Feel-Good Treaties: Bad Idea

Feel-Good Treaties: Bad Idea

Horner Op-Ed Distributed By United Press International
December 20, 2002

On Dec. 31, 2000, Bill Clinton signed the Rome agreement creating an International Criminal Court. He waited until almost the last permissible moment to affix the United States to the agreement even though he did not, he said, agree with its contents.

This did not go over well in some circles.

Several scholars suggest Clinton furthered increasing diminution of the solemnity the U.S. affords treaty commitments. There are, according to one authority, 400 discrete agreements currently bearing the U.S. signature but no ratification. Some of these treaties date back to the early days of the republic.

President George W. Bush, recognizing the consequences of treating the U.S. signature so frivolously, has instructed the State Department to make clear the United States has no intention of being bound by the signature by informing the United Nations of the decision.

That act itself, however, acknowledged that treaty signatures carry obligations. By expressing an intention to not be bound by a signed treaty's object and purpose without ratification, the United States underscores its obligations under all other unratified agreements bearing our signature. This is not without consequences.

Recently, the Friends of the Earth-Europe, or FoE-E, petitioned the European Union to penalize the U.S. for claiming it will not pursue the Kyoto Protocol as the culmination of its commitments under "climate change" treaties.

By asking the E.U. to exercise the $4 billion in retaliatory authority granted it by the World Trade Organization in the form of tariffs on energy intensive products from the United States, FoE-E seeks to effectively enforce the United Nations Framework Convention on Climate Change and Kyoto.

The former, which the United States ratified, commits parties to "voluntarily" reduce or limit identified "greenhouse gas" emissions to 1990 levels.

The latter, which we have yet to ratify, was a "binding" commitment but for only 38 nations, among Rio's 180-plus parties, styled as "developed" to dramatically reduce GHG emissions levels.

The environmental pressure group Greenpeace employed similar logic, citing U.S. acknowledgement that Man is dangerously altering climate, in a lawsuit seeking damages for future climate change. Neither FoE-E nor Greenpeace seek to actually enforce either climate treaty, which at present is not feasible.

Still, as legal propositions and for different reasons these pressure groups have a point.

The current unenforceability of either Rio or Kyoto does not mean they cannot be employed to the same or at least similar ends, through other means. The U.S. government is now making the ground more fertile for such claims in international fora and even domestic courts.

This includes through continuing to formally dignify and even "acknowledge" a likely anthropogenic role in climate change and serious potential consequences there from, and maintaining its Kyoto signature unmolested.

These activities were generally long-thought and specifically intended as mere "cheap virtue", in that they paid obeisance without incurring actual commitments.

In reality, as matters of law, America's specific obligations under either "climate" treaty create legal risk for U.S. interests, principally in the arena of domestic operations. Because of this, and the religiosity of climate change theory, these two regulatory overtures will by no means be the last of their kind.

It is equally likely that future efforts will invoke or directly seek to hold the U.S. or American operations accountable under its express and tacit acknowledgements regarding the theory of catastrophic anthropogenic "climate change."

Specifically, the U.S.'s inconsistent handling of treaty commitments creates -- or at minimum heightens -- exposure for "climate change" levies under the World Trade Organization, regulatory assessment and consideration obligations under the National Environmental Policy Act.

It may also establish private liability under the Alien Tort Statute, a 1789 law providing original jurisdiction in U.S. courts to aliens alleging "torts" violating "the law of nations".

Regarding the latter, it does appear that certain defenses employed with success against recent Alien Tort claims, e.g., forum non conveniens and the political question doctrine, offer no comfort for a putative ATS "climate change" defendant.

Anti-energy groups appear primed to seize upon the State Department having affirmed U.S. adherence to two concepts of international "customary" law also codified in the Vienna Convention on the Law of Treaties.

These tenets of relations between nations are: 1) a treaty signature binds a state -- even where a state's domestic system requires ratification for the agreement to go into full and specific effect -- to, at a minimum, do nothing that would defeat a signed pact's object or purpose; and 2) this commitment remains viable until a state specifically communicates its intention to not be bound by the signed agreement.

This first tenet is also reasonably expressed that a signatory state acknowledges the treaty's premise.

An example is that the U.S.'s never-revoked U.S. Kyoto signature acknowledges man-made climate catastrophe, particularly given it has ratified the Rio Treaty. This also likely acknowledges a duty of "developed" countries to undertake specific actions.

By so reaffirming these tenets, but only renouncing its commitment to one such agreement -- Rome -- the United States also buttressed that its signatures on the host of other signed-but-not ratified agreements carry specific obligations and acknowledgements.

This seemingly creates or, more reasonably, enhances, the U.S.'s exposure and exposure for U.S. operators under these agreements pursuant to the WTO, National Environmental Policy Act, and ATS.

On the heels of the Rome "unsigning", a campaign is emerging to in effect hold the U.S. to the obligations it made in the Rio and Kyoto treaties. It is past time to reevaluate the potential consequences of specific U.S. "climate" treaty commitments, and other looming risks we encourage through the cumulative body of signed treaties, be they ratified or not.

The Bush administration must undertake a specific campaign to aggressively reassert U.S. sovereignty and clarify for policy purposes what the U.S. does in fact acknowledge, that to which the U.S. actually commits, and the scope of particular domestic statutory regimes.