Why America Doesn't Ratify Treaties

Why America Doesn't Ratify Treaties

Murray article on BritainandAmerica.com
October 17, 2007

One of the leading sources of anti-Americanism relates to America's supposed arrogance in failing to sign or ratify international treaties that the rest of the world endorses.  This particular complaint arises from a failure to understand the role of treaties in the US Constitution and is not confined to the left.

In most countries, treaties are ratified by a vote of Parliament or by an executive decision.  They then supposedly have the force of law, but few countries have means of citizen enforcement of such law, which is why they can be safely ignored when convenient.  Thus, the western European nations are mostly quite happily failing to get anywhere near on target for their Kyoto Protocol commitments, with a couple of nations resting on the laurels of structural changes made before Kyoto was signed.  The only thing that citizens can do to get the nations to meet the targets is the imposition of political pressure, which is likely to dissipate once the true costs of meeting the targets reveal themselves.

The US Constitution, by contrast, has this to say on the subject of treaties:

Article II: [The President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

Article VI: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

There are therefore two main differences between the American system and the more usual Parliamentary system of dealing with treaties.  First, the President can only make Treaties with the consent of two-thirds of the Senate.  That is why President Clinton signed Kyoto but did not ratify it, as the Senate voted preemptively 95-0 against consenting to any treaty that was agreed along Kyoto's lines.

Secondly, and more importantly, treaties trump national law, having the same status as the Constitution.  This means that activists can take the US Government to court and have national law quashed on the basis of a treaty commitment.  Judges can also instruct the Federal Government to take steps to meet treaty commitments.

That is why when a leading climate skeptic said at a fringe meeting at the Conservative Party Conference this year (I paraphrase), "If President Bush had had an ounce of sense, he would have ratified Kyoto and then done what Europe did and ignored it," he was completely wrong.  There is no way that Kyoto, once ratified, could be ignored.  Environmental activists could have judges take control of the US economy within months of ratification in order to enforce its provisions.

The current treaty up for debate is the Law of the Sea Treaty, or LOST.  Most of the rest of the world has ratified the treaty, but the US stood fast against it during Ronald Reagan's presidency.  Owing to claims that the treaty has now been "fixed," it is up for debate again.  LOST is opposed by national security interests such as the Center for Security Policy and by free-market groups such as my own Competitive Enterprise Institute.  Its ratification, these groups believe, will present a huge hostage to fortune.  In particular, provisions relating to environmental impacts on the oceans are an open invitation for environmental groups to sue to the detriment of the United States as a whole.

It is sad that the United States gets blamed for failing to play along with the rest of the world on such treaties.  The main reason why it does not is because, as in Kyoto's case, other nations don't play by the rules of the game, whereas the US is forced to.  If we are to free the world from the curse of meaningless platitudes masquerading as international agreements, the US model for dealing with treaties should be held up as the example, to follow, not a reason for criticism.