FA: Stealth Multilateralism
U.S. Foreign Policy Without Treaties – or the Senate
The U.S. Senate rejects multilateral treaties as if it were sport. Some it rejects outright, as when it voted against the Convention on the Rights of Persons With Disabilities in 2012 and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) in 1999. Others it rejects through inaction: dozens of treaties are pending before the Senate, pertaining to such subjects as labor, economic and cultural rights, endangered species, pollution, armed conflict, peacekeeping, nuclear weapons, the law of the sea, and discrimination against women. Often, presidents don’t even bother pushing for ratification, since they know the odds are long: under the U.S. Constitution, it takes only one-third of the Senate to reject a treaty.
The United States’ commitment problem has grown so entrenched that foreign governments no longer expect Washington’s ratification or its full participation in the institutions treaties create. The world is moving on; laws get made elsewhere, with limited (if any) American involvement. The United States still wields influence in the UN Security Council and in international financial and trade institutions, where it enjoys a formal veto or a privileged position. But when it comes to solving global problems beyond the old centers of diplomatic and economic power, the United States suffers the self-inflicted wound of diminishing relevance. Administrations operate under the shadow of Senate rejectionism, harboring low expectations that their work will be ratified.
The foundation of the Senate’s posture is the belief, widespread among conservative Republicans, that multilateral treaties represent a grave threat to American sovereignty and democracy. Treaties, they argue, create rules that interfere with the democratic process by allowing foreigners to make law that binds the United States. These “sovereigntists” portray treaties as all constraint, no advantage, as Jon Kyl, Douglas Feith, and John Fonte did recently in these pages (“The War of Law,” July/August 2013). These Republicans automatically resist, in the words of the 2012 GOP platform, “treaties that weaken or encroach upon American sovereignty.” And because such a small group of senators can block any given treaty, they essentially control ratification.
Treaty-making, however, is an expression of sovereignty, not a threat to it, and by excluding itself from the process, the United States loses the opportunity to influence global problem solving. The legal scholar Peter Spiro rang the alarm early on, writing in these pages in 2000 that the sovereigntist approach would leave the United States with “no voice in shaping international norms.” And he was right, for whether Senate Republicans like it or not, international negotiations and the regimes they produce shape the global landscape of international cooperation. They establish rights — and, it is true, obligations — for U.S. officials, citizens, and corporations, and they will do so even as the United States continues to opt out.
In fact, the Senate’s pattern of rejection harms the United States now more than ever, since the rest of the world increasingly resists U.S. influence. Today, other governments anticipate Washington’s unilateralist impulses, which were fixed in their minds not only by the early hostility of the George W. Bush administration toward the International Criminal Court (ICC) and the Kyoto Protocol but also by the Clinton administration’s mantra that Washington will act multilaterally when it can, but unilaterally when it must. Meanwhile, China is taking a greater interest in global issues; rising powers such as Brazil, India, and South Africa are asserting themselves; and Europe is consolidating and thus enhancing its negotiating power. American disengagement is allowing all these trends to accelerate.
Yet rejection is just the beginning of the story. Over the past two decades, the executive branch has developed and expanded a variety of lower-profile methods for asserting the country’s interests abroad in ways that do not require Senate involvement. The Clinton, Bush, and Obama administrations figured out that on some issues, they could circumvent the Senate entirely, and they developed new ways to participate in international forums, sometimes even exercising leadership in institutions that the Senate had refused to allow the United States to join.
Call it “stealth multilateralism.” Using a patchwork of political and legal strategies, the United States has learned how to respond to the global problems that are pulling it into the world even as Senate Republicans are trying to hold it back. As sound and effective as such measures can be, however, stealth multilateralism has its limits, since treaties establish more stable, transparent, and predictable relationships than political commitments. Both the United States and the rest of the world would benefit from a return to responsible multilateral engagement in which treaties regain their central role.
For complete article, see David Kaye, Stealth Multilateralism, Foreign Affairs, September/October 2013.
(Emphasis and link added)