Posts Tagged ‘legal authority’

“The Law That Binds the United States”

October 2, 2026


Ricardo F. Morín
Ligadura (Binding)
Watercolor and ink with incised lines on cardboard
8 × 10 in. (20.3 × 25.4 cm)
2005

The United States does not cease to be bound by law when it acquires the power to determine what another country may do.  Its officials require authority under American law.  The State remains subject to its international obligations.  Neither requirement is satisfied merely because the government affected by American power agrees to the resulting arrangement.

Venezuelan constitutional authority and American legal responsibility are distinct questions.  The first concerns the competence to grant rights over the Republic’s wealth.  The second concerns the means by which the United States obtained those rights and the authority under which its officials acted.  An American contract cannot supply a missing Venezuelan competence.  Venezuelan governmental consent cannot supply a missing American power or excuse a breach of an international obligation binding the United States.

The distinction was already present before the January intervention.  On December 23, 2025, the Department of Justice’s Office of Legal Counsel advised that the President could order military personnel to assist in removing Nicolás Maduro from Venezuela for prosecution in the United States.  The memorandum expressly addressed domestic law.  Its opening conclusion depended on the national interests served and on the anticipated force remaining below the level of war in the constitutional sense. [1]

The opinion supplied the executive branch’s interpretation of presidential authority for the proposed operation.  Congressional authorization and judicial review remain separate sources of constitutional judgment.  Each subsequent exercise of American power over Venezuela’s government, revenues, or petroleum requires its own legal basis.

The Constitution assigns Congress the power to declare war and makes the President Commander in Chief.  The disputed boundary between those powers cannot be settled by the President’s description of his own conduct.  Nor does an executive opinion addressing that boundary determine whether another State’s sovereignty may lawfully be violated. [2]

On January 4, Ambassador Mike Waltz publicly invoked self-defense under Article 51. [3]  On January 5, he told the Security Council that the United States had conducted a law-enforcement operation with military assistance.  He invoked the indictments against Maduro and Cilia Flores, the President’s responsibility to protect Americans, and Maduro’s lack of legitimacy.  He also denied that the United States was occupying Venezuela. [4]

An indictment authorizes proceedings within a legal system.  It does not, by itself, authorize the use of armed force within another State.  The United Nations Charter prohibits force against territorial integrity or political independence.  The pertinent grounds for departing from that prohibition include Security Council authorization and self-defense; valid territorial consent presents a separate inquiry.  Article 51 identifies an armed attack as the condition for the inherent right it preserves. [5]

The Administration must explain how those justifications fit together and establish the conditions required by each.  A prosecutorial purpose does not itself satisfy the international requirements for self-defense; invoking self-defense does not itself establish domestic authority for the operation.  The Administration must identify the armed attack relied upon and explain the necessity and proportionality of its response.  Article 51 also requires immediate reporting of self-defense measures to the Council. [5]

On January 6, the United Nations Human Rights Office rejected unilateral military intervention as a means of obtaining accountability for Venezuela’s human-rights violations and described the operation as undermining the prohibition on force.  On January 13, the Inter-American Commission on Human Rights likewise insisted on respect for sovereignty, non-intervention, and the prohibitions on aggression and force, while reiterating its findings concerning the Maduro government’s repression. [6] [7]

Those institutional assessments identify obligations that remain binding when the target government commits abuses.  If the Administration relies instead on an invitation to intervene, it must identify valid consent given before the operation and establish that its forces acted within that consent.  Recognition of a preferred authority cannot stand in for the consent itself. [8]

The War Powers Resolution subjects presidential military action to reporting and termination requirements. [9]  On January 14, the Senate sustained a point of order against the privileged status of S.J.Res. 98, a measure directing the removal of American forces from unauthorized hostilities within or against Venezuela.  Senators divided fifty to fifty; the Vice President voted in the affirmative. [10]

That vote blocked the measure’s progress and left the statutory question unresolved.  Congress grants authority through law.  A defeated effort to restrain the President records a political failure to impose restraint, rather than an affirmative grant of the disputed power.

The financial arrangements raise their own questions of American authority.

Executive Order 14373, issued on January 9, identifies specified Venezuelan natural-resource revenues as Venezuelan sovereign property and describes American possession as custodial.  Yet it assigns the Secretary of State responsibility for determining the public, governmental, or diplomatic purposes for which those funds may be disbursed, and directs Treasury to follow the Secretary’s instructions. [11]

The order invokes the International Emergency Economic Powers Act.  Section 1702(a)(1)(B) authorizes extensive regulation of foreign-property transactions.  Section 1702(a)(1)(C) separately permits confiscation when the United States is engaged in armed hostilities or has been attacked, subject to a presidential determination connecting the foreign owner to those hostilities or attacks.  The statute distinguishes transaction control from vesting ownership for American benefit. [12]

The Administration must account for its conduct under that distinction.  Its January order claims custody while assigning American officials decisions over the use of Venezuelan wealth.  Any later acquisition of ownership requires authority for that acquisition.  Powers to control transactions cannot simply be treated as powers to take property for American benefit. [11] [12]

Senators Ron Wyden, Elizabeth Warren, and Sheldon Whitehouse addressed precisely the problem of control without ownership in a letter dated September 16 and released the following day.  Citing public reporting, they referred to at least $13 billion in Venezuelan oil revenues deposited in a Treasury custody account.  They asked what constitutional or statutory constraints govern funds that the United States does not own but whose use its officials control. [13]

The senators requested account statements, transaction records, Venezuelan spending requests, and safeguards against improper disbursements.  Their October 5 response deadline remained open on September 30.  The letter places the Administration under a formal demand to account for its authority and conduct. [13]  The Administration’s own order classifies those funds as Venezuelan sovereign property held in American custody.  On that premise, the Administration must account for the authority by which American officials determine their use. [11]

The petroleum arrangement adds a further act requiring authority.  On August 31, the White House announced that North American Blue Energy Partners had granted the Office of Strategic Capital a 35 percent equity interest in its corporate parent.  It also announced preferential purchasing rights and powers over corporate governance.  The fact sheet emphasized that the American interest came at no cost to the taxpayer. [14]

Acceptance, administration, and disposition of that interest each require legal authority.  A zero acquisition price answers a question about cost, while leaving the agency’s power to acquire the asset to be demonstrated.  Any proceeds received for the United States must also be accounted for under federal law governing public receipts and expenditures. [15]

A Congressional Research Service report updated September 8 describes the Office of Strategic Capital’s capital-assistance program in terms of loans, loan guarantees, and technical assistance.  It separately identifies proposed legislation that would authorize certain equity investments. [16]

The Administration must therefore identify the particular legal basis for the NABEP interest.  The operative instrument and the authority invoked would permit assessment of whether the transaction falls within an existing power and satisfies its conditions.  A press announcement leaves that statutory account incomplete.

American statutory authority, even if established, would answer only the domestic question.  International law determines separately whether the United States has breached an obligation owed outside its own legal order.  Article 3 of the International Law Commission’s articles on State responsibility expresses the distinction:  an act’s treatment as lawful under internal law does not determine its international lawfulness. [17]

The Charter of the Organization of American States addresses the acquisition of advantage with particular precision.  Article 19 prohibits direct and indirect intervention.  Article 20 prohibits economic or political coercion intended to force another State’s sovereign will and obtain advantages.  Article 21 rejects recognition of territorial acquisitions or special advantages obtained through force or other coercive means. [18]

These provisions subject the relation between pressure and benefit to law.  Coercive intervention can occur without military occupation, and a private company can serve as the vehicle through which governmental pressure secures an advantage.

The documented sequence is consequently material:  American force removed the president; an American order placed decisions over Venezuelan revenues under American supervision; the Administration then announced enduring American interests in petroleum production and corporate governance.  In April, President Trump had already described the economic relationship as resembling a joint venture and stated that the attack had paid for itself many times over. [4] [11] [14] [19]

The sequence supports an inference connecting intervention to economic advantage.  A finding of prohibited coercion must establish how American pressure constrained Venezuela’s sovereign choice and contributed to obtaining the particular rights.  The President’s own description supplies evidence of that connection and requires the military action and economic return to be examined together.

The Administration’s reliance on governmental agreement must therefore be examined within the circumstances in which that agreement was obtained.  Consent is relevant.  Its existence on an instrument cannot, without examination, dispose of a claim that force or coercion procured it.

The corporate structure requires equal precision.  The White House distinguishes its agreement with NABEP, governed by American law, from the company’s Venezuelan concessions, governed by Venezuelan legislation. [14]  A contract with a private corporation is not automatically a treaty between States.  Any associated intergovernmental commitments must be identified before rules governing treaty validity are applied.

Where the instrument is a treaty, the rule expressed in Article 52 of the Vienna Convention addresses consent procured through unlawful threats or force.  The United States’ non-ratification requires attention to the applicable customary rule.  The prior question about American conduct nevertheless remains direct:  did the United States use prohibited force or coercion to obtain the advantages it now claims? [20] [21]

American officials remain answerable for their own acts throughout that corporate structure.  Their decisions to direct revenues, acquire interests, and exercise governmental powers are conduct of the United States.  Attribution of additional corporate conduct requires further evidence, but the Administration’s own participation is already the subject of its announcements. [17]

Permanent sovereignty over natural resources supplies another applicable principle.  Its legal standing does not depend solely on the status of a General Assembly declaration.  The International Court of Justice has recognized it as a principle of customary international law, expressly reaffirming that character in its advisory opinion of July 19, 2024. [22]

Its application requires attention to the policy and conduct established by the evidence.  Here the Administration has expressly announced a policy of securing American benefit from Venezuelan resources.  A Venezuelan private beneficiary and an American governmental beneficiary can participate in the same transaction without either representing the sovereign people whose resources give it value.

Occupation would impose additional obligations if the facts establish it.  Under the Hague Regulations, the relevant condition is effective authority over territory by hostile armed forces.  Financial supervision and political predominance alone do not establish that condition.  An American denial does not disprove it.  The inquiry must concern the authority actually exercised over particular territory during the relevant period. [23]

If occupation is established, its law limits the occupant’s administration of public property and natural resources.  The occupant does not acquire sovereignty.  Its powers are temporary, and the rules governing usufruct require preservation of the capital of the resources administered.  The International Court of Justice has reiterated those limits. [22] [23]

The prohibitions on unlawful force and coercive intervention apply independently of that territorial classification.  Responsibility for the intervention and the advantages obtained through it can therefore be examined while the evidence concerning occupation remains incomplete.

The Administration owes a specific account:  the authority for its equity interest, the rules governing its directions over sovereign revenues, and the legal justification for the force and pressure through which the announced advantages were obtained.  The operative instruments and transaction records are necessary to test that account.  Their absence leaves the Administration’s claims of lawful authority unsubstantiated at precisely the points where its conduct requires explanation.

Congressional oversight, statutory limits, and international obligations address the conduct from different legal positions.  Enforcement may remain contested and adjudication incomplete.  The Administration nevertheless bears the burden of identifying the powers it exercises and answering the obligations its conduct engages.

The Administration has announced what the United States obtained.  It has not thereby established what American law authorized its officials to acquire or what international law permitted the United States to exact.

The law governing that conduct is not a condition the United States may impose on Venezuela.  It is an obligation the United States must meet itself.

Ricardo F. Morín

September 30, 2026

Bala Cynwyd, Pennsylvania

Notes

[1] U.S. Department of Justice, Office of Legal Counsel, “Proposed War Department Operation to Support Law Enforcement Efforts in Venezuela,” December 23, 2025, especially pp. 1–2; publicly released in redacted form.

https://www.justice.gov/olc/media/1423306/dl

[2] Constitution of the United States, Article I, Section 8, Clause 11, and Article II, Section 2, Clause 1.  Congress.gov, Constitution Annotated, 2024 Supplement, discussion of presidential and congressional war powers.

[3] Ambassador Mike Waltz, interview on Fox News Sunday Morning Futures, January 4, 2026, invoking Article 51; broadcaster’s report and embedded interview.  This public statement is distinct from a communication to the Security Council reporting measures taken in self-defense.

https://www.foxnews.com/media/un-ambassador-waltz-defends-us-capture-maduro-ahead-security-council-meeting

[4] United Nations Security Council, S/PV.10085, January 5, 2026, pp. 13–14, statement of Ambassador Mike Waltz.

[5] Charter of the United Nations, Articles 2(4), 39–42, and 51.  The record reviewed for this essay does not establish whether the United States submitted an Article 51 communication reporting the January operation.  No finding of failure to report is made.

https://www.un.org/en/about-us/un-charter/full-text

[6] Office of the United Nations High Commissioner for Human Rights, statement by spokesperson Ravina Shamdasani on the United States intervention in Venezuela, January 6, 2026; official UN Geneva transcript.

https://www.unognewsroom.org/story/en/2959/un-human-rights-spokesperson-ravina-shamdasani-on-u-s-intervention-in-venezuela/8823

[7] Inter-American Commission on Human Rights, “IACHR expresses concern over armed incursion in Venezuela, calls for respect for international law, and the end of repression,” January 13, 2026.

https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2026/007.asp

[8] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, Article 20 and its commentary, concerning valid consent, its limits, and consent given before the act.  The commentary supplies the consent framework, not a determination of which Venezuelan authority could invite intervention.  A claim of invitation by a recognized authority lacking effective control requires examination of that authority’s international capacity, the timing and scope of its consent, and the conduct authorized.  Recognition alone does not resolve those questions.

[9] War Powers Resolution, 50 U.S.C. §§ 1543(a)(1), 1544(b), and 1547.  The sixty-day rule concerns the report submitted or required under § 1543(a)(1); the additional thirty-day period requires the presidential determination specified in § 1544(b).  Applying the clock requires establishing when a report was submitted or required and whether the relevant use of forces continued.  Continuing financial supervision is not itself continuing military hostilities.

[10] United States Senate, Roll Call Vote No. 9, 119th Congress, Second Session, January 14, 2026, point of order concerning the privileged status of S.J.Res. 98.

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1192/vote_119_2_00009.htm

[11] Executive Order 14373, “Safeguarding Venezuelan Oil Revenue for the Good of the American and Venezuelan People,” January 9, 2026, especially Sections 4(a), 4(b), 4(c)(ii), and 5(a)(ii).

https://www.whitehouse.gov/presidential-actions/2026/01/safeguarding-venezuelan-oil-revenue-for-the-good-of-the-american-and-venezuelan-people

[12] International Emergency Economic Powers Act, 50 U.S.C. §§ 1701–1702, especially § 1702(a)(1)(B)–(C).  The armed-hostilities condition in subsection (C) is distinct from the constitutional-war threshold discussed by OLC.  Subsection (C) also requires a presidential determination that the foreign owner planned, authorized, aided, or engaged in the relevant hostilities or attack.  Acquisition of a corporate interest requires identification of its own legal basis; it is not classified here as confiscation merely because the acquirer is governmental.

https://uscode.house.gov/view.xhtml?req=(title:50%20section:1702%20edition:prelim)

[13] Senators Ron Wyden, Elizabeth Warren, and Sheldon Whitehouse, letter to Treasury Secretary Scott Bessent and Secretary of State Marco Rubio, dated September 16, 2026, released September 17, 2026, pp. 1–3.  The committee release and download title bear the September 17 date; the letter itself bears September 16.

https://www.finance.senate.gov/ranking-members-news/wyden-warren-whitehouse-press-trump-administration-over-revenue-from-venezuelan-oil-and-gold-deals

[14] The White House, “Fact Sheet:  President Donald J. Trump Announces Historic Oil Agreement to Secure American Energy Dominance and Drive Venezuela’s Economic Recovery,” August 31, 2026.

https://www.whitehouse.gov/fact-sheets/2026/08/fact-sheet-president-donald-j-trump-announces-historic-oil-agreement-to-secure-american-energy-dominance-and-drive-venezuelas-economic-recovery

[15] Constitution of the United States, Article I, Section 9, Clause 7; Miscellaneous Receipts Act, 31 U.S.C. § 3302(b).  Section 3302(b) generally requires deposit of money received for the Government, subject to applicable statutory exceptions.  The Appropriations Clause governs withdrawals from the Treasury.  Venezuelan sovereign funds held in custody are not automatically American public receipts or appropriations.  Receipts accruing to an American governmental equity interest require separate classification.

https://constitution.congress.gov/browse/essay/artI-S9-C7-2/ALDE_00013189

[16] Congressional Research Service, “Office of Strategic Capital:  Overview and Considerations,” IF13215, updated September 8, 2026, sections on the capital-assistance pilot program and issues for Congress.  Public reproduction of the CRS report.

https://www.everycrsreport.com/reports/IF13215.html

[17] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, 2001, especially Articles 2–5, 8, and 20; annexed to General Assembly Resolution 56/83.  These articles are not a treaty; many provisions reflect customary law.  Article 4 concerns State organs.  Article 5 requires legal empowerment to exercise governmental authority and conduct in that capacity; ordinary corporate governance rights do not themselves establish such delegation.  Article 8 concerns particular conduct under State instructions, direction, or control.  State equity alone does not attribute all corporate conduct.

[18] Charter of the Organization of American States, Articles 19–23.

https://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp

[19] GovInfo, “Remarks During a Document Signing Ceremony and an Exchange With Reporters,” April 30, 2026, p. 8.

[20] Vienna Convention on the Law of Treaties, 1969, Articles 2(1)(a), 46, and 52.  Article 46 provides a separate, narrow connection between internal competence and international validity: the violation must concern a fundamental internal rule governing treaty-making competence and be manifest.  The expiry of a temporary presidential-substitution period does not by itself establish those conditions or invalidate every subsequent act.  That issue remains distinct from responsibility for American force or coercion.

[21] U.S. Department of State, “Vienna Convention on the Law of Treaties,” archived treaty-law guidance on the United States’ signature, non-ratification, and recognition of customary treaty law.

https://2009-2017.state.gov/s/l/treaty/faqs/70139.htm

[22] International Court of Justice, Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, July 19, 2024, paragraphs 124–125, 133, and 240; reproduced in UN document A/78/968.  The opinion discusses Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, December 19, 2005, paragraph 244.  In the 2005 judgment, the Court declined to apply permanent sovereignty to the looting and exploitation there considered.  Paragraph 125 of the 2024 opinion distinguishes the absence of credible evidence of a governmental exploitation policy in that case from exploitation pursued as governmental policy contrary to occupation-law duties.  The principle is therefore neither categorically inapplicable to occupation nor a substitute for establishing the relevant facts and obligations.

[23] International Committee of the Red Cross, “Occupation and international humanitarian law,” August 4, 2004, especially the discussion of Hague Regulations Articles 42 and 55 and the factual test for occupation.

https://www.icrc.org/en/article/occupation-international-humanitarian-law-questions


“The Command of International Law”

August 15, 2026

*

Watercolor CGI
2026

* *

Political leaders, jurists and commentators increasingly describe international law through two apparently opposed narratives.  One announces its death under the pressure of war, national interest and imperial power.  The other proposes its restoration as the foundation of a more just international order.  The first interprets every unpunished violation as evidence that the law has ceased to command; the second treats renewed fidelity to existing rules as the beginning of international repair.  Both narratives convert an institutional condition into a question of belief.  International law appears either abandoned by those who no longer respect it or recoverable by those prepared to believe in it again.

The relations grouped under the name of international law do not constitute a single authority capable of being abandoned or restored in that manner.  Treaties bind the States that have accepted them.  Customary law develops through State practice and recognition of legal obligation.  Peremptory norms restrict what States may authorize even by agreement.  Courts exercise the jurisdiction conferred upon them, while political institutions depend upon the powers assigned by their constitutive instruments and the cooperation supplied by their members.  Each relation establishes a different connection among obligation, judgment and consequence.  No relation contains the whole.

The States that created the United Nations accepted principles intended to govern international conduct: sovereign equality, good-faith performance of Charter obligations, peaceful settlement of disputes and the prohibition against threats or force directed at the territorial integrity or political independence of another State.  The Vienna Convention on the Law of Treaties later affirmed that every treaty in force must be performed in good faith.  Peremptory norms of general international law admit no derogation, while Article 103 of the United Nations Charter gives Charter obligations precedence over conflicting treaty obligations.  These provisions establish normative priority.  They distinguish superior obligations from political preference and prevent every government from determining for itself the entire content of international legality.

The States that recognized those obligations did not establish a sovereign authority capable of enforcing them against every government.  States retained their legislative powers, military forces, police authorities and control over national territory.  International courts received defined jurisdictions rather than universal judicial authority.  International organizations received functions whose performance continued to depend upon decisions and resources supplied by member governments.  The resulting order can articulate an obligation that exceeds the will of a particular State, but its institutions cannot ordinarily execute that obligation without the participation of States.

This separation does not by itself prove that international law has failed.  It identifies the arrangement through which States sought to remain sovereign while accepting obligations beyond national discretion.  The arrangement permits law to coordinate governments without placing them beneath a world government.  It also leaves the institutions charged with judgment dependent upon many of the governments whose conduct they may be required to judge.

The United Nations Security Council gives the separation its clearest political form.  The Charter assigns the Council primary responsibility for maintaining international peace and security, and United Nations members agree to carry out its decisions.  Article 27 nevertheless allows each permanent member to prevent the adoption of a substantive resolution.  The governments entrusted with authorizing collective enforcement therefore retain the power to prohibit that enforcement.

The veto did not enter the Charter solely as a reward granted to the victorious powers after the Second World War.  It expressed a theory of international order.  The founding governments treated agreement among the great powers as a condition of organized peace because an institution that attempted to coerce one of those powers against its sustained opposition might provoke the conflict it had been created to prevent.  Permanent-member concurrence kept the strongest States inside the organization by assuring each government that the organization could not direct collective force against its vital interests without its consent.

The same assurance also limited the universality of enforcement.  A permanent-member government could prevent collective action against itself or against an ally, while a State lacking comparable protection remained more exposed to Council authority.  The veto thus joined two purposes that cannot always be reconciled: preservation of peace among the strongest States and application of common rules across unequal States.  The Council manages that conflict by making great-power agreement a prerequisite for coercive action.  When such agreement is absent, the institution preserves the participation of the powerful by withholding the consequence that an asserted legal obligation might otherwise require.

The resulting paralysis cannot be diagnosed as an administrative accident.  Nor can it be reduced to the bad faith of a particular permanent member.  A government may abuse the veto to protect unlawful conduct, but the capacity to withhold collective action belongs to the design itself.  The design anticipates that peace may depend upon refraining from an enforcement action that the applicable legal principles might support.  International order is then preserved through an exception to the authority by which that order claims to govern.

International courts reproduce the separation between judgment and execution through jurisdictional rules rather than voting privileges.  The International Court of Justice can adjudicate a contentious dispute only when the States concerned have accepted its jurisdiction.  The International Criminal Court can investigate crimes, issue warrants and determine individual criminal responsibility within the jurisdiction established by the Rome Statute, but national authorities must arrest and surrender the accused.  The judges determine the legal question; governments control many of the acts required to give the judgment material consequence.

A government’s refusal to execute a judgment does not erase the judgment.  A judicial decision can identify an obligation, establish a violation, preserve evidence, affect diplomatic relations and alter the legal or political conditions under which later decisions will be made.  Powerful governments are not immune from every consequence.  They may incur reputational damage, economic pressure, diplomatic restriction or domestic political opposition.  Their power permits them, however, to delay those consequences, distribute their costs, contest their legitimacy or prevent them from compelling the conduct ordered by a court.  Less powerful States possess fewer means of converting an adverse judgment into an extended dispute over whether the judgment should matter.

The operation of international law is therefore neither universal compliance nor universal impotence.  Governments perform international obligations throughout relations in which reciprocity remains beneficial or compliance does not threaten a governing interest.  The separation between legal obligation and operative authority becomes most consequential when compliance would restrict military action, interrupt a strategic alliance, expose officials to prosecution or impose substantial costs upon a powerful State.  The law encounters its greatest limitation where the government capable of violating an obligation also controls a substantial part of the authority required to enforce it.

That limitation reveals the relation by which an international legal order becomes an international rule of law.  A standard does not restrain power merely because a treaty or institution has stated it.  If its application depends upon the inability of the judged State to resist, the standard remains available as an instrument of power even when its language is universal.  A legal rule begins to govern the relation among States when the government invoking it against another State also accepts the authority of that rule to examine its own conduct.

Reciprocal subjection is therefore not an ethical aspiration added to an otherwise complete legal structure.  It identifies the difference between a rule and a privilege administered through legal language.  The rule may produce different judgments because conduct and circumstances differ, but the identity and power of the judged State cannot determine whether the standard remains applicable.  Without that reciprocal exposure, a government may preserve its authority to accuse while converting its own conduct into an exception beyond comparable judgment.

Observers often describe selective application as evidence that governments have lost moral integrity.  The description registers the discrepancy between legal profession and political conduct, but it assigns an institutional practice to a deficiency of character.  When officials invoke international law against an adversary, contest jurisdiction over an ally and reject an adverse judgment against their own government, they do more than fail to honor a professed value.  They administer the boundary between the cases in which law will authorize consequence and the cases in which power will prevent it.

The continued production of legal justifications shows that governments still seek the legitimacy conferred by international law.  Officials rarely present military intervention, territorial acquisition, refusal to cooperate with a court or protection of an ally as unrestricted exercises of national power.  They invoke self-defense, necessity, jurisdictional limits, treaty interpretation or institutional excess.  Those arguments may address genuine legal disputes, but they may also allow the government controlling compliance to present political resistance as a dispute within the law.  The institution may pronounce judgment while the judged government retains the capacity to determine whether the pronouncement will alter its conduct.

The language used to describe that government can conceal how the decision is made.  International law must attribute conduct and responsibility to States, but no State deliberates through a single consciousness.  Presidents authorize operations, ministers formulate policy, legislators approve resources, diplomats cast votes, military officers transmit commands, government lawyers construct justifications and judges determine whether domestic institutions may intervene.  The statement that “America,” “Russia,” “Israel” or “China” has acted identifies the State to which conduct may be attributed, but it does not identify the office that possessed authority, the official who exercised it or the sequence through which the decision acquired force.

Institutional language can produce the same concealment.  The Security Council does not cast a veto; the representative of a permanent-member government casts the vote under authority received from that government.  The International Criminal Court does not choose to leave its warrants unexecuted; national authorities with territorial control decline or fail to arrest the persons named in them.  The International Court of Justice does not extend its contentious jurisdiction by declaring that jurisdiction desirable; States establish or withhold the consent upon which adjudication depends.  When those relations are compressed into the statement that an institution has failed, a veto appears as institutional paralysis, noncooperation appears as judicial weakness and the withholding of resources appears as an incapacity belonging to the international system.  The abstraction converts decisions into conditions.

Correcting that concealment does not require transferring every responsibility to individual officials.  Institutional, State and individual responsibilities arise from different relations and cannot replace one another.  An institution remains responsible for exercising the jurisdiction and authority entrusted to it.  A State remains responsible for the obligations it has accepted and for conduct attributable to its public organs.  An official remains answerable for the decisions made through the authority of an office.  Institutional limits condition individual action without performing it, while individual decisions activate State powers without exhausting the responsibility of the State.

The present condition did not emerge from the corruption of a previously impartial international order.  The governments that designed the postwar institutions acted within relations already marked by empire, unequal power and selective recognition.  They incorporated permanent-member concurrence, jurisdictional consent and dependence upon national enforcement into the architecture from the beginning.  An appeal to restore a lost rules-based order can therefore idealize an arrangement whose protections were never distributed with the consistency its universal language implied.

Open repudiation nevertheless changes the operation of a compromised order.  A government that constructs an exception still acknowledges that its conduct requires legal justification.  A government that sanctions courts, threatens judicial officials or denies the authority of external judgment contests the requirement to justify the exception at all.  The first government seeks to control how the law applies; the second claims the power to determine whether the law may judge.  The distinction matters because the demand for justification, even when manipulated, preserves a relation in which reasons can be examined and responsibility assigned.  Its rejection converts resistance to a judgment into a claimed prerogative beyond judgment.

Precise attribution cannot eliminate the veto, compel State consent or provide an international court with its own police authority.  It can disclose what those arrangements contain.  An allegation that names no legal obligation, jurisdiction or responsible authority cannot establish who has violated a rule or who possesses the capacity to act.  A declaration of institutional incapacity that does not identify the government withholding consent, cooperation or resources presents a political decision as an impersonal limit.  A judgment confused with its execution attributes powers to a court that the States creating the court never granted it.  An unexecuted judgment confused with the absence of obligation allows governmental resistance to determine the content of the law.

These distinctions do not constitute a program for reform.  They preserve the allocation of responsibility within the order that exists.  The institution must remain visible where its jurisdiction begins and ends.  The State must remain visible where international obligation attaches to public conduct.  The official must remain visible where authority becomes decision.  Removing any one of these subjects permits the remaining abstraction to absorb an agency it does not possess.

The highest command of the international rule of law can be stated only after these relations have been distinguished: no State may convert the law it invokes against others into an immunity it administers for itself.  That command follows from the difference between a general rule and a standard whose application remains controlled by the power it purports to restrain.  A legal obligation may exist without immediate enforcement, and a judgment may retain authority without execution.  The rule of law nevertheless fails when the government subjected to judgment can determine whether the same standard that binds another State will reach its own conduct and whether any adverse judgment will acquire consequence.

International law therefore need not be declared dead or summoned to moral renewal.  Its treaties, norms and institutions continue to articulate obligations, coordinate conduct, establish violations and preserve judgments that governments may prefer to erase.  The contemporary crisis lies elsewhere: the States with the greatest capacity to enforce international law also retain the greatest capacity to obstruct its enforcement, while the officials who exercise that capacity disappear within the names of institutions and States.

The international order recognizes normative limits that no government is entitled to define alone, yet it entrusts much of their operative force to governments capable of resisting them.  That contradiction cannot be resolved by assigning responsibility to international law as though international law were an acting subject.  Institutions exercise conferred authority, States accept and violate obligations, and officials make the decisions through which authority is exercised or withheld.  The law commands through those relations, and its command fails where the actors entrusted with giving it consequence retain the power to decide when it will count.

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Ricardo F. Morín

August 15, 2026

Bala Cynwyd, Pennsylvania