The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player

OJ’s esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it.  He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration.  The short answer is that if those are your objections, then you really ought to stay out of the process, which is certainly my view.  (We should add that this has been a fairly standard procedure for the US in certain kinds of treaty negotiations where it is clear that Constitutional standards are implicated.)  But this raises some general issues regarding the nature of consensus negotiations, which I take up in this post, using the arms treaty negotiations as a backdrop and drawing on Chapter 2 of my new book, Living With the UN.

The Bush administration, as Duncan’s earlier post observed, opposed the treaty negotiation process and instead favored strengthening national export regimes.  I thought it was a better way to deal with the issues of arms trade as such; I always thought it a mistake for the Obama administration in 2009 to agree to engage in the process at all.  One reason the Obama administration decided to join treaty negotiations, however, is owed to the early Obama administration’s overall desire to engage multilaterally, especially through the UN and international organizations. It’s part of this administration’s general patten of multilateral engagement – with the Human Rights Council, most controversially, but lots of other exercises in “values” processes at the UN as well.  I’m not alone in detecting a tension inside the (first two years anyway) Obama administration between its liberal internationalists, who took multilateral engagement seriously as its own value, on the one hand, and what I’ve sometimes called its “New Liberal Realists,” on the other.

The liberal internationalists of the administration’s first two years or so thought the “values” exercises meant something for their own sake and so should be undertaken.  The New Liberal Realists, by contrast, seemed to have taken the view that if the US could gain points by engaging in values processes, fine, because it didn’t finally matter.  Being mere ideological exercises in words, they didn’t actually mean anything in tough realist terms.  Talk is cheap and you can always walk away or come up with some covering interpretation.  In a (yes, provocatively titled) chapter in my book, “Disengage and Obstruct,” however, I argue that these exercises in supposedly cost-free multilateral engagement around values issues are rarely cost-free for a hegemonic player.  Talk might be cheap but it’s not without a price, because it’s an accumulating, even if imperfect and weak, proxy for whether the hegemon means other things it says.

The New Liberal Realist claim amounts to saying that no one takes the “values” talk seriously or as a proxy for “realist” matters of security, hard core economic issues, etc.  I would respond that this misunderstands the peculiar nature of hegemony, and the way in which it transcends realism by using “values” issues to transform raw power into authority and finally hegemonic legitimacy. (Beyond that, I won’t try to define hegemony here.)  Realists, we can say in passing, are often not conceptually equipped to understand legitimacy save as on a narrow, transactional, marginal basis – blinders which makes it hard to understand the persistence of hegemony, which depends upon a particular relationship between interests and values, power and authority, and finally legitimacy.  (The book chapter also points out, following on an observation made by Eric Posner several years ago, that there is a point of resolution between the liberal internationalists and New Liberal Realists inside the administration – the liberal internationalists mostly turn out to be concerned to use international values issues as a means to influence debates within the US domestic sphere, leaving the international sphere to the new realists. The importance of Posner’s observation – to a subject matter as relevant to domestic gun control as this – can scarcely be overstated.)

Beyond this general point about multilateral engagement, the Obama administration apparently accepted an argument often made when these “consensus” negotiations arise:  As a consensus process, if the US is seriously unhappy, well, it can exercise a “hold-up” and prevent a final negotiating term from emerging, at least on particular issues.  This is a common policy argument made to the United States government, and sometimes by it.  Offhand, I can think of a couple of past instances in which the US was told very publicly that it had nothing to lose, and only something to gain, by taking part in consensus negotiations.  One was the Durban I UN Racism conference and again in Durban II, in which lots of advocates said to the US, in effect, you have to be at the table to be a player. Again offhand, I can think of others, such as the 2005 UN reform negotiations and questions of the Human Rights Council being negotiated at the time.

This is not a crazy thought, of course; it’s the obvious argument.  Yet neither of those worked out as hoped – the US joined negotiations and then left in high-level walkouts, as a matter of high principle or pique, depending on how one sees it.  In either case, in my view, it would have been better for the US to have understood that the possibility of “hold-up” would not be effective for the US, of all players.  Interestingly, the US government – Bush administration in one case and Obama in the other – seems to have bought into the flattering but, I think, incorrect idea that being the most powerful player means that one’s ability to exercise hold-up in consensus is commensurate with superpower status.

Being the superpower, however – even more, the hegemon – means that one’s willingness to break consensus is fraught with many more implications than if one is a little player.  The little player doesn’t break consensus (which risks getting everyone mad at it), but instead goes along, signs up to the treaty regime – and then, if it feels like it, defects on actual action under the treaty.  Everyone understands the drill.  Little players don’t truly have hold-ups unless there are lots of little players willing band together to play their hold-ups; their escape valve is the option to quietly defect by not doing what they promised down the road.  That’s because they are little players; they can creep away from promises under cover of the darkness of history and the forgetfulness of the international community, so to speak. Yet it does not follow, conversely, that the hegemonic player has the ability to play the holdup just because it’s big.

On the contrary, in many situations, it will be difficult and costly for the US to enter negotiations and then break consensus.  In many – most -situations, it is likely that the US would find it less costly never to have entered the negotiation in the first place.  This might be true of many big players in the international system, but why might this be specially true for the hegemonic player? One reason is that superpower noncompliance with the final treaty or negotiated terms is more likely to be noticed and so it will possibly incur reputational costs that are not true for little players or even big ones and great powers.  And, additionally, the attempt to exercise more than a modest number of holdups – and especially holdups that undermine the very essence of the negotiations – doesn’t work very well for the hegemonic actor.  The reason is that breaking consensus is understood by the other players as a challenge to the legitimacy of the international system itself – precisely because of the hegemon’s authority and power, in a way never true of the smaller or even bigger players.

For the US, in today’s world, this challenge to the legitimacy of the international system is potentially even greater, because while the US is the biggest player within the UN international system, its genuinely hegemonic status comes from outside of it – sometimes in parallel to it, sometimes complementary to it, and sometimes in opposition to it.  When an outside “parallel” hegemon enters into negotiations and then plays a consensus hold-up, however, it raises legitimacy issues about a system, as a whole, in which it is as much or more outside as inside in any case.  Given that, it seems to me, the hegemon has to think really carefully about whether its up-front offer to participate in a treaty negotiation (in which it might in some suitably broad sense share the aims of the treaty, but have reasons up-front to doubt that it can share the actual details) is ultimately and foreseeably bad for the overall aims of the treaty or the system – at least if it can predict reasonably well that the details are not doable for it. And yet also bad for it, insofar as it incurs loss of credibility as well as the loss of face that comes from having entered treaty negotiations and then publicly backing away.

The fact that “system-legitimacy,” rather than this particular negotiation merely, is in play becomes a point of leverage, in other words, against the hegemon, as a reason not to break consensus over any particular item.  It might turn out to be a lose-lose-lose situation for the hegemon:

• Breaking consensus involves costs.
• Agreement followed by optional defection also involves costs.
• But, of course, even refusing to enter the negotiations at all might involve costs.

Generally, however, I’d suggest that the costs are smallest for the hegemon if, so to speak, it keeps its dignity and refuses even to enter negotiating processes that are likely to end in tears.  Or even where likely to end in language sufficiently ambiguous that while it can say it kept its end of the bargain, others can say, equally plausibly, that it didn’t.  (Which brings us back to Martin’s question.) On balance, I think most of the time this is in the long-run interests of those favoring the treaty on its strongest negotiating terms as well.  Strategic ambiguity is sometimes a vital necessity, such as the two Chinas formulation, but of course strategic ambiguity is frequently unstable over time.  While kicking the can down the road is often not a bad way to avoid war and bloodshed, when it comes to formulation of a new normative regime among many parties, ambiguity strikes me as usually and mostly a bad thing.

After all, the arms treaty is intended to change how the world does business, including the US. And of course its promoters do intend to affect US practices, no matter how many activists today say, flatteringly and for strategic reasons, heck, no worries, the US already has the highest standards!  But simultaneously, a treaty in which the US pencils in an understanding that nothing in the treaty can change US standards domestically or internationally or how the US and its businesses do business … call me Cassandra, but this seems to me destined to end in tears. And call me old-fashioned, but this seems to me merely to squander trust on all sides – not in anyone’s interests. And that’s so even speaking as someone quite willing to title a book chapter on the UN, “Disengage and Obstruct.”

The Obama administration, however, wants the goodies that come with being part of the process of multilateral engagement.  It is careful to invoke those mostly with regards to “values” issues – not, say, drone warfare and targeted killing.  The goodies include points with the international community on the arms transfer issue, but it also presumably wants points with domestic actors on such things as domestic gun control (though this raises many questions not addressed here). As the lawmakers’ letter makes entirely clear, there is deep concern among opponents about ways in which this kind of treaty can be leveraged into domestic settings.

The international activist community seems to think that if it can get the US to agree to language and a treaty, that will serve as a long-term pressure point on matters that are themselves ambiguous as to their extent and bite – essentially a double-down strategy based around ambiguity.  (I also suspect there’s a strategic belief that if the Obama administration can sign a treaty, it will still have important long-term domestic political effects even if never ratified and even if the administration knows it will never be ratified, but that’s another discussion.)  I think it’s a mistake for everyone to want everything all ways, knowing in advance that they are all deeply inconsistent.  This isn’t about finding a face-saving formulation to avoid war over Taiwan, addressing a situation with facts on the ground; this is about creating a whole new multilateral regime, and everyone is served by clarity.

Of course, I have strong views in favor of gun rights – I’m with the NRA on this and with most of my Volokh Conspiracy co-bloggers – so you can discount accordingly.  But the overall pattern here is not that different from many other multilateral negotiations of the past twenty years, usually on “values” issues in the international community and usually driven by the NGOs, in which things took a predictable course.  At a minimum, I would have thought this a place for smaller community of genuinely “like-minded” states to start this out.  And I would have thought that, as with many things, the best role for the US is to stay outside of the multilateral regime except as an engaged observer, rather than participant, even to the extent it shares the overall goal, and make commitments consistent with what it can actually live with, without ambiguities that damage everyone.  In this case, even someone like me, with a strong normative view in favor of guns rights and sovereignty, can say fairly neutrally that various important parties seem to believe that when these ships pass in the night, theirs will sail safely to port and the others will sink into the inky blackness.  I think they will simply sail to different ports – and then start bickering.

(I don’t discuss the arms treaty negotiations specifically in my book on US-UN relations, Living With the UN: US Responsibilities and International Order, but Chapter 2 has a detailed discussion of the problems of consensus negotiations under conditions of “parallel” hegemony.  Chapter 2 is available as part of a preview of the book, downloadable as a pdf from SSRN.)