Pacta Sunt Servanda, Treaties, and the U.S. Election

I had the opportunity to be a part of an interesting roundtable this past week on comparing the foreign policy perspectives of Hillary Clinton and Donald Trump, who are now the presumptive nominees of their respective parties. Comments of my fellow panelists--Alex Ward of the Atlantic Council, Rachel Rizzo of the Center for a New American Security, Chris Jackson of IPSOS and Ali Wyne of the Project for the Study of the 21st Century--got me to thinking about how the experiences, and indeed ethical frameworks, between Hillary Clinton (particularly her background as a former Secretary of State) and Donald Trump (coming from the rough-and-tumble world of real estate development) might manifest in a future Presidential administration. In particular, how each would approach what is one of the bedrock ethical principles of how the United States conducts foreign policy: pacta sunt servanda, or the absolute ethical requirement that treaties, agreements and commitments must be upheld.

So much of the current U.S. global position depends on trust: that the United States is a trustworthy borrower to whom investors can loan large amounts of money, secure in the knowledge that America pays its debts on time and in full. This trust is critical to the ability of the U.S. Treasury to place its bonds and T-bills but also for investors to trust that they are "as good as gold" and a safe place to store value. The preservation of a growingly interconnected world defined by open societies and open linkages rests, in part, on U.S. security guarantees that have allowed other countries to decrease military spending and tap down regional arms races. Finally, there are the security guarantees to other countries that come about from alliance commitments--that the United States is prepared to treat an attack on Japan, or Korea, or Estonia, or Bulgaria, as an attack on the United States itself.

Pacta sunt servanda rests on the belief that commitments are honored even at a cost to the honoree. It is very true that the U.S. has found ways in the past to find legal and ethical loopholes to get itself out of honoring commitments that would have been problematic. Avoiding the "genocide" trigger in Rwanda in 1994 or defining the Budapest agreement that facilitated the removal of nuclear weapons from Ukraine in return for security guarantees as a non-binding statement of intent after the Russian seizure of Crimea in 2014 are examples--and it is also very true that, in keeping with the prudential principles espoused by Hans Morgenthau--no commitment should be honored at the expense of destroying the state. To paraphrase, no treaty is a suicide pact.

Yet Trump has at various points articulated a view that his approach to treaties will be utilitarian based on whether the agreement benefits the United States and that this assessment will be unilateral. In the past few months, he has appeared to call into question the value of the NATO alliance and the security treaties with Japan and Korea--that these treaties impose costs on the U.S. with apparently little benefit.

No treaty lasts forever, and alliances can expire and commitments be renegotiated. But, in Europe, we've seen a growing loss of faith that bedrock treaties will be reinforced if they bring costs. Already, polling data suggests that Western Europeans are less keen on invoking the mutual defense provisions of the NATO agreement if East Europeans get into a spat with Russia. Now the U.S. commitment is also being questioned, by the nominee of a major political party.

This highlights the fact that alongside the principle of pacta sunt servanda, there is another, countervailing maxim: clausula rebus sic stantibus. This principle says that agreements endure until circumstances change (the Latin literally means that things that have been left standing). If the circumstances under which the original agreement has been reached have changed, or the obligations contained within the agreement are no longer operative, then it is permissible to stop abiding by the treaty. Does Trump believe that changed economic and security conditions in Europe and East Asia warrant invoking clausula rebus sic stantibus? And therefore, is it time for the United States to review its role in the international system?