The new bipartisanship emerging in Washington, DC may resuscitate bipartisan support for international law in the United States. For most members of the ASIL, such a change in perception cannot come soon enough. The unhistorical and bizarre idea that international law supports a partisan agenda crystallized early in the Clinton Administration in reaction to Democrats' ostensible backing of "aggressive multilateralism." It has since been encouraged both by rhetoric- such as emphatic John Austin-like assertions by some who have occupied high-profile positions within the current Republican Administration (e.g., John Bolton and John Yoo) that treaties and/or custom are not "law" or legally binding- and by action, such as the recent passage of the controversial Military Commission Act, a law that drew vociferous complaints from most Democrats in Congress, many civil libertarians, "liberal" newspaper editorial writers, prominent human rights NGOs, and not a few members of our Society.

Quite apart from one's position on the Military Commission Act,[2] what was particularly distressing about its passage, largely along party lines, was that it (wrongly) suggested once more that support for international law rests along the same party lines. Of course, there was also a time, not long ago, when many drew the same conclusion but along different party lines, as when President Eisenhower resisted Southern Dixiecrats who supported the Bricker Amendment as a defense from human rights treaties in the 1950s.

But neither Democrats' attempts to pass the Bricker Amendment nor Republican support for the divisive Military Commissions Act should blind us to the fact that international law, the stabilizer of nations, has usually drawn the support of those at the center of the U.S. political spectrum, irrespective of party affiliation. The Republican founders of the ASIL understood that making and enforcing the rule of law at both the international and national levels were deeply patriotic efforts to enable the United States, along with other nations with comparable goals, to promote freedom for the individual and free markets; they saw a need for both the peaceful settlement of interstate disputes and harmonized global rules to promote numerous shared social commitments, from preserving the global commons to enhancing global welfare. They saw entering into treaties that could achieve these goals not as a diminution of sovereignty but as the exercise of it.

International law's appeal to Presidents, Republican and Democratic alike, is obvious. The treaty-making, commanderin- chief, and foreign affairs powers remain the principal mechanisms for the aggrandizement of power by the executive branch. (That much is implicit in the Military Commissions Act.) But international law offers much to the other branches as well. For our courts the limits imposed by international law may help stem claims of an all-powerful and fundamentally undemocratic "unitary" executive. Our legislators regularly turn to treaties as the only tool capable of converting an otherwise political and unreliable interstate pledge into a binding commitment-the better to serve ends no nation can achieve alone. Even our state governments have sometimes turned to international norms or institutions in order to satisfy their constituencies-provided that the federal government has not gotten there first and preempted the field. Of course, the most intrusive or deep international obligations for the United States-those of the WTO and investment agreements such as NAFTA-inure to the benefit of, among others, members of the U.S. Business Roundtable and their many friends on both sides of the aisle.

Bipartisan support for international law does not rest solely on its many perceived beneficiaries or on the mercurial outcomes of the ballot box. It is likely to persist over the long term, despite short-term setbacks, because of the new forms by which international law is made.

Consider this revealing item from the New York TimesMagazine published September 17, 2006. Under the title "Global Gun Rights?," Joshua Kurlantzick described the role of the National Rifle Association (NRA) in helping to defeat a referendum last year in Brazil that would have imposed a nationwide gun ban, as well as in helping to bring about the collapse of UN talks intended to secure agreement on a convention regulating small arms. Kurlantzick reported that the NRA's winning strategy involved "co-opting the language of rights" to suggest that national or international restrictions on guns could slide into threats to other civil liberties. Kurlantzick indicated that the NRA is at the vanguard of many conservative groups that have been increasingly willing to "go global" and "export their own ideas of universal rights" and thereby secure "more leverage over U.S. policy."

As the Society's members will recognize, the NRA's tactics are typical of other self-designated representatives of "international civil society," many of which have been "going global" for quite some time. There is some irony in the NRA's belated turn to international regimes. After all the criticisms directed at "undemocratic" or "unaccountable" liberal NGOs that "unjustifiably" use the international arena to "take a second bite" at policy decisions they have lost at the national level, it would appear that the NRA has now decided to join the fray, along with those who have encouraged states to ban landmines, to promote intrusive supranational supervision over compliance with human rights, and to establish the International Criminal Court. On the other hand, the NRA's transnational actions are only likely to fuel complaints from the political left and the global South that international treaty-making processes unfairly empower those Western-based NGOs with the greatest resources, thereby further skewing North-South interstate debates and outcomes.

The NRA story offers several lessons. For those of us who have never seen an international organization or an international treaty that we do not like, it may reawaken our critical judgment and force us to consider the prospect that not all international legal processes merit applause, irrespective of their vaunted "transparency" or "openness" to competing viewpoints. More importantly, it should remind us that the contemporary international legal process offers much for all sides on the U.S. political spectrum and that no one, conservative advocacy groups not excepted, can ignore the international law game. Organized groups in the United States with an international dimension have now structured their activities to accommodate and take advantage of international law rules and venues, and those who have not yet done so are scrambling to catch up.What group, after all, irrespective of whether its constituents consider themselves Democrats, Republicans, or Independents wants to forego the clout of support from greater numbers or the legitimacy that may come from a multilateral institution?

That distinct international legal institutions and norms receive differing levels of support along red and blue lines-e.g., that Republicans tend to support NAFTA and theWTO, while Democrats are more likely to support global environmental regimes or the UN (and that both have competing media and NGO outlets for their views)-should not obscure the underlying reality that all are relying ever more on the legitimacy, clout, and the legally binding nature of their favored international sources of obligation or regimes. Therein lies the greatest hope for bipartisan international law.

José E. Alvarez

Footnotes