THE IMPORTANCE OF THE LEGISLATURE: INTERNATIONAL LAW, FOREIGN POLICY, AND ARTICLE ONE POWERS.

• Author: Lee, Mike
• Position: International Law and U.S. Foreign Policy

Inviting me to speak at a symposium on international law is kind of like inviting an atheist to preach at your church--and that might be understating the matter. I have not been a big fan of the concept of international law, in part because the term is so widely misused. Specifically, I think the term "international law" fails to capture how law actually works. More on that later.

To be clear, I do not purport to be an expert on international law. But I do know a thing or two about the Constitution and our Founding Fathers' vision of government. And I know something about United Nations (UN) conventions and the difference between public and customary international law. These things are best understood against the backdrop of the U.S. Constitution. As with so many other things, the Framers--and what they wrote in the Constitution--offer us some wisdom and insights in this area, too.

There is a common thread that runs through our Constitution, in what our systems of government and law should look like when they are properly functioning--that is, in how our government is structured to keep its power close to and accountable to the people. That is the context in which I would like to speak to you today.

So let's talk about international law--what it means and what it does not mean. First, we must define our terms. What are laws to begin with? I think they are best understood as norms. A norm becomes a law when it is backed up by a government actor with the physical wherewithal to enforce it and the legitimacy of a sovereign government. (1) This is one way we distinguish cartels--or, for that matter, self-proclaimed "sovereign citizens"--from states.

In the international realm, this principle--that laws are backed up by the legitimate use of collective, coercive force--is why people like me tend to get worried when we start talking about international law. (2) Because this framework begs all sorts of questions-chiefly, who can legitimately enforce an international law? There is no worldwide government, thankfully and mercifully. And the UN--the only body that would want to lay claim to that--is a nonstarter. China and Russia sit on the "Security Council," and Pakistan sits on the "Human Rights Council." (3)

Nevertheless, the term "international law" can be useful in some areas. In the realm of trade, there are countless instances where we have agreed to enforce certain laws according to a set of international standards. For example, as a member state of the World Trade Organization (WTO), we have signed on to the General Agreement on Tariffs and Trade, in which we have committed to eliminating or reducing tariffs and quotas on certain goods in exchange for similar commitments from other countries. (4) So too with bilateral investment treaties--we get protection in a certain country for our investors in exchange for offering protection to investors from that country. (5)

The North Atlantic Treaty Organization (NATO) is another good example. As part of that treaty, we have committed to a common defense strategy with member nations by providing funds, technology, and troops. (6) And Congress maintains a firm hand in the governance of our obligations under NATO, including congressional oversight of burden-sharing requirements, (7) congressional authority to declare war in the event that the Article 5 mutual defense requirement is invoked, (8) and the requirement of Senate ratification to add a new member state. (9) Most importantly, the NATO treaty preserves each member nation's sovereignty and relies on the domestic laws of each member nation to implement the treaty's common defense commitments. (10)

In this respect, our commitment to international law--as manifested in agreements like NATO--is reminiscent of something that we learned back in the 1740s. While attending a conference in Albany, Benjamin Franklin and an Iroquois Indian chief of the Onondaga Tribe named Canasatego discussed how the Iroquois Confederacy had become so successful by maintaining its strength while allowing each member nation to retain its distinctiveness within the Confederacy. (11) He explained it by comparing the Confederacy to a bundle of arrows. (12) It is very easy for someone to break one arrow, but when you bind them together, the bundle is very difficult for any one person to break.

Now, we do not want our NATO obligations to resemble a country. We want each individual nation that is a member to retain its own sovereignty. While not a unified nation, we join together for certain broader purposes. (13) And the U.S. can do that appropriately under our Constitution, so long as those treaty obligations are backed up--that is, made legitimate--by something within our domestic legal system.

In many instances, however, we use the term "international law" to refer to a host of things that really are not--or should not be considered to be--"law."

Take "international agreements." The Paris Climate Agreement is a great example. It was signed with great fanfare by many nations, including such "environmental luminaries" as China and Iran, and signed by President Obama--ostensibly on behalf of the United States. (14)

But here is the secret about the Paris Agreement: it does not mean anything. At least not insofar as our laws are concerned. It has some language about being a "legally binding international treaty on climate change," but as far as we are concerned, it does not have the force of law. (15) Even before President Trump got us out of it, it was not really law. It would be an insult to law to call it that. If a party--say, China--signed the Agreement and carried on emitting CO2 as if nothing ever happened, there would be no consequences whatsoever. (16) Which is exactly what China has done, by the way. (17)

Here is another one: the UN Convention on the Law of the Sea. This is the kind of international law that I loathe. It creates an International Seabed Authority--headquartered in Kingston, Jamaica-that purports to mandate that royalties, primarily from oil and gas extraction, be paid to the authority and "equitably distributed" among member states but with special priority given to developing and landlocked nations. (18) If you are thinking this sounds a lot like a tax, you would be correct. If you are thinking this sounds like a socialistic model for forcing redistribution of wealth from one group of countries to another, you would also be correct. And if you are guessing that this will increase consumer prices, inuring specifically to the detriment of poor and middle-class people in the U.S. and elsewhere, you would be correct in that too.

Participation in the UN Convention on the Law of the Sea would also require the U.S. to request permission from the International Seabed Authority before engaging in deep-seabed mining activities in our own continental seabed. (19)

While you ponder that strange protocol, recall that China is a member of the Convention--and regularly ignores it. (20) Back in 2016, the "International Court of Justice" (a misnomer as far as titles go, by the way) ruled against China's seabed claims in the South China Sea. (21) China did not even show up to the trial and continued on as if nothing had ever happened. (22)

Moreover, ratification of the UN Convention on the Law of the Sea would require a massive delegation of U.S. sovereignty and the imposition of a new tax on the American people. (23) And because I took an oath to uphold and defend the Constitution from all enemies, and I was (and still am) convinced that committing the United States to the UN Convention on the Law of the Sea would be a violation of my oath, I opposed it. It is that bad. Mercifully, the Convention's proponents have not brought it back up again recently for Senate ratification. (24)

One final aside on these types of international agreements. The primary argument I hear for why the United States should join these kinds of conventions is to get a "seat at the table." (25) I think this argument is completely indefensible. What actually occurs is that U.S. sovereignty deteriorates for no legitimate gain.

And here is possibly the worst offender of all: "customary international law." First, we should contrast "customary international law" with a similar concept: "public international...