Trump’s ‘America first’ reveals a massive misunderstanding of international law 

In February, President Trump issued an executive order pulling the United States out of the U.N. Human Rights Council. Less widely noted were other provisions in the order mandating a review of “all conventions and treaties to which the United States is a party” in order to determine which “are contrary to the interests of the United States.”  

Some might see the review launched by the order as consistent with Trump’s promise, during his inaugural address, that “our sovereignty will be reclaimed." Hopefully, those carrying out this review for Secretary of State Marco Rubio understand that upholding America’s international law commitments serves to advance, not hinder, our national interests. They should recognize that Trump’s apparent belief that international law constitutes an infringement on American sovereignty reflects a basic misperception of how international law works.   

International law operates very differently from the domestic legal systems we know from our day-to-day experience. For one, there is no global legislature empowered to enact laws that regulate the behavior of countries. The essence of sovereignty — the idea that countries have freedom to enact such laws and policies within their territories as they wish — is not incompatible with international law but is rather a central feature of it.  

Countries can, of course, decide to assume obligations under international law, including limitations on their freedom of action. The key point, though, is that this is a matter of each country’s sovereign choice. They exercise this choice by entering into treaties, essentially contracts between countries, or acting in a manner that reflects their own judgment that certain actions are legally required. In short, international law is consent-based, and countries are for the most part bound only by those rules that they have accepted.   

Why would a country agree to accept a legal rule that restricts its freedom to act? They do so to advance their interests, which requires cooperation.  

Even though the world would be better off if, for instance, countries were not allowed to engage in aggression by invading their neighbors, there is no world legislature empowered to enact a ban on aggression. Nor is there a global legislature, similarly, that can enact rules that would ensure countries’ diplomats are not at risk of being arrested where they are posted, or the protection of investments of a countries’ companies doing business abroad.  

In the absence of a global government, states agree on reciprocal limits on their actions (such as forgoing the freedom to invade their neighbors, to arrest foreign diplomats, or to expropriate foreign-owned property without just compensation) in order to achieve benefits for themselves and for the global order. International law is simply an instrument that allows countries to agree on rules that will enhance international coordination and cooperation — rules that will in turn increase global security and prosperity.  

Whether to assume an obligation under international law is a choice each country makes based on a determination of whether that obligation, if accepted by other countries, will enhance its self-interest.

For example, when the U.S. decided to become a party to the Chemical Weapons Convention, it concluded that creating a nearly global ban on chemical weapons offered political and strategic advantages that outweighed surrendering the right of the U.S. to possess or use such weapons. In contrast, the U.S. has not decided that the advantages of outlawing the possession or use of nuclear weapons outweighs its interest in retaining such weapons, and it has accordingly not become a party to the Treaty on the Prohibition of Nuclear Weapons.

The notion of accepting certain limits on freedom of action in exchange for countervailing benefits is an idea that should be familiar to us from our own daily lives. When I enter into an employment contract, for example, I surrender some degree of freedom of action. Going to work and performing my job duties means I will no longer have unfettered freedom to spend my time doing whatever I want, wherever I want. And yet few of us would view entering into an employment contract — which we do in order to earn a salary and secure the other benefits of the employment relationship — as an infringement on our liberty, which is the equivalent for individuals of sovereignty for states. Rather, assuming such legal obligations is a way in which we exercise our liberty.

Similarly, given the consent-based nature of international law, a country’s decision to become party to a treaty, even one that imposes some limitations on its freedom of action, is not a restriction on sovereignty. Instead, it is an exercise of its sovereignty, one that allows a country to gain the benefits of international cooperation, including greater security and prosperity. Rather than infringing America’s national interest, international law is a tool to advance it.

Allen S. Weiner is senior lecturer in law at Stanford Law School. He served as a career international lawyer in the State Department from 1990 to 2001.