|
|||||||||||||||||||||||||||||||||||||||
|
|
Treaties,
National Sovereignty, and Executive Power:
A Report on the Kyoto Protocol Executive Summary The Framework Convention on Climate Change (FCCC) already binds 174nations. In December 1997, at Kyoto, Japan, a Protocol was negotiated to strengthen its provisions. Thirty-five nations signed the Protocol before the end of April 1998, including the European Union, Japan, and Canada, and it is expected to gather the approval of most of the undeveloped countries in the near future. Whether the U.S. should join them is a topic of contentious controversy. The FCCC and the Kyoto Protocol are the latest and most far-reaching in a series of multi-national treaties on environmental matters -- a total of 486 treaties of all kinds are on deposit with the UN Secretary General, and an estimated 180 of these deal with environmental issues. Because the potential impacts on the U.S. of the climate change agreements are immense, the controversy over Kyoto is focusing public attention on this new world order of multinational agreements, and particularly on the impact of the Protocol. A number of fears are expressed, most notably that these pacts give international bodies power to impose on American citizens rules and burdens that are not approved by the U.S. Congress, that they impinge on our national sovereignty. A preliminary analysis indicates that the issues presented by these multinational treaties, and especially by the Kyoto Protocol, are indeed worthy of serious concern. The Protocol, like other pacts, delegates great powers to international bodies. Many of these bodies are also heavily under the influence of Non-governmental Organizations (NGOs) that are not politically accountable. U.S. doctrines of constitutional, administrative, and international law provide few answers concerning the extent to which decisions made by these international bodies would bind the U.S. government and U.S. nationals. If ratified, the Kyoto Protocol would also have grave impacts on internal U.S. governance. Presidents have immense power over foreign relations. The Protocol may convert decisions usually classified as "domestic" for purposes of U.S. law and politics into "foreign," and thus move substantial power from the Congress, from state and local governments, and from private entities into the federal Executive Branch. Introduction In December 1997, the nations of the world gathered in Kyoto, Japan, with the intent of agreeing on a response to the possibility that increases in atmospheric concentrations of CO2 and other greenhouse gases (GHGs) could cause changes in global climate. The result was an agreement called the Kyoto Protocol, an appendage to the Framework Convention on Climate Change (FCCC), which already binds 174 nations. Thirty-five nations signed the Protocol before the end of April 1998, including the European Union, Japan, and Canada, and it is expected to gather the approval of most of the undeveloped countries in the near future. The U.S. was instrumental in bringing about the negotiations, but domestic opposition is strong, and the Administration's intentions about signing the pact and submitting it to the Senate for ratification are unclear. The FCCC and the Kyoto Protocol are the latest and most far-reaching in a series of multinational agreements on environmental matters -- a total of 486 multinational agreements are on deposit with the UN Secretary General, and not all such pacts are entered into under UN auspices. An estimated 180 of these deal with environmental matters. (See the Attachment to this paper.) Others include such major instruments as the Basel Convention on Hazardous Waste (1989) and the Montreal Protocol (1987). The breadth and depth of the potential impacts on the U.S. economy and society of the FCCC and the Kyoto Protocol are immense, and the controversy is focusing public attention on this new world order of multinational agreements. A number of fears are expressed, most notably that these pacts give international bodies power to impose on American citizens rules and burdens that are not approved by the U.S. Congress. Although Administration officials scoff at such concerns, branding them a paranoid fear of "black helicopters", there are serious legal, regulatory and diplomatic issues involved. Many treaties declare support for a grand goal and pledge the signatories in general terms to promote it. In some, treaties create international administrative bodies that are instructed to flesh out the meaning of ambiguous terms or to issue implementing guidance. A number of serious questions arise: Does ratification of a treaty that delegates power to an international body automatically bind the U.S. and its nationals to interpretations issued by that body? To what extent does ratification of a treaty with vague goals empower an Administration to use the treaty as legal authority for administrative regulations in pursuit of the treaty's goals? Can an Administration use the interpretations of the international body as a source of domestic rules? Does the answer to these questions change if the international agreement is less formal than a ratified treaty -- if it is, for example, an Executive Agreement or a treaty that is proposed but not yet ratified? Existing legal doctrines and political practices provide few clear answers to these questions. Treaties: Basic Concepts of Constitutional Provisions When confronted with a question about political power or practice in the U.S., it is usually wise to start by examining the Constitution. Analysis of multinational agreements is no exception, because the Constitution has several relevant provisions:
[Art.II, Sec. 2]
However, it does not extend to any suit against a state by citizens of any foreign state. [Amendment XI]
(Customary law is the pattern of accepted practices and doctrines that has grown up since the middle ages, analogous to the Common Law in the domestic sphere.) The Supreme Court has declared that this customary law is part of the law of the U.S., but its sources and boundaries remain uncertain. Interpretation Treaties are interpreted by the courts with the standard doctrinal tools brought to bear on questions of statutory interpretation. The focus is on legislative intent. The most essential materials, besides, of course, the language of the treaty itself, are contemporaneous analyses prepared by the Executive and contemporaneous reservations or interpretations made by the Senate. "When the Senate gives its advice and consent . . . on the basis of a particular understanding of its meaning . . . the President, if he makes the treaty, must do so on the basis of the Senate's understanding." Treaties are also contracts among sovereign states. This makes "the shared expectations of the contracting parties" crucial, and inquiry into the legislative intent is overlaid with concepts from contract law.(ii) If the meaning is not clear from the plain language or contemporaneous statements, then a court will look not only at the bare words but at the negotiating and drafting history and at the post-ratification expressions of the understanding of the parties.iii The behaviors of nations other than the U.S. are relevant to the proper interpretation; for example, in Zicherman, the Supreme Court regarded the legal practices of a number of foreign nations as pointing toward a conclusion that the parties could not have intended to adopt the practices of French law on a particular point.iv As is true for statutes, courts remain the final arbiters of the meaning of a treaty. But it is also true that Executive branch interpretations are crucial to the definition of treaty obligations."[Q]uestions of treaty interpretation, clarification and implementation are necessarily carried out by the executive branch of government."v This requires great deference to the Executive branch,and the construction of a treaty by that branch, while not absolutely conclusive, is of great weight.For many issues, the level of deference to the Executive is stated more strongly: The questions are classified as "political questions" not subject to second-guessing by a court. vi This concept is particularly strong when a private litigant attacks the factual predicate underlying the application of a treaty provision. For example, on several occasions a question has arisen whether a constitutionally valid extradition treaty remains in force between the U.S. and a foreign nation.The courts say that once an extradition treaty is ratified by the Senate, it remains in force as long as the State Department believes there is sufficient continuity between the original government and the present one. Thus, an extradition treaty entered into with Great Britain in 1931 remained valid with respect to Singapore in 1996 despite the passage of Singapore, first, to Malaysia in1963 and then to independence in 1965. The executives of the two nations had made clear that they regarded the treaty as still in force, and the court said, "The continuing validity of the treaty presents a political question . . . and we must defer to the intentions of the State Departments of the two countries."vii The strongest statement of deference to Executive authority is in the 1936 case, Curtiss-Wright:"[T]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."viii This case has been argued over for 60 years, and its language has often been characterized as over-broad, but it has provided the fundamental basis for much of the President's primacy over foreign affairs in the post-World War II era. If a question of interpretation is for the court, the issues can be complex. In Zicherman, for example, the issue was whether the term "dommage," as used in the official French text of the Warsaw Convention on international air accidents, should be interpreted in accord with: (a) The plain English meaning of the term "damage"; (b) The meaning of dommage meaning under French law in 1929, when the treaty was written; (c) The meaning of the concept "legally cognizable harm," which is English legal term that most closely approximates the French legal meaning of dommage, as established by contemporary U.S. law.ix One can easily imagine a future court addressing the following question of interpretation.Article 3, Section 4 of The Framework Convention on Climate Change (FCCC) says: "The parties have a right to, and should, promote sustainable development." The FCCC has been ratified by the Senate. The term "sustainable development" is from the Rio Declaration of 1992, which was not a treaty, and is quite controversial. In the U.S., the term has been used in Executive Orders.So, to what extent does the ratification of the FCCC bind the U.S. to promote "sustainable development," and should that term be interpreted according to its meaning as of 1992 and the Rio Declaration, as of 1994 when the FCCC was ratified, or as of some future date when it is given new meanings by some U.N. body? Once entered into, a treaty, even one so broad as the U.N. Charter, becomes a part of U.S.law. It imposes on this country "a continuing obligation to observe with entire good faith and scrupulous care all of its undertakings." x However, even if a general treaty imposes requirements upon the U.S. government, it does not impose requirements directly on U.S. citizens or states unless it is "self-executing." This concept is, according to one recent judicial opinion: "'one of the most confounding' issues in treaty law. . . . complex and not thoroughly understood." xi The significance of the distinction is that a non-self-executing treaty provision gives no direct right of action to private parties to sue in a U.S. court to enforce its provisions, or to use its provisions as a defense against a suit. If a treaty is self-executing, then it becomes part of domestic law without further implementing language by Congress, and a private party may indeed base a legal claim or defense on its provisions. The importance of this distinction between self-executing and non-self-executing treaty provisions is accentuated because the consensus view of legal scholars seems to be shifting in favor of presuming that treaty provisions are self-executing. In a case involving Manuel Noriega of Panama, the judge noted: "While the courts have generally presumed treaties to be non-self-executing in the absence of express language to the contrary, the Restatement [(Third) of Foreign Relations Law of the United States] would find treaties to be self-executing unless the agreement itself explicitly requires special implementing legislation, the Senate requires implementing legislation as a condition to ratification, or implementing legislation is constitutionally required. Restatement(Third) of Foreign Relations Law of the United States. Most of the scholarly commentators agree, and make a compelling argument for finding treaties designed to protect individual rights, like Geneva III, to be self-executing. [Citing numerous articles]" Whatever the presumption favored by scholars, judges so far resist finding that environmental treaties are self-executing. The environmental movement is pushing hard, however, and is having an impact. In one case, for example, the court declined to decide whether the provisions of the multinational Convention on International Trade in Endangered Species (CITES) are self-executing,but used them as a standard in finding that a U.S. agency's actions were "arbitrary"under the Administrative Procedure Act.xii. Executive Agreements Not all international agreements consist of treaties ratified by the Senate. The number of treaties in force is overshadowed by the number of Executive Agreements, which are compacts entered into by the President without any formal vote of Congressional assent. Executive Agreements are divided into three classes:xiii (1) Agreements Pursuant to a Ratified Treaty. A treaty may contemplate the adoption of subsidiary agreements. Legal doctrine holds that these agreements are binding on the U.S.,though the rationale for this result is malleable. It can be said that the Senate has pre-approved such agreements, or that it has delegated to the President the authority to enter into them, or that the President's basic Constitutional mandate to "take care that the laws be faithfully executed" gives him the power to enter into further agreements to carry out a ratified treaty. (2) Joint Congressional/Executive Agreements. Congress can pass a law giving the President power to enter into an Executive Agreement without itself ratifying a treaty. In such a case,his compliance is part of his duty to execute the laws. Congress can also pass legislation that recognizes, explicitly or implicitly, the validity of an agreement negotiated by the Executive.Trade agreements, such as NAFTA and GATT, are often negotiated pursuant to extensive conditions laid down by Congress. This device of a presidential agreement that is either directed or ratified by a majority vote of both houses is a Constitutional alternative to a treaty, which requires a two-thirds vote of one house. (3) Unilateral Executive Agreements. The President can enter into agreements without any action by Congress. His status of commander in chief of the armed forces, his authority to make treaties and appoint ambassadors, and his duty ensure the faithful execution of the laws combine to create a formidable body of authority. Presidential power is not unlimited,however, as President Harry Truman learned in the Steel Seizure case.xiv But its exact limits in the international sphere are murky. In Dames & Moore, Presidential authority to remove U.S. citizens' claims against Iran from adjudication in U.S. Courts was upheld, but the basis for and extent of this power was left wonderfully mushy, even for a field of law distinguished by its imprecision: "We do not decide that the President possesses plenary power to settle claims . . . . But where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute . . . and where, as here,we can conclude that Congress acquiesced . . . we are not prepared to say that the President lacks the power . . . ."xv The distinction between those agreements that require the advice and consent of the Senate and those that can be entered into by the President alone has been a matter of discussion, and sometimes dispute, for some years. In response to queries from the Congress, the Department of State drafted Circular 175 on this issue. The Circular contains a list of factors to which "due consideration" should be given, such as its importance, duration, the preference of the Congress,and the need for care to avoid any invasion of Congress' constitutional prerogatives. The Circular also disclaims any effect on the validity of agreements negotiated in derogation of its principles. Customary International Law Customary international law is not mentioned in the Constitution, except for the passing reference to Congress' power to define and punish offenses against the law of nations, but the relevance of international custom to U.S. law was recognized in Supreme Court cases starting in the early 19th Century. The most famous is The Paquete Habana, which decided whether fishing boats could be taken as prizes during the Spanish-American War. xvi The Supreme Court reviewed the general practice of civilized nations dating back to 1400, and found an international norm of behavior rendering these craft exempt from capture. It then decided that this norm was binding on the U.S., because: "International law is part of our law, and must be ascertained and administered by the courts of justice . . . . [W]here there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is."xvii Rivers of ink have been spilled over the meaning of this language and over its continuing validity, given that, first, almost a century of turmoil has passed, and, second, ideas of law and jurisprudence have changed greatly since 1900. In particular, the idea expressed in The Paquete Habana that the law is a brooding omnipresence to be discovered by scholars seems quaint to a modern lawyer. Nonetheless, the basic principle stands; international law is a part of U.S. law. The case is desperately important to understanding the immediate issue -- the import of multinational treaties,particularly the FCCC and the Kyoto Protocol -- because it opens up a line of argument to the environmentalist advocates that does not depend on ratification of treaties, on the passage of statutes by Congress, or even on Presidential promulgation of Executive Agreements. The advocate can argue that a provision of a multinational treaty, even if not ratified by the U.S., has become so completely accepted as one of the "customs and usages of civilized nations" that it must be given effect as law by U.S. courts. Those who regard U.S. courts as already too activist may be horrified by this possible new source of authority, but this line of argument is by no means fanciful. The American Law Institute's Restatement (Third) of the Law of Foreign Relations contains a 45-page section entitled "The Law of the Environment" (Sections 601-04). The Introductory Note says: "The principles of this part are rooted in customary international law." It describes the breadth of international environmental concerns as including "the need to improve habitat and human settlements, to protect archaeological treasures, cultural monuments, nature sanctuaries,endangered flora and fauna, and migratory birds; to lessen the consequences of deforestation,over-fishing, and weather modification. Where activities in one state cause environmental injuries in another state, the principles of this Part apply." Later, the document observes, "International law has not yet developed rules relating to large-scale climate modification, such as the depletion of the stratospheric ozone layer . . . or the melting of Arctic ice . . . ." (emphasis added)(p. 117). In the abstract, the concept that international law develops through accretion to deal with new problems as they arise is sensible. So is the idea that industrialization adds to the ways in which nations can harm each other, and that new norms of behavior will and should arise in response. Both these thoughts reaffirm human experience, much like the nations evolved the policy on fishing boats described in The Paquete Habana. The danger is that groups of advocates can capture the process of deciding upon "customary international law" and make the process into an alternative, super-national source of binding legal rules. This is, in fact, what the environmentalist movement is trying to accomplish. The Restatement cites the 1972 Stockholm Conference on the Human Environment as giving "strong impetus to the development of international environmental law" (p. 99). The same could be said of Rio de Janeiro in 1992, which produced not only the FCCC, but Agenda 21, which is an 800-page blueprint for "sustainable development" planning, and the Rio Declaration on Environment and Development, which contains 27 broad principles of sustainable development.xviii The same could also be said of numerous other multinational agreements and declarations. If one focuses on the status of these documents as treaties, they are vague, too general to be enforced, and often unratified. But if one focuses on their status as possible sources of customary international law,they are gold mines of potential authority. As one environmental advocate put it: "IEL [International Environmental Law] has made extensive use of 'soft law' processes. International environmental codes of practice, recommendations, guidelines, resolutions,declarations, and standards adopted by international organizations or states often do not fit neatly into any of the traditional categories of international legal sources. Although not formally binding like treaties or customary law, there is a strong expectation that nations will comply with the norms articulated in these instruments. Also, over time soft law instruments tend to harden into binding norms." [emphasis added]xix Delegations to International Organizations International Organizations The multilateral treaties that have proliferated over the past few decades have created a series of new institutions -- international secretariats or conferences charged with implementing the agreements. In some cases, these bodies are charged with interpreting the basic document. In others, and this device permeates both the FCCC and the Kyoto Protocol, the pact lays out a general idea and tells the "Conference of the Parties" to make it operational. U.S. administrative law has a long history of dealing with delegations to administrative bodies. One of its tenets is that Congress cannot delegate legislative authority, a principle that provided the basis for the famous Panama Refining and Schecter decisions in 1935.xx Since then,it has become clear that Congress can delegate "interstitial" legislative authority to agencies, as long as Congress lays out general guidelines, and since 1935 no congressional action has been invalidated for excessive delegation. Courts are tolerant of congressional delegations, upholding even such vague standards as "public interest," and the law of illegal delegation has fallen into disuse. One reason for this desuetude, however, is that the principle of non-delegation to private bodies is not usually contradicted. Congress does not assign great powers to non-government entities, and it is doubtful that courts would extend their tolerance such entities. However, no one can predict whether courts would regard international bodies as "governmental," and would view delegation to them tolerantly, or as "non-governmental," to be viewed with wariness. In any event, the powers given to international secretariats and conferences under multinational treaties present a series of questions to which there are no clear answers: If the U.S.ratifies a treaty that by its terms gives interpretative authority to an international body, is the U.S.then legally bound by those interpretations? To carry the question further, could a U.S. court declare the treaty to be self-executing, and thus find the interpretation binding directly on U.S.citizens? And, to carry the issue to the next step, under the Supremacy Clause, would such an interpretation supersede the provisions of pre-existing U.S. state law? "Customary" law raises additional problems. At what point, if at all, does the view of an international body become an authoritative statement of international law that is binding on a U.S.court under The Paquete Habana? How do state courts apply international norms? (And, by the way, does The Paquete Habana make international norms into federal law, and thus binding on the states under the Supremacy Clause?) Perhaps surprisingly, there are no cases and little detailed legal commentary on these issues of delegation to international bodies. The most that can be said at present is that this is indeed an unsettled area. It is also, obviously, an extremely important one. Non governmental Organizations (NGOs) Concern about delegation is heightened by the increasing prominence of Non governmental Organizations (NGOs) in international matters. The UN defines an NGO as "any non-profit,voluntary citizens group which is organized on a local, national, or international level." Over4,000 such groups have been identified worldwide, and 1,500 are registered with the UN Department of Public Information.xxi The UN regards NGOs as an important source of support. They are accorded formal recognition and rights to participate at international conferences. Many are well-financed by government agencies or private foundations, and substantial interchange of staff between environmental advocate NGOs and U.S. government agencies is occurring. NGOs play important roles in the political decision making process. Like a local chapter of the League of Women Voters or a Rotary Club they provide a vehicle for citizens to assert their civic duty. Influencing the decision-making process however, is different than taking control of it. We would not want the League of Women Voters to assume control of local zoning decisions, for example, because they would not be accountable to the public as a whole. Accordingly, the role and the power of NGOs in international governance requires great scrutiny. Effect of Treaties and Executive Agreements on Other U.S. Laws Federal Laws Treaties create a bit of a Constitutional conundrum over the question of their relationship to other statutes. What if a contradiction exists between the provisions of a treaty and those of a law duly enacted either before or after the treaty? Can the President and two-thirds of the Senate cut the House of Representatives out of the legislative process by casting a measure in the form of a treaty? These issues could easily have given rise to a rich and complicated body of jurisprudence,comparable to that surrounding many other provisions of the Constitution. In theory, this could still occur under the pressure of future controversies. To date, it has not happened. Treaties are treated as statutes, and the two have equal dignity. "An Act of Congress . . . is on full parity with a treaty, and when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of the conflict renders the treaty null."xxii Both are subordinate to the provisions of the Constitution, and the U.S. government cannot by treaty abrogate any of the Constitutional rights of its citizens. This rule that the latest-in-time governs a conflict between a treaty and a statute is important to concerns about protecting sovereignty. The terms of a treaty may give foreign governments or private citizens a self-executing right that must be recognized by U.S. courts. However, Congress could then pass implementing legislation making it clear that this is not that case, that the only remedy for an aggrieved foreigner is diplomatic protest. In such a situation, it is clear that the court would give effect to the implementing legislation, not to the treaty language. Other parties to the treaty might then accuse the U.S. government of violating the treaty by enacting the law,but this would not affect the rights of private parties, which would be governed by the implementing legislation. Because treaties are equal in dignity to statutes, courts try to reconcile possible conflicts between them, using such principles as a preference for the particular over the general, a desire to give fullest possible expression to all enacted provisions, an assumption that the law-making body did not intend to insert pointless language, and a distaste for overruling by implication. An issue that once worried international law scholars was the possibility that Congress could attempt to increase the reach of federal authority by casting a command in the form of a treaty rather than a statute. A recent paper by Professor Jeremy Rabkin of Cornell traces the evolution of this concern.xxiii The pre-New Deal view was that this would be unconstitutional. In 1929,Chief Justice Charles Evans Hughes declared: "the treaty-making power is intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns . . . ." This expressed the dominant view, which was also expressed in the American Law Institute's Restatement (Second) of the Law of Foreign Relations (1965). This concern has largely disappeared. The post-New Deal expansion of federal authority has left few domestic areas beyond the scope of Congressional power, and the post-World War II globalization has expanded the boundaries of "foreign affairs." By the time the ALI issued the third version of the Restatement in 1988, the position articulated by Hughes was no longer regarded as valid. However, it is still true that Congress could not make a treaty directly contradicting specific provisions of the Constitution. It could not create the legislative veto, for example, or eliminate trial by jury. One concern frequently expressed in recent days is that the President may try to implement the Kyoto Protocol even if it is not ratified by the Senate. This may be true, but if so he cannot rely on the existence of a pending treaty to augment his existing authority under the Constitution.There is no doctrine that a pendant treaty has any legal effect. However, the President's powers are already vast, and the fact that a treaty is pending would not bar him from using existing power to pursue ends that are also promoted by the Treaty. In the context of the Kyoto controversy, the fact that Kyoto is pending would not bar the President from using authority that already exists under the FCCC. State Laws and Constitutions This area provides one of the few clear conclusions in the whole field. Under the Supremacy Clause, a valid federal treaty or Executive Agreement supersedes any conflicting state law or state constitution. Of course, determining when such a conflict exists can be tricky, involving the same issues that arise under the law governing pre-emption of state laws by other federal statutes and regulations. Standard pre-emption analysis focuses on conflicts between state laws or constitutions and federal law. Environmental issues have raised a new concern: state and local officials can use federal treaties or less formal international declarations as rationales -- either legal or political --for action at the state or local level. In 1996, Oregon became "the first regulatory body in the United States and perhaps in the world to make a specific regulatory determination based on a proposed project's net greenhouse-gas emissions."xxiv Private citizens aggrieved by state actions premised on international considerations may fight them, legally or politically,especially if the new standards frustrate expectations created by pre-existing state law or practice.The UN's Man in the Biosphere and World Heritage Sites programs are causing serious concern in rural parts of the U.S., especially in the West and in the Adirondacks. As a matter of formal legal doctrine, the extent to which an international agreement or program adds to the authority a state or local government possesses under its own law is totally a question of state law. If a term of a treaty is not self-executing, and thus does not bind a state under the Supremacy Clause, and if no federal law or regulation to implement the treaty exists, then the state should retain its freedom of action. Enforcement of International Obligations Unless a treaty or norm of international law is self-executing, and thus given direct effect in a private law suit, the general rule is that treaties are obligations of the nation, and that remedies for violations of treaty provisions lie at the national level. A nation will not respond to the breach of an agreement by taking direct action against the nationals of another state. Like most general principles of internationalism, this one is riddled with exceptions. Nations have long resorted to self-help to prevent or stop private actions that would violate treaties or otherwise prejudice some national interest, for example, but they are supposed to use only so much force as is necessary to accomplish the purpose. The imperialism of the 19th Century was a rich source of law on how much force was legitimate. Obviously, if a nation is not a party to a treaty then other nations cannot contend that the nationals of the non-signer are bound by its terms. The ratifying nations might, however, try to impose the standards of the treaty on foreign nationals under general principles of international law. For example, if a nation allows its industries to release unreasonable amounts of pollution into the air or water, where it is transported across an international border and damages neighboring nations, the neighbors would regard themselves as entitled to take whatever action they could against the polluting company. This right would not be based on any treaty, but on the fundamental right of a sovereign nation to protect its own territory. The United States feels free to take action against companies that act adversely to our national interest, even when these actions do not directly affect our territory. N.R. Evans, An Australian business executive, recently commented: "Domestic hostility to the use of American military power abroad is a constant theme in US politics. But, contrariwise, the use of trade sanctions and trade embargoes against nations who offend important constituencies within the US body politic has been and remains a domestically popular use of American power."xxv Evans is concerned because of threats, largely by environmentalists, that an Australian failure to ratify the Kyoto Protocol would trigger trade sanctions against Australian companies. He points out, quite correctly, that such sanctions would be contrary to both the letter and spirit of the General Agreement on Tariffs and Trade (GATT). Despite serious assaults over the years, the structure of GATT is that "countries . . . are to regulate their labor markets, their environmental standards, and economic and commercial life generally. The great economic and military powers cannot [lawfully] . . . propose extraterritorial laws . . . and seek to enforce these laws through coercive trade sanctions." The World Trade Organization (WTO), which runs the GATT system, is not part of the U.N. But, as James M. Sheehan of the Competitive Enterprise Institute documents, the GATT system of free trade is under serious assault by environmentalists, who want to apply trade sanctions to numerous perceived violations of environmental norms.xxvi To some extent, they are succeeding. Sheehan, writing in 1994, said:
The most important of these 19 are the Montreal Protocol on Ozone Depleting Substances (1987), the Basel Convention on Control of Transboundary Movements of Hazardous Waste and Their Disposal (1989), and the Convention on International Trade in Endangered Species. In each case, the restrictions rest on the argument that the banned substances themselves cause environmental harm; in other words, the ban is not used as a sanction in for some alleged non-related environmental offense. But these agreements could still be an ominous precedent for enforcement of the Kyoto Protocol; one can conceive of trade sanctions leveled against goods"manufactured through processes involving environmentally harmful CO2." Assessment This chaotic state of the law and practice of international agreements provides ammunition to both sides in the debate. Those who ridicule concern about loss of sovereignty are correct when they argue that nothing can be imposed upon the U.S. or its citizens without national consent,which must be given through the proper government authorities and processes. The other side is also correct to note that it is not in our own interest to try to preserve our sovereignty over every possible decision in all possible circumstances. For sovereign states, as for individuals, the ability to give up absolute freedom and bind oneself to a course of action is an invaluable asset. It makes advantageous trades possible. For example, who would sell goods and services to any government that refused to pass laws binding itself to pay and providing for adjudication of disputes? Is the U.S. really better off as a result of the Gold Clause cases in 1935which upheld legislative invalidation of provisions of public and private contracts requiring payment in gold, a decision rendering it difficult for the government or anyone else to issue credible inflation-indexed securities? The literature of game theory is rich with examples of the benefits that come from the power to make credible commitments, the ability to give up one's sovereignty.xxvii Furthermore, in many instances we want other nations to commit themselves to taking actions that are in our interest, or in the interest of the world generally. That is, we ask them to give up some of their sovereignty. Inevitably, to get what we want we must reciprocate. The ability to get benefits in exchange for reciprocal concessions by others is particularly important in a world that is increasingly dominated by globalized commerce and travel. In a recent case, the Commonwealth of Virginia executed a citizen of Paraguay despite strong indications that rights created by the Vienna Convention giving a foreign national the right to see a representative of his own consulate had not been observed. Americans who plan to travel abroad should be uneasy about this vindication of our national sovereignty, since it puts them at the mercy of other nations' concepts of due process. The prisoner's crime was heinous and his guilt unquestioned, but a Virginian denied an interpreter while he tries to figure out the charges against him, as explained in Paraguayan Spanish, is unlikely to take comfort in the thought that the sovereignty of the U.S. and the Old Dominion remain untrammeled. Finally, those who regard the public's fears about loss of sovereignty as overblown can argue,again correctly, that U.S. law makes it impossible for us to surrender fundamental sovereignty over the rights of U.S. citizens. Given the legal reality that Congress can contravene any treaty provision simply by passing a law, the U.S. government can always protect its own people from overzealous international bureaucrats. Granted, foreign nations might protest that passage of such a law violated the treaty, but that would be a matter for the diplomatic organs of the government. The rights of U.S. citizens, and states, would still be protected from any direct consequences. All of these arguments have considerable weight. Nonetheless, those people concerned about loss of sovereignty also find ample justification for their fears in this body of material. In high degree, these concerns mirror concerns about domestic regulatory statutes. Congress has passed a number of grandiose, vague laws, and then delegated their interpretation and enforcement to agencies or to the courts. In one area after another, the administration of the regulatory scheme has then gone to extremes, imposing requirements far beyond the original understanding. Thereafter, despite many hearings, voluminous speeches, and even some laws,Congress has been unable to exercise effective control or to restore the original bargain. The reasons for this are complex, are the subject of intense current controversy, and go far beyond the scope of this paper. But citizens upset over this syndrome in the context of domestic law are not being irrational if they resist adding to it through the medium of treaties with foreign nations. And the potential for repetition is clearly present. Many of the treaties of concern do contain amorphous, feel-good provisions that, put in the hands of aggressive interpreters, could trigger massive new regulatory programs. Similarly, it is not irrational to fear that U.S. officials who use domestic laws aggressively will be only too happy to seize on the provisions of the multinational treaties as an additional source of authority. As Professor Jeremy Rabkin puts it:
The critical point is that nations should not enter into solemn international undertakings with the attitude that they can always get divorced if things do not work out. In particular, the availability of easy divorce should not be used as an excuse to avoid asking whether the potential partner snores. Before entering into a treaty, we should know what it means and that we are willing to abide by it. We should also know that ambiguities will be resolved by a process that is transparent and accountable. Provisions of the Treaties on Climate Change Framework Convention on Climate Change (FCCC) The FCCC is a broad document. It sets forth the objective of "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system," and contains significant commitments on the part of the contracting parties. The signatories are divided into three groups. One group is all nations that have signed the treaty, of which there are 174. Another group is Annex I countries, which consists of the developed world plus Eastern Europe and the CIS nations. The third is Annex II countries, which consists of the developed world, but excludes Eastern Europe and the CIS nations. Japan is on both lists. No other nation outside of Europe, the U.S., and Australia/New Zealand is on either Annex. Each group has different obligations. The basic difference between Annex I nations and Annex II is that the latter take on some extra obligations for technology transfer and other help to less developed countries. But the major commitments of the developed nations are established in Annex I, and most discussions of the issue distinguish between "Annex I nations" and "Non-Annex I nations." The FCCC establishes a Conference of the Parties (COP) as a continuing body to implement and monitor the treaty. In addition to general authority to coordinate, plan, promote, guide,report, and meet, the COP is charged with preparing emissions inventories, with assessing progress, and with exercising "such other functions as are required for the achievement of the objective of the Convention." All parties agree to develop inventories of sources and sinks of GHGs using methodologies to be developed by the COP; to formulate measures to mitigate climate change by "addressing"(in an unspecified way) emissions and sinks and to formulate measures to adapt to climate change;to develop, promote and transfer control devices; to conserve sinks and reservoirs; to cooperate in developing plans for coastal zone management, water resources management and rehabilitation of areas affected by desertification; to take climate change into account in other policies and actions; to promote research and information exchange; and to promote public awareness. Annex I countries take on additional commitments. In Article 4, they "commit themselves specifically as provided for in the following":
Annex II nations take on still more commitments. They agree to meet the full costs incurred by developing countries in preparing emissions inventories and certain other costs, and to promote and finance transfer and access to environmentally sound technologies. The treaty also recognizes that development is the overriding priority of the developing nations, and that their implementation of any control measures hinges on financing by the developed nations. The non-Annex I nations take on no obligations except an obligation to monitor and conduct inventories, if these activities are paid for by the developed nations, and the general obligations to address the problems. The FCCC specifically mentions NGOs. At sessions of the COP, anybody qualified in matters covered by the Convention and which has informed the secretariat of its wish to be represented as an observer may be admitted unless at lest one-third of the parties present object."The admission and participation of observers shall be subject to the rules of procedure adopted by the COP." A Secretariat is also established, along with a Subsidiary Body for Scientific and Technical Advice, a Subsidiary Body for Implementation, and a Financial Mechanism. None of these bodies are described in any detail; they are established in the abstract, with implementation left to the COP. Their powers are uncertain. A party may commit itself to compulsory submission to the International Court of Justice or to compulsory arbitration at or after the time it ratifies the treaty. Otherwise, dispute resolution is left up to the parties. If a dispute drags on, then a conciliation commission is appointed. Amendments and technical Annexes are to be reached by consensus. If this is not possible,they may adopted by three-quarter vote of the parties. However, neither an Amendment nor an Annex goes into effect for a party that does not accept it. No reservations to the treaty are allowed. The Berlin Mandate The first meeting of the COP was held in Berlin in 1995. Its major activity was to review the provisions of the Article 4, paragraph (a) and (b) of the Treaty, the clauses in which the Annex I countries pledged themselves to reduce emissions. The parties concluded that these commitments were not adequate. Therefore, they agreed to begin a process to strengthen the commitments of the Annex I nations. The process, as set forth in the formal conclusion of the conference, was to"aim . . . set quantified limitation and reduction objectives." The statement also said specifically that this process of setting quantified objectives would "not introduce any new commitments for parties not included in Annex I." The Kyoto Protocol A second meeting of the COP was held in Geneva in 1996 to refine the Berlin Mandate somewhat. The third COP meeting was in Kyoto December 1997, and produced the Protocol.This provides that nations covered by Annex I of the FCCC are to reduce their overall level of emissions by at least five percent below 1990 levels by the period 2008 to 2012. Each nation is given a quota. U.S. emissions are to be 93 percent of the 1990 base year. Most other nations are in the same range, except that the Eastern European and former USSR nations are set at about100 percent, and Australia gets 108 percent. In addition, by 2005 each Annex I nation is to have made "demonstrable progress" in achieving its commitments. While it is this section on quota that commands most of the attention, the Protocol is actually a long document, longer than the original FCCC. Among its many provisions, the Protocol binds the parties to:
The Protocol allows for joint implementation, which means that the European Union can pool emissions. It also allows for trading of emissions, but only if the deal provides a reduction "that is additional to any that would otherwise occur." The acquirer must also be in compliance with other obligations, and the trading is to be "supplemental" to domestic activities. The COP is given power to elaborate these guidelines. A provision buried in the Protocol (Article 10(b)) can be read as committing parties to engage in national land use planning. It says that "in order to achieve sustainable development,"parties "shall . . implement . . . national, and where appropriate, regional programmes" to mitigate and adapt to climate change. It adds: "[A]daptation technologies and methods for improving spatial planning would improve adaptation to climate change." Parties are also to take all-practicable steps (including financing) to transfer technologies"pertinent" to climate change to LDCs. The developed countries are also to meet the full costs of the non-Annex II parties in meeting their obligations. The Protocol also creates a "clean development mechanism." This allows Annex I parties to fund projects in non-Annex I nations and to credit emissions reductions against their national totals. The COP is to control the mechanism. The Protocol takes effect when ratified by 55 parties, including enough Annex I parties to account for 55 percent of all emissions by Annex I parties. Amendments and Annexes are governed by the same rules that govern amendments to the FCCC. A three-quarters vote is sufficient for approval. There is no provision concerning the amount of CO2 emissions of the approving parties. The amendment becomes effective with respect to a party only if it approves it. No reservations to the treaty are allowed. A party may give notice of withdrawal from the Protocol any time after three years from the date the Protocol entered into force for the party. The withdrawal cannot be effective for another year. Implications of the Climate Treaties When the FCCC and the Kyoto Protocol detailed above are placed in the context of the issues described in this analysis, it is clear that they present substantial problems:
Supporters of the Protocol try to finesse these problems by calling the treaty "a work-in-progress,"or "a framework for future cooperation." But as this paper details, the Protocol raises serious constitutional and diplomatic issues which the administration and Congress need to debate in depth and resolve. The research for this report was prepared by James Delong, former Research Director of the Administrative Conference of the United States; Assistant Director for Special Projects in the Bureau of Consumer Protection of the Federal Trade Commission; Staff Analyst in the Office of Program Evaluation of the U.S. Bureau of the Budget. He graduated magna cum laude from Harvard Law School in 1963. Endnotes i. American Law Institute, Restatement (Third) of the Law of Foreign Relations. ALI: 1988. Section 314(2). ii. E.g., Zicherman v. Korean Air Lines, 516 U.S. ___, 133 L.Ed.2d 586 (1996). iii. Zicherman, 133 L.Ed.2d at 606. iv. id. v. E.g., Government of Jamaica v. U.S., 770 F. Supp. 627, 631 (M.D. Fla. 1991). vi. E.g., Holmes v. Laird, 459 F.2d 1211, 1215 n.26, 1220 n.61 & n.62 (D.C. Cir. 1972). vii. E.g., Then v. Melendez, 92 F.3d 851, 854 (9th Cir. 1996); New York Chinese TV Programs v. U.E. Enterprises, 954 F.2d 847 (2d Cir. 1992). viii. United States v. Curtiss Wright Export Corp., 299 US 304, 319 (1936). ix. Zicherman v. Korean Air Lines, 516 U.S. ___, 133 L.Ed.2d 596 (1996). x. E.g., United States v. Steinberg, 478 F. Supp. 29, 33 (N.D. Ill. 1979). xi. E.g., United States v. Noriega, 791 F. Supp. 791, 797 (S.D. Fla. 1992). xii. Defenders of Wildlife v. Endangered Species Act Scientific Authority, 659 F.2d 168 (D.C. Cir. 1981). xiii. Louis Henkin, Foreign Affairs and the U.S. Constitution (2d ed.). Clarendon Press, Oxford: 1996. P. 215. xiv. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). xv. Dames & Moore v. Regan, 453 U.S. 654 (1981). xvi. 175 U.S. 677 (1900). xvii. 175 U.S. at 700 (1900). xviii. James M. Sheehan of the Competitive Enterprise Institute summed up the spirit of these Rio products: "As the over-indulgent 'rich' in industrial societies are converted to a life of 'sophisticated modesty,' their wealth will be redistributed to the developing countries in order to pay for the changes sustainable development will bring to the Third World." Sustainable Development: The Green Road To Serfdom? Competitive Enterprise Institute, Washington, D.C.: March 25, 1996, p. 3. xix. Jeffrey L. Dunoff, "From Green To Global: Toward the Transformation of International Environmental Law,"19 Harvard Environmental Law Review 241, 251 (1995). xx. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schecter Poultry Co. v. United States, 295 U.S. 495(1935). xxi. James M. Sheehan, Competitive Enterprise Institute, Statement Before the Subcommittee on Forests and Forest Health, Committee on Resources, U.S. House of Representatives," Sept. 11, 1997. xxii. Republic of Paraguay v. Gilmore, U.S. Supreme Court (No. 97-8214(A-732)), April 14, 1998 [http://supct.law.cornell.edu], quoting Reid v. Covert, 354 U.S. 1, 18 (1957)(Plurality opinion). xxiii. Jeremy Rabkin, Taking Sovereignty Seriously. Draft, pp. 26-28. xxiv. Laura H. Kosloff & Mark C. Trexler, "Global Warming, Climate-Change Mitigation, and the Birth of a Regulatory Regime," 27 Environmental Law Reporter 10012, 10014-15 (Jan. 1997). xxv. N.R. Evans, Trade Restrictions and CO2 Emission Controls, APEC Study Center: Consequences of Kyoto Conference, February 12-13, 1998. p. 4. xxvi. James M. Sheehan, The Greening of Trade Policy: "Sustainable Development" and Global Trade.Competitive Enterprise Institute, Washington, D.C.: November 1994. xxvii. See, e.g., Thomas Schelling, The Strategy of Conflict. Harvard Univ. Press, Cambridge: 1960. xxviii. Rabkin, Taking Sovereignty Seriously. Draft, pp. 43-44. xxix. E.g., Stuart Eizenstat, Under Secretary of State for Economic, Business, and Agricultural Affairs, "Global Warming: Keeping the Planet Cool and the Economy Hot." Speech Before the Economic Strategy Institute, Washington, D.C.: May 5, 1998; Raymond J. Kopp & J.W. Andeson, Estimating the Costs of Kyoto: How Plausible Are the Clinton Administration's Figures? Resources for the Future, Washington, D.C.: March 12,1998 [http://www.weathervane.rff.org]. xxx. Peter G. Sparber & Peter E. O'Rourke, Understanding the Kyoto Protocol: A Comprehensive Citizen's Guide to the Scientific and Political Issues Surrounding the New United Nations Treaty and Global Warming.National Legal Center for the Public Interest, Washington, D.C.: 1998. p.23 xxxi. For a list of actions that the President might regard himself as possessing the authority to take, see President William J. Clinton & Vice President Albert Gore, Jr., The Climate Change Action Plan (October 1993). [http://www.gcrio.org/USCAP] xxxii. The Byrd-Hagel Resolution (Senate Resolution 98), which passed the Senate 95 to 0 in 1997, says that the U.S. should not be a party to any agreement regarding the FCCC which would "mandate new commitments"on developed countries unless it also mandates commitments by developing nations, or which would result in serious harm to the U.S. economy. Resolution 98 says nothing about the Senate's view of commitments embodied in the already-ratified FCCC. Even if the resolution were taken as expressing a view on FCCC commitments, a subsequent congressional declaration is not legally sufficient to change a valid law, or,presumably, a treaty. For both these reasons, it is doubtful that Byrd-Hagel would have any impact on a judicial decision interpreting the power granted the President under the FCCC. Attachment A Multinational Treaties As of May 31, 1997, 486 major multilateral instruments had been deposited with the United Nations. These are organized into 29 major categories, which are:
The U.S. is not a party to all of these. In addition, some important international agreements are not part of the U.N. structure. The North American Free Trade Agreement (NAFTA) is not among the 486 multilateral treaties on the UN, even though the General Agreement on Tariffs and Trade (GATT) is included. The Convention on International Trade in Endangered Species(CITES) is not listed, nor are numerous pacts on marine pollution and fisheries. The principles of inclusion and exclusion are rather murky. Significant programs that do not include formal treaties are also excluded from the UN list.Despite its great influence, the Rio Declaration is not a treaty, and the UN Man and the Biosphere Program, also not embodied in any current treaty, is causing considerable concern in portions of the U.S.. The Habitat conferences are not represented. Of the instruments that are deposited with the UN, those with the greatest potential for impacting rights and affairs of U.S. citizens appear to be: UNITED NATIONS
ENVIRONMENT
INTERNATIONAL TRADE
MISCELLANEOUS PENAL MATTERS
LAW OF THE SEA
DISARMAMENT
HUMAN RIGHTS
|
|
|
