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The Future of International Law After Trump: Decades to Build, a Quick Tweet to Destroy

The relation between hard words on a page and the behavior of states is tricky and fraught, but it’s real. All International Treaties come down to one word: trust

President Donald Trump in the illustration by Antonella Martino

It is wrong to say that we run the risk, in the near future, of having destroyed the one rock on which international law and treaty-making is built.  What’s wrong is the verb tense. It has already happened. It’s in the past. We’re too late. It will take a long time to undo not that which Trump risks doing, but what he has already done. 

Political strategists face a difficult and noisy season in today’s election-year U.S.  Difficult because the field is crowded with a remarkable abundance of controversies and battlegrounds.  Noisy because alarm bells are going off in a number of these arenas, whether they are “normal” discords between the two major parties or fresh creations of the most incautious President in memory.

Such strategists usually arrive at a jitters test for their choices: what points of contention make a significant bloc of voters so jittery that one side (usually the outs, the opposition party) will jump on them to use those citizen-jitters as fuel for the fires they want to set, while the other side (usually the ins, the incumbents) would prefer to change the subject (But, if the alarm is too loud, they can’t.).

To bring some kind of order to this array of flash points, one can divide them into four segments: short-term domestic (gun violence, controversial appointments, economic dips, etc.), long-term domestic (the justice system, the super-rich, social polarization, etc.), short-term international (brinkmanship vs. North Korea and Iran, massive refugee floods, etc.), and the fourth, long-term international.  It is safe to guess that the voting now and in November will pivot on the first three areas.  Lip service will be paid to concern about the last area, but its jitters quotient will be be low.  With the possible exception of large-scale tragedies attributable to climate change, the pain here is not sharp and immediate.

That is a fault in the alarm bell system.

There is broad recognition that the irrational spontaneity with which the President has pulled out of, denounced, criticized, and violated America’s commitments to other countries could damage her future ability to work with those countries toward common goals and, in general, to support the discipline of international law, including both formal and informal agreements.

But this concern, if described in that way, is wrong-headed.  What’s wrong with it is the verb tense.  It is not a future danger.  It should be stated in the past tense.  It has already happened.  Our alarm, if it is sounded, is too late.

To understand this, we must look hard at “international law”.  It’s in quotation marks because at first glance it may not seem as though there is anything real there.  Textbooks are forced to spend their early chapters trying to convince graduate students that the word law is not being mis-used.  What are the main characteristics we associate with the term?  Well, a law is either passed by a legislative body or announced by an autocrat.  It provides a process for determining violations, and then punishment for violators.  And its credibility requires either specified or inferred agencies for enforcement.  That’s a law, resting on the hard dry land of process and enforced obedience.  

President Donald Trump during a NATO meeting (Photo, White House)

By contrast, international law seems a swamp.  There may be a few places where years of general adherence suggest spots of firm rock but very little that has the characteristics of “true” law we just delineated.  Yet those textbooks don’t stop after the initial defining chapters; they go on for hundreds more pages in small print.  And those pages describe a world order that is imperfect, but is much to be preferred to a jungle.

It comes down to a single, amazingly-effective word that has been given its best current definition by another right-wing American politician (for that, later).  The word is trust.

That is not only the bedrock of international law, it’s really all there is.

The relation between hard words on a page and the behavior of states is tricky and fraught, but it’s real.

Example.

Beginning in 1973, the countries of NATO and of the Warsaw Pact began a series of negotiations (MBFR, for Mutual and Balanced Force Reductions) in Geneva to achieve a ceiling, and then a draw-down, of the massive non-nuclear forces confronting each other along the line in Europe that divided East and West.  To some extent, it was a spin-off from the SALT negotiations on nuclear arms.  I was part of the U.S. team at the talks, where, as one can imagine, the “bean-counting” was an elaborate exercise: how many troops on each side, with what arms, how close to the line, how mobile…an accountant’s dream world.  (Only later, based on a project at a Washington think tank, were the beans, instead of being fixed points on a map, put into motion as they would be if action started.  The project was able to foresee, among other things, massive traffic jams at certain German intersections, enormously complicating all projections.  The complexity was multiplied.)  

As the sober work of negotiation continued, one could not help noticing the attention being paid, by experienced diplomats and military officers, to a side-show going on in small rooms near the main conference room.  The large press corps covering the talks, hypnotized by the center-stage bean-counting negotiations, paid no heed to the smaller side game.  

That smaller game proved to be a valuable success, perhaps the most valuable outcome of this and several other East-West talks.  It developed CBMs.  Awash in acronyms, few outside the negotiations even knew, in those days, what CBM stood for.  They were “Confidence-Building Measures”.  Much less exciting than the main talks, they involved such matters as communications between military commands across the line, advance warning of planned military exercises (after a couple of dangerous incidents in which exercises were mistaken by the other side to be threatening), even the inviting of observers from across the line to watch the exercises and review the forces on the ground.  

One could not avoid seeing the increased interest, on both sides, in these boring, often common-sensical measures.  But, as many of them were put in place rather quickly, an interesting phenomenon developed: the generals and admirals involved got to know each other, and began adding new layers and items to the negotiated measures.  (These were warriors who could accurately imagine the carnage of conflict, the first step in the manufacture of a peacenik.)  In later conversations at the same think tank that had complicated the bean-counting, I found that many of the military brass and the diplomats felt that the Vienna talks had made the world a safer place, but mostly because of the CBMs.

It is reasonable to guess that President Trump understood none of this when he, to use another example, ripped up the Intermediate-Range Nuclear Forces Treaty by withdrawing the US from its terms.  He probably knew nothing of the six years of excruciatingly difficult negotiations (with one interruption and one re-start) that went into the agreement and the safeguards that were attached to it.  (I can vouch for how heart-breaking Trump’s rash act and flippant “explanation” were for the skilled and loyal — to the country, not to a boss — diplomats who devoted so much of their lives to the achievement of the agreement.)

US President Donald Trump in London for the 70 years celebration of NATO (White House Photo)

In this area, one must note, there was evidence of failure of perfect compliance by the other side.  This is a key moment for international law.  What do you do about such suspicions?  In cases where questions of compliance were raised (usually specified in a treaty), and states dramatized that they took the terms of the agreement, and the subsequent behavior, seriously, the result has often been a step forward in verification mechanisms and the recognition of the importance of the agreement.  A hair-trigger walk-out is a declaration that the renouncing state (or its current masters) never took the agreement seriously, never depended on the compliance of all the signatories, and had found a convenient moment to junk the whole thing, casting blame on others.   

International treaties are considered, by our Constitution and by most Western nations, to be the law of the land, despite lacking those characteristics of  “normal” laws outlined above.  There are many other executive agreements in which the commitment of the states is just as clear.  In the U.S., such agreements do not need the consent of the Senate, as do treaties.  But this is a difference in procedure, not a difference in the expectations of the parties involved.  

There are no cops and jails at hand, no means of enforcement.  Their entire muscle comes from trust, trust that the nations will obey their terms, trust that nations will not walk away until the negotiated end of the agreement’s terms, trust that national leaders will not sap the strength of the laws and treaties by publicly denouncing them.   (Trump’s frequent condemnations of many agreements as “lousy deals” was enough to sap their value even before he walked out and slammed the door.)  The examples used here were military security examples, but we all know what has been happening to international accords on the environment, on trade, on borders, etc.

The central importance of the factor of trust, explained at dreary length by those international law textbooks, was given its most noteworthy recent prominence by the hero of Trump’s own wing of the Republican Party Ronald Reagan.  In signing the very agreement that Trump has ripped up, President Reagan said that our path must be one of  “trust…but verify”.  As Reagan’s thoughtful, sure-footed Secretary of State explained, verification is not an alternative to trust, but the means of confirming and enhancing it.  It is, in effect, a confidence-building measure.

So it is wrong to say that we run the risk, in the near future, of having destroyed the one rock on which international law and treaty-making is built.  What’s wrong is the verb tense.  It has already happened.  It’s in the past.  We’re too late.

That may seem apocalyptic at a time when we may be just months away from ousting Donald Trump or, at the worst, four years away.  We think that his successor will come in, hear the sigh of relief from our allies, and announce that the bad patch is over and we have renounced the renouncer.

But it doesn’t work that way.  Americans who have not spent time at NATO headquarters, or the offices of the European Union, or the foreign ministries of our allies, would be surprised at the detail and sophistication with which American politics are followed.  During the first fifty years of the Atlantic Alliance US presidents said all the right things about our military preparedness and our loyalty to the Atlantic Treaty.  But it wasn’t enough.  In those missions and ministries, every speech in the Congress calling for a reduction in defense spending, every criticism of our body of foreign commitments, was studied, assessed, worried over.  Their view of the US was not primitive and simplistic.

So the departure of Trump, however much it will be applauded, will still leave them with the impression of a public, an electorate, that responded so enthusiastically to the “America First” rhetoric, to the obscene characterizations of other countries and their citizens, and to the casual, contemptuous flouting of our international commitments, that it was enough to sweep a minority president into office, and also with the impression of one half of a two-party system that either agrees with Trump’s international arson or lacks the courage to challenge it.  

No, it will take a long time, a long period of international behavior that is worthy of trust, to undo not that which Trump risks doing, but what he has already done.  Past tense.

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