In 1968, many decades after shepherding the U.N. Charter through Senate ratification, former Secretary of State Dean Acheson suggested a new clause for the Sunday service litany: “and from the U.N. Charter, as distorted by professors of international law, good Lord — deliver us.” But the good Lord prefers to help those who help themselves. And because we somehow conceded virtually the entire field of international law to our opponents, we’re on defense every time anybody mentions it.
As conservatives take stock of the Democrat victory last November, and of the twilight of the Bush era more generally, we should steel ourselves for a counterattack on this now-traditional liberal bastion. By right and reason, international law should be a principal weapon in the conservative arsenal — and liberals, who have done nothing to advance it as a stabilizing force in global security, deserve to have their freely conceded license to it revoked.
When all is said and done, liberals are not such staunch defenders of international law as is commonly supposed. Their entire position rapidly collapses on the key question of enforcement. They are always against. When Saddam invaded Kuwait, where was Jimmy Carter? Against enforcement. When the U.S. demanded that Iraq be held to its disarmament obligations, where were professors of international law? Against enforcement. When Iran brazenly abrogates the U.N. Charter and rejects one Security Council commandment after another — commandments which it is treaty-bound to obey — where are the advocates of international law? Against enforcement. What terrifies them is the prospect that America will enforce Iran’s obligations itself.
But international law is just a series of agreements among sovereigns. When people speak of the United Nations as some sort of independent authority, they are not advocating international law, but rather international government — and that is not the same thing. The U.N. Charter is riddled with drafting errors and wishful thinking. To make it the basis of international law without close scrutiny or criticism of the text itself is sheer folly.
It is absurd to allow a group of people who are always against the enforcement of international law to claim uncontested legitimacy in its interpretation. The fact is that in the ordering of international relations, international law is the most natural ally of conservatives. After all, who insists more loudly and constantly than conservatives that treaties must be respected, that governments must play by the rules of the road, that violators must face consequences? Nobody.
The problem, within the United States, is that law-school faculties are self-selecting orthodoxies of virulently anti-conservative political advocacy. They are not only uniformly against the use of force when conservatives seek to use it, whatever the legal merits of the case. More damning still, their standards are quite different when a Democrat is president. They were scandalously silent on Clinton’s intervention in Kosovo, which plainly violated the U.N. Charter as they themselves understand it and constantly preach it.
Conservatives must expose the liberal monopoly on “international law” for what it is — a way to turn fashion trends in liberal opinion into commandments for the rest of us. But conservatives must go further: They must aim to establish a powerful presence of conservative scholars within the law faculties themselves. There is room for a conservative philosophy of international law — a philosophy based upon respect for democracy, peace, and the obligation of contract.
But there is a problem among conservatives, too, because their thinking on international relations is dominated by “realists” who tend to take a dim view of international law. This is a mistake. A strong balance-of-power foreign policy, which is vital to maintaining peace in those areas of the world where states still challenge the status quo militarily, cannot be constantly struggling against international law and the diplomatic structures it creates.
There is at the heart of the international system a kind of cancer. Current interpretations of the U.N. Charter have created an artificial conflict between international law and national security. To try to live with this tumor, without attacking it head-on, is terrible for American prestige, and for the prestige of the international system. And it gives states like Iran a powerful incentive to embark on the most aggressive and reckless courses of action, while claiming the protection of “international law.”
Just last week, Iran refused to allow access to its nuclear facilities by International Atomic Energy Agency inspectors hailing from countries that had voted in favor of Security Council sanctions against it. The leaders of Iran have absolutely no regard for international law. And yet they continue to enjoy the protections which our own law professors manufacture for them.
America’s foreign-policy conservatives — the only people who can reliably be counted upon to insist on the enforcement of international law — should make every effort to sink their philosophical teeth back into this discipline. Nobody has more to gain from a stable, rational, and strong system of international law than those people who stand for a well-ordered world of sovereign states willing to play by common rules of the road. And who are those people? America’s conservatives.
– Mario Loyola is a fellow at the Foundation for the Defense of Democracies.