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The Sovereignty Implications of the Kyoto Protocol

Cooler Heads Digest


The Sovereignty Implications of the Kyoto Protocol

I understand you have already heard a number of talks about the Kyoto Protocol, and a lot about the economics, and the science of this. I want to spend most of my time being a little bit professorial. I want to convey to you what I think the larger stakes are in terms of how we think about international law and how we think about national sovereignty.

I wish to start by apologizing for the word "sovereignty." Sovereignty is becoming a rather disreputable word, like girl. Remember that Doonesbury cartoon a couple of years ago? The father says, "Oh, look at that little girl over there" and the kid corrects him and says, "No, that's a baby woman. "

You say "sovereignty" now and people think you belong to the Montana militias. You might think I am exaggerating about this. I was recently at a conference at NYU Law School. I basically asked to be invited, and they said, "You can come, but don't talk." And I thought this would be truly interesting, because it was organized around the theme of "Delegating Sovereignty." And I said to myself, yes, delegating sovereignty, I'm very interested in that. And, indeed, they had all the leading figures in international law -- I mean, the leading American scholars in this field.

In the first five minutes, Louis Henkin, who is probably the most senior and distinguished figure in the field of international law, said, "This word, sovereignty, shouldn't be used. It's a completely misleading word. It has no meaning. We should not use this word." And this was a two-day conference on the theme of delegating sovereignty, and everybody bowed to his injunction, and they didn't use the word. It's just not a reputable word. He said, "You won't find this word in the Constitution or any of the founding documents. It's not an American word, we just shouldn't use it." And I scribbled a little note to him and said, "Well, what about the Declaration of Independence, where it appears?" And he got extremely annoyed at this and said, "That's a different meaning. That has nothing to do with it!"

But it does appear in the Declaration of Independence. It appears in the Articles of Confederation. It is true that it does not appear in that exact phrase in the Constitution. It took a civil war to put it into the Constitution.

People who, sort of, get anxiety about this word, think that it must be medieval and have something to do with divine right, and the first point I want to make to you is, that's just wrong. The first usage of the word was only in the Renaissance, in the 16th Century. It was coined by a French lawyer, Jean Bodin, and his point was not so much to elevate the power of the King of France as to make it clear that no local lord, nor the Habsburg Emperor nor even the Pope could override the laws made by the government of France. The term sovereignty really came into more general use in political theory in the 17th Century, and it then became a widely used word because it was invoked by social contract theorists.

In other words, the stream of thought which gives us this word sovereignty is basically the Enlightenment. It's basically the stream of thought that nourished the American founders. And that is why you do see it in the Declaration of Independence. And, indeed, if you can recall the first paragraph of the Declaration of Independence ñ and I want to not embarrass myself by misquoting it. I did put it here in my book. "When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them to another, and to assume among the powers of the earth the separate and equal station to which the laws of Nature and Nature's God entitle them . . . . "

Now, this is the only place in the Declaration where you have this formula, "the laws of Nature and Nature's God." And what it is about is the sovereignty of nations.

You notice the usage there? "to assume among the powers of the earth, the separate and equal station" [of independent nations]. I think the thought behind that phrase is that every nation is equal to every other sovereign nation, because one country can't tell another what to do. That is, no country has an inherent, natural right to boss around others. And the further thought behind it is that to claim a human authority to govern the whole world isn't just tyrannical, but in a way blasphemous, idolatrous. "... to assume among the powers of the earth a separate and equal station." Above the powers of the earth is the power of God, and a human authority that tries to be above the power of independent nations is assuming a kind of god-like authority. And the Declaration of Independence starts by saying "No!" to that.

To elaborate this just a little bit more, I think the ultimate thought behind that is this: a human authority governing the whole world is bound to be -- inherently, almost by definition -- a sinister undertaking. Because it will inherently, necessarily, override the foundations of liberty. And the first foundation of liberty is that you can move. You can escape. But you won't be able to escape from a human authority that claims global reach, global power. I think behind that is also the thought that even if you don't move, you have the chance to compare. You have the chance to say, "Well, wait a minute. Why can't we do this here in our country, since they are able to do that over there?" And that kind of appeal requires that you have separate countries which are able to have their own policies, their own competing policies.

I won't belabor textual exegesis here, but instead I'll just try to offer you what I think is the common sense of this. The historic understanding of sovereignty is that it is like liberty. Sovereignty is to nations what liberty is to individuals. We all know that liberty is hard to define, that it's somewhat formalistic, that however you define liberty, assuring people liberty doesn't guarantee them happiness. But with all the difficulties we have defining and discussing liberty, you'll notice that law professors haven't yet had the nerve to stand up and say, "Let's banish that word liberty, that's a useless word, it's meaningless, it's confused, it's not American, it doesn't appear in the Constitution." (Of course, "liberty" does appear in the Constitution, but "sovereignty" appears in the Declaration and they've managed to forget that.) Law professors don't have the nerve to say "liberty" is meaningless, just because it is hard to define.

Now, you could, I think, from this start, leap to what I think is the wrong conclusion, that if you care about sovereignty you have to be contemptuous of international law. And I think that is wrong. Sovereignty is a term which gets developed in the midst of discussions and treatises on international law. One of its core meanings, of course, is the obligation that other countries have to respect the sovereignty of a state that is recognized as being sovereign. You could say that traditional understandings of international law are premised on the idea of sovereignty. The whole point is to work out a system of boundaries, of rules, so that sovereign states aren't in unnecessary conflict with each other.

I want to now go back and talk a little bit about liberty, and then develop some analogies, and I will get to the Kyoto Protocol and climate change in a few minutes.

With all the difficulties we have in defining liberty, what could we say about it? I think there are at least three things that, at least in America, we have general agreement on. First, that there are certain core elements of it, certain core rights, such as those guaranteed in the Bill of Rights and the First Amendment or the Second Amendment. There are certain things which no government should be allowed to take away. Second, we think there are certain procedural guarantees which are necessary for liberty, like the rule of law and due process. And third, we think there is a certain level of accountability of the government. Yes, liberty implies, the way we normally use it, that there will be restraints. There is a government in the background, but that government should not only be bound to respect certain inherent liberties, should not only be bound by certain procedural safeguards, but it should have some degree of accountability. None of us would say that our liberty was safe -- I think we'd be reluctant even to say that our liberty was real -- in a dictatorship which said, "well, we will fool around with courts, but no elections."

Now, if you go to the classic texts on international law, there is always a little bit of ambiguity -- maybe a considerable degree of ambiguity -- about whether international law always has to protect sovereignty. The history of international affairs is the history of war and conquest, and frequently the result of a war is a peace treaty in which the sovereignty of one of the combatants is extinguished. Countries used to disappear. This actually is not such a remote occurrence. The German Democratic Republic disappeared in this decade, and it did so with a treaty. There was a treaty between East Germany and West Germany, the result of which was that those two countries disappeared, and a new one, a greater West Germany, appeared. You cannot say in international law that sovereignty will always be protected.

But you used to be able to say that states which are sovereign will have these characteristics, and that other states ought to respect them. The general understanding of international law was that it is a set of ground rules for sovereign states to avoid giving unnecessary affront to each other. It was, if you like, something like traffic rules, which aren't a great constraint, because you're not interacting with most people in traffic, except passing them.

Whatever you want to say about international law, I think it's clear that, until very recently, understandings of the United States Constitution presumed a certain view about what the United States could commit itself to internationally. The accepted restrictions on the treaty power are very parallel to these elements of liberty that I was just speaking about. As we think liberty has certain core components which shouldn't be up for grabs, which shouldn't be available to the government, the treaty power was assumed to be only about external affairs, not about internal matters. I can quote you a dozen Supreme Court cases from the 19th Century, even some from the 20th Century. I can quote you texts, treatises, works of distinguished commentators. And this was just generally accepted. Nobody disputed it. The treaty power is for external matters, which is, everyone assumed, therefore, for things which are in a fairly limited category. We won't be governed by treaties. Therefore we won't be governed by international authorities. The United States government is not allowed ñ it is not able ñ to commit itself to some international institution which then takes the place of the United States government in governing the American people.

A second, related point: I said about liberty that it's assumed that there are certain procedural safeguards. Well, the Constitution presumed this also about international law. When we make a treaty, we are bound by the treaty, but only by the treaty. You cannot delegate governing powers of the United States through a treaty. You can make a promise which you keep. You can write a treaty which becomes binding law for the United States. But you can't in a treaty set up a system to which you then delegate the authority to write regulations and implementing decrees, and all sorts of other details which then become binding on us because we originally agreed in the treaty to allow this. Everyone used to think you could not do that.

I would say a third thing to parallel what I was saying about liberty, it was assumed ñ we assume generally that liberty is not safe unless the government that governs is accountable to the people who are governed. The historic American view of this was: international law is binding on the United States when the United States ratifies a treaty. There was an exception to that, called "customary international law." But customary international law was understood to be something which also had the consent of states. What they meant by custom was something which was centuries old. It seemed to be universally accepted, like the practice that you don't arrest somebody else's ambassador, which goes back to medieval times. There wasn't a treaty; it was just universal practice. Okay, that could be customary law.

Now, all of these understandings about how international law is supposed to work, and in particular what our Constitution allows the United States to participate in, all of these have been seriously eroded. At least you have a lot of scholars basically shoveling dirt on all these old doctrines. I will review that quickly, and then I'll come to my main point -- we'd be taking a giant step away from these traditional doctrines, endorsing in the most emphatic way the new understanding that a lot of scholars are now propounding if we participate in something like the Kyoto Protocol. But let me just quickly tell you a little bit about what the scholars are saying, and then I'll come to Kyoto.

Regarding this point of the treaty power being limited to external affairs, this was addressed in the mid-1960s by the Second Restatement of the Foreign Relations Law of the United States. Restatements are academic treatises that carry a lot of weight. It's not the law just because the restatement says it is, but restatements are very prestigious. They have some of the top people working on them, and the treatises on the foreign relations law of the United States have particular weight because there are few people in that field and few court cases. The Second Restatement repeated this doctrine, an old, well established doctrine, that treaty power only extends to external affairs.

In the 1980s we had a third edition of the restatement, and suddenly we discovered that is not the law any more, at least according to these scholars. They said the older law has been superseded, we don't believe that any more. They explicitly repudiate it. They say there is no subject matter limitation on the treaty power. We are free to make treaties on any subject whatever, and you can't distinguish internal and external affairs, it's all the same, it's all up for grabs. They say this citing no Supreme Court cases; they say this citing no particular event which changed the doctrine from what is used to be to something different; they just said, "we live in a new world and we need to have a new doctrine, and let's all accept it."

Second, a point about the non-delegation doctrine. That was in the old treatises. Louis Henkin, who is probably the single most distinguished figure in the field of international law, came out with a new edition of his treatise, Foreign Affairs and the Constitution, in the early 1990s. He explicitly repudiates the non-delegation doctrine. He says we can't have that kind of limitation. After all, we used to think that you couldn't delegate power to administrative agencies domestically. We've gotten used to that. There's no reason we can't get used to it internationally. We just say that in ratifying a treaty we have consented in advance to whatever is done by some administrative agency in implementing the treaty. He says it in a footnote. He doesn't even think it's a big issue. I have not seen anybody attack Henkin for this, at least not in a loud voice. And so these radically new understandings are sort of working their way through the stream of opinion in which scholars swim.

Regarding the third point. In the older understanding, we could be bound by a treaty, but it had to be a treaty that we ratified, or else it had to be long and universal custom. That standard also is going by the boards. If you look at the Third Restatement and at Henkinís book, they both say we can make commitments by executive agreement. There's no limit at all on what kind of commitments we can make by executive agreement. (Executive agreement means the President signs, and we don't have to have the Senate ratify it. We don't have to have Congress authorize it. You just have the President sign.)

It used to be thought that the President can do that, but only for a few special areas, like certain kinds of military agreements with allies. It's now being said that the President's power to make executive agreements is coextensive with the treaty power, and, even more disturbingly, that we can be bound by customary international law even if the custom is not very old and even if the custom is not universal. Customary international law now has to be understood as a kind of global common law. And we all know how innovative judges can be in working through common law doctrines. It has gotten to the point where in the last few years a number of law review articles use the phrase "instant customary law." And what they mean is, this was such a good idea that it seems to us it's been universally accepted before anyone has put it into practice.

The leading candidates for this, so far, have been human rights conventions. People say, everyone agrees, even the people who haven't ratified these conventions. If you look at the Third Restatement, there is a whole long discussion about customary human rights law, in which it says that treaties the United States has not ratified are still binding on the United States because under customary international law they are accepted by everybody. Implicitly we must accept such conventions because we are part of everybody.

I remind you, these are not cranks and crackpots. These are the most respected scholars in the field.

Now, let's come to global warming. As I said, this is really a giant leap into the brave new world in which law gets to be made in quite a different way than we had expected, in which international law comes to have a very different meaning than we have traditionally understood. This would be the equivalent of the New Deal or World War II in cementing a whole new set of constitutional understandings. There were certainly people before the New Deal who were saying: the commerce power of Congress is really much larger than that currently exercised; we should understand the federal government to have expanded powers, and we should allow delegations. It took an enormous crisis, and the facts on the ground piled up by the New Deal and by the war, to make people think that we can't really live any more with 19th Century constitutional understandings.

I do not mean to be hysterical about this. I don't mean to say it would be irrevocable. I don't mean to say we'll never be an independent country again if the Kyoto Protocol is implemented. But it would be hard to limit this power, just as it is difficult to try to rescue some of the 19th Century constitutional doctrines limiting the powers of Congress. We're starting to see some of the Constitution come back now, but it's been hard. And I would say if we have something as large, as visible, as prominent, as far-reaching as the Kyoto Protocol put into effect, it will be really hard to say, "we don't really make treaties about things which are internal to the United States."

Let me just go through each of these points.

Let's start with that one, treaty power is limited to things which have to do with our dealings with other countries, which are external. Of course, what we are promising to do in the Kyoto Protocol, if we ratify it -- and what, in fact, the Clinton Administration has promised, because they have already signed it -- is to reduce energy use in this country basically over the next 50 years. (There's additional language talking about the follow-on period after 2015). If that is considered external, or if that is considered a subject matter fit to make a treaty on, it will be impossible ever again to say that anything is not the proper subject matter for a treaty. We're basically talking about how people drive their cars in Minnesota, how they heat their homes in Kansas, and how they run their factories in Ohio. If that is a fit subject for treaties, it would be such a dramatic precedent that we'll have said for the foreseeable future that absolutely everything is open to international negotiation.

Now, secondly, this point about delegating. If you look at the Kyoto Protocol, it's relatively brief. In the BNA report it was published in about ten pages. The agreements for the Uruguay Round were so immensely detailed that they couldn't even be printed in one of those weekly reporters. In trade agreements we really want to pin down exactly, what are we promising. The Kyoto Protocol is very vague, very general, and what you have in place of details are delegations. They are setting up a special administrative unit to monitor this, a special unit to clarify that, another one to work out rules for a third thing.

There is a proposed system of trading emission rights, so that developed countries can satisfy their obligations to reduce emissions by making reductions in third countries. That's very nice, but of course you have all of these problems figuring out, for example, what if the third countries were going to reduce their emissions anyway? What if they promise to but they don't actually follow through? Does the First World country get to claim credit anyway? There are a lot of difficulties there. None of them are spelled out. There's just going to be a separate unit established to supervise and monitor and make new rules. You're talking about rules that could cover tens of billions, if not hundreds of billions of dollars in transactions over a decade. There's a tremendous amount at stake, and it's all shrugged off to some administrative body.

Similarly, in the Kyoto Protocol you can get credit for reducing emissions if, instead of cutting back on energy use, you plant more forests, or have more so-called "carbon sinks." The idea is that green plantings will draw carbon dioxide out of the air. Of course, nobody quite knows how to measure carbon removal, so a special administrative unit will supervise, measure, and make rules. This is delegation on a really extraordinary scale. I can't think of anything that is even remotely analogous that's been attempted before, as far as empowering international administrative authorities to make rules for the United States. And they would be rules that we'd be bound by if we ratify Kyoto and take it seriously.

So, again, if that is acceptable, it's hard to see down the road how people could get up with a straight face and say, "No, wait a minute, we can't make delegations to this new agency and this new treaty because we don't do that." We did do it! We will have shown that we did it if we ratify the Kyoto Protocol.

Now, a third thing. I mentioned this point about consent. The traditional doctrine said we have to consent by treaty, or else there has to be long established custom. Kyoto will take us a long way down the road in eroding that doctrine. The situation is that you have two dozen First World countries that have agreed to reduce their emissions. Most of the countries of the Third World have said, , "Forget it, we're not doing that." They haven't stalked out of the conferences, because they see that this could have some effect on them, and there are little carrots dangled in front of them. Kyoto said: "There's going to be something in this for you. Among other things, if we enact this system of trading emission rights, you will get money. You will get the equivalent of Green Stamps, because we will be subsidizing First World investment in your country." Of course they are interested in that.

It is entirely foreseeable that down the road a few years it will be said that the Kyoto Protocol is a matter of customary international law, even for those countries that haven't ratified it. And here is one way in which I think this will be unloosed. We are now starting to have at least half-a-dozen lawsuits working their way through federal courts, in which people are suing United States companies in the United States for what are said to be either human rights abuses or environmental depredations in Third World countries. There is a case involving Indonesia; there are two or three involving Latin America; there's another involving Burma. The plaintiffs go into U.S. courts and say, ìwhat these American companies are doing is in violation of international lawî. It turns out that the United States has not actually ratified the treaty, but that's not the point, they say. It's customary international law, it's accepted, it's out there. And the United States courts should enforce it.

One easy way to apply this to Kyoto is that whatever is formally agreed to by the United States, American companies operating in less developed countries around the world will be subject to suits by environmental activists in the United States, saying, you didn't follow the rules. And you could draw American courts into enforcing these rules as a matter of customary international law. Only a few years after that, if the Congress accepts that doctrine, it's foreseeable that you'll have people invoking this against American companies in the United States. If you look at treatises like the Third Restatement, customary international law is binding in the United States. It's binding on the federal executive, say some scholars. Everybody admits that Congress, if it wants to, in a supreme act of national will, can override customary international law. But if Congress says nothing, many scholars and many jurists think the courts can just pick it up and run with it.

If we have any degree of running with it, you are going to establish precedents which are so looming, so prominent and dramatic, that it will be nearly impossible to reverse them. Yes, the Congress could rescue us, five years, ten years, fifteen years down the road. I'm not disputing that. For the foreseeable future, it will always be possible for us to fall back on the fact that the 7th Fleet is actually ours, and the 82nd Airborne is actually ours. It is our money, they are our soldiers and our ships. But as you've noticed in the last few weeks, our government, even now, is a little reluctant to say things like that. The further down the road you go, the more controversial and difficult it will be for the Congress to reassert its authority to make decisions for the United States.

AEI’s John Bolton says the vision of international advocacy groups, environmental groups, is that at future conferences you'll have a giant table, and there will be one little sign in front saying, United Kingdom. The next person will be sitting with a little sign in front that says Canada, and the one next to him will say Greenpeace and the one next to him will say NRDC. I used to think that was very witty until I started actually going through the minutes of international environmental conferences. They are on the Internet. The UN publishes these things. They give you a list of the following countries that attended this conference, and right after the following non-governmental organizations. The second list is larger than the first. They report what people said without sometimes distinguishing, was this person representing a government? Who is being represented here? What are we talking about?

That doesn't happen incidentally. That is exactly what the doctrine of sovereignty was intended to prevent, historically. The people who are scoffing at sovereignty, what they want to achieve is a conference where some of the participants happen to represent governments that were elected, and some of them happen to represent groups that were funded by the Ford Foundation. They're ready to talk too. It's not a hidden conspiracy.

It's right in front of your face. You can read about this in law reviews. You can read about this on the Internet. It's quite open.

What is behind all this is the notion that there is nothing special about sovereignty, that having responsibility for or accountability to a particular population in a particular territory is no big deal. It doesn't give you any more status than coming from a group which cares a lot about the earth. All of the participants are partners in global governance. It would be invidious to suggest that advocacy groups are not actually elected, not actually responsible, not actually accountable. Just as it would be offensive at these conferences to suggest that Luxembourg is not really a country.

The truth is that many countries appearing at the international conferences have, as a practical matter, fewer resources to deploy than Greenpeace or the World Wildlife Fund or other advocacy groups. They have fewer college graduates available, let alone people with higher degrees and credentials. They have less money to spend on international conferences.

Running behind all this is the notion that sovereignty is just a sort of crotchet of old-fashioned people. It's just not worth fussing about. What's behind that is the notion that being responsible to particular people is not important. Who says "global governance" says "forget about borders, forget about constitutions, forget about what makes countries different. We're all in this together." That is of course an ideal which is very appealing to environmentalists. Everything is connected to everything. We're all here on the same big blue marble in space. That's an ideology which has a lot of appeal to such people. But when you think it through, you'll see that if you let that get loose, if you let that build momentum, if you let that become the cornerstone of international law, you start by eroding constitutional governance at home, and you end by really marginalizing it all together.

People who think that I am being extreme here, or alarmist, should just take a glance at Brussels. Look at the European Union. Everybody admits that the member states of the European Union are not sovereign, or at least they are not sovereign in the way they used to be, because so much of their policy is made for them in Brussels. Now, it's true that the governments of the member states in the European Union, they have some check on what the European Commission does in their name, and that does make a difference. I'm not saying they are simply tyrannized. I'm not saying it doesn't matter that they have elected governments. But what has happened is that Brussels has its own agenda, the career bureaucracy in Brussels and these commissioners that are appointed there have their own agenda, and their agenda is constantly strengthening European institutions at the expense of the member states. Everybody understands that, and nobody disputes that. What happens is that not only non-governmental advocacy groups but businesses realize that the rules under which they operate are going to be established to a large extent in Brussels, and so they send delegations there. They send lobbyists there. They invest in trying to gain influence there and affect the results there, and they become oriented towards thinking of Brussels as the government that counts. Which, in a way, it is.

Now, Brussels builds itself up by saying, yes, deal with us. Better to deal with us even if you don't like what we're doing, because we have the power and we are important. And one of the things that they have done is, they have nurtured a whole network of environmental advocacy groups. An interesting fact about the EU: ten percent of its budget goes to grants to non-governmental organizations. If you look at the major environmental organizations in the world, most of them get ñ there are a few exceptions, but most of them get the bulk of their funding from Western Europe. Greenpeace gets the bulk of its funding from Western Europe and Northern Europe. That's true of a number of other organizations. And if you look into the details, it turns out a lot of the money comes directly from the European Union. What's going on is the European Union is building up its own constituencies that are loyal to Europe, and will go back to their national states and say, this is the common project. You're standing in the way. They are doing that now internationally. It will take a long time before the United Nations Environment Program has really the kind of clout in the world that Brussels has in Europe. But I think that is the serious vision down the road, and there are people working for it, they see it as a practical vision. I don't think it's impossible. It would be a messy world ñ as Europe is messy. It will be much messier than Europe is, and Europe is still messy. But this can happen. And we ought to be alert to this. We ought to say from the beginning, no, wait, stop.

I mentioned at the beginning that, whatever Louis Henken says, sovereignty is a word that our founders were not ashamed of. I also should remind you that we became an independent country over what was actually a pretty legalistic dispute: Could the British Parliament impose taxes on the American colonies? And rather than submit to that ñ it wasn't even a very large tax ñ we said no. No, wait, there's really a principle here. If we give in to even this small tax, who knows where it will end?

Well, it's ended with a federal government that takes 25 percent of our income today.

But it does make a difference that it's our own federal government. One of the indications of this difference is that, as high as our taxes are, they are lower than taxes in most other developed countries. And people can look at the comparisons. What are they getting for their money? What are we getting for keeping our money? It is still very important to live in a world in which different countries can pursue different policies. And that requires that you dig in your heels somewhere and say, "No, wait, stop!" And it certainly requires you to dig in your heels on something as big and prominent and overshadowing as Kyoto will be. So there's a lot more at stake here, I think, than just whatever people think the immediate implementation costs might be.

Thank you.


Q: This isn't really related to Kyoto, but . . .

PROFESSOR RABKIN: Well, I wasn't really related to Kyoto in everything I said.

Q: . . . the arguments that sort of have come to the forefront on the whole Kosovo issue is, wait a minute, Yugoslavia is an independent country, and do we have any business going in there? And the opposing argument is, well, human rights demand that we go in there. I am just very interested in hearing your . . . With your background, your approach.

PROFESSOR RABKIN: For what it's worth -- and I'm not saying it's worth a lot -- I am very uneasy about this war in Kosovo. I am uneasy, first, for the reason that you mention, that it is an independent country. And people are saying, well, we had to bomb them because they didn't accept the Rambouillet Agreement. What? So now the doctrine is that countries must accept international treaties or submit to bombing if they don't. I mean, where did that come from? That makes me very uneasy.

And it also makes me uneasy the way this is being presented. I mean, there wasn't a declaration or war. And worse than that, it is presented as, this is a NATO mission. If you were following this closely, back in December there were several announcements that NATO has agreed that Javier Solano can decide when the bombing should start. And all the governments were just saying, we're going to let Javier decide when to send the bombers out.

My mouth dropped open when I read that. And I was waiting for an outcry. And there was no outcry. People just seemed comfortable with the idea that, well, yeah, we've got this international bomber force and it's under the control of a bureaucrat in Brussels, and that's as it should be, because that's international cooperation. I mean, there are a lot of issues there that people, I think, ought to be worried about. And I don't mean to belabor this, but just to say . . . I mean, we ought to be alert to a lot of different aspects of this, because they do, I think, mutually reinforce each other. People will say -- they are going to say, I guarantee you they are going to say, however this ends -- "Well, you see, there is international cooperation because we have had this war in Kosovo over international standards, and considering all the bomb damage we were ready to inflict, we must be very committed to enforcing international standards. Restrictions on energy use to avert global warming are a small thing compared to an actual war, so how can you gag on them if you accepted an actual war Hmm?" I think you do have to worry about that.

Q: I do. I have a guest today from the American Legion, and I would really kind of like to have your thoughts in terms of what does the Kyoto Protocol, even if it's not ratified by the United States Senate, what does this mean in terms of military preparedness, in terms of the military applications, and of course the whole economic effects on retirees, and all that kind of thing. But, it's the whole question of who is running it, and . . . .

PROFESSOR RABKIN: Let me just back up to something that is very related, which is, we haven't ratified this. Are we then bound at all? And the answer of the Clinton Administration is, yes! President Clinton's word is at stake! President Clinton's honor is at stake!


PROFESSOR RABKIN: No, I mean, it is actually a sort of doctrine in international law that you cannot sign something and then disregard it. And I think that is a sensible doctrine. What you are trying to guard against is . . .

Most international negotiations involve give and take. And you are trying to guard against this sort of clever maneuver of we sign it in order to get you to sign it, you ratify it and start implementing it and we say, well, we only signed it but we didn't actually ratify it, so ha-ha-ha. You deliver your part, but we're not bound, we're not going to deliver our part. So it's understandable that international lawyers think, now, come on now, if you signed it, you are really at least obligated not to disregard it, not to undermine it, not to defy it.

I'm not sure how that parses out in particular policy details, but just from reading about this, it seems to me that the Clinton Administration is taking already a pretty active view of what their obligations are, just from having signed it. And that is, again, one of the big stakes here, which is, can we be committed to an ongoing program just on the say-so of the President? And their view seems to be yes. I mean, just to give one example, which, I don't know how important it will be, but it's a little disturbing to me. The EPA is now giving out prizes and setting up advisory guidelines about how companies can reduce their emission of greenhouse gasses and saying, okay, this is what you ought to do. It has been at least discussed that the Defense Department should keep an eye on whether it is emitting too much greenhouse gas ñ which you do every time you fly a jet. I mean, they probably busted all the emissions limits right now in just the last three weeks over Yugoslavia.

The Defense Department is not saying, this [the Kyoto Protocol] is preposterous, cut it out. They are saying -- at least the Clinton Defense Department -- we want to have certain exemptions and exceptions, such as a war, and I don't know whether that means only a declared war, or any war, but . . . They are still saying in general, this is something we're going to work with. Which, yes, I think will have a lot of disturbing implications for military preparedness.

I am not competent to tell you, this is going to reduce our military preparedness to a disastrous degree, but it's obvious that it's an issue. I mean, the way pilots train is by going up there and flying around. And if you have a limit on how many flights you can make, there's got to be less training. I mean, that's obvious.

MR. SHEEHAN: If I could expand on Susan's question just a bit. You were touching on the Yugoslavian situation, Dr. Rabkin. If you could just imagine that if we were under a ratified Kyoto Protocol today, and the President, using sort of a unilateral ability to wage war wherever he wishes, and the implications for the emissions profile of the United States under this treaty, could you speculate a little bit about what you think would happen? How would we manage to meet our emissions caps under the treaty given the implications of the bombing on our greenhouse gas emissions?

PROFESSOR RABKIN: Yeah. I mean, this is wildly speculative. Who knows? But the kind of thing that people seem to be thinking about is that there should be an international authority which is empowered to say, "You guys overextended your emissions budget -- you, the United States -- and how are you planning to make good on that over the next two years? Could you shut down some factories to compensate?"

Now, I don't know if it will ever come to that, but that is of course the logic of this. I mean, it makes no sense to say, on the one hand, everyone will make sacrifices to reduce their emissions of greenhouse gases, but on the other hand, as soon as there's a war we just shrug our shoulders and pour all those greenhouse gases back into the atmosphere to whatever extent we like. Particularly if it's a small war, and an optional war, it's hard to say it is exempted from the national quota on emissions. We can't just shrug our shoulders, and say, "That's okay, that doesn't count." Certainly there will be pressure from international authorities to make that count -- and after all, the air missions are mostly flown by American pilots in American planes, so the international authorities can easily put the burden back on us.

Q: My question is, don't you think we really do need the Bricker Amendment? Which Helen Chenoweth introduced in the last Congress?

PROFESSOR RABKIN: I personally said to Representative Chenoweth, this is a great idea, you ought to bring it back. And she said, yes.

Q: Could you explain what the Bricker Amendment is?

PROFESSOR RABKIN: Yes. Just to show you that, I mean, the background of this is somewhat interesting, because it reminds you that people used to be very alert to these things.

In the early 1950s when the United Nations was sponsoring conferences to negotiate the first major human rights convention, a lot of people in the United States look up and said, wait a minute, what do you mean there's going to be an international treaty defining our rights? I mean, we already have the Bill of Rights. Why would this be a part of an international treaty? What are we getting into here? And they got very uneasy and nervous about this. That was one of the main provocations, or the main impetus to this.

Senator John Bricker, Republican of Ohio, was persuaded by people in the American Bar Association, that this was going to be a problem. So he proposed an amendment to the Constitution, which was going to clarify three things. First, nothing would enter into U.S. law unless it has been implemented, actually enacted by Congress. So treaties wouldn't go directly into U.S. law. Secondly, we can only make treaties by the constitutional means of two-thirds of the Senate. So there's a kind of double-check. Two-thirds of the Senate, and even so it doesn't become the law. You have to have separate implementing legislation. And then the third thing was, the implementing legislation won't be constitutional unless it was already something within the power of Congress. So the existence of a treaty doesn't give Congress any more power than it otherwise would have.

I think there are some legitimate questions about whether you'd want a Bricker Amendment which followed precisely that set of restrictions. I mean, there are certain circumstances where executive agreements make sense. George Washington was making executive agreements. There are certain situations in which you want to be able to say to another country -- particularly in war time, when, for example, we made all sorts of agreements with Britain during World War II -- you don't want to have every one of them go back to the Senate. You're talking about, literally, dozens, sometimes hundreds, of them a year. You cannot run them all through the Senate. So I think it's reasonable to say you have some restriction on executive agreements, but not eliminate them altogether. Similarly, I think there might be some circumstances where a treaty should give Congress more power than otherwise. But definitely we should be thinking about putting in the Constitution some brakes, some checks, something that says, "Now, wait a minute, this is not open season, you cannot just sign an agreement and then bring it into American public policy on the grounds that, 'well, we promised Luxembourg.'"

Q: Two questions. One is, with what you just said, how would you envision a properly construed Bricker Amendment? And to follow up on that, as well as the question of the President sort of giving his word, the way that you have constructed international law and based it similarly to the way we have domestic law, isn't it true that in the same way I can't sell Jim's house, because it's Jim's, the President of the United States cannot use authority he does not have? If he needs to get ratification before signing, if that's the method of the international convention should take, that's fine. But if that's what it needs to be, that's what it needs to be. He cannot sign away on authority that he simply does not have. It's not permissible.

PROFESSOR RABKIN: To go to your first question, which is how would I redesign the Bricker Amendment? I'm really not sure. This is something we need to think about. But what you propose there in the second part of your question I think is a good compromise. Which is, we could say that the President can make binding ñ at least externally binding -- international executive agreements, but only when the Congress authorizes him. And there are areas in which we authorize that. That's what the trade negotiations all rest on. Nobody wants to bargain with Clinton now, because the Congress has not approved fast track negotiating authority for him. So there's all this talk about, ooh, we'll have a millennial round of the GATT, and we'll do this and we'll do that ñ no one wants to talk to him, actually. Because he hasn't gotten the Congress to say, yes, we authorize this, and we will stand behind it, and what you promise we will deliver. So I think that's a reasonable suggestion, that we ought to clarify that the President can't speak for the United States unless the Congress has authorized him to.

I still think that it's probably reasonable to say now that anything that commits the United States commits it just at the international level and won't enter into American domestic law. That is, it can't be enforced by courts, unless the Congress says so. I think that's another useful one.

And I don't know how to phrase it, but I would like there to be some constitutional clarification that the mere existence of a treaty doesn't provide totally open-ended license to Congress to enact everything and anything. I don't know quite how to phrase it. But ... maybe what Bricker said was the right thing, that we just should say a treaty can't even override the distribution of powers in our federal system. That's a big issue in all this. When you make a treaty, what most of the international law scholars say is, well, that inherently, by definition, federalizes it. If we make a treaty about anything, then the federal government has to have authority to implement it, because the federal government has to make good on our international commitments. And maybe, maybe that's wrong. Canada doesn't say that. They have a federal system, and in NAFTA there are all these special provisions saying the Canadian government will encourage the provinces, but the federal government can't promise it. Maybe we could go back to that. This is something, really, people should think about.

Q: Because so many of the environmentalists have taken over so much of the influence -- the World Bank, you know, the European Union, and so forth . . . the idea being that the planet is at stake, which is . . . The fact that a lot of these people, the basic substrata of where they are coming from is not optimistic . . .

There's just too damn many people assuming that . . . the fact that the guy from Earth First said we only need two babies, maximum. So he's got a huge . . .

PROFESSOR RABKIN: We only need two babies for what?


Q: That's a good point! The sustainable level of the earth. . . [inaudible]. So, because that is their idea, you have these concentrations of. . .[inaudible]. Twenty percent of their last voter guide had to do not with the environment but with the population.

Q: What do you do with these people?

PROFESSOR RABKIN: Yeah. That's why we have to regain control of our military. Take it back from them.

No, this is serious . . . I'll just give you another example, which was really startling to me. The World Health Organization . . .

Somebody asked me to look into this. They are getting very enthused about tobacco regulation. They say, "There's an epidemic of tobacco use!" A funny way of describing it. And they want to have an international convention. And, of course, almost none of it has really to do with movement of things across national boundaries. It's just premised on the notion that we should all hold hands together and say in unison, "bad, bad, bad." And cruising around their web site to see what else they are up to, well, it turns out they have this whole abortion project. You know, reproductive health. And they profess to have numbers, which they then tell you, well, these aren't actually reliable numbers, but we just thought we'd put them out there anyway. About how many people have died from illegal abortions in all the countries where it's illegal. And they are able to show that hardly anybody has died from an illegal abortion in Western Europe. Which is not surprising, when you think of it. There's not many kinds of abortion that are illegal there.

So. What you are talking about here is, again, the Bolton image of policy being made at international conferences where advocacy groups have more or less equal status and influence with governments. This sort of project is going to give a lot more weight to the advocacy groups. And who are the advocacy groups? And the interesting thing is, they network very, very extensively. And they try to link environmental concerns with feminist concerns, with the concerns of labor unions and on and on.

You know, it's just like Washington. I mean, people find ways of recruiting friends and allies and saying, "Well, yeah, it's all the same, we're all doing the same thing, and you come to our rally and we'll go to your rally." And so I think you are absolutely right that the people who are enthusiastic about abortion will find a way to weave this into international environmentalism. Absolutely.

MR. SHEEHAN: If I could interject there. The UN Population Fund last week started distributing condoms and safe abortion kits to the Kosovo refugees. So, I don't know if that . . . I don't know if that took precedence over humanitarian, you know, food and shelter and medical supplies, or the other way around. It just seems like an unusual use of the western taxpayers' funds, to be ensuring that teenage Kosovars have condoms.

Q: I write for a rag called Electricity Daily. And I did daily coverage of Buenos Aires. . . And the language, I was so upset over that language, because what I saw happening was the beginning of a regulatory development program. A lot of people think nothing happened in Buenos Aires ñ that's not true. Basically, the beginning of a global environmental protection agency was formed.

Now, this language used to be up on their web site. But as I said . . . Oh, my title, I think, was Will Karbonkovski (sp) Pack Any Heat? Making the point that we're talking about. There is no way to do the kinds of things that Kyoto wants to do without an international environmental protection agency, and my question is how heavily they are going to be armed? What sort of enforcement powers are they going to have?

But the language I key on said, the parties reached, quote, "a common understanding that a strong and comprehensive regime is needed to ensure the effective implementation of the Kyoto Protocol."


Q: Close quote. A strong and comprehensive regime. That's it there, right?

PROFESSOR RABKIN: I want to respond to this, just to clarify something I was saying before, which I, maybe I didn't make clear enough.

You know, it happens all the time in Europe that something is decided in Brussels, which people in Britain or Spain, or sometimes even Germany, are very annoyed about. And they say to their government, you know, "Go in there and get that changed! Don't go along with this. We shouldn't have to put up with this!" And the governments then turn around and say, "Look. We understand that this is upsetting and annoying, but you've got to look at the big picture. The big picture is there are all of these valuable things that we are getting out of European integration, and you can't jeopardize all those valuable things just for this particular dispute that we're having over this or this." Now, we're saying this now about the WTO. And I think reasonably. I feel that way frequently about WTO disputes. I mean, even if you're not happy about this or that outcome, there's really a lot at stake. And you don't want to just break up the whole enterprise over a particular grievance. I mean, some people may not agree, but I'm just saying it is reasonable to think this way -- because I think it, myself, sometimes. There's a lot at stake, and you don't want to bust up the whole thing because you're annoyed at some aspect of it.

What makes it, I think, sinister to have an international environmental authority is that we will pile a whole lot of different responsibilities into the same authority, and then people will say, not unreasonably, "Well, you don't like this, you don't like that, but you can't bust up the whole thing, because, after all, there are so many other things at stake." And what I think will make it particularly sinister is if it gets tangled up with either the World Trade Organization or the World Bank, which, the bulk of which, people are talking about this and working toward this, how to integrate these different efforts. And then they're going to say, well, you don't like this policy, you don't like this outcome, but after all, there's a lot at stake, there's a whole structure of international cooperation. And at that point, you know, you're really sucked into something which is much deeper than any one individual agreement. So, yeah, this is something to worry about.

Q: I thought the Kyoto Protocol, the reason the United States is not signing it, even though they signed it . . .


Q: . . . I heard we weren't signing it, because Third World countries, and they included China, were not expected to have the same environmental responsibilities as we were. And I guess I don't understand what you mean about, how did you say it? This trading off or something?

PROFESSOR RABKIN: Yes, yes. Let me try to explain this. The situation is this. Going back, years before Kyoto, the Third World countries, led by China, said, "Absolutely not, we're not reducing our emissions, don't even think about it, we're not going to do it." Now, they didn't say -- which would have been logical -- "This whole thing stinks, we don't want any part of it, good-bye, good riddance, don't call us, we're busy, we just don't want any part of this." Instead, they said, "We're going to come to the conferences, we're going to sign these things, but we're just going to insist that anything we sign doesn't commit us to reduce our emissions." So they are full parties to this. They want something to happen. They just don't want anything to happen that puts an obligation on them to reduce their emissions.

The reason why they are participating in this -- that's quote "participating," I mean, why they're signing, they're coming to the conferences and at some abstract level are in favor of all this -- the reason is that they are willing to accept whatever goodies are handed out to them. And one of the goodies that was handed out to them at Kyoto, or at least was sort of sketched as, "this is something you can take advantage of," is, western countries can get credit for reducing emissions, not only in their own countries but in less developed countries. But in order to get that credit, it's got to be done in a way that is approved by this international authority. So now you will have an international authority signing off on the way emissions are reduced in China, even though China has not promised to reduce its own emissions overall. But you will have emission reductions in China for the sake of the General Electric Company in Cleveland. All right?

The way this works, is -- well, in a way, it's very clever. It's totally perverse if you step back and say what does this really have to do with climate? But it's very clever, the sort of political mechanism of it.

Assuming the United States ratifies this, then General Electric presumably will be under a lot of pressure to reduce its emissions. And it's already using very efficient, clean plants, so it's hard for it to reduce its emissions. So they will be able to sponsor a project in China, and whatever reductions they make in Chinese emissions will then be counted against obligations that the United States has. And that will be an incentive for western countries, western companies, to invest in China. And that is why China is intrigued by this and says, "Sure, we're going to stick around for this. Sure, we're going to endorse the rhetoric. Sure, we're going to say this is something the world needs to cooperate on, as long as the cooperation is you pay and we accept."

Q: How can China reduce emissions, if we . . .

PROFESSOR RABKIN: It isn't China's emission. All that's being said now in Kyoto . . . I think it is basically crazy, but politically it makes sense.

They are saying the western countries have promised for the first phase of this, for the next 15 years, to make reductions of, you know, 8%, 9%, 12%, different countries have made different commitments. And it is specified that that reduction can be made either within your own country, or partly within your own country and partly elsewhere. So that you are emitting less than you otherwise would have.

Q: If you'd pay to have a coal-fired power plant, you'd switch to gas.

PROFESSOR RABKIN: That's right. That's right. And you say, that is the equivalent of having shut down a factory in Toledo, Ohio. Instead of shutting down the Toledo factory, we improve the efficiency of the factory in, you know, Quong Dong.

Q: There are two other reasons why China is interested. One is that it gets the United States committed. The cost of energy and all of that, for us to comply is staggering. It reduces our GDP, it reduces our competitiveness . . . The widgets that we make and try to sell abroad are much more expensive; the widgets that China makes are that much cheaper and they are more competitive in the market.

PROFESSOR RABKIN: And there's the other aspect, that if you are General Electric, it's going to be cheaper to produce in China than in the United States. It's already for a lot of reasons cheaper in China, but it will be yet cheaper if China doesn't have to worry about emissions and the United States does. And they see that too. So they would like western countries to, you know, put limits on themselves.

The reason why I focused on the trading system is that there is a way in which I think you can see litigation starting up in U.S. courts. I think nobody is so visionary as to say that the National Resources Defense Council is going to sue the government of China in federal district court in Topeka. I mean, that's not going to happen. But what they will do is sue American companies, and say the American companies should have done this, that and the other in China and didn't do it. And that way you get dragged into this. And that is only half a step beyond what they are already doing.

Q: I don't understand. Because I'm not a lawyer, I don't understand how . . . [inaudible]

PROFESSOR RABKIN: No. That's a very good question, and a serious question. And I have some hope that in the future, you know, maybe Justice Scalia will ask that question.

The cases that are out there now, they find people in Burma who, they suffered real injuries. You know, they have . . . I don't know, lung cancer. Or they have glaucoma, or . . . I don't know what they have. They have all kinds of injuries which they say were produced by this mine, or this factory. This operation of an American company. And sometimes they tie it into, you know, the Burmese government police came and beat me up, but they did that because I was complaining about this American company, so they really did that on behalf of this American company, so the American company is responsible. Now, all of that is a way of trying to make the American company pay. But so far the cases have been, they were injured in some way.

Now, you're right. It's a little bit more of a leap to say, well, how is anyone injured by failure of global warming? But if you're going to

. . . You know, if you're going to be a sorehead and a stickler about that, half the environmental suits in American courts should be thrown out, because they have the same problem. People are saying, the EPA doesn't have a sufficiently strict standard, and here we are, you know, the Environmental Defense Fund. And they're in the D.C. Court of Appeals every week. And nobody says, well, wait a minute, why do you have standing? It's understood that they have standing, because they breathe the air. This could affect . . . This could affect THEIR breathing! And that's taken to be enough. Now, if that works for the Clean Air Act, it seems to me it's not a big leap to say that should work also for global warming.

I mean, here would be a really great one, and I don't think it's more of a stretch than things that are routine now. I have real estate, which is on, near the coast in Bangladesh. And it's going to be flooded if there is global warming, and global warming is being produced by these American companies. All right, maybe courts will be suspicious, maybe they'll require a closer connection than that. There have been some standing cases where they have said, "Come on now, it has to be a closer connection." But this is not a big leap.

And, again, let me just remind you. Part of w