Perhaps U.S. President George W. Bush believes it when he says the United States is free of the Kyoto climate change treaty. But if he does, he is paying insufficient attention to his anti-capitalist foes. And he is not doing what it takes to shield the U.S. economy from their predations.
Friends of the Earth (Europe), the environmentalist pressure group, called on Pascal Lamy, the European Union's trade commissioner, last week to impose sanctions on energy-intensive imported American goods. FoE's legal argument amounts to this: Because Washington refuses to cut American C02 emissions to 7% below 1990 levels, as Kyoto requires, corporate America will not bear the same costs as companies in signatory nations -- ergo, U.S. exporters are engaged in "environmental dumping." Greens insist that the true cost of production includes the expense of complying with Kyoto.
"The U.S. rejection of the Kyoto Protocol is unfair," said FoE in a statement, "and puts European business at a disadvantage. With Bush's increasing rejection of international agreements that are essential to protect the environment, Europe should have the right to penalize U.S. goods for the pollution they cause."
Mr. Lamy is unlikely to do what the Friends want -- yet -- because it would be too provocative. But EU officials are looking into the concept of environmental dumping as they ponder ways to shoehorn Mr. Bush into Kyoto. It's an odds-on bet that litigation pursued under a grossly expanded definition of dumping will be in vogue soon among Eurocrats and corporations that want to make life difficult for anyone defiantly beyond the Kyoto pale.
This is familiar ground for the EU. In the mid-1990s, Brussels accused Britain of "social dumping" after the Tory government in London sensibly opted out of the Maastricht Treaty's "social chapter" -- a mechanism to impose worker benefits uniformly across the EU. Legal challenges from Brussels were headed off only by the Tories' electoral implosion in 1997. Tony Blair abandoned the opt-out the instant he took office.
Brussels sees Kyoto, as it saw the social chapter, as a steamroller with which to level the playing field against the more efficient U.S. economy. When global warming science was crumbling last year, Margot Wallstrom, the EU's environment commissioner, retreated to more honest -- some would say, brazen -- ground by admitting that Kyoto was "about international relations, this is about the economy, about trying to create a level playing field for big businesses throughout the world."
The EU thus will almost certainly test U.S. defenses against environmental dumping charges. And here we come to the nub of the issue -- the U.S. case is made immeasurably weaker by Mr. Bush's refusal to remove Washington's signature from Kyoto.
Article 18 of the Vienna Convention on the Law of Treaties says a state is "obliged to refrain from acts which would defeat the object and purpose of a treaty when ... it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification."
So it is no good withdrawing from a treaty only rhetorically, as the president did last year. The White House announced U.S. withdrawal in March and the President took press questions, but these were news events not legal defenses. They will have little standing in a trade court. True, the U.S. Senate has not ratified the treaty, but that does not end all argument, and the Bush Administration knows it.
Why else did the U.S. government unsign the Rome Treaty that established the International Criminal Court? Because if it had not, Washington probably could not have blocked the extradition of, for example, a U.S. general facing trumped-up and politically motivated war crimes charges at the ICC.
Failing to unsign Kyoto could be calamitous. When European plaintiffs go to the WTO, Washington will be barred from attempting to "defeat the object and purpose of the treaty." What will the U.S. defense be? It cannot say Kyoto's emissions standards should not exist because the U.S. signature is there on the dotted line confirming the opposite.
Nor is the WTO the only forum in which the extant signature could have malign consequences. It is also likely to facilitate suits in U.S. Courts under the Alien Tort Statute, which can be brought if the tort -- such as an unfair trade practice -- violates the "law of nations." It will be difficult to argue that the treaty is not generally accepted when there are 84 signatures, including that of the U.S., there to confirm it.
The fact that "environmental dumping" is an inherently ridiculous notion, and that Kyoto is an ideologically driven document that will inflict great economic damage without any compensating benefits, cannot be relied on to win the argument. If, as seems likely, Mr. Bush understands that the treaty is not merely worthless but malignant, he needs to kill it rather than wait for it to metastasize. That means, before anything else, removing the signature that is giving aid, comfort and weaponry to those whose purpose is to inflict damage on the U.S. economy.