“America First” as a Matter of Law

By Louis René Beres

“There is no longer a virtuous nation, and the best of us live by candlelight.” -William Butler Yeats

From the beginning of his presidency, Donald Trump has presumed a hard and fast distinction between America’s national interest and the broader interests of our “state of nations.” Rather than recognize the indissoluble interdependence of all states, he has mistakenly fashioned foreign policies on the long-discredited idea that one’s state’s gain is inevitably another state’s loss. The cumulative result of such erroneous thinking has been injurious “beyond any reasonable doubt.”

In essence, the tangible result of “America First” has been an increasingly debilitated nation. This debility can be meaningfully assessed not only in the usual political and geostrategic terms but also from the co-equally critical standpoints of national and international law. Though generally disregarded, these perspectives are potentially very important to the security and well-being of the United States.

Traditionally, world law has been based upon Realpolitk or power politics. Although such thinking is normally accepted as “realistic,” these acquiescent postures must ultimately prove shortsighted.  This means, inter alia, that the American president would be well-advised to acknowledge the inherent limitations of our current global threat system and seek to identify more durable configurations of international relations and international law.

Here, history deserves some evident pride. What might first still seem promising to Trump in the “state of nature” (the global condition of anarchy dating back to the Peace of Westphalia in 1648) is apt to prove futile for our longer-term American prospects.  Moreover, this futility could sometime be experienced not merely as a casual debt in our national security calculus, but as an explosive and possibly irremediable set of existential costs.

It is high time, therefore, for Trump to think beyond “America First.” The United States, in the fashion of every other state, is part of a much larger and complex world legal system.  This more comprehensive system of law has diminishing chances for success within our corrosively recalcitrant pattern of  “Westphalian” sovereignties.

“What is the good of passing from one untenable position to another,” asks Samuel Beckett philosophically in Endgame, “of seeking justification always on the same plane?” Though the celebrated Irish playwright was not thinking specifically about world politics or international law, his generalized query remains perfectly well-suited. As competitive power-politics has never worked, why insist upon maintaining it as a doctrine of presumed national interest?

In such matters, truth is exculpatory.  Facts cannot be suitably overridden by visceral chanting at presidential rallies or by substitution of empty witticisms for historical fact. In essence,  Realpolitik or balance of power world legal order can never succeed for longer than very brief and unpredictable intervals. In the uncertain future, this grievously unsteady foundation could be exacerbated by multiple systemic failures, ones sometimes mutually reinforcing or “synergistic,” sometimes involving weapons of mass destruction.

Most conspicuously portentous, in this regard, would be the use of nuclear weapons.

There is more. By definition, any failure of nuclear Realpolitik could be not “only” catastrophic forms of aggression, but forms that are unprecedented (sui generis) in the most starkly negative sense. This conclusion would hold true if the pertinent failure were judged in the full scope of its national and international declensions.

What is next? All states that depend upon some form of nuclear deterrence, especially the United States, must prepare to think more self-consciously and imaginatively about alternative systems of world politics and world law. They must think about creating prospectively viable legal configurations that are reliably war-averse and determinedly cooperation-centered. While any hint of interest in such patterns of expanding global integration (of what the Jesuit philosopher Pierre Teilhard de Chardin calls “planetization”) could sound unacceptably utopian to “realists,” an opposite interpretation would actually be more sensible.

Now, it is far more realistic to acknowledge that Trump’s “every man for himself” ethos in world politics is endlessly degrading and sorely incapable of offering any serious legal reassurances.

Again and again – and at some point, irretrievably – “Westphalian” world systemic failures could become tangibly dire and potentially irreversible. In the final analysis, therefore, it will not help to assert  “America First” or even to tinker tentatively at the ragged edges of our current world legal order. At that decisive turning point, stubbornly continuing to forge assorted ad hoc agreements between states or (as “hybridized” actors) between states and assorted surrogate or sub-state organizations could prove excruciatingly wrongheaded.

In the longer term, the only sort of legal realism that can make any sense for America and other leading states in world politics is a courageous posture that points thoughtfully toward some aptly “higher” awareness of global “oneness” and (however incrementally) toward still-greater world system interdependence.

In its fully optimized expression, such an indispensable awareness – a literal opposite of Trump’s “America First” – would resemble what the ancients had called “Cosmopolis” or world city focused. For the moment, to be sure, the insightful prophets of a more collaboratively legal world civilization must remain few and far between,  but this consequential absence is not due to any intrinsic lack of need or to some witting forfeiture. Rather, it reflects a progressively imperiled species’ retrograde unwillingness to take itself seriously –  that is, to recognize that the only sort of law-based loyalties that can rescue nation-states must embrace a redirected commitment (both individual and national) to an always connected humankind.

Going forward, the only reasonable mantra to guide the United States must soon become “World First, America First.”

At its heart, this is not a bewilderingly complicated idea. To wit, it is hardly a medical or biological secret that the core factors and behaviors common to all human beings significantly outnumber those that differentiate one from the other. Unless the leaders of all major states on Planet Earth can finally understand that the survival of any one state must be contingent upon the survival of all, true national security will continue to elude every nation. This means even the purportedly “most powerful” states, including those that fitfully declare themselves “first.”

The bottom line? The most immediate security task in the law-based state of nations must remain collaboratively self-centered, including all the traditional remedies of collective self-defense and collective security. Simultaneously, however, leaders of all pertinent countries, especially this one,  must learn to understand that our planet inevitably represents a recognizably organic whole, a fragile but variously intersecting legal “unity” that now exhibits steadily diminishing options for any successful war avoidance. (Because war and genocide are not mutually exclusive, either strategically or jurisprudentially, taking proper systemic steps toward war avoidance would plausibly also reduce the likelihood of egregious “crimes against humanity.”)

To seize rapidly disappearing opportunities for longer-term survival, our national leaders must quickly learn to build upon the critical foundational insights of Francis Bacon, Galileo, and Isaac Newton, and upon the much more contemporary observation of Lewis Mumford: “Civilization is the never-ending process of creating one world and one humanity.” To be sure, these names will signify nothing to Trump, but perhaps there are still some capable advisors who can remember the incomparable dignities of serious study and established jurisprudential thought.

Whenever we speak of civilization we must also speak of law. Jurisprudentially, no particular national leadership has any special or primary obligations in this regard, nor could it reasonably afford to build any immediate security policies upon seemingly vague hopes. Nonetheless, the United States remains a key part of the community of nations, and Trump must do whatever he can to detach the palpably wavering state of nations from the time-dishonored state of nature.

Any such willful detachment should be expressed as part of a much wider vision for a durable and justice-centered world politics. Over the longer term, Washington will have to do its part to preserve the global system as a whole. “World First,  America First” must define our national policy trajectory. However silly or impractical this may sound at first, nothing could be more fanciful than continuing indefinitely on a gravely discredited course.

For the moment, there is no obvious need to detail any analytic or intellectual particulars.  There are, of course, bound to be many, but for now, at least, only a more evident and dedicated awareness of this basic civilizational and legal obligation should be expected. Interestingly, international law, which is an integral part of the legal system of all states in world politics, already assumes a reciprocally common general obligation to supply benefits to one another, and to avoid war at all costs. This core assumption of jurisprudential solidarity is known formally as a “peremptory” or jus cogens expectation, that is, one that is not even subject to question. It can be found already in Justinian, Corpus Juris Civilis, Hugo Grotius, The Law of War and Peace (1625) and Emmerich de Vattel, The Law of Nations or Principles of Natural Law (1758).

In The Plague, Albert Camus instructs: “At the beginning of the pestilence and when it ends, there’s always a propensity for rhetoric….It is in the thick of a calamity that one gets hardened to the truth – in other words – to silence.” As long as the states in world politics continue to operate in narrowly zero-sum terms of engagement, they will be unable to stop the next wave of terror attacks, genocides, and catastrophic wars.

Until now, the traditional legal expectations of Realpolitik may have appeared generally sensible. Accordingly, there are no good reasons for expressing any still-lingering or retrospective regrets. Nevertheless, from the overriding standpoint of improving our longer-term security prospects, the American president must substantially expand his visionary imagination to include more promising forms of legal and logical understanding. By ignoring the complex interrelatedness of all peoples and all states, “America First” represents the literal opposite of what is most urgently needed.

Now more than ever, affirming the extremity of “everyone for himself” in world politics is a prescription not for realism and global law-enforcement, but for recurrent conflict and far-reaching despair. Should this perilous prescription stay in place, the costs to us all could sometime be nuclear. At that hard-to-imagine but still plausible point, it will be too late to discover that “America First” had once been a captivating but ultimately lethal presidential slogan.

Going forward, international law must be rendered compatible with more expressly cosmopolitan visions of human society. Instead of such harshly retrograde notions as “American First,” we now require an expanded awareness of civilizational interdependence or “oneness.” All of this represents an astoundingly tall order, but any necessary legal revisions must somehow be based upon a prior re-imagining of world legal arrangements.

Without such an imperative re-imagining, our Westphalian world legal order would have literally no chance of long-term survival. Therefore, isn’t more creative and virtuous legal conceptualization at least worth a try? Recalling the great Irish poet W.B. Yeats, why should even “the best of us” deliberately choose to “live by candlelight?”

Louis René Beres was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue. His twelfth book, Surviving Amid Chaos: Israel’s Nuclear Strategy, was published in 2016. His other writings have been published in Harvard National Security Journal; Yale Global Online; World Politics (Princeton); Bulletin of the Atomic Scientists; Israel Defense; Parameters: Journal of the US Army War College; Special Warfare; Oxford University Press; The Jerusalem Post; Infinity Journal; BESA Perspectives; US News & World Report; The Hill; and The Atlantic.

His Terrorism and Global Security: The Nuclear Threat (Westview, first edition, 1979) was one of the first scholarly books to deal specifically with nuclear

This article was first published in Jurist.org