What are the implications that international geopolitical events have for law firms in the mid-2020s?
Guest contributor Gerald J. Kirkpatrick examines post-World-War-II diplomacy by the great powers and what its disruption or continuity might mean for the world in 2025 and beyond.
This is part of an ongoing series of informed commentaries on world events and the risks and opportunities they might present to law firms everywhere and their clients.
An existential need for thoughtful restraint
When you think about war and peace on a global scale, it leads to the major powers and the competition between them that is inevitable. When you put a couple of 500-pound gorillas into a ring, some circling and beating of chests is to be expected. We’re seeing a bit of this in Ukraine at the moment. But, metaphors aside, the way they act with each other is overarching and something we have to get right, because if the competition between them is not managed properly, it could well lead to nuclear war and the destruction of all mankind.
So, how should we manage this competition in our present age, and the threats that it poses? My answer to this vexing question is “thoughtful restraint.” That is what is required to keep us out of a nuclear war. Any direct confrontation between the major powers, even a skirmish, can be catastrophic, because of the ease with which it could escalate to nuclear war, either through design or miscalculation.
So, will the major powers exercise this thoughtful restraint? That is the open question and a very important one because at the strategic level, i.e., the global level, the major powers run the world. It is an exclusive club, and they are in charge, and what they do, particularly with regard to each other, affects everyone on this planet. These are the countries which control the news cycle, control the UN Security Council, spend the most money on defense and have the largest and most potent militaries, and whose conduct and rhetoric can most affect the financial markets.
The three and a half major powers
In dealing with this subject in my own mind, I like to think in terms of there being in the world today three and a half major geopolitical powers. They are: the United States, China, and Russia. Iran is a “half-major” power as an aspiring nuclear power and a dominant force in the Middle East that is responsible for most of the turmoil in that region. In some respects, Iran acts like a major power and has the influence of a major power, but its sphere of influence and its capabilities are limited, and it does not have global reach and is not likely to attain global reach in the foreseeable future.
So, today our focus is on the three great global powers and the competition that we are seeing among them, which is only going to intensify in the coming years. The challenge for all of humankind will be to maintain a degree of world order that is at least equal to that which has existed since 1945. This might not seem like a lofty goal, but in the context of modern world history, it really is. I will soon explain why this is so.
This commentary has three main parts. The first is an overview of great power competition in the modern era. The second part deals with the war in Ukraine, and the third part concerns the now-strategic competition between the United States and China. Some are calling this a new Cold War.
You might ask, “What about the Middle East?” The war in the Middle East is, of course, a major concern. However, in spite of daily violence and human tragedy, the conflict has been contained to the region and has not threatened engagement of the major powers against each other. Does this mean that the conflict is unimportant? Of course not, but in this imperfect world, and with the stakes being what they are, the primary focus in international security is, by necessity, averting direct conflict between the U.S., China, and Russia that could escalate to nuclear war.
This is why the United States will not engage Russia in Ukraine directly and will not enable Ukraine to “poke the Russian Bear” in a decisive way. I say in a decisive way, because, despite blaring headlines in the mass media, what Biden authorized in late November 2024 was not a significant detriment to Russia and will not change the course of the war. Nor will the U.S. enable Taiwan to develop offensive capabilities against China. Why? Because the stakes are too high. This is exercising thoughtful restraint.
The emergence of the post-war world order after 1945
So, how did we get to where we are now with the major powers and the competition that exists between them? To find the answer, we need to go back in time to 1945.
At the end of World War II, the Allies emerged victorious, and the United States, the United Kingdom, and the Soviet Union established a world order system based primarily on the newly created United Nations, the World Bank, and the International Monetary Fund. Later, in 1949, the international community enacted four Geneva Conventions, which govern aspects of the conduct of war and provide humanitarian protections both for combatants and non-combatants who are caught up in the conflict.
This world order system is embodied in Articles 2 and 51 of the UN Charter. It prohibits actions against the territorial integrity or political independence of another state, and it recognizes an inherent right of self-defense, including collective self-defense.
Nowhere in this system of world order, which was created out of the ashes of World War II and constitutes today’s international law, is there recognized the right of a nation to wage war as an instrument of its foreign policy or to acquire territory through acts of war. These were the things that motivated the Nazis and the Japanese Imperial War Lords, and the victorious allies were intent on seeing that these things never happened again. This was the ideal, but the world has not lived up to it.
As both Franklin Roosevelt and Winston Churchill expected, the Soviet Union, under Joseph Stalin, soon went its own way, pursuing an ideological struggle against the West and the United States in particular. China, which was a large and underdeveloped country at the time, resumed its civil war with a vengeance, which resulted in a communist victory and establishment of the Peoples Republic of China in 1949. Chiang Kai-shek and his defeated Nationalists escaped to Taiwan, the island then known as Formosa, a province of China that had been occupied by Japan and returned to China at the end of World War II.
Then came the Cold War, a long period of struggle between the “Free World” on one side and, on the other side, the communist bloc of Eastern European nations behind an “Iron Curtain,” headed by and under the strong dominion of the Soviet Union.
During this period, which lasted until the Berlin Wall came down in 1989 and the Soviet Union was disbanded in 1991, there were two major powers in the world: the United States and the Soviet Union, each supported by middle powers, such as the United Kingdom and the other members of NATO on the American side and the members of the Warsaw Pact on the Soviet side. China was strongly communist, but it never adopted the Soviet model, nor did it ever cozy up to the Kremlin. Throughout the Cold War, there remained what was referred to as an “ideological split” between the two countries.
What amazed the foreign-policy establishment, and what broke from most periods of modern history, is that all during the Cold War, with proxy wars in Korea and Vietnam, and a nuclear standoff over Soviet missiles in Cuba, there was never direct armed conflict between the major powers. This is unprecedented in modern history and presents today’s challenge to keep it that way.
Russia and the United States: complicated collaboration and conflict
Now, the Soviet Union is gone, replaced by the Russian Federation, and we find ourselves in circumstances much changed since the Cold War. In terms of great power competition, both Russia and China are challenging the hegemony, or dominance, that the United States has exercised since World War II, particularly as the sole superpower since the end of the Cold War.
The relationship between the United States and Russia is complicated, to say the least. Because of Russia’s war in Ukraine, trade between Russia and the U.S. has reportedly fallen 86% (largely because of sanctions) and is now at its lowest level since the end of the Cold War.
Yet, the U.S. and Russia have an interconnected relationship, and, in many ways, a cooperative one, so that even with the war in Ukraine, Russia and the United States maintain one of the most important strategic relationships in the world. Both nations have shared global interests, for example in nuclear safety and security, nonproliferation, international air travel and communications, counter-terrorism, suppression of narcotics and human trafficking, and space exploration, including jointly manning the International Space Station, which both nations have committed to do to the end of the present decade and possibly beyond.
These relationships, and others (which involve several hundred active and in-force bilateral and multilateral agreements) are ongoing and explain the limited objectives in providing weapons to Ukraine and restrictions on their use, even with developments in the past several days and the media’s alarmist reaction.
Peeking behind the curtain, we will see a U.S. policy of thoughtful restraint that keeps enough pressure on Russia so that Ukraine doesn’t get overrun, while seeking a negotiated settlement that preserves Ukraine as an independent country, with most but not all of its territory intact, and which allows Russia to save face. In fact, the odds of such a resolution happening sooner than later have likely increased with the election of Donald Trump and his transactional approach to foreign relations, and in further fact, and in reality, this might be the best outcome Ukraine can hope for and is likely to get, given the overall trajectory of the war.
Would such a settlement reward Russia for its aggression? Yes, it would, but Russia is a major power, a member of an elite club, and the other members of this elite club can be counted on to pay it due deference. So, no doubt such a settlement to end the war in Ukraine will leave international law purists disappointed, and probably more than a little frustrated.
In fact, despite all the noise in the media about “long-range” missiles (which they are not) the storm clouds in Ukraine look like they might be thinning a bit. It could be an illusion, but likely not. In the past weeks, we have seen strong evidence of posturing on both sides, which historically speaking, is a prelude to a negotiated settlement. Here is what is going on in Ukraine.
In the summer of 2024, Ukraine made a small incursion into Russian territory and is stretched thin in an effort to hold it. Russia has brought in a limited number of troops from North Korea to augment its forces in holding territory it gained in Ukraine and to expel Ukrainian forces from its territory. This tipped the scale in favor of Russia, so President Biden allowed the Ukrainians limited use of some U.S. non-strategic missiles to defend its troops holding their newly gained territory. He also authorized limited use of land mines to blunt Russian advances in eastern Ukraine.
This is a classic case of posturing for a settlement that involves trading territory. With the election of Donald Trump, it is likely that both sides see this happening sooner than later, so they need to maximize their negotiating power by seizing and holding as much of each other’s territory as they can. Indeed, pressure is starting to build in Europe to push for an end of the conflict, so both sides likely see urgency in pursuing their respective land grabs.
In November 2024, German Chancellor Olav Scholz initiated an hour-long telephone call with Putin to discuss the war. This was the first time a major European leader reached out to Putin since Russia invaded Ukraine. Zelenskyy and Biden fumed in public, but Germany has the largest economy in Europe, relies on Russia for energy, and also is the biggest European contributor to Ukraine since the war began.
Trump’s election has changed the political calculus all over the world, and Europe is no exception. Scholz, no doubt, saw some handwriting on the wall. So does Biden, and he’s furious about it. The cost of this war to Germany has been high, and, apparently, Scholz didn’t see any benefit to his country in keeping the war going any longer.
According to a recent essay in the New York Times, published on 18 November 2024, the U.S., under Biden, supported Ukraine only to achieve limited objectives. America was never in it to win it (says the author), only to try to save Ukraine from being completely overrun (which happened) and to weaken Putin (which didn’t happen).
The essayist makes the point that it will be the major powers that decide when this war will end. Ukraine will have little to say about it. Biden might posture Ukraine as best he can for the settlement negotiations, but it will be up to Trump to end the war. Trump will talk tough, so as not to appear to appease Putin, but, in the end, Putin will get most of he wants, and, for now, nuclear war will be averted. The title of the essay is, “Trump Can Speed Up the Inevitable in Ukraine.”
The rise of China to global power
Today, the most significant contest among the major powers is the geopolitical rivalry between the United States and China, which is global. In this geopolitical tug of war, China’s aim is twofold: first, to be the dominant power in East Asia (a role it played throughout much of its history); and secondly, to wield major-power influence in world affairs equal to that of the United States, in other words, to knock the United States off of its hegemonic throne, or at least to knock it to the side.
Globally, China’s ambition is to compete with the U.S. economically (especially in the area of technology), matching its model of state-sponsored capitalism against the free-market approach practiced in the West, and practiced most vigorously by the United States. This bias against U.S.-style capitalism has strengthened since the Global Financial Crisis of 2008, which was precipitated in the United States and which exposed the inherent weaknesses in free-market capitalism for the world to see.
On the political front, while China’s leaders have stated repeatedly that the country’s centralized approach to governance is suitable for China but not necessarily for export, this has not assuaged anxieties in the U.S. because of the fear that Chinese economic and political overtures can be attractive to countries in the Global South, which refers to underdeveloped areas previously known as the “Third World.”
In fact, this seems to be happening. China’s influence among the 195
recognized nations of the world is increasing, while the influence of the United States is in decline. Evidence of this is seen in voting patterns in the UN General Assembly and in changes in the alignment of nations in regional trading blocs, as well as countries in Asia, Africa, and Latin America partnering with China to develop infrastructure projects, more than 50 such projects in the past year.
Abraham Lincoln is reported to have said that there are two ways to win a foot race: (1) run faster and (2) trip your opponent. Since 2016, and increasingly, the policy approach of the United States toward China has been the latter. The tools being used are tariffs, restrictions on Chinese imports, restrictions on U.S. and allied nations’ exports to China, restrictions on Chinese immigration, increased militarization of East Asia, particularly in the South China Sea and the Taiwan Strait, and actions to subvert China’s Belt and Road Initiative.
So, how to manage this competition so that our two countries don’t blunder into war? The first requirement is to have reasonable expectations, to recognize what is achievable in the relationship and what likely is not.
Contrary to the assumptions of U.S. pundits and politicians, China is steadfast in showing that it cannot be forced or coerced to change its political system. Henry Kissinger said this a long time ago, and it is proving to be true. China’s political system is largely cultural and is based on a combination of Taoism, Buddhism and Confucianism, with an overlay of modern socialism, and with the cultural basis going back more than five thousand years.
China is also highly committed to an economic system that is a hybrid of central management, along with a private sector that is subservient to the state. These are core elements of what President Xi calls, “The rejuvenation of the Chinese Nation,” which enjoys universal support among the people.
Unlike the old Soviet Union, Chinese citizens are not oppressed and sequestered behind an “iron curtain.” In fact, work by the Pew Research Center shows a high level of satisfaction of the Chinese people, both with their government and the direction of their country (86% in 2023), much higher than in the United States, and that is after a long period of Covid shutdown. Their personal freedoms are curtailed, but, following Confucius, they are valued less than order and security.
This is a manifestation of the vast cultural divergence between China and the United States, which plays a big role in the contention that lies between our two countries. You can’t manage a relationship if you don’t understand the party you’re dealing with, and American politicians and policy makers have been slow in understanding what makes modern China tick. This is not the case on the Chinese side, where most of the country’s top leaders were either educated in the West or worked in the West, many in the United States.
Today, China is a highly industrialized and technologically advanced nation. We can wish China back to its agrarian age, but wishing won’t make it so. In fact, trying as hard as we might, there is likely nothing the United States can do to march China back to an earlier version of itself. It might be able to slow China’s growth for a time, but it cannot stop it. The size of the country’s population, the size and growing sophistication of its military, the size of its manufacturing base (the largest in the world), the scale of its market for global goods and services (the largest in the world) and the genie of technology (which is out of the bottle and not going back) make China a powerhouse on the world stage.
There is a lot at stake in our relationship, and a miscalculation on either side could lead to an armed confrontation that could escalate to nuclear war.
China has made it abundantly clear that reunification with Taiwan is a core national interest and that China will, if necessary, go to war to achieve it. China has not wavered from this position. The question for the U.S. is whether preventing Taiwan’s involuntary reunification is enough of a vital national interest to go to war against China. I don’t have the answer, and whatever our government’s answer is today could change tomorrow, or next week or in January when a new administration will come to power.
Susan Thornton, a seasoned former diplomat and advisor to President Trump during his first term, and currently a Fellow at Yale, wrote in November 2024 that Taiwan is the only issue that can lead to direct war between the U.S. and China. So, the question remains, “Will the U.S. start a war with China over Taiwan?” Actually, I believe, the question is a much larger one, “Will the United States allow China to overtake it economically and militarily, or will it start a war with China on some trumped-up grievance to try to prevent it?” This is not a far-fetched notion.
Some U.S. politicians, pundits, and contributors to political media who are fearful of China’s growth and influence say war is inevitable and we need to fight China now, while we still have the best chance of winning. I suspect there will be some in Trump’s orbit and in the new Congress who will express this sentiment, but, hopefully, there will be others who will push back, advocating thoughtful restraint.
Since 2016, American politicians on both sides of the aisle and in the White House and in the media have been rattling sabers at China. Anti-China sentiment in the U.S. is the highest since enactment of the Chinese Exclusion Act of 1882. China has generally shown thoughtful restraint but has engaged in some retaliatory “wolf diplomacy” of its own. As China continues to out-produce America in building up its armed forces and the U.S. steps up its military pivot to Asia, both sides are playing with fire.
We live in a perilous time because of what Harvard Professor Graham Allison, in his book, Destined for War, points to as the “Thucydides’ Trap,” where a rising power threatens to replace a ruling power.
The professor issues an ominous warning when he writes, “As a rapidly ascending China challenges America’s accustomed dominance, and each side calls the other an ‘existential threat,’ the United States and China are currently on a collision course for war, unless both parties take difficult and painful actions to avert it.” Is this too dark a view? According to Allison, history suggests that it is not, but there is room for doubt. The history in Allison’s book doesn’t factor in the prospect of a nuclear Armageddon as a deterrent.
Looking to the second Trump Administration
While Donald Trump is known for making outrageous and provocative statements, he is also known for being transactional in his dealings with others. His statements are often pure bluster, and unlike Biden, he is, in most things, not ideological. He said that he could end the war in Ukraine in one day -- hyperbole, of course, but it shows his penchant for practical deal-making. With China, he threatens 100% tariffs, then says, “Well maybe 60%.” He often says, “We’ll see” or “We’ll see what happens,” and he calls President Xi his friend, an indication that he feels he can do deals with him.
Again, it is speculation, but based on his history, it is likely that Trump will emphasize money, business, and trade in his foreign dealings, and, unlike Biden, show little or no concern about most ideological things like human rights in foreign countries, burning coal, or maybe even the autocratic governing style of Putin and Xi, which doesn’t seem to bother him too much. This could actually improve relations and tamp down tensions. As Trump says, “We’ll see.” One thing is for sure. With Trump again coming to power, the world is on edge.
The only thing certain in the coming month is a lot of uncertainty.
Gerald J. Kirkpatrick, J.D., LL.M.
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This article is based on a presentation to the Retired Faculty of the University of Florida on 20 November 2024. The opinons and conclusions are those of the author and are not necessarily those of Walker Clark LLC or any of its members.
