Ambiguity in International Law and Diplomacy, and the Ambiguous Meaning of Multilateralism at the UN

(First, before anything else, a welcome to Eric Posner back to the blogosphere, lately of Slate’s Convictions (in the same shutdown that gave OJ the welcome opportunity to snag Deborah Pearlstein) and now of Volokh Conspiracy, where Eric has been posting particularly related to the resurgence of Russia.)

I have been writing in my own draft work this summer about the UN, and most recently about ways in which the institution(s) is founded upon a long list of antinomies and ambiguities that allow various participants to take things how they will.  It has caused me to think about the virtues and vices of ambiguity in international law and diplomacy more broadly.  

At the UN, in the grand conceptualizing of the UN, a core ambiguity lies in the term and usage of “multilateral.”  For some, multilateral means no more and no less the coming together – or not – of sovereigns around particular issues, without any ultimate compromise into the future of their sovereignty notwithstanding their cooperation on a particular issue in the present.  For others, however, multilateral means this kind of cooperation in the present, but with an expectation, a forward looking expectation, that such cooperation must at some point mean, or solidify within expected behavior, or imply a relinquishment of sovereignty in favor of some other paradigm, most typically global governance. Each can plausibly call itself “multilateral,” because the difference is largely one of expectation and orientation toward the future.  And it is noteworthy how much can be done on particular issues in the present even when different parties have different understandings of that core term.  So long as the ‘present’ is a forever concept and the glorious future of ‘ceded sovereignty’ merely a permanently receding horizon, then the ambiguity is never forced to clarity. 

The diplomatic and legal formulation of the status of Taiwan is another example.  It works, in the sense of preserving the status quo but, more importantly, the peace of the straits and the democratic political institutions of Taiwan, so long as no one decides to act on one reading of the ambiguity so as to force the other off the table.

The problem is, many of these ambiguities are eventually forced by some party or other.  Relative calculations of risk and benefit shift.  One party gains the upper hand and no longer has any reason not to force things.  In the case of the UN, however, the ambiguity might well be permanent, because the institution is largely – not completely, but largely – epiphenomenal, and so there are fewer reasons than one might think for particular players to force the conceptual question of multilateralism.  It would require the expenditure of real resources on something that is mostly, not completely, but mostly, to my mind at least, a matter of theatre.  

But it is in part the accumulation of antinomies and ambiguities that renders the UN frozen.  It is like an automaton in a cul de sac: the UN marches, marches on, but in fact as it marches on, it marches in place.  In what sense is it multilateral?  I would say this, you would say that – actually, neither of us says anything, in order not to upset the marching.  

I am also struck, in writing on the UN, how surprisingly little interest my public international law colleagues around the US, but also the world, take in it these days; I myself take it anecdotally as evidence of the UN’s having achieved a certain equilibrium-in-stasis.  We at Opinio Juris, for example, seem to spend far more of our time discussing, so far as I can tell, international criminal tribunals, the ICC, the ICC prosecutor, all these elements of an international criminal justice system than the UN proper.  In an abstract sense, of course, international criminal justice can be seen as an appendage of the UN system, sure, but in practical fact international criminal justice has an attractively dynamic element to it that is precisely because it is some distance from the paralytic UN system.  I think we in public international law exaggerate greatly the importance of that criminal justice system – but we do it because most of us – not me, certainly, but most of us – despair of the paralysis of the UN generally.  The ideals and institutions of international criminal justice take on the weight of the hopes and dreams that were earlier invested in the UN; they are, to my mind, even less capable of bearing them, but perhaps that is merely my own general distaste for global governance speaking and perhaps I am wrong about that.  Still, as a Weberian, I do find remarkable the idea that one can create a judicial system in the absence of a political system, and a political system of sufficient density to sustain a judicial system in the absence of a society in which a politics is embedded.  

But the ambiguity surrounding the UN as exercise in sovereign multilateralism versus multilateralism looking forward to global governance might be called and forced, perhaps if the direction toward a multipolar world continues.  The world in which China and Russia regionally challenge the US and NATO and the US’s allies more broadly is one in which multilateralism is about sovereigns; the multilateralism of “looking forward” to the UN as institution of federal global governance looks much less relevant.  Kofi Annan spoke in his closing days, and beyond, of the Security Council as the “management committee of our fledgling collective security system,” and meant by that to say that the Council could and would become something more than merely the talking shop of the Great Powers.  But in a competitive multipolar world, the Security Council looks to be, more than ever, the talking shop of the Great Powers – at its best.

The multilateralism of the world of tomorrow, the world of global governance of tomorrow – that all looks to be an epiphenomenon that supervenes upon the fact of a loose hegemon that couldn’t rouse itself to care – not really – about that kind of talk among intellectuals and academics and international bureaucrats.  Multilateralism of eventually-ceded-soveriegnty doesn’t necessarily survive in an international world in which powers such as Russia and China (and not they alone) hanker after visions of National Greatness, as Robert Kagan recently put it, and projections of power in their (expanding) neighborhoods.  They do not necessarily seek to bother the United States as such – but they do not intend to be bothered by it, either.  History recrudesces, geopolitical dangers to peace and security mount on all sides, and the Parliament of Man returns to what it always was – a form of platonism.