Resistance to International Law

Question: How is the choice made to follow international law?

Take trade as an example. They want to have free trade and of course they can do it on their own. They can do it unilaterally but they don’t get the full benefit if other countries aren’t doing the same. They don’t have--  They want to see reciprocity and so they often use international law as a way to entrench that kind of reciprocity, make it so that the rules are clear, everybody understands, as countries resist international law for- also for a whole set of reasons. The most common is probably the idea that there are things that are within our domestic domain. We usually talk about it in terms of sovereignty so on the political right in this country we often see resistance to certain--  I mentioned the law of the sea before as an example. This is a treaty that the navy wants to see us enter in to--there’s a Law of the Sea Convention--but the resistance in the Senate is based on this idea that it’s impinging upon our sovereignty, our right to do what we want to do, and that resistance is very powerful in certain areas. So for a long time human rights treaties were not ratified by the United States because there was a fear that that was a back-door way to get at the South and the South’s treatment of African Americans, and that would be another way for the federal government to gain power against the states and for these kind of nefarious international types to start to control the U.S. So that theme runs through a lot of the resistance to international law.

Question: Is there resistance to international law in the United States?

Kal Raustiala:
  Oh, definitely, definitely. It’s still there and I don’t mean to denigrate it because I think there are areas where there’s something to it. Right. So we--  So on the left you tend to see people resisting free trade agreements. Typically, NAFTA right now has been a big issue on the campaign trail and there’s a concern that as we enter in to these free trade agreements well, what we’re really doing is we’re selling out the working person and we’re helping big capital or these kind of transnational firms, these multinational firms, and that we shouldn’t give up the right to control our environment laws, our labor laws and so forth. So you see the theme on the left, you see it on the right. The right is interested in other issues, climate change, the International Criminal Court, but both sides have this concern and it’s a very legitimate one. The balance--  The real question is the balance between what ought to be at the international level, what ought to be at the national level, what ought to be at the state level.

Question: Do the Democrats really want to renegotiate NAFTA?

Kal Raustiala:  I would be really surprised if we went and re-negotiated it. I don’t think--  NAFTA is neither the greatest agreement ever nor a disaster. It’s kind of actually for the U.S. a fairly trivial- in economic terms a fairly trivial agreement so I would be surprised if we really re-negotiated it and in fact there’s resistance to NAFTA in Mexico and Canada. Nobody seems to really love NAFTA but I think a lot of it is campaign driven I imagine. It’s really hard to undo one of these big treaties. It can be done but it’s not easy.

Americans are particularly threatened by the loss of national sovereignty.

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