The Triumph of International Law over Donald Trump and US Global Leadership

The Triumph of International Law over Donald Trump and US Global Leadership

William Burke-White[1]

There was something altogether fitting – yet tragic – when the United States leadership of the international order abruptly halted at 3pm on June 1, 2017. At a twitter-fueled media frenzy in the White House Rose Garden, a man who lacks all the qualities of leadership and judgment that had marked the great statespersons who constructed the modern global order in 1945 announced the US withdrawal from the Paris Accord. The moment could not have been scripted with more ironic humor in a Hollywood plotline, a Kremlin meeting room, or the Great Hall of the People in Beijing.

One could write a hundred odes to America’s moment at the front of the world stage. One could fill tomes with the short-sighted stupidity of the decision to exit the Paris agreement. One could tally the extraordinary costs of the US’s lost credibility, shattered alliances, and, frankly, embarrassment. One could count the lives that may be lost in the future to the degree that climate change mitigation is hindered. All that will be done and all that is fitting.

Yet, there was another text to the end of America’s global leadership in the withdrawal from the Paris agreement, namely that many international legal regimes are strong enough to survive without the United States. It has long been thought that if the western liberal order, created after World War II, were to come to an end, that end would be precipitated first by nuclear war with the Soviet Union or, subsequently, by the economic rise of China and a triumph of China’s values over those of the United States. From the perspective of an international lawyer, the assumption has long been that the end of US leadership, the end of the Western liberal order, would bring with it the end of the international legal order as we know it, replaced either by a world of great power rivalry or a lawless world.

Oddly, however, June 1st was appears to also mark a triumph of international law over both the boyish arrogance of a US president unfit to serve and a country that has turned back on its role as a global leader. Paris, climate change mitigation rules, and the international order itself will persist. The triumph of international law witnessed yesterday—even if as a subtext of the Rose Garden ceremony—rests on four aspects of politics and law.

First, as the US stepped away from global leadership and sought to undercut the order it had built, the strength of that order became visible. As the world prepared for the announcement in Washington, negotiators in Brussels and Beijing were preparing too – preparing to redouble their commitments to press ahead with climate mitigation through international legal processes and leave the US behind. As the EU climate commissioner noted: “The EU and China are joining forces to forge ahead on the implementation of the Paris agreement and accelerate the global transition to clean energy.” A joint statement from China and the EU will call on parties to “uphold the Paris agreement” and to make their “highest political commitment” to addressing climate change, despite the US withdrawal. The regimes the US created will likely hold; the values the US championed through international law will stand firm. Certainly not with the same effectiveness as if the US remained part of the process, but China and the EU will lead. The US will no longer be the indispensible party to the agreement. It will no longer sit at the head of the table of international law, but rather join Nicaragua and Syria on the sidelines.

Second, even the President who wanted out of Paris, could not simply walk away and the US may never, in fact, complete the exit process. The Paris agreement was structured cleverly to make exit a long process.  Article 28 of the agreement requires parties to wait three years before beginning the process of exiting the agreement: “At any time after three years from the date on which this Agreement has entered into force for a Party, that Party may withdraw from this Agreement…” The article further requires a one year waiting period after such notice is given before exit can be formalized. As a result, every country that entered into the Paris Agreement was locked in for a minimum of four years. And even the US President could not exit the agreement before November 4, 2020. Notably that date is just far enough over the political time-horizon that a change of US leadership and politics is certainly possible. A new president elected in 2020 could well change course. The damage to the US reputation would still be substantial, but the US could be back in Paris, before it ever leaves.

Third, and linked to that four year exit delay built into the Paris Agreement, the structure of climate regulation regimes demonstrates how international law shapes the behavior not just of states, but also of firms and individuals. Paris is not your old, traditional, state-to-state version of an international agreement. Rather, it is a broader regime that both engages, shapes and incentivizes the behavior of actors within the state. The success of the Paris Agreement turns on countries making and meeting voluntary pledges to reduce emissions. States pass domestic regulations to ensure that individuals and corporations reduce emission so the state as a whole remains compliant. Ultimately, however, reductions flow from changes in firm-level behavior. Once corporations set off down that path of reductions, which they are already doing and will have to do over the next four years, changing course to increase emissions is neither easy nor costless. That four-year delay built into the Paris Agreement sets the ball rolling toward reductions at the firm level, even as the US seeks to back away from the deal over time. There is strong evidence that that ball will continue to roll as US corporations, rather than the US government, takes the lead. Moreover, in a global marketplace, there are strong incentives to design cars, machines or power plants that meet regulations in the most stringent marketplaces, rather than design and build for different regulatory environments. Hence, US firms may be more locked into climate mitigation by their global business model than by US legal commitments.

Finally, while the US President may well have thought he had won the battle with international legal regulation of climate by exiting Paris, he failed to understand the complexity of climate governance. Unlike some areas of international law in which there is one overarching agreement, climate governance is best described, in the words of Bob Keohane and David Victor, as a “regime complex.”[2] In other words, environmental emissions and climate mitigation are controlled by a number of intersecting legal regimes—some global, some regional, some bilateral. This range of interlocking agreements reaches well beyond Paris and includes, in various ways, formal agreements such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol, the Montreal Protocol and even the WTO itself. But the overlapping rules governing climate reach further because they are embedded in legal commitments substantively far afield from climate itself.  Aspects of financial market regulation, bilateral agreements, and commitments of the G-7, G-8, and G-20, among others have come to include aspects of climate protection. As a result, as much as the President may want to back out of climate protection, he will never be able to do so completely.

Nothing written here seeks to diminish the blow struck today to the global environment or to the US place in the world. June 1, 2017 will go down in history as a catastrophic day for environmental protection and may well be the bookend of an era of US leadership of the Western liberal order launched at the Bretton Woods Conference 73 years ago.  But it was also a day that showed the ability of international law to constrain the most powerful country in the world even as it sought to exit a legal regime. It was a day that showed that other countries – including those many had expected to threaten the international order—might well be able to step up and lead that order. It was a day that shows how international law has found new mechanisms to influence outcomes at the firm and individual level even where states seek to avoid commitment. And it was a day that shows that international law can and will survive the arrogance of a President and the decline of hegemon. International law, not Donald Trump, may have won the day.

[1] Richard Perry Professor; Professor of Law; and Inaugural Director, Perry World House, University of Pennsylvania.

[2] Robert O. Keohane and David Victor, The Regime Complex for Climate Change, 9 Perspectives on Politics 7 (2011).