What Is "The Law Of Nations?"

     This piece and the many others that have been written since American forces deposed Nicolas Maduro have excited questions about “international law.” The phrase is portentous but misleading. If we take as our template “law” as it comes about in parliaments and is enforced by armed agents of the State, we find ourselves unable to grapple with “laws” never legislated nor backed by specific enforcers. To give “international law” appreciable meaning, we must seek guidance elsewhere.

     Article I Section 8 of the Constitution of the United States includes this provision:

     The Congress shall have power… To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

     When the Constitution was written, “the Law of Nations” was taken to mean the body of proscriptions commonly recognized and enforced throughout those nations from which the peoples of the original thirteen states held as their heritage. Two above others were paramount:

• “Thou shalt not kill.”
• “Thou shalt not steal.”

     Despite the political departure the Constitution represented, the Founders recognized the key legal commonality between America and its Old World roots: the laws against forcible predation. Thus, they empowered Congress to define those acts as punishable outside as well as inside our national borders. Other national laws were omitted from consideration, or deemed unenforceable “on the high Seas.” At the time there was no consideration of laws such as today’s forbiddings of various drugs. Smuggling laws enforced at the nation’s border were outside the “high Seas” scope of the provision.

     Today “the Law of Nations” is more extensive than in 1787. For example, there’s a general agreement among civilized nations that the international transport of certain drugs, and the unauthorized transport of weapons, should be forbidden. No world legislature passed laws against those things; it’s simply a commonality among the great majority of nations. So it became first a matter of tacit international agreement, later confirmed by various treaties and United Nations “conventions.” (It’s also a criterion for recognizing a “rogue state” or a “failed state.”)

     Mind you, such agreements, implicit or explicit, are agreements between States. States do such things to benefit themselves, not their subjects or neighbor States. Were the U.S. to rescind all its laws against traffic in fentanyl, for example, the existing agreements against international traffic would remain. The other nations would continue to enforce them to the extent possible… which, with America subtracted from the equation, would be considerably less.

     Just this morning, “The Pour Over,” a newsletter I get regularly, put forth its own take on “international law:”

     That’s not a bad abstract treatment of the subject, though it doesn’t delve into the history of the thing. As regards enforcement, it’s a bit simplistic in leaning upon “sanctions.” Clearly those are not the only instruments at a nation’s disposal, as the U.S. demonstrated by sinking several drug-smuggling boats in international waters.

     There were, of course, protests against those sinkings. Google’s AI summarizes those reactions, including those from outside the U.S.:

     International criticism of the U.S. strikes came from various sources:

• United Nations and Human Rights Bodies: The UN human rights chief suggested the strikes might constitute unlawful extrajudicial killings, and the Inter-American Commission on Human Rights voiced "deep concern," requesting investigations.
• Foreign Governments: Venezuela condemned the operations as aggression and violations of international law, filing a complaint with the UN Security Council. Colombian President Gustavo Petro called the strikes "extrajudicial executions". Brazil, China, France, Iran, Mexico, and Russia also stated the strikes violated international law.
• Non-Governmental Organizations and Activists: Human rights groups and legal experts, including the American Friends Service Committee, questioned the legality of the killings and the absence of public evidence.
• Public Protests: Protests against the U.S. actions occurred in locations like Rochester, New York, with demonstrators carrying signs such as "No War on Venezuela".

     The international negative reaction primarily focused on the U.S. military's use of lethal force in what were seen as law enforcement scenarios without publicly providing evidence for the "narco-terrorist" label, leading to concerns about legality under international law.

     But lethal force is the ultimate form of enforcement. It stands behind all other varieties of enforcement. The opinions of the protestors, individual or national, do not matter. The drugs and their transporters were offending against “the Law of Nations” as currently agreed among the States of the world. Moreover, they were doing so in very fast vessels designed to evade capture by the larger, slower vessels of blue-water navies. American aircraft destroyed them. As a character of mine once said, period fucking dot.

     This is not a moral defense nor a legitimization of the action. It’s what States do, and States are amoral. On net balance, I’d say it was a good thing, my opinions about the War on Drugs notwithstanding. It’s best for the potential consequences of an action to be clearly understood beforehand and plainly visible afterward.

     Let there be no misapprehensions: if there is to be a “Law of Nations,” it will be the great powers who will determine and enforce it. Indeed, there needn’t be a “Law of Nations” for that to be the case. The great powers will always enforce their will in No-Man’s Land. Consider low Earth orbit in this regard. Till now, the “Law of Nations” has barely brushed against it. That will change.