America's Post-Trump Reckoning

America’s Post-Trump Reckoning
Jan 15, 2021
by HAROLD HONGJU KOH

After four years of Donald Trump wrecking US relationships and disengaging from international arrangements, it will take more than comforting words to restore America's standing in the world. The key to US re-engagement lies in international law, where a savvy administration will find many effective tools.

NEW HAVEN – Whether America can restore its global standing over the next four years will depend on the American people’s ability to come together, as a nation, to lead the world in addressing global problems in a manner consistent with the rule of law.

1.
Liberation
JEFFREY D. SACHS warns that the sense of liberation many people now feel won't endure without a historical and moral reckoning.
During the first three years of Donald Trump’s presidency, America faced mostly self-inflicted crises, but the COVID-19 disaster cast Trump’s signature weaknesses in stark relief: topsy-turvy policymaking, unbridled mendacity, and conspiracy mongering. Everyone now appreciates the profound deficiencies of Trump’s obsession with “deals.” His transactional approach – marked by cascades of threats, tit-for-tat retaliations, abrupt reversals, and hollow photo-ops – has devastated longstanding relationships and alliances originally built on genuine bonds of mutual interest, affection, confidence, trust, cooperation, and sacrifice.

Worse, Trump’s contempt for relationships was paired with an equally stunning scorn for truth, diplomacy, bureaucracy, and other essential ingredients of sound administration, at both the national and the multilateral level. His startling disregard for expertise and science has resulted in the erosion and degradation of previously independent and effective national institutions such as the US Postal Service, the Centers for Disease Control and Prevention, the Environmental Protection Agency, the Food and Drug Administration, the FBI, and the US intelligence community.

As Trump’s presidency lurched into its fourth chaotic year, his disastrous response to the COVID-19 pandemic laid bare his flawed overall approach to governing. His failure to implement a national plan to provide testing, protective equipment, ventilators, paycheck protections, contact tracing, or, looking ahead, vaccine delivery, intersected with his administration’s bullheaded efforts to undermine Americans’ health care through reactionary judicial appointments. And America’s complete disengagement from any coordinated global effort to tackle the pandemic all but ensured that the dual public health and economic crises would spin out of control.

The result has been a harrowing decline in America’s longstanding reputation for competence. By trashing the US tradition of constructive engagement with (admittedly imperfect) multilateral institutions, Trump has encouraged a destructive race to the bottom on key economic and climate issues, triggering a dangerous trend toward vaccine nationalism. Instead of standing for truth, justice, and the “American way,” he and his cronies have transformed America into a sad exemplar of deception, opportunism, and beggar-thy-neighbor dissembling.

Perhaps most fundamentally, as the recent election only confirmed, Trump has shown contempt for the values and institutions underpinning the rule of law. These include free and fair elections, the peaceful transfer of power, an independent judiciary and civil service, non-political prosecutions, independent media, and protections for racial, religious, and sexual minorities.

Reliable rules of international law, particularly when internalized into national law, have long given private and public economic actors the necessary assurance that a predictable transnational legal process will protect their interests when they operate abroad. But Trump evinced little respect for the underpinnings of investor confidence: reliability, due process, regulatory stability, the protection of settled expectations, and the preservation of like-for-like outcomes.

Geopolitically, Trump has been at his most destructive when weakening US alliances, multilateral organizations, and international dispute-settlement mechanisms. Such institutions are desperately needed to facilitate solutions to global crises like pandemics, forced migration, and climate change. For decades, successive US administrations from both parties had pursued an external strategy of “Engage, Translate, and Leverage” when it came to global problems. When in doubt, US leaders would engage with allies and adversaries, translate existing legal rules to new situations, and leverage lawful responses into broader, stable strategic solutions.

But Trump has pursued the diametrically opposite philosophy: “Disengage, Black Hole, and Go it alone.” When in doubt, his administration disengaged, argued that new situations presented “black holes” to which no law applies, and substituted unilateral browbeating for stabilizing long-term solutions.

Trump sought to replace the post-World War II Kantian vision of a community of democracies cooperating on the basis of shared values with a values-free Orwellian vision of great-power spheres of influence. The Orwellian vision is not only repugnant to core American values; it also offers no plausible answer to any of America’s three looming national reckonings. The US faces an economic reckoning over the problem of inequality; a cultural reckoning over the question of how to accommodate diversity and inclusion at a time of growing political polarization; and a global reckoning born of the need for international cooperation in an age of virulent zero-sum nationalism.

RECLAIMING THE SOUL OF THE NATION
Against this backdrop, President-elect Joe Biden’s administration will have its work cut out for it. Among its most urgent priorities will be to re-enter the Paris climate accord, the World Health Organization, and some variation on the Iran nuclear deal. Biden probably will restore US participation in the United Nations Human Rights Council, UNESCO, and the Arms Trade Treaty as well. And he should lift the counterproductive punitive sanctions on International Criminal Court official, and end the US veto on judges appointed to the World Trade Organization’s Appellate Body.

The logistics of rejoining each of these bodies will need to be addressed on a case-by-case basis. New treaty ratifications will be hard, of course, given the sharply divided US Senate. The two treaties that could attract bipartisan support are a five-year extension of New START (the Strategic Arms Reduction Treaty) and the UN Convention on the Law of the Sea (UNCLOS), whose ratification has been supported by top foreign-policy officials in both Democratic and Republican administrations for more than 20 years.

While Republican senators have consistently opposed UNCLOS on sovereignty grounds, their opposition has become increasingly nonsensical. By not ratifying the convention, the US has ceded dominance to the Russians in the Arctic and to China in the South China Sea. Moreover, the Biden administration should seek Senate support to ratify the Framework Convention on Tobacco Control, and to end the shameful US non-ratification of the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. Likewise, closing the US detention camp at Guantánamo would finally kill an albatross that has been hanging around America’s neck since the George W. Bush administration.

Biden also will need to move quickly to fill the global-governance vacuums that Trump created, and which Russia and China have been eager to exploit. Russia has been acting with impunity as it attempts to murder leading opposition figures, supports autocrats like Aleksandr Lukashenko in Belarus, and launches cyber and military campaigns against Estonia, Georgia, Ukraine, and other countries. China has gone even further, seeking to supplant the US-led Bretton Woods institutions with its own institutional creations, including the Asian Infrastructure Investment Bank and the Belt and Road Initiative.
But given how much the world has changed these past four years, the Biden administration cannot simply restore a pre-Trump status quo. As it re-engages with US partners and allies, it will have to provide assurances that arrangements made in the next four years will survive into the future. To that end, Biden may decide to re-engage aggressively through nonbinding political agreements or “executive agreements plus” (international compacts that are not expressly approved by Congress, but that arguably comport with existing legislative frameworks).

This form of engagement may seem less robust. But as I have shown elsewhere, twenty-first-century international legal engagement has increasingly expanded beyond traditional tools like treaties and international agreements. It now regularly allows for nonlegal understandings, layered cooperation, and diplomatic “law talk”: international conversations about evolving global norms that memorialize a mutual understanding on paper without creating binding legal agreements. Because these soft-law tools have proven effective in legal “regime building,” it is now common for international legal arrangements and institutions to be developed less through formal devices and more through repeated bilateral, plurilateral, and multilateral dialogue among international lawyers from different countries.

As these regimes take shape, stakeholders start by defining new soft norms, and then work through an iterative process to set standard practices of layered private and public cooperation, as was done with the recent Oxford Statements on International Law Protections Against Cyberoperations Targeting the Health Care Sector, Safeguarding Vaccine Research, and Election Security.

The best hope for a more bipartisan, Congress-inclusive approach to US international re-engagement would be for Biden, House Speaker Nancy Pelosi, and Senate Majority Leader Mitch McConnell to agree to an expedited joint-resolution process, similar to the one already used in trade policy. This would allow for timely up-or-down floor votes on amendable agreement packages, giving Congress more input and Biden the vital legislative support he needs for effective international lawmaking.

This daunting “to-do list” will test not only the new administration’s bandwidth but also its political skills. With luck, Biden’s cabinet will include savvy professionals and longtime legislators, giving a prominent role to former senator and Vice President-elect Kamala Harris. When coupled with Biden’s long history of bipartisan cooperation, a competent, experienced team can forge a new political consensus (both domestically and internationally), restore America’s global commitments, and confront the country’s three reckonings head on.

After four years of trauma, Americans and their allies badly need a lasting course correction. It won’t be easy, but neither is it impossible. Biden has more high-level legislative experience than any US president since Lyndon B. Johnson. And, as always, we will need a little help from our friends.
HAROLD HONGJU KOH
Writing for PS since 2001

Harold Hongju Koh, Professor of International Law and former dean at Yale Law School, served as Legal Adviser (2009-13) and Assistant Secretary of State for Democracy, Human Rights, and Labor (1998-2001) at the US State Department. He is the author, most recently, of The Trump Administration and International Law (Oxford University Press, 2018).