This post introduces a symposium on ruptures and continuities in international law under the second Trump administration.
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In retrospect, the longevity and power of US imperialism made it difficult to recognize its historically specific character. Critical legal scholars, like ourselves, pointed out the inconsistencies of the post-World War II legal order, which promised sovereign equality but safeguarded economic and political hierarchy; identified the limitations of decolonisation-as-state-formation; and highlighted the persistence of inequalities pertaining to trade, finance, and the very business of international law-making. These immanent critiques, however, often took for granted the sheer novelty of US imperialism’s reliance on international institutions and legalist ideology, as well as its tolerance if not outright support for formal decolonisation.
Looking back, what emerges as an anomaly worthy of explanation is not the recurring willingness of the United States to violate core rules of the international legal order, but rather its (rhetorical) commitment to these rules in the first place and its consistent efforts to disseminate (idiosyncratic) legal interpretations that suited its material interests and ideological commitments. Similarly, the fact that the United States supported the end of formal empire, including by giving up many of its own colonial possessions (notably, the Philippines), represented a departure from a long historical record linking military victory to territorial expansion.
This historical peculiarity was firmly rooted in political economy: as historian Daniel Immerwahr has argued, the astounding development of logistics during World War II made it far easier for goods and people to circulate the globe, significantly reducing the importance of territorial control for the flow of commodities and resources. The invention of synthetic rubber during the war further alleviated US concerns about the economic necessity of formal Western control of Southeast Asia. In this novel economic environment, the United States had reason to prefer formal decolonisation, so long as the governing elites of postcolonial states adopted economic policies that broadly supported US interests.
To be sure, this commitment to decolonisation and juridical equality was always riddled with contradictions. The need to combat communism during the Cold War and the necessities of governing an increasingly unstable global capitalist order after the collapse of the USSR resulted in frequent economic, political, and military interventions. International legal scholarship, for its part, has been at the forefront of articulating justifications for imperial power in a world of nominally equal states—be it unilateral humanitarian intervention, arguments about “rogue” and “failed” states supposedly deserving of fewer legal protections, or, more recently, the “unwilling or unable” doctrine. As Ben Heath shows in his contribution to this symposium, escalating US reliance on economic coercion over the past decades was facilitated by idiosyncratic legal arguments that imaginatively mixed domestic and international law, often stretching both to their limits, in order to justify the never-ending expansion of US jurisdiction.
What we witness today is how these developments, along with their correspondent ideological justifications, gradually undermined even the nominal commitment to equality and freedom within certain factions of the US ruling coalition. Steven Miller’s recent rant on immigration exemplifies this defection. According to Miller, the post-WWII legal and political order was too generous to former colonies: the West subsidized the Global South to its own demise by supposedly overextending aid and opening its borders. Trump’s recurring threats to annex Canada and Greenland similarly reflect this rejection of the post-World War II legal and political status quo.
In this respect, our reading of the current moment departs both from the liberal insistence of Trumpism as an aberration that bears no resemblance to the prior neoliberal capitalist order and from a critical left view that sees the current moment as largely continuous with past instances of US imperialism. Rather, we posit that the current moment signifies a genuine departure from the US commitment to the neo/liberal international legal order, while also insisting that it was the contradictions of that system that precipitated this rupture: post-conflict reconstructions in the 1990s and early 2000s promised neoliberal capitalist utopias, but repeatedly delivered destruction and disorder.
We are, then, not surprised that neoliberal economic governance at home and imperial adventures overseas eventually gave rise to a profoundly nihilistic culture amongst the US ruling class. Where previous military inventions were accompanied by at least a rhetorical commitment to democratic reform or state-building, destruction and societal collapse are now openly acceptable outcomes of war, and the only vision of reconstruction put forward is that of the real-estate developer. As Dylan Saba describes in his contribution to this symposium, the Board of Peace serves as a deliberately flimsy replacement for the Security Council, a body that fuses real estate development with U.S. supremacy and Trumpian personalism. While currying favour with the United States has always been a sure path for access to credit, trade deals, and other favors, identifying the quid pro quo once required some diligence. Today, by contrast, the transactional deal-making is not only in the open, but part of the invitation to sit at the table. Given this, it is notable that the legal form of the Board resembles more closely a corporation than an international organisation.
This is a breath-taking shift in the realm of international peace and security, but it is not wholly unprecedented in the world of global economic governance. As Wanshu Cong argues in her contribution, neoliberalism had a profound effect on the governance of global telecommunications, including the outright privatisation of an international organisation (the International Telecommunications Satellite Organisation) and its transformation into a corporation (Intelsat). Although the demise of international legalism is a real and consequential phenomenon, Cong’s intervention makes visible the need for a better understanding of which aspects of global capitalism were ever subject to legalist, multilateral governance in the first place, and which material and ideological factors have shaped the legalization of global economic governance.
This disaggregation is important insofar as the shift toward bilateralism and ad hoc, openly transactional co-ordination occupies a central position in Trumpian efforts to construct something resembling a global order. Sarah Sherman-Stokes contribution to the symposium, which focuses on the rise of third country deportations, offers a chilling preview of what such a global order might look like with respect to migration. It is now commonly understood that the United States has reached agreements with so-called third countries by threatening tariffs, visa revocations, and the termination of humanitarian aid, although the details of these deals are often shrouded in secrecy. Boasting about one’s willingness to engage in economic coercion is a new posture that alters the aesthetics of law-making, and so is recourse to informal deals with unclear, under-elaborated terms.
These real ruptures, however, do not negate the fact that international law-making has always been shaped by economic coercion (albeit in forms more subtle than its Trumpian version). Thanks to Western insistence, the law of treaties only penalises the use of kinetic force, and not economic or political pressure. And while the International Court of Justice has acknowledged the theoretical possibility that economic pressure might amount to unlawful intervention, it has so far refused to make concrete determinations to that effect even in instances of extreme economic coercion. When yielding the ‘economic weapon’, then, the Trump administration does not negate the neo/liberal international legal order as much as it pushes it to its limits.
This conclusion might not be as radical as it once had seemed. In recent months, even Mark Carney, the Liberal Canadian PM and former governor of the Bank of England, has denounced the inequities of the “rules-based International order.” More than simply diagnosing or even denouncing the past, the task for progressives is to determine where to go from here. Richard Joyce’s contribution highlights that Carney’s acknowledgement falls short in this regard—seeking merely to make the world safe again for neoliberalism, rather than to imagine a new institutional framework that could move beyond it. Carney’s speech, then, emerges as an artefact of progressive neoliberalism’s exhaustion, its inability to capture popular imagination and to produce a genuine alternative to Trumpism or even to stand up for international law’s most basic rules in relationship to the United States and Israel’s aggression against Iran or the latter’s destruction of Lebanon and Palestine.
Instead, we posit that if aspects of the international legal order deserve to be saved (which is not something to be presumed), then it is popular mobilisation and struggle that are uniquely placed to do so. Organised labour, both in the United States and in other parts of the capitalist core, has maintained a complex relationship with imperialism and militarism. Given this, it has been encouraging to witness the strong reactions within the more progressive wings of the labour movement to the genocide in Gaza. And while domestic labour law is often hostile to mobilisation of workers’ power in support of universalist causes, this inimical legal framework has not fully succeeded in isolating the labour movement from broader progressive causes. In this context, disputes over manifestations of, say, solidarity with Palestine at the workplace are to be understood not only as struggles over labour law or civil rights, but as disputes over the future of an international legal order that will maintain at least a nominal (and at best substantial) commitment to human equality and freedom.
