INTERNATIONAL LAW AND THE "NEW COLD WAR": AN OPPORTUNITY FOR REFLECTION ON INTERNATIONAL LAW IN THE "OLD" COLD WAR.

• Author: Buchwald, Todd F.

ABSTRACT

The inspiration for this presentation is an oral history interview of the person, John Maktos, who served as the State Department's first Assistant Legal Adviser for United Nations Affairs (1)--a position in which I would come to serve nearly five decades later. The bulk of the interview concerns what he considered the five most noteworthy international law issues on which he worked. What is striking about the list is the familiarity of the issues to this day--to me, as a subsequent incumbent of the position, and to international lawyers generally. These were issues that arose in the course of the first wave of Cold War legal issues, but they were not necessarily tied particularly closely to the dynamics of the Cold War. This led me to think more carefully about whether our experience of the "old Cold War" is likely to be a good predictor of our experience in the years ahead, and also about why that would (or would not) be true. My thesis for the presentation this morning is that the old Cold War will be a surprisingly good predictor of the kinds of issues that we are likely to face, but not because the period we are entering is particularly similar to the Cold War.

The presentation below has four parts. Part I sets the stage by very briefly explaining that the overall political dynamics of the old Cold War are similar only in limited ways to the dynamics of the situation that we are likely to face in the years ahead. As discussed in Part II, there was in fact a vast and eclectic range of issues that required the attention of international lawyers, but only a portion of them were driven primarily--or at all--by Cold War dynamics. In those limited areas where the dynamics today are similar, the Cold War experience is likely to be a good predictor. As discussed in Part III, however, a broad range of other issues that commanded the attention of international lawyers during the Cold War were primarily driven by separate dynamics. It is of course impossible to enumerate or summarize all these "other issues" and we thus turn to the five issues that Maktos considered the most noteworthy to illustrate the point. It is these other drivers, each of which has a certain timeless quality, that make them useful for helping us predict the kinds of issues that we will face in the years and months ahead. Part IV then offers some modest observations and conclusions.

TABLE OF CONTENTS ABSTRACT TABLE OF CONTENTS I. THE FUNDAMENTAL DYNAMICS OF THE OLD COLD WAR ARE SIMILAR TO THE DYNAMICS WE FACE IN THE YEARS AHEAD ONLY IN LIMITED WAYS II. A VAST RANGE OF ISSUES EMERGED DURING THE COLD WAR, BUT ONLY A LIMITED RANGE OF SUCH ISSUES WERE REALLY PRODUCTS OF COLD WAR DYNAMICS III. A GREAT RANGE OF ISSUES EMERGED DURING, BUT BECAUSE OF, THE COLD WAR A. John Maktos's Five Most Noteworthy Issues B. Maktos's Involvement in United Nations Issues C. The first of the Five Maktos Issues: Statehood Recognition (1) The Odd Case of Ukraine and Belarus and Membership in the United Nations (2) What This Episode Shows (3) Statehood and Recognition Issues Today D. The Four Other Issues that Maktos Highlighted (1) Human Rights (and the Issue of Genocide) (2) The International Criminal Court (3) Creation of the International Law Commission. (4) Definition of "Aggression" CONCLUDING OBSERVATIONS I. THE FUNDAMENTAL DYNAMICS OF THE OLD COLD WAR ARE SIMILAR TO THE DYNAMICS WE FACE IN THE YEARS AHEAD ONLY IN LIMITED WAYS.

The notion that the "old" Cold War is a useful analogy for thinking about the period that lies before us hides more than it reveals.

On the one hand, there are parts of the dynamic from the old Cold War that can be expected to affect the nature of the issues on which international lawyers will need to focus. Chief among these are the obstacles to using the Security Council to promote international peace and security in a period when the Soviet Union and the United States were at loggerheads. Another important part of that dynamic was the pressure to make decisions on a broad range of issues with at least one eye on how it would affect the struggle with the Soviet Union, as opposed to strictly on their own merits.

On the other hand, we should be cautious about reflexively accepting the Cold War analogy as many key features of the old Cold War are not present today. For one thing, global challenges --including notably climate change--in which all sides have interests on issues incapable of being tackled alone are relatively more important to all the states involved. For another, and particularly with respect to China, the huge levels of trade and commerce reflect enormous incentives to find paths to an environment in which the economies of both sides can prosper. (2) Whereas the objective of the United States in the Cold War was routinely seen as ultimately "to defeat" the Communists, the prosperity of the United States and China are so thoroughly intertwined that the idea of one "defeating" the other would be perilous for both. At the same time, the old Cold War was seen as an existential struggle, with an implacable foe ideologically driven to export its system of government and destroy our way of life. (3) Today, however, the Chinese government appears intent on expanding its role and preventing what it calls U.S. interference in its internal affairs, but asserts no interest in exporting its ideology. (4) In short, this new era is not the same kind of zero-sum game that the Cold War was conceived to be.

Indeed, the dangers of "Cold War thinking" are recognized by both sides, even if they might have different visions of what those dangers are. Thus, the Chinese routinely criticize "Cold War thinking" as being antithetical to the interests of both sides, (5) while Secretary Blinken's recent speech on "The Administration's approach to the People's Republic of China" went out of its way to affirm that "[w]e do not seek to transform China's political system." In Blinken's words, a new Cold War is something that "we are determined to avoid." (6)

At the end of the day, notwithstanding the many tensions and conflicting interests, the interdependent economic interests of both China and the United States provide a far stronger incentive than existed between Cold War adversaries to find workable common ground. If nothing else, important business constituencies will be advocating to find that common ground and to find ways to avoid the kind of extensive usage of linkages that was a hallmark of the long ideological battle with the Soviet Union. Even if that were not true of constituencies within the United States, it will be true of constituencies in its partner countries, and their governments will thereby be incentivized to push us to promote a climate that is hospitable to expanded trade and that avoids excessive linkage. (7) The fact that all this will be happening while the overall United States share of the world's "power" is shrinking will complicate any hope of leading by fiat. At the same time, the strong indications that the United States political system will be more polarized and fractious suggest that the American body politic will be less able to rally around any particular course of action in the kind of sustained manner that was the hallmark of U.S. foreign policy for the better part of the Cold War. (8) Meanwhile, that same polarization and fractiousness may greatly complicate the ability of the United States to hold itself out as a model for others to emulate or to inspire others to rally around its leadership. (9)

In short, there are strong indications that the environment that stands to shape the climate in which international law is practiced in the period ahead will likely be very different from that which shaped the environment during the Cold War.

2. A VAST RANGE OF ISSUES EMERGED DURING THE COLD WAR, BUT ONLY A LIMITED RANGE OF SUCH ISSUES WERE REALLY PRODUCTS OF COLD WAR DYNAMICS.

   However similar or dissimilar the old Cold War environment may be to our situation today, it is not as if the climate of the old Cold War produced a single type of issue that we can readily identify. Instead, there was an incredible diversity of international law issues, both across the more-than-forty-year period of the Cold War and at any particular time. Some of the issues that emerged can fairly be said to have been products of the Cold War in the sense that they were products of the dynamic particular to the Cold War era. Others may not have been Cold War issues, per se, but were viewed at least in some part through a Cold War lens. Still, other issues had relatively little or nothing to do with the Cold War besides the fact that they arose during the period in which the Cold War was happening.

   For example, with respect to the first category, the State Department would not have stationed lawyers in Berlin and Bonn for over four decades but for the Cold War creating an unremitting deadlock over the status of Berlin. An entire Arms Control and Disarmament Agency, with its own legal office separate from the State Department, was established in part because of. the disarmament and nonproliferation negotiations that were spawned by the Cold War struggles between the United States and the Soviet Union. And generations of law students would not have would not have struggled to discern the differences between a "quarantine" and a "blockade" if the Cold War had not brought the world to the brink of nuclear war during the Cuban Missile Crisis. (10)

   But other key issues were driven at least partly, and in many cases primarily, by separate dynamics. For example, the process of decolonization took place in the midst of the Cold War--and the main Cold War adversaries frequently calculated their approaches to decolonization with an eye towards how it would affect the perceptions of emerging states towards the struggle between them--but the primary force propelling decolonization came from other sources. As another example, the...