Eric Posner’s “Think Again” Column on International Law, and the Effect of the US Security Guarantee

Over at Foreign Policy magazine’s blog, Eric Posner has a brief, breezy column on differences, or not, between the Bush and Obama administrations on international law.  Fun, quick read, whether one agrees or not.  And events of the moment – the opening of the UN General Assembly, the UN confabs on things like climate change, the G-20 meetings, etc. – provide many opportunities to consider Eric’s assessment of how international law works, or doesn’t.

There are things on which I imagine the G-20 will finally manage to come to some reasonably wide agreement, and manage reasonably wide adherence – most important, capital adequacy standards for banks.  That’s different from saying that whatever the new standard is called (I bet it won’t be ‘Basle III’) will turn out any better than Basle II, but I think this level of matters of shared standards will look much more like trading regimes than the track record of big political stuff, whether in climate change, security, or larger issues of the global economy.

Which is to say, in the Anderson view, the closer an issue gets to looking like political governance, the more likely that it will receive grand diplomatic rhetoric and the less likely that it will actually happen.  There is an independent question as to whether it will be agreed to at all, or whether insincere promising and defection and free riding will simply be left to work their slow corrosion.  Time heals all things, as it were, including international commitments one didn’t really intend, or intends with complete and utter sincerity now; so perhaps we need a new term, “serial sincerity” in relations among states.

The security issue is more complicated, as I explained recently in the CJIL multipolarity issue (where Chris and I both have pieces).  The reason, I argue, is that while much effort goes into explaining collective security and trying to figure out ways around the inevitable promising, defection, and free riding problems, it seems to me rather to miss the point.  The UN collective action system is inherently subject to all those problems.  Given that, one has to wonder why the system hasn’t broken down even at the pure rhetorical level and gone the way of the League.  My suggestion is that the system has, in a very broad sense, an outside guarantor, in the form of the US’s diffuse post-war security guarantee.

It is a sliding scale guarantee, all the way from NATO countries to the general security of the high seas of which even North Korea, Iran, and other US enemies partake of, to some extent.  The limits of what the US security hegemony can hope to achieve in the form of bottom-level order are evident in Afghanistan and in the contours of the current US debate over whether to give up on the ‘War of Governance’, as we might call its fullest neo-conservative ambition in Afghanistan – and instead just go with ‘More Predators Over Pakistan’, Candidate Obama’s pure, specific, narrow war, not on terror, but on terrorists.  Inevitably too, today, one must also wonder if “NATO” instead really means, NATO countries that don’t border Russia.  One French senior intellectual friend (a very leftwing Gaullist whose operational view was “pour la EU” = “pour la France”) once put it to me that all said and done, NATO exists to protect the German border.

No matter what the US thinks or Western Europe says, in other words, that’s where NATO stops.  The best evidence is the European willingness to let NATO divide into the ‘Russian natural gas dependent’ and the ‘Russian border states’.  It used to be believed in Eastern Europe that even if Western Europe believed that Germany was still the true eastern border of NATO, the US did not, and that’s what mattered; the Germans might encourage the Poles to accommodate the Russians and gently hint that they would not come to their aid, but the Americans would not.  That comforting thought, at least to Eastern Europe, is now much more whispey than it was the day before the 70th anniversary of the Soviet invasion of Poland.

True, the global US security guarantee doesn’t extend everywhere.  Congo, Darfur, and places don’t have any option other than UN collective security, if it’s even on offer.  But up until now, in the post-war period, US security hegemony has offered an independent ground for minimal global security that has allowed UN collective security to avoid being put to tests that might terminate it even as a rhetorical frame.

Multipolarity, US decline, all sorts of things, including self-fulfilling prophecies of decline, might undermine the broad US security guarantee.  But political progressives and liberal internationalists should perhaps consider what the world looks like under multipolarity – meaning China and Russia holding far greater sway in the world’s affairs – and a decline in the ability or willingness of the US to provide a loose security hegemony that parties trusted sufficiently that they did not feel an obligation to build their own.  The discussions of universal human rights and all that look a good deal more dicey if, instead of being able to guilt and shame the wicked Americans, one is trying to guilt and shame … China?

But there is an important analytic question here, quite apart from the politics.  And I’m not completely sure it is taken up by Eric’s book or other state-interests-rationalist analyses of these things.  There are two somewhat distinct dimensions on which collective action in international law and institutions might fail.  “Costs” outweighing benefits can be disaggregated into two modestly distinct forms.  One is simply the accumulation of costs, but costs in small increments; small in each case, but adding up to too much as against the benefits of compliance.  Climate change agreements, if defection from the current round of agreements were to occur, would be most likely an example of an accumulation of small costs to economic growth that, taken altogether, created too much “drag” for the perceived long-run benefits.

Security, however, is often different – at least if you are not in the position of being fully sheltered by the US security guarantee.  Viz., what causes defection is not the small accumulation of costs, but the fear of a catastrophic cost down the road.  Possibly of low likelihood; but set against the catastrophe, sufficient to persuade one either not to sign on to some risky multilateral security deal in the first place (principally in order to signal intentions) or else to do so insincerely and quietly defect, usually by non-implementation, later on.

In a general sense, sure – it’s all costs to factor into the CBA.  But in order to actually work out the costs, it seems to me you have apply two different analyses to how to sum them up.  And, outside of the abstraction, they tend to correlate with particular international conditions, especially with regard to security concerns.  I’m re-reading Eric’s book, and I’ll be on the lookout for how costs are treated with respect to small-cost accumulation versus low likelihood catastrophe.