New jargon and nonsense: “The old liberal international order”

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We read in the press and hear in the media a lot of talk about how Trump or Putin is tearing down “the old liberal international order”, whose defenders frequently now refer to as the “rules-based international order”.

Neither opponents nor defenders of this international order speak in terms which are specific enough to know what they are talking about.

Consequently, it is impossible to think analytically with any precision about the likelihood of either would-be destroyers or would-be defenders prevailing in this struggle. We need to translate this vague verbiage into clear, factual assertions which take existing reality into account.

Facts are important, as are agreed methods for determining what the facts are in any given situation.

Without facts and agreed methods for determining what the objective facts really are, we cannot have rational discussions of what should be done about the facts, or what their broader implications may be. Without such agreement, we are left with power and military force as the principal means for determining whose version of the alleged facts is true, or will give birth to policies and actions.

When power and military force are the only means of settling an argument, the result is either submission when one party is much weaker than the other, or war.

So if we can’t agree on the facts or how to determine them, we can’t have reasoned discussions about them, and we end up resolving disputes through the use of power, perhaps economic power, and/or the use of military force. The logical result of this approach is submission, or war.

Now “the old liberal international order” was established by people and nations who had lived through two world wars.  Having experienced the devastation of these wars directly, they resolved to prevent war in the future. They set up an international system which had several key components.

One was a system which outlawed the use of force across international frontiers, except in self-defense. This system was embodied in the United Nations Charter, which codified the principle of the sovereign equality of all states, and the bedrock principle that treaties are to be observed. The Charter also laid the cornerstone of the international legal order, establishing a “World Court” (the International Court of Justice, successor to the court established by the League of Nations in 1919.  Given the decentralized nature of the international political system, the Court’s jurisdiction was voluntary in that it depended on the acceptance of its jurisdiction by the states parties to any dispute.

Disputes were to be decided in accordance with international law. Importantly, the Statute of the International Court of Justice, which was an annex to the U.N. Charter, provided a method for determining what asserted rules were in fact rules of international law.

The Statute of the ICJ therefore provided a “rule of recognition”, that is a method for determining what constituted a rule of international law. This method became one of general application, not limited to cases heard before the court. International adjudication, whether before the ICJ or before another international tribunal, could determine the facts of any controversy, provided the states involved accepted the jurisdiction of the ICJ or some other tribunal.

So the world established, in 1945, mechanisms for determining what was a valid rule of international law, and also a method for ascertaining the facts of any dispute when there were opposing claims.

A second component of the international order, a sub-system in a way, was the world trading system, established by the negotiation and signing of the General Agreement on Tariffs and Trade (GATT) in 1947. This system later came known as the World Trade Organization. The goal of the GATT was to open up trade among its members, who under the foundational treaty would receive tariff and other treatment no less advantageous than that offered to the “most-favored nation” under each member’s national laws.  At the same time, negotiations were held which gave rise to specific agreements governing tariffs and trade, with the effect that these were greatly lowered over the course of the next 70 years. The GATT or WTO trading system is indeed a “rules-based international order”, one governing international trade. The WTO agreements contain provisions for compulsory dispute resolution which, while often slow, eventually provide authoritative interpretations regarding WTO rules and whether specific state actions violate them.

Other components of the larger international order include the International Monetary Fund (IMF) and the World  Bank (IBRD–International Bank for Reconstruction and Development).

When critics of the “old liberal international order” speak of its breakdown or of leaders rejecting it, they generally fail to refer to which specific component of the larger international order they are referring to.

If leading trading nations such as the United States under Donald Trump reject the WTO and the ensuing series of treaties and agreements built on the 1947 General Agreement on Tariffs and Trade (GATT), they may withdraw from the world trading system, thereby losing the benefits of membership such as “most-favored nation” treatment on tariffs.

It does not follow, however, that other nations such as China and Russia will also decide to withdraw, foregoing the many benefits of membership. The recent experience of the U.S. withdrawal from the proposed Trans-Pacific Partnership (TPP) provides an instructive lesson.  The U.S. withdrew, but the remaining parties (Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam) concluded that the TPP continued to be in their interests, even without U.S. participation, and have continued to pursue ratification of the treaty as between themselves.

Ir is far from clear that the trade component of the “old liberal international order” would collapse just because the U.S. withdrew from the WTO and decided to establish high external tariffs.  Retaliatory tariffs against U.S. exports might be expected, while other countries would be likely to continue trading with one another under the favorable WTO rules and tariff agreements.

Moreover, even if protectionist tariff wars launched by the U.S. were to greatly impede the free flow of goods  and services under WTO rules and agreements, the larger framework of the United Nations Charter and its prohibition of the international use of force except would not be directly affected.  While Russia has flouted the U.N. Charter by the illegal use of military force in Georgia, the Crimea and the eastern Ukraine, it has had few followers.  To be sure, Israel, Egypt, and the United States have used force in Syria and elsewhere in apparent violation of the prohibition of the use of force contained in Article 2 paragraph 4 of the Charter, and China has flouted international law by building military facilities in disputed portions of the South China Sea.  Nonetheless, most countries have been careful to avoid the illegal use of force across international frontiers.

Every nation has powerful reasons to support the United Nations and its Charter, and it is simply inconceivable that the Charter could be abandoned.

Particularly significant is the fact that some countries which might be willing to undermine the prohibition of the use of force across international frontiers (such as Russia in the Crimea and the eastern Ukraine), would be most unwilling to forego the benefits of membership in the world trading system of the WTO.  This goes for China as well.  While China might assert its military power in the South China Sea, it would have no interest in seeing the collapse of the WTO, which has operated to its great benefit in the last 20 years since it joined.

Russia’s criticisms of the “old liberal international order” do not include an argument in favor of abandoning the prohibition of the use of force in Article 2 paragraph 4 of the U.N. Charter.  It is simply arguing that it should not pay any penalties for having violated the norm in the case of the Crimea, while hiding behind lies with respect to its military intervention in the eastern Ukraine. The Charter’s prohibition of the use of force could be very important to Russia in the future, in the case of any conflict with China or Japan.

In view of the above analysis, it should be clear that there is virtually no chance of the United Nations Charter being rejected as part of “the old liberal international order”.

If the prohibition of the use of force were to become routinely violated without reactions from other states, in a nuclear world with other weapons of mass destruction, it would be likely to occur amidst a general breakdown of international security and widespread war potentially leading to the end of human life on the planet.

The institutions of “the old liberal international order” are far from perfect and many call out for reform. Yet critics fail to mention what might take their place, and how that might be achieved.

The U.N. Charter cannot be amended without the affirmative support of the five Permanent members of the Security Council (England, France, the U.K., Russia, and the U.S.), and the adoption and ratification of any amendments by two-thirds of the member nations of the organization (i.e., virtually two-thirds of the countries on the planet).

Given the complexity of the subject matter and the many treaties and agreements which have been implemented since 1947, it is hard to conceive of how the international trading system could be replaced.   Major changes would have to be adopted within the existing framework of the World Trade Organization.

Talk of abandoning “the old liberal international order” usually involves an excuse offered by a nation which has violated or is violating its fundamental treaty obligations under the U.N. Charter or the WTO agreements.  That is true with respect to Russia in the Crimea and the eastern Ukraine, and it is also true of the United States imposing tariffs in open violation of its WTO commitments on the spurious ground of being justified by national security.

It may take three or four years for a WTO decision clarifying the spurious nature of American legal arguments on trade.  But it will come.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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