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Foreign Entanglements: Dumping The Rome Treaty Raises Further Questions

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Foreign Entanglements: Dumping The Rome Treaty Raises Further Questions

Horner Op-Ed in National Review Online

The Bush administration has formally informed the United Nations of U.S. withdrawal from the Treaty of Rome. That agreement, signed by a departing President Clinton, established an International Criminal Court. President Bush was able to simply withdraw by letter because, like so many other signed treaties, Rome was not presented to the Senate for ratification.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />

Why is this step necessary at all, given the absence of Senate approval? The 1972 Vienna Convention on Conventions governing treaty interpretation asserts that, upon signing a pact, "a State is obliged to refrain from acts which would defeat the object and purpose of a treaty," until "it shall have made its intention clear not to become a party to the treaty, or it has expressed its consent to be bound by the treaty." Though the U.S. also signed that treaty without pursuing ratification, its terms indicate it would likely be held against us nonetheless.

Curiously, state-department officials intimated that President Bush would take the occasion of withdrawing from Rome to also withdraw from Vienna. That did not occur, though is widely expected to be the administration's next step to clarify our ambiguous international commitments.

Withdrawal from Vienna now is peculiar because, its merits notwithstanding, even in the wonkiest of circles there has been scant mention of exiting the obscure (if wide-ranging) treaty. This is particularly strange given the obvious questions, begged by withdrawing from Rome, about certain higher-profile documents like the Kyoto Protocol on "global warming."

Recent events not only represent the triumph of political types over state-department careerists, who frequently employed the chimera that "signing a treaty doesn't mean anything." The administration can no longer dodge, at least with dignity, the implications of our Kyoto signature by its series of straddles regarding this monumental communion of international energy and environment policy.

President Bush never in fact withdrew from Kyoto but instead, by choosing to merely badmouth the treaty, assumed the odd posture of taking a political beating for something he never actually did. With all due respect to Tim Russert, employing senior officials to disparage Kyoto on Sundays does not equate with transmitting a withdrawal to the U.N. President Bush only intensifies our Kyoto status' ambiguity should he withdraw from Vienna.

Under Vienna, many Bush policies running counter to Kyoto's "object and purpose" are in doubt — like encouraging lots of new fossil-fuel power plants, and his domestic climate-change proposal. Until we withdraw from Kyoto — or Vienna — any nation is free to seek declaration of such U.S. efforts as unlawful. Post-Vienna, the more insidious threats remain.

By withdrawing from Vienna, in part to remove the argument that that treaty binds us to not defeat Kyoto's goals, Bush creates a dynamic whereby the U.S. is "out" of Kyoto for no reason other than because he says so. The corollary is that another president, say, Kyoto-hawk John Kerry, can thus assert that the U.S. is a party to Kyoto on the basis that he says so. Whatever your view on the relative outcomes, this is not mature diplomatic policy.

The ultimate perversion of President Bush's Kyoto dithering is that remaining a non-ratifying "Annex I Party" violates the president's oft-affirmed position that the U.S. "will do nothing to interfere" with others' Kyoto pursuits. It is impossible to reconcile these two positions. The U.S. clearly impedes our allies' stated goals by remaining a non-ratifying party. Indeed, no action or policy better satisfies the president's position than withdrawing from Kyoto.

Europeans and others claim to desire to bring Kyoto into effect. That requires ratification by countries representing 55 percent of the 1990 "greenhouse gas" emissions of Kyoto's "Annex I" ("covered countries"). They accurately cite our refusal to ratify as impeding that desire because, without the U.S.'s large contribution, 55 percent is difficult to achieve. Upon U.S. withdrawal, "55 percent of X" becomes 55 percent of a much smaller number. Europeans can then bring Kyoto into effect against themselves, employing what they describe as necessary steps while they try their hand at trade and other sanctions to coerce the U.S. to join them.

In reality, this impediment seems to satisfy a European preference for a free "green" posture with no threat of Kyoto coming into effect. They frequently attack U.S. "irresponsibility" for standing in their way, and eagerly prepare to turn up the rhetoric.

This summer brings the World Summit on Sustainable Development in Johannesburg. There, EU nations transparently hope to exert as much domestic and geopolitical pressure on President George W. Bush as they did upon President George H. W. Bush through the conference's predecessor, the 1992 Rio Summit. Their principal cudgel will be formal presentation of many Kyoto instruments of ratification, sufficient — but for U.S. reticence — to obtain the requisite 55 percent and enact Kyoto. Given his promises to neither ratify nor stand in our allies' way, President Bush should withdraw from the treaty prior to Johannesburg.

Opponents of such a move have already meted out their rhetorical punishment, though Bush has yet to de jure earn it. Withdrawing from Rome merely highlights the administration's curious split personality regarding the Kyoto Protocol. Refusing to unsign Kyoto sends a message that the U.S. intends to ultimately participate in what Bush calls the "fatally flawed" Kyoto, despite the fact that we have no negotiating leverage for any appreciably modified agreement until we actually withdraw.