Calling on Congress to Preserve the International Legal Order
Recent announcements and actions by the Executive Branch threaten to destroy the international institutions and principles that our nation has built and relied on over the past 80 years. We view these actions with grave concern and urge Congress to support (and, where necessary, help reform) the treaties, alliances and institutions adopted by our country under domestic and international law, all of which have served – and continue to serve – our national interest. In particular, we note the following fundamental principles that have guided our nation’s commitments successfully since 1945 under both Republican and Democratic leadership:
Prohibiting the Unlawful Threat or Use of Force: International law prohibits the aggressive use of force for the non-consensual acquisition of territory. This principle is a cornerstone of modern international law and the foundation of the post-World War II international legal order. The UN Charter, among other treaties, codified the requirement that all states “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Suggesting or threatening that the United States may non-consensually acquire foreign territory, or forcibly displace populations (whether in Greenland, Panama or Gaza) is inconsistent with this foundational principle. Failing to condemn Russia’s invasion of and forcible acquisition of territory in Ukraine in violation of Ukraine’s political and territorial independence also undermines this principle.
Committing to International Organizations: In addition to the United Nations itself (which, despite its flaws, has helped to sustain a world in which our nation has flourished), the United States has created, led and benefited immeasurably through the North Atlantic Treaty Organization (NATO) alliance (the most successful defense pact in history), the Organization of American States (OAS), the Organization for Economic Cooperation and Development (OECD), the G-20, the World Health Organization (WHO), the General Agreement on Tariffs and Trade (GATT), the World Trade Organization (WTO), the United States-Mexico-Canada Agreement (USMCA) and numerous other international bodies that enable states to cooperate to prevent transmittable disease, address threats to the oceans and atmosphere, provide for refugees fleeing oppression and war zones, confront corruption, and facilitate global commerce. Each of these institutions advances American interests and provides immeasurable benefits to the United States. If, however, the United States believes changes are necessary, these institutions also have procedures for amending or reforming their substantive requirements.
Supporting International Judicial Institutions: Among the chief lessons of the past century is that independent, professionally staffed, international tribunals can play a major role in resolving conflicts before they lead to military or economic warfare. The United States played key roles in developing and supporting the Permanent Court of Arbitration, the International Court of Justice, the UN tribunals for the former Yugoslavia and Rwanda, and the WTO Dispute Settlement Understanding, as well as other tribunals that we helped create but have not formally joined, such as the International Tribunal for the Law of the Sea, the Inter-American Court of Human Rights, and the International Criminal Court. Sanctioning those bodies (or their personnel) because we disagree with a particular decision undermines our nation’s long-term interest in a lawful international order. In some cases, such measures may also conflict with U.S. domestic law or with binding commitments the United States made in joining those bodies.
Fostering International Development and the Rule of Law: U.S. foreign aid and assistance programs have long served as among the most effective elements of our nation’s “soft power” and have therefore enjoyed widespread support across the political spectrum. This is particularly true of programs administered by the U.S. Agency for International Development (USAID). USAID is a congressionally established agency that distributes congressionally appropriated funds to help address and prevent disease, famine, drought and related conditions causing instability and driving migration across the globe. As Ronald Reagan noted in signing his first USAID authorization, “The ultimate importance to the United States of our security and development assistance programs cannot be exaggerated.” Importantly, among USAID’s successful programs are those that promote stability through the rule of law. The Administration’s ongoing effort to dismantle these programs and USAID itself appears to violate those congressional mandates and to undermine, to our nation’s detriment, the programs’ purpose.
Maintaining a Level Playing Field for U.S. Business: The United States has long been committed to a level playing field for international commerce, and domestic law gives the President ample authority to act to assure that other nations do not manipulate trade and investment arrangements in ways that disadvantage U.S. businesses or consumers. The GATT/WTO agreements, together with other regional and bilateral trade and investment treaties, such as the USMCA negotiated by the first Trump Administration, foster international commerce and investment while providing institutional processes for protection against discriminatory or problematic trade and investment practices in other states. Unilateral tariff threats and claims made outside these legal frameworks threaten to undermine the broad practices and agreements that have served to expand both our nation’s and the world’s economy.
In each of these areas, compliance with law, whether domestic or international, is consistent with our nation’s interests. Virtually all the treaties, agreements and institutions referred to above contain provisions for amending or reforming their procedures and their substantive obligations, or even for withdrawing from them, if necessary. If the Administration believes that such changes are needed, it must follow the applicable procedures to implement those changes, whether in the form of congressional amendments or through the processes included in the relevant international commitment. The President’s constitutional obligation to faithfully execute the nation’s laws – and the corresponding duties of cabinet members to faithfully discharge the duties of their offices – leaves ample room to shape our nation’s policies within those laws, but not to ignore or violate them. Congress is a co-equal branch, with significant constitutional powers to shape and implement U.S. foreign policy and engagement with international law.
For nearly 80 years, the United States has enjoyed the benefits of security and prosperity because of an international order that our country built and led. This system of law and institutions was created – in the language of the 1945 United Nations Charter – “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The system is far from perfect. It has often fallen short of its aspirations and has faced significant challenges and setbacks – including challenges that some may believe require attention and reform. Yet, working in tandem with the rule of law at home, as reflected in our Constitution and statutory law, the international order that the United States helped create has provided a global environment characterized by settled legal and business expectations, peaceful dispute resolution, avoidance of major power armed conflict, progress in confronting global health and environmental threats and protecting individual liberty, and ever greater levels of prosperity. No country has benefited more from this international system than the United States. The expansive oceans that may once have protected our nation from a turbulent world no longer serve that purpose. Modern methods of armed conflict care little for distance or seas, and other potential national security concerns from cyber sources, economic collapse, disease, environmental degradation, migration or other sources are not confined by borders. Rather it is the coordinated network of alliances, institutions and laws described above that have provided real security and opportunity for our nation in today’s complex world.
We call upon Congress to assert its authority to respect and build upon those legal principles and institutions that serve both our nation and the peaceful and prosperous world that people everywhere seek.
About the Association
The mission of the New York City Bar Association, which was founded in 1870 and has 23,000 members, is to equip and mobilize a diverse legal profession to practice with excellence, promote reform of the law, and uphold the rule of law and access to justice in support of a fair society and the public interest in our community, our nation, and throughout the world. www.nycbar.org