create a string identity between the liberal international order and their vision for multilateralism. But I think it is becoming clearer that this identity might be increasingly understood as a historical artifact.But the response that the liberal order supports a variety of forms of multilaterlism also suggests that something like a form exists. And that may be the underlying concern built into the question. If Mr. Trump has a master plan for reshaping multilateralism—that is one thing. And one can argue its virtues or challenges the way the global community has argued (and used) the current order. But if the actions of the Administration are merely the accumulation of serendipity, or worse, the disordered effort to shape the internal politics of the United States through the reshaping of the appearance of its foreign engagements, then the challenges become much more formidable—for everyone.
The answer to the previous question, of course, is suggested by the thrust of the answer to this last question: The argument that the US, position and action merely suggests that strategic interests drove the Americans first to create a system that they dominated, and then abandon it when it no longer served its purpose, is certainly an argument that has gotten much attention recently. I recently made a variation of this argument is suggesting the value of TTP and TTIP to the Americans as a means both of challenging Chinese ambitions and of bypassing the World Trade Organization. While appealing, though, the problem with this simple approach is that it incorrectly assumes that there is consensus and something like a coherent strategic vision guiding these actions. My sense suggests that this is unlikely. Few American administrations recently have been able to develop strong coherence in policy strategies, especially relating to global trade and politics—and to the cultivation of a fidelity to the old order the Americans themselves created. That incoherence, in fighting and rifts among leaders, to some extent, substantially weakened American responses to challenges from its economic competitors. TPP is a great example of this weakness throughout the Bush II and Obama administrations. This Administration is no different form its predecessors. It is unlikely that senior officials have reached a consensus. It is more likely that these American moves are made as a result of internally driven short term opportunistic thinking that—if the Americans are lucky—will back into a plausible strategy that advances American interests. But that may be too much to hope for at this time. For all that, it appears plausible that, like all great states especially in times of challenge, that they will choose to engage or withdraw form multilateral activities to the extent it appears to advance their interest in increasing or preserving their dominance. And to some extent that is a likely motivator here (the “we can make a better deal” strategies; the “we should no longer serve to subsidize the rest of the world” policy as well).Yet the interesting thing is that it is easier to abandon the forms of the old version of the liberal multilateral order than it is to abandon its norms and ethics. Those have been built into the practices and relations of the key actors in globalization—businesses, civil society, and mass sentiment—in ways that a collection of states may find difficult (and uneconomic) to reject. Thus, modification may be in order. That, certainly, was the thrust of Xi Jinping’s Report that opened the 19th Chinese Communist Party Congress—a new vocabulary and a new approach in a “New Era”. The meaning is clear, not rejection but management of the old norms to suit emerging conditions. In China’s case that requires a hard look at socialist modernization and its outward manifestations. But it also aids in the ambitions of preserving the old system to the extent that China can take advantage of it by substituting itself within that system for the United States. In that event, American interest might shift from withdrawal to system destruction. And in these decisions there is risk and opportunity for regional powers like Iran. The risk comes from the disappearance of strong ordering powers to constrain the excesses of policy choices that turn out to be disastrous or dangerous in the sense of creating an opportunity for conventional warfare. That is a particular danger for rifts and competitions in the area from Morocco to Myanmar. The opportunity emerges from the absence of a large ordering power that tended to seek to shift the benefits of activity toward their own enrichment. In the end, though, power cannot be avoided, and regional powers must always be on alert for the value of cooperation with the larger powers while avoiding the suffocating embrace of too close a relationship.