Updated: The Perils Of “Soft” And Unratified Treaty Commitments

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THE PERILS OF “SOFT” AND UNRATIFIED TREATY COMMITMENTS:

THE EMERGING CAMPAIGN TO “ENFORCE” U.S. ACKNOWLEDGEMENTSMADE IN AND UNDER THE RIO TREATY AND KYOTO PROTOCOLUSING THE VIENNA CONVENTION, WTO, ALIEN TORT STATUTE, AND NEPA

Executive Summary

[This paper expands upon the discussion of Vienna and customary law as they apply to the U.S.’s Kyoto signature, in “Modern Developments in the Treaty Process”, Christopher C. Horner (Federalist Society) (http://www.fed-soc.org/Intllaw&%20AmerSov/Treatypaper.pdf).]

On 31 December 2000, at the last permissible hour and as he prepared to leave office, President Clinton ensured the U.S. signature upon the Rome Statute of the International Criminal Court.   In so doing, he publicly asserted that he didn’t agree with the contents of the agreement to which he affixed the U.S.’s commitment. Such behavior did not go over well in particular circles , viewing it as the nadir in a long-growing diminution of the solemnity that the United States affords treaty commitments.  At present, at least one authority inventories 400 discrete agreements bearing the U.S. signature but no ratification, stretching to the early days of the republic.

Recognizing the consequences of treating the U.S. signature so frivolously, President George W. Bush instructed the U.S. Department of State consummate his claim that the U.S. had no intention of being bound by its signature.  State did so, through the requisite communication to the UN.   By this communication, however, the U.S. acknowledged that treaty signatures do in fact carry obligations, affirmed how the U.S. expresses its intention to not be bound by the treaty’s object and purpose, and thus underscored the U.S. obligations under all other unratified agreements bearing our signature.  This reality appears close to bearing consequences.

Recently, the Friends of the Earth-Europe (FoE-E) petitioned the European Union (EU) to penalize the U.S. for asserting it will not pursue the Kyoto Protocol as the (for now) culmination of its commitments under “climate change” treaties.   That is, FoE-E seeks to in effect enforce the Rio Treaty and Kyoto through the EU exercising $4bn in retaliatory authority recently granted it by the World Trade Organization (WTO) in the form of tariffs on energy intensive products from the U.S.   Environmental pressure group Greenpeace and its co-plaintiffs employed similar logic (and the island nation of Tuvalu threatened to), citing that Man is dangerously altering climate in a lawsuit seeking damages for future climate change.   Subsequently, the International Center for Technology Assessment (ICTA), a group dedicated to questioning “the development and commercialization of transportation technologies” , filed suit to force the United States Environmental Protection Agency (EPA) to act on ICTA’s petition seeking control of GHG emissions from vehicles.

None among the FoE-E, ICTA or Greenpeace, et al., actions expressly seek as a matter of law to enforce either climate treaty, which at present is not feasible.   Still, as legal if not scientific propositions and for different reasons these pressure groups have a point.  Shakespeare’s lesson does not apply, that that without remedy should be without regard.  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.

To date plaintiffs’ allegations have overlooked the obvious, when asserting, e.g., “scientists now predict that average world temperatures will increase up to 6E F over the next century. This rise in global temperature is caused by human activities creating a build up of greenhouse gases – primarily carbon dioxide, methane and nitrous oxide – in the atmosphere.”   They fail to alert their respective tribunals to glaring “statements against interest”:  Defendant “admits” this, too.

Because of U.S. missteps, and the religiosity of climate change theory, these three overtures will by no means be the last of their kind.  Ultimately “the light will go on” that the U.S. government must be called to reconcile the inexplicable and growing conflict between its “climate change” polices, and its proclamations and promises.

Plaintiffs appear primed to seize upon the State Department having exercised delegated powers  to “unsign” Rome consistent with the President’s assertions of rejection, as that act 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 that 1) a treaty signature binds a state, at minimum and even where a state’s domestic system requires ratification for the agreement to go into full and specific effect, to 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, as appropriate to the particular agreement, that a signatory state acknowledges that which underlies the treaty.

By so reaffirming these tenets, but only renouncing its commitment to one such agreement – Rome — the U.S. also buttressed that its signatures on the host of other signed-but-not ratified agreements carry specific obligations and acknowledgements.  More specifically, the U.S.’s never-revoked Kyoto signature acknowledges the theory of catastrophic anthropogenic “climate change,” particularly given it has ratified the Rio Treaty.  This also likely acknowledges specific duties of “developed” countries.  Such confused policies seemingly create, or more reasonably enhance, the U.S.’s exposure and exposure for U.S. operators pursuant to various regimes.  Particularly, this 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, and/or private liability under the Alien Tort Statute.

Worse is clearly still to come in future efforts to invoke, or directly seek to hold the U.S. or American operations accountable under, the U.S.’s various express and tacit acknowledgements regarding the theory of catastrophic anthropogenic “climate change”.   For instance, it appears that certain defenses employed with success against recent Alien Tort Statute claims, e.g., forum non conveniens and the political question doctrine, offer no comfort for putative domestic ATS “climate change” defendants.

The U.S. government is creating fertile ground to aid potential plaintiffs circumvent these agreements’ unenforceability in international fora and even domestic courts.  This includes through continuing to formally dignify and even “acknowledge” the still theoretical concept of anthropogenic climate change and serious potential consequences there from,  in addition to maintaining its Kyoto signature unmolested.  Matters were quite nearly compounded even further when the Senate recently passed – and in a “lame duck” session, the Congress nearly enacted – a statutory “admission” to accompany the myriad Executive Branch missteps.

Such gestures were generally long-thought and specifically intended as mere “cheap virtue”, in that they paid obeisance without incurring actual commitments.   This paper examines America’s specific obligations under both “climate” treaties, and how these commitments create legal risk for (principally the domestic operations of) U.S. interests given “customary” international law and the Vienna Convention on the Law of Treaties purporting to codify it, the WTO, and the U.S.’s NEPA and Alien Tort Statute.

It concludes that 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, ratified and otherwise.  Such review militates for the Bush Administration to undertake a specific campaign to aggressively reassert U.S. sovereignty.  This is obtained by clarifying for policy purposes what the U.S. does in fact acknowledge in particular agreements and filings, that to which the U.S. actually commits, and the scope of particular domestic statutory regimes.  As also discussed, Congress has the ability to effect each of these goals in the absence of Executive leadership.