The New York Times has a big front-page feature on the Obama administration’s plans for next year’s climate summit, which will likely involve a “politically binding” deal to cut emissions rather than a legally binding treaty that would require approval by two-thirds of the U.S. Senate.
A number of advocates for action to combat climate change have been pushing for a strategy like this. A legally binding treaty would have essentially zero chance of passing in the Senate, and other countries know it. But if Obama can effectively make the case that he can cut U.S. emissions while sidelining the global warming deniers in Congress, there might be a chance of securing more ambitious commitments from other major emitters like China, whose rampant coal consumption is finally showing signs of slowing amid fears about air pollution.
The tactic is, of course, consistent with the administration’s strategy of using executive action as an end run around Congress when addressing issues like emissions and immigration. It also highlights just how difficult it is to get a treaty—any treaty—passed these days. If the current climate in Congress has made passing domestic legislation difficult, it’s made the ratification of international law near-impossible.
The Senate still occasionally ratifies treaties. Last April it approved four fairly innocuous agreements dealing with illegal fishing in the Pacific. As Hayes Brown of ThinkProgress noted at the time, these were the first treaties the U.S. had ratified since the controversial New START missile defense treaty with Russia four years earlier.
In the meantime the Senate had declined to ratify (despite an emotional appeal from disabled veteran and former Majority Leader Bob Dole) the Convention on the Rights of Persons with Disabilities, a measure partially based on the Americans With Disabilities Act that is supported by 126 other countries.
It rejected the Law of the Sea Treaty, negotiated in the 1980s and essentially the only regulation that environmental groups, oil companies, the Pentagon, and the last three U.S. presidents have ever agreed on.
The slew of other treaties that U.S. presidents have signed but the Senate has not ratified include measures to prevent enforced disappearance, torture, cluster munitions, and discrimination against women. The U.S. and Somalia are the only countries that haven’t ratified the U.N. Convention on the Rights of the Child. Obama certainly isn’t the first president to see a seemingly logical treaty torpedoed by congressional isolationists, but the logjam keeps building.
Part of the problem with passing treaties is that while most Americans don’t care either way, those opposed to them care a lot. The Law of the Sea is a particular bugaboo among those who fear U.S. sovereignty is being eroded by international law. The child and disability rights treaties are strongly opposed by America’s very politically organized homeschooling movement. The two-thirds requirement for ratification makes it fairly easy for a concerted lobbying campaign to scuttle a treaty.
So what does it mean for the future of global governance that the world’s most powerful country is essentially incapable of ratifying an international treaty? Potentially, not that much.
While the U.S. is not in compliance with the Law of the Sea, for instance, it recognizes it as customary law and is largely in compliance with it. And arguably, the fact that Syria has signed a treaty on the rights of children but the U.S. hasn’t says less about the treatment of children in the United States than the effectiveness of the treaty.
It would certainly be preferable for the U.S. Senate to ratify treaties that signaled its commitment to addressing pressing global issues and didn’t—despite the arguments of opponents—do anything to contradict U.S. domestic law. But it doesn’t surprise me that the White House is looking for an alternative route to address an issue as pressing as climate change.
As Dan Drezner noted yesterday, “there are plenty of international agreements that are reached without using the treaty provision in the Constitution. Most trade deals, for example, are now negotiated as congressional-executive agreements rather than treaties.”
In June, rather than announce that the U.S. would sign the U.N. treaty on landmines, a step that disarmament advocates have been hoping for since Obama’s first term, the administration simply announced that the U.S. would “no longer produce or acquire antipersonnel land mines or replace old ones that expire.” This essentially moves the U.S. closer to compliance with international norms without having to send along yet another treaty for the Senate to leave on a shelf.
Binding international treaties may still be the best way to ensure global action on pressing issues. But unless drastic and unexpected changes come to the Senate sometime soon, more informal, second-best measures like Obama’s new climate push may be the best we can hope for.
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