In February, President Trump issued a Presidential Order that disassociates the United States from the UN Human Rights Council. Less recognized were additional provisions in the order that mandated a review of “all treaties and agreements that the United States is involved in” to assess if they were “inconsistent with the interests of the United States.”
The review initiated by this order may align with Trump’s commitments. In his inaugural address, he stated, “Our sovereignty will be restored.” It is hoped that those conducting this review for Secretary of State Marco Rubio understand that honoring American commitments to international law will facilitate progress, rather than impede national interests. They should recognize that Trump’s firm belief that international law infringes on American sovereignty stems from fundamental misunderstandings regarding the nature of international law.
International law operates distinctly from the domestic legal frameworks we are accustomed to in daily life. For instance, there is no global legislature capable of creating laws that govern the conduct of nations. The essence of sovereignty — the notion that states have the liberty to pass laws and implement policies they choose within their territories — is not contradictory to international law but is fundamental to it.
Of course, nations have the option to undertake obligations under international law, including limitations on their freedom of action. However, it’s crucial to understand that this is a sovereign choice countries make. They enact this choice by entering treaties and essentially entering into agreements as states or by acting upon their judgment that certain actions are legally obligatory. In summary, international law is founded on consensus, and states are bound by rules they have willingly accepted in most cases.
Why do nations consent to legal frameworks that limit their autonomy? They do so to promote their interests, which necessitates collaboration.
For example, if a nation were prohibited from launching assaults by invading neighboring states, the global community would benefit, yet no global legislature exists to enforce such a prohibition. Likewise, there is no potential for detaining individuals based on where national diplomats are located, nor is there an international parliament able to implement regulations that ensure the protection of investments in foreign territory.
In the absence of a worldwide governing body, states consent to their actions (such as relinquishing the ability to invade neighbors, detaining foreigners, or granting them the ability to seize foreign assets without compensation) to secure benefits for themselves and the global structure. International law serves as a means to ensure that regulations enhance international coordination and collaboration, ultimately strengthening worldwide security and prosperity.
Deciding to accept an obligation under international law is a choice that every country makes, based on whether the commitment will benefit its self-interest.
For instance, when the United States opted to join the Chemical Weapons Treaty, it assessed that instituting a near-global ban on chemical weapons would provide strategic advantages that outweighed the right to possess or employ such armaments. Conversely, the U.S. has not deemed that the rewards of prohibiting the ownership or utilization of nuclear weapons surpass the interest of retaining those weapons, hence its decision regarding the Treaty on the Prohibition of Nuclear Weapons.
The idea of accepting specific constraints on one’s freedom of action in return for the benefits of agreements is a concept familiar in our daily experiences. For example, entering an employment contract requires one to relinquish a degree of freedom. Attending work and fulfilling my responsibilities means I can no longer freely allocate my time to activities of my choice. Nevertheless, most individuals enter into employment contracts to gain a salary and other advantages from the employment relationship. This represents an infringement of freedom parallel to that of state sovereignty. Rather, such a legal duty is viewed as a means by which we can exercise our freedom.
Similarly, given the consensual nature of international law, a state’s decision to engage in a treaty does not restrict sovereignty, even if it imposes certain limitations on its freedom of action. Instead, it represents an exercise of that sovereignty, enabling the state to reap the benefits of international collaboration, including enhanced security and prosperity. International law thus acts as a tool for advancing U.S. national interests.
Allen S. Weiner is a senior lecturer in law at Stanford Law School. He served as a career international counsel at the State Department from 1990 to 2001.
