Don’t Let International Law Get In the Way of Peace and Prosperity

As Prepared for Delivery on January 20, 202

University of Virginia School of Law

You Are Living In History

It is great to be back here at UVA. When I first came here in 2004, I knew I was in a special place when at the first-year picnic I saw people putting coleslaw on top of pulled pork and calling it "barbeque." I am a native Californian, where "barbeque" is a verb that we use to describe grilling hamburgers and hot dogs. But I have fully adopted this approach to barbeque, and I have UVA Law to thank for it.

I also remember the first time that my wife and I tried and failed to go to a Waffle House on the south end of Charlottesville, because it was cash only. Those were just the first of many learning experiences moving from the Mountain West to the South East. Like most of you, I spent time on the softball diamond, benefitted from Public Interest Law Association grants, and, of course worked on the Virginia Journal of International Law (VJIL).

I am incredibly grateful for UVA Law and the many opportunities it has opened for me. In addition to being a uniquely collegial place to study law, UVA prepares it graduates for operating in the real world of the legal profession - in public service, law firms, or business. You are lucky to be here!

My time at this institution, and my professional experiences during my career, have taught me about the importance of international law. They have also made me clear-eyed about its constraints. I want to talk about the purpose and limits of international law with you today. Specifically, I want to explain why we should not let expansive and unsustainable concepts of international law get in the way of peace and prosperity.

Let's start with the question of why we have international law. The Preamble to the UN charter is quite clear-the goal of international law is to "live together in peace" and to "employ international machinery for the promotion of economic … advancement of all peoples." The Preamble of the 1899 Hague Convention, which established the first multilateral dispute settlement system, declares its purpose as declaring principles "on which are based the security of states and welfare of peoples." I will put it even more plainly. The most fundamental goal of international law is to secure peace and prosperity among nations.

Some have sought to expand the ambition of international law well beyond peace and prosperity-to promote democracy, to regulate the environment, or to harmonize social policy across borders. These may be laudable aspirations, depending on your worldview. But they are not the purpose for which the system was built. When we confuse aspirations with foundations, we risk undermining the very peace and prosperity that allows us to make progress on everything else.

I was once an editor for VJIL, and I wrote a note-it's probably buried somewhere in your archives. The topic was China's compliance, or lack thereof, with the laws of war. In that note, I observed that, in the limited wars it fought against Vietnam and Russia, China generally followed the international law of jus in bello-the conduct of hostilities. I took the note down to a professor of mine at the JAG school across the street. He read it, agreed with it, and then said something that stuck with me to this day. If there was ever a total war that involved China, he observed, it is not clear at all that the old rules would be followed. He was probably right. International law matters, but it is inherently limited.

That is because international law is only as strong as the willingness of sovereign nations to adhere to it. Where international law tries to paper over fundamental differences in values or systems of government, it can overreach. And when it overreaches, the international order can collapse entirely-leading to worse outcomes for the world.

Over the past few decades, policymakers, activists, academics, and practitioners have repeatedly pushed "international law" beyond what it can or should do. As a result, today we face a reckoning. I will discuss, during my remarks today, some of the precise ways that international law has gone astray.

However, I want to start with a fundamental assumption that needs to be revisited. The sentiment was captured well by the title of Francis Fukayama's 1992 book: "The End of History and the Last Man." Fukayama captured a widespread feeling that History (with a capital "H") had turned the page on some of the problems of the past after the collapse of the Soviet Union. Sure, there would be a squabble here or there, or even a small war or two somewhere far away. But, to the advocates of this worldview, the end of Soviet communism meant that humankind was reaching what Fukayama called "the universalization of Western liberal democracy as the final form of government." Some even pondered that perhaps international institutions could serve as the final forum for that government.

These ideas were often well-intentioned. Many who expressed them were idealists, and genuinely believed that we had reached an irreversible bend in the arc of historical development. Unfortunately, liberal democracy and market economics did not become universal. The People's Republic of China and the Russian Federation shed elements of their economic ideology, but the political foundation of those societies remained the same. New social movements emerged, and new divisions created cracks in the brief unipolar moment.

The reality is that history did not end. You are in history now. The idea that the 1990s and early 2000s were the foundation of a permanent, perfected world order was always hubristic.
Recognizing that the world remains driven by power, it is clear that a strict-and I would even say reactionary-adherence to the so-called "rules-based international order" may lead to negative outcomes. If we are overly rigid, we can end up tying our hands behind our back when we need to act in the national interest. We may find that we have subordinated our ability to achieve peace and prosperity to a cycle of endless debate and process. We could waste precious time hopelessly seeking consensus with countries that fundamentally disagree with our world view.

I am not offering a theoretical critique. The so-called "rules-based order" has consistently failed to address issues that are critically important to peace and prosperity:

• The World Trade Organization could not stop, and in fact accelerated, the hollowing out of manufacturing and working-class communities in America-as well as across other market economies around the world-due to non-market policies and practices used by China and other surplus nations.
• The United Nations (UN) has done little or nothing to stop ongoing wars and conflicts in the Great Lakes region of Africa, the Middle East, and Ukraine. The Security Council deliberated while 800,000 people died in the Rwandan genocide in the mid-1990s.
• International cooperation has made little progress against the scourge of international drug trafficking, and murderous cartels continue to operate unchecked across borders.

Do we need to let wars, conflict, or international crime drag on simply because the UN or another international body cannot come to full consensus? The answer is obviously no. But excessively rigid adherence to the 'rules-based order' can sometimes imply exactly that: inaction in the face of serious economic, security, or humanitarian emergencies.

International law cannot be a suicide pact. International law cannot stand in the way of peace and prosperity. International law cannot undermine national sovereignty.

I want to pause on that last point. The United States has a long history of not signing up to expansive international law regimes-including the Rome Statute for the International Criminal Court, the International Law of the Sea, or the Trans-Pacific Partnership-because we do not subordinate U.S. sovereignty to any other authority. The Founders designed our Constitution with a separation of powers. But those are all powers that belong to the American people.

However, I do not want you to think I have an entirely negative view on these matters. There are things that international law should and can do. The United States is not rejecting international law. And, importantly, international law does not have to be accepted or rejected in its entirety. To understand how international law can work, we should be clear about what it is, what it can do, and where its limits lie.

The Purposes of International Law

International law, like municipal (or domestic) law, serves different purposes in different contexts. The distinctions within municipal law that you study in law school-such as between criminal law, civil procedure, and contract law-are actually quite useful analogues for our purposes.

In particular, I see international law as broadly serving three distinct aims:

• First, setting clear moral boundaries. International law of this type can be analogized to criminal law. It defines baselines against egregious behavior where the international community can agree. This includes the laws of war, which I once enforced within the military as a judge advocate, and that-as I mentioned earlier-even Communist China has historically followed during its conflicts.
• Second, creating procedures for settling disputes. Think of this like civil procedure. Countries, like people, need processes through which they can negotiate, mediate, and settle disagreements. They need places to talk and steps to follow in order to compartmentalize issues, avoid escalating, and not have to reinvent the wheel for those processes every time they do not see eye to eye.
• And, third, establishing default rules to govern complex relationships. This is closest to contract and property law. Problems often cross borders, and countries need rules or norms to coordinate how they deal with them. Like large companies have standard contracts or landlords have standardized leases across hundreds of customers or tenants, countries need standardized rules to govern their economic and security relationships. They also need default rules when more specific rules are not necessary. And, just like with contracts or leases, these rules need to be flexible enough to adapt to changing conditions and reflect differences in the nature of different relationships.

One way of thinking about the problem facing international law today is that people have gotten these three purposes all mixed up. They brought prosecutors to property disputes, and treated contract arbitrators like they were supreme court justices.

This problem is particularly clear in the case of international trade law. The post-war global trade system-the General Agreement on Tariffs and Trade, or "GATT"-was designed to create fora and procedures for trade disputes, as well as to establish default rules for dealing with complex cross-border commercial flows. But, over time, the institutions that were created took on a life of their own-particularly as these institutions were imbued with more authority and rechristened as the World Trade Organization or "WTO". WTO Dispute Settlement panels and bodies became courts that filled what they saw as "gaps" in the law, and grew to see themselves as roving justices creating an international economic constitution. They narrowed exceptions and release valves that had been purposefully negotiated into the text to the point where such flexibilities became almost meaningless. The system took on a life of its own. Its institutional bodies purported to bind our ability to respond to existential economic challenges, but at the same time failed to discipline harmful practices by other countries. The agreements that existed within it ossified and became outdated.

This failure made the institutions of international trade law, as they had evolved, a barrier to peace and prosperity. The situation was untenable, and the United States has found it necessary to take bold unilateral action. I will discuss how we got there, and what we are doing, in more detail shortly. The basic point for now is that international trade law overreached, and undermined its own legitimacy.

But this will become clearer if we step back and discuss where hard lines in the sand are needed and effective. This is the international law of mandatory baselines.

Moral Boundaries

Some international rules are non-negotiable floors for which there can be no opt-out. The laws of armed conflict are the paradigmatic case.

The 1949 Geneva Conventions and their protocols limit the barbarity of war and protect those not participating in hostilities. These developed over centuries and represent genuine, hard-won consensus about minimal standards of human conduct.
The world saw the results of the First and Second World Wars. The clouds of poison gas that killed thousands at Ypres in Belgium in 1915 horrified the world. No one wanted to run the risk of their own soldiers, let alone civilians, being massacred by similar tools. But it still took decades to get to a mandatory baseline. The Chemical Weapons Convention entered into force in 1997 with 193 countries ratifying it-almost 80 years after the end of World War I. The U.S. Senate extensively debated the verification provisions and impacts on national security before voting to ratify 74 to 26. In 2023, the United States completed destruction of its entire declared chemical weapons stockpile at the Blue Grass Chemical Agent-Destruction Pilot Plant in Kentucky. We drew the line in the sand, changed U.S. law through proper channels, and followed through on our commitments.

I spent the first part of my career as a Judge Advocate in the Air Force, and at times this included advising on the Law of Armed Conflict. I vividly remember having to dive under a desk, in the middle of a cross-examination, as mortar fire rained down around us. But the environment is not what made the cases I dealt with at Joint Base Balad, north of Baghdad in Iraq, particularly difficult. Our soldiers were put into daily danger-often to confront unknown enemies in the dark of night. The line between right and wrong can be hard to see through the scope of a gun. But the line is still there, and our humanity requires us to remember that. I believe in these baselines. I know what it takes to enforce them on the battlefield, where even the strongest moral compass can start spinning without constant vigilance.

Our Founders also recognized that certain rights are universal. There are absolute rights and wrongs, and they are not limited to warzones. Even where we do not get to binding commitments, domestically or internationally, aspirations matter.

We grew into our own ideals as our nation developed. Consider the abolition of slavery, an expanded view of freedom of speech, and civil rights. American dreams became reality through gradual progress, the development of political consensus across the country, and domestic constitutional development. We were impacted by developments abroad, for good and for ill, but our freedom was secured by constitutional processes and not by international decree.

We must be honest about the limits of moral boundaries expressed through international law. These boundaries exist only to the degree that most nations agree to follow them on paper and then actually follow them in practice. This means that the set of truly mandatory rules will inevitably be limited. The countries of the world have fundamentally different political systems and do not subscribe to the same moral code. Municipal law is still law even if not enforced. International law that is not enforced is some people's aspiration dressed as obligation.

There is also a paradox that should trouble some of the most avid proponents of international law. Many of its loudest advocates are simultaneously proponents of moral relativism. This is difficult to reconcile.

If morals are relative, what is the basis for the international consensus that is required to legislate those morals around the world?

Who benefits from aspirations that are watered down to the lowest common denominator?

This approach can lead to moral boundaries that are quite weak. Thus, this calls for being very picky when we expect international law to truly constrain the conduct of nations, and focusing on the areas of the most serious concern and the broadest possible consensus.

Establishing Procedures to Resolve Disputes

However, international law does not always have to scale such lofty heights. Sometimes it can simply save time, money, and political capital. This is the civil procedure function of international law. Such procedural law should not dictate substantive outcomes, but should instead provide mechanisms through which disputes can be resolved quickly, effectively, and-most importantly-peacefully. These are the traffic rules of international relations-they prevent collisions but do not dictate the destinations.

We would do well to heed the advice of Elihu Root on this point. For those of you who have not studied him, Root was a great American statesman. He served as President William McKinley's Secretary of War, President Teddy Roosevelt's Secretary of State, and represented the State of New York as a U.S. Senator. He was also a founding member and the first president of the American Society of International Law. And, looking at his writings and life's work, I think he was a realist. When he accepted his Nobel Peace Prize in 1912, Root acknowledged that "civilization is a partial, incomplete, and, to a great extent, superficial modification of barbarism." Root recognized the difficulty, and importance, of preventing war. In fact, he dedicated much of his life to fighting against what he called mankind's "original savage nature." However, he did not mince words about the limited ability of a world parliament or international police force to solve this problem. Such a mechanism, if given coercive authority over nations, would mean that (in his words) "each nation was liable to be lawfully controlled and coerced by a majority of alien powers," and "an attempt to prevent war in this way would breed war, for it would destroy local self-government and drive nations to war for liberty."

Instead, Root pointed to the 1899 Hague Convention. The arbitration forum that the convention created helped settle-not embitter-disputes. He explained that "the fact there is a court to which appeal may be made always leads to the settlement of far more controversies than are brought to judgment." Procedures for settlement of international disputes are therefore in large part tools of efficiency, not morality. But Root warned us that this principle cannot be taken too far, particularly where underlying norms of international law are weak or do not enjoy broad consensus. He emphasized that in such cases "[w]here there is no law, a submission to arbitration or to judicial decision is an appeal, not to the rule of law, but to the unknown opinions or predilections of the men who happen to be selected to decide." In other words, the possibility of combining weak substantive law with strong procedural law in the international sphere devolves into political gamesmanship regarding who can secure control of international institutions and dispute settlement bodies as opposed to who is in the right and who is in the wrong.

Therefore, international law in its procedural role should seek to channel disputes without presuming to create new law to decide them. It should aim to resolve conflicts constructively where possible, and grease the wheels of productive international consultation, mediation, and negotiation.

Default Rules for Sovereign Nations

Doing this effectively does, in some cases, require having concrete and detailed rules that are written down and justiciable. For example, financial institutions rely on the Basel Framework to support international coordination on financial risk, and people of all nations need organizations such as the International Civil Aviation Organization to ensure that the planes that cross borders are safe enough to fly.

However, it is important to remember that rules of this nature are akin to contractual defaults-they apply unless parties negotiate around them. They are backed by structured mechanisms for opt-out, compensation where there is derogation, or renegotiation. The strength of such international law is found precisely in its flexibility, and its respect for national sovereignty. In most cases, these rules represent incomplete contracts, which do not and cannot cover all possibly relevant issues or rules.

Trade agreements are a perfect case study of incomplete contracts in international law. The GATT/WTO bargain binds core instruments like tariffs, leaves discretion over many domestic instruments, and uses vague language that gives adjudicators interpretive space. For example, while the GATT has a default rule requiring countries to lower their tariffs and keep them low, it has a number of exceptions for states to use domestic laws or safeguards to relieve pressure or deal with the consequences of the default general rule of lower tariffs. I'll speak more about this shortly. And if the contract is inevitably-and intentionally-incomplete, trying to "finish" it through adjudication by a powerful supranational judicial body looks like ex post legislation. The principle of non-liquet, which states that courts cannot decline to rule for lack of law, may make sense in some domestic contexts. But it is deeply harmful when applied in the international arena where there is not always a shared social compact or consensus, and it undermines the foundation of carefully negotiated outcomes.

The postwar economic order was never meant as a vehicle for escalating orthodoxy. The scholar John Ruggie used the term "embedded liberalism" to describe the compromise that was institutionalized at Bretton Woods and in the GATT. The multilateralism that the system created was conditional. It was conditional first and foremost on preserving the capacity of member governments to manage their domestic economies-and societies-according to their sovereign interests. Multilateralism and domestic stability were linked to and conditioned by one another. Movement toward greater openness was designed to be coupled with measures to cushion domestic economies from external disruptions. Safeguards and renegotiation were features, not bugs.

Here is another way to think about this. No competent lawyer would draft a long-term contract without a force majeure clause. Contracts lawyers don't view such clauses as making contracts weaker. Instead, they realize that they make the contract durable and resilient to material changes in conditions. It allows parties to address extenuating circumstances and drives them to negotiate with each other to resolve any problems that arise. The original GATT built similar provisions into the international trade order, on purpose, in order to allow the agreement to survive shocks without breaking. And there have been many shocks to the trading system from China and others over the past couple of decades. The GATT's provisions for flexibility were adopted into and are still at the core of the WTO Agreement:

• Article 12 says that countries that have a persistent trade deficit can impose tariffs to protect the "balance of payments" and protect against harmful effects such as excessive debt or currency devaluation.
• Article 19 authorizes a broader range of emergency safeguards to prevent injury from import surges.
• Article 18 enshrines the legitimacy of "protective or other measures affecting imports" to support economic development.
• Article 6 enables countries to impose duties to respond to foreign subsidies or dumping.
• Article 20 creates general exceptions for measures aimed at health, safety, morals, and environmental protection.
• Article 21 establishes a broad exception for actions related to a nation's essential security

This is the contractual architecture that allows countries to cooperate while preserving sovereignty. These measures are political release valves intentionally negotiated by people who remembered what happens when economic grievances cannot be resolved through normal default rules.

The non-violation remedy in the GATT (Article 23:1(b)) makes this point clear. It allows member countries to seek a remedy even when the challenged policy does not violate any specific written obligation, so long as it nullifies or impairs benefits the complaining member reasonably expects from prior negotiations. Scholars have described this as "Exhibit A" for the proposition that trade agreements are incomplete contracts. The drafters of the GATT did not attempt to enumerate every domestic policy move that could erode the value of negotiated concessions. The agreement explicitly creates a specific gap-filling mechanism for situations the written rules do not reach.

The international trade rules, as originally written after World War II, do not promote free trade as an end in itself. The end goal remains the peace and prosperity of nations. And so, the rules acknowledge that countries can use tariffs and other forms of trade intervention to build their economies and protect themselves against unfair competition.

What Went Wrong: Over-Judicialization and Ossification

Over time, international trade law and policy became unsustainable, economically and politically because it treated the existence of rules and procedure and the objective of so-called free trade as the ultimate ends, rather than peace and prosperity. It came to prioritize a process rather than an outcome. Trade law shifted from setting default rules to creating highly precise and constitutionalized substantive obligations. The WTO dispute settlement body changed the meaning of negotiated terms, narrowing the opt-outs that members had bargained for. It limited safeguard flexibility, constrained anti-dumping authority, and purported to judge our national security decisions. The Appellate Body issued advisory opinions, re-examined facts, exceeded deadlines, and made interpretive pronouncements beyond negotiated text. We have concrete data on the effects of these decisions over the past 30 years. They had real consequences, limited America's ability to defend itself, and undermined our manufacturing base. On a bipartisan basis, popular discontent with the system grew until it was a core issue in successive elections. Despite the complexity of the system, the American people rightly had the instinct that the international trading system had gone beyond what was good for the United States.

And even when we used that system to nominally win dispute settlement cases or concessions, we often were unable to finally resolve the problems we were trying to solve. The United States won the EU Beef Hormone case in 1998, but the European Union never lifted its ban on hormone-treated beef imported from the United States. Instead, the United States accepted a negotiated quota arrangement-market access for a limited quantity of hormone-free beef-far short of what the ruling required.

Or, consider rare earths. In 2012, the United States, the European Union, and Japan brought a WTO challenge against China's export restrictions on rare earths-basic but essential inputs to everything ranging from cars and electronics to fighter jets and missiles. In 2014, we won the case. The WTO Appellate Body ruled that China's export quotas and duties violated its WTO obligations. China actually complied with the text of the ruling for a short time. But it also consolidated hundreds of rare earth producers into six state-owned conglomerates, giving Beijing direct control over production, pricing and supply regardless of the outcome of the case. It then flooded the global market, driving prices below what any firm in a market economy could sustain. Molycorp, America's only rare earth producer, filed for bankruptcy only five months after our so-called victory at the WTO. And last year, despite the previous ruling, China again imposed stringent export controls on rare earths that threatened to shut down factories across the developed world, and triggered extremely high stakes negotiations between President Trump and President Xi. So much for the WTO protecting the peace and prosperity of its members.

What's worse is that the WTO has often failed to serve its core procedural purpose. Members consistently don't comply with the most basic obligations on transparency and notifications related to domestic trade laws. If they can't do this, how can they purport to fix bigger problems like overcapacity and development?

In response to this overreach, the United States blocked appointments of arbitrators to the WTO's Appellate Body. This decision was bipartisan. It started under President Obama, was formalized under President Trump, continued by President Biden, and is our position today. We shut down the Appellate Body not to destroy the system but to preserve elements of it. As distinguished international lawyer Sir Daniel Bethlehem once argued, "re-thinking is not repudiation.'

And rethinking is essential in a dynamic world. Force majeure exists for that reason. Conditions change, problems evolve, and priorities shift. When President Bill Clinton signed NAFTA into law in 1993, he told Americans that "our national security will be determined as much by our ability to pull down foreign trade barriers as by our ability to breach distant ramparts." He promised that through the agreement "we build security, we build prosperity for our own people." No one at that signing ceremony anticipated China's accession to the WTO seven years later, or the nearly four million jobs that it would destroy in the United States. They did not predict the surge of unfairly traded products coming through Mexico, or the negative impact on the American industrial base caused by large-scale offshoring. President Clinton promised that NAFTA would create 200,000 jobs in the United States by 1995 alone. Instead, it cost the United States an estimated 700,000 jobs and increased our trade deficit by approximately $160 billion. Some of these effects may not have been expected by the negotiators, although they were certainly warned. But the contract established by NAFTA was rigid. It stood, without significant revision, for 26 and a half years, while it grew in political unpopularity, to the point that both Hillary Clinton and Donald Trump ran against NAFTA in the 2016 presidential election.

This was the reason why President Trump included a "sunset clause" when he renegotiated NAFTA and established the USMCA in 2020. The United States agreed with Mexico and Canada that the new deal would expire after 16 years, with a joint review 6 years in. My office is leading that joint review process as we speak, and has identified significant new issues that must be addressed to ensure that the agreement remains in the interests of the American people. Agreements, like contracts, need to be regularly reviewed. We cannot allow our rules to ossify, if we are to respond to the new challenges that are important to our citizens.

An International Law That Supports Peace and Prosperity

As we move forward, we must focus international law on the most pragmatic areas with the broadest consensus. We should continue to pursue universal rights while recognizing that aspiration is not tantamount to law. We must ensure U.S. sovereignty above all. And we should not be afraid to buck outdated international norms when strictly following them would lead to perverse or bad outcomes. Our political leaders swear an oath to one constitution-that of the United States of America.

This means that, where necessary, we should work outside established institutions and frameworks, where that is more likely to lead to peace and prosperity. The reciprocal tariff program that the United States has pursued under President Trump's leadership shows the benefits of this approach. We believe that this program is consistent with international law, and even WTO rules, because it falls under the flexibilities-particularly the Article 21 essential security exception-that I discussed earlier. Other countries feel differently, and because of the overreach of international trade law in recent years they feel supported by these objections. However, in some ways, the Trump Administration is declaring force majeure and pursuing unilateral action to address issues that the WTO has proven completely incapable of resolving.

My office has been compiling a report called the National Trade Estimate every year, for 40 years, which chronicles the multitude of foreign trade barriers faced by American workers and producers. Despite decades of negotiations through traditional channels, including disputes at the WTO and free trade negotiations with dozens of countries, the list grew longer-not shorter-almost every year. While the United States opened its markets, other countries used a long suite of measures-including wage suppression, industrial excess capacity divorced from market demand, export subsidies, lax regulatory standards, and currency manipulation-to artificially suppress the cost of their products and take market share in the U.S. and global markets.

The United States raised the alarm again and again, but it became clear that this problem could not be resolved using old, slow moving, and outdated international tools. On April 2 last year President Trump used the authority delegated to him by the International Emergency Economic Powers Act to address the national emergency posed by the trade deficit, and directed his Administration to confront the practices that contributed to it. The recent ruling by the Supreme Court on this particular legal authority does not change the President's policy and will simply shift our implementing tools to other statutes.
As a direct result of the incentives created by the reciprocal tariff regime established over the past year, and which we expect to remain in place through other means, the United States has negotiated and finalized full Agreements on Reciprocal Trade (we call them "ARTs") with Argentina, Bangladesh, Cambodia, El Salvador, Guatemala, Indonesia, Malaysia, and Taiwan.

We have also announced framework deals that are close to finalization with Ecuador, the European Union, India, Japan, North Macedonia, South Korea, Switzerland, Thailand, and Vietnam. We are finalizing a new agreement almost every week. These agreements have achieved more market access for American workers, producers, and service providers than decades of traditional free trade agreements or WTO negotiations. For example, the European Union and India have committed to eliminate 100 percent of tariffs on U.S. industrial goods, while Indonesia is eliminating 99 percent-and Malaysia 97 percent-of all tariffs on U.S. goods. Each of these partners has maintained higher tariffs on the U.S. over the past few decades: we are making up for lost time.

Our trading partners are also removing significant, long-standing trade barriers. Last year Australia ended its ban on importing U.S. beef, after 22 years without progress. Indonesia agreed to support a permanent moratorium on customs duties on electronic transmissions, after 28 years of continuous opposition. Israel has provided the United States with comprehensive and permanent agricultural market access, an ask we have had for 41 years. Thirteen countries have agreed to accept U.S. safety and emissions standards for vehicles, paving the way for greatly expanded auto exports from U.S. factories after decades of uncertainty and efforts to shut out U.S.-produced autos through non-tariff means.

But the progress goes deeper than those, very important, commitments. Nine economies have committed to ban the importation of products made with forced labor. That is up from four (the United States, Mexico, Canada, and the EU) before our negotiations began. Eliminating all forms of slavery should be a universal value in the 21st century, and the United States has had a law like this in effect for nearly 100 years. But it took U.S. unilateral action to unlock progress, and it has happened over the past year.

Some of our trading partners with the biggest labor and environmental problems are agreeing to uphold and enforce basic labor and environmental standards, which will benefit their people while reducing arbitrages that incentivize a global race to the bottom and hurt American workers and producers who have to play by our rules. Countries will address child labor and crack down on deforestation. I am a conservative Republican, and I am no fan of excessive regulation, but we can all agree that there are core rules that need to be enforced for trade to be fair. In 10 months, we have made more progress on this front than was made during decades at the WTO.

As we continue to reimagine global trade, we need to remember that trade is neither good nor bad. It is just a means to an end, and not an end in itself. The end, of course, is peace and prosperity. We, as citizens, choose the society we want. Trade policy needs to support an economy that enables that society. Through our bilateral and plurilateral negotiations, the United States is laying the groundwork for a new economic order-one premised on fairness, balance, and national sovereignty. This will require a new regime of international law that is compatible with U.S. interests.

Conclusion

There isn't a neat theory to sum it up, other than realism proceeding in the direction of universal, aspirational rights. I'll end by once again quoting Elihu Root. He concluded his Nobel acceptance speech with the following words:

There is a homely English saying, "Leg over leg the dog went to Dover."

That states the method of our true progress … by the accumulated effects of a multitude of efforts, each insignificant in itself but steadily and persistently continued, we must win our way along the road to better knowledge and kindliness among the peoples of the earth…

The students in this room will practice law in a world where the international legal order is being renegotiated. You are living in the midst of history. That is an opportunity. The best of the American legal tradition has always been pragmatic: we aspire to universal principles, but we build institutions suited to the world as it actually is. Join this project with clear eyes and an open heart.

International law should serve peace and prosperity. It should never get in the way of either.