The Biden administration cannot wink and nod its way to international order
Dominic Green
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When is a treaty not a treaty? When it is a deal. When is a deal not a deal? When it is an understanding. What is an understanding? Nothing.
The Obama administration knew that Congress would never agree to license Iran’s nuclear weapons program, so it made a deal and dressed it up in legalese as the Joint Comprehensive Plan of Action. The Trump administration correctly argued that the deal, by excluding controls on the missiles that would deliver the warheads produced by Iran’s ever-so civilian nuclear program, was neither comprehensive nor much of a plan. But former President Donald Trump’s alternative, “maximum pressure,” was not much of a plan, either.
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The Biden administration returned to the table with minimal demands. It keeps returning, even as the Iranian regime enriches itself and its scientists enrich uranium to levels exceeding any conceivable civilian use. As the isotope levels rise, the legal standards collapse. The administration thinks it has now reached an “understanding” with Tehran. A treaty is written between states on paper, and a deal is made with a handshake before the cameras, but an understanding is made with a nod and a wink in private. This is fine if you’re running a protection racket or a petro-state. But the United States is supposed to be a legitimate business.
The modern state system is the Westphalian system. In 1649, the Treaty of Westphalia ended more than a century of religious war in Europe by getting all parties to agree that each state’s ruler had the right to choose its state religion and that no state had the right to intervene in another’s affairs. International law, whose modern foundations were laid by Hugo Grotius’s On the Law of War and Peace (1625), developed to manage relations between states. So did the codes of modern diplomacy. After 1945, the U.S. committed itself to globalizing the Westphalian system.
There is no Westphalia without the West, only failure of the global system and a dangerous free-for-all. Westphalia means the “rules-based international order” that our leaders like to invoke whenever they’re not getting their way. The rules were written by the British and the Americans in the first half of the 20th century. The international order now looks different. It cannot be stabilized by nods and winks, only by legitimate agreements.
“Legitimate” means lawful, defined by clear and common legal principles. The Cold War rivalry between the U.S. and the USSR remained within the Westphalian code. Its worst moment, the Cuban missile crisis of 1962, did not involve a breach of state sovereignty but mutual violations of a nonlegal principle, the sphere of interest. The U.S. stationed ballistic missiles in Turkey, on the USSR’s southern border; the Soviets sent some to Cuba. It is a sign of how close we came to disaster that the crisis was resolved by a private understanding, not a public deal or treaty.
It is a sign of how close we are to disaster today that the U.S. is attempting to propitiate its enemies by nods and winks. When Secretary of State Antony Blinken went to China to meet President Xi Jinping on June 19, it was the first visit by a secretary of state in five years. The State Department let it be known that mutual nodding and winking had occurred and that the U.S. and China had reached an understanding not to have a war just yet. This understanding lasted until June 21, when President Joe Biden told a Democratic fundraiser that Xi is a “dictator.”
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This may have been true, but it was not diplomatic. It was not even relevant to stabilizing relations between the U.S. and China. It was, however, casually destructive. When the rules of the game favor the rule-maker, it is smart to play by them and keep the game running for as long as possible. Once the presidential foot was in its native habitat, firmly in the presidential mouth, it was game over for Blinken’s “understanding.” The Chinese foreign ministry called Biden’s remarks “absurd and irresponsible,” a violation of “diplomatic etiquette.” The U.S. and China are back on track for conflict.
We must understand that as the West loses its Westphalian monopoly, other legal and diplomatic ideas are establishing themselves. Understandings within a Westphalian framework are not the same as understandings between rival frameworks. These are prone to misunderstandings and deliberate exploitation. In retrospect, the kidnapping of Americans by Ayatollah Khomeini’s followers at the embassy in Tehran in 1979 was a harbinger of our present, when law and custom are becoming as multipolar as military and economic relationships. An administration that claims to have reached an understanding with a regime whose history is one long assault on international law and custom has understood nothing.