The high costs of abandoning international law
As featured in the Boston Globe | March 6, 2017
Even before Donald Trump put America first, the Republican Party had largely walked away from international treaty law. Now Trump’s “America First” is likely to mean a further denigration of international law and process, to the further detriment of America’s national security and long-term interests.
Consider the following tale of our times.
In 1973 the United States passed landmark legislation to protect people with disabilities, and this was followed by the pioneering Americans with Disabilities Act in 1990. The ADA in turn inspired the member states of the United Nations to adopt the Convention on the Rights of Persons with Disabilities.
President Barack Obama signed the CRPD in 2009, but the US Senate then refused to ratify it, voting 61 in favor, 38 against, falling five votes short of the two-thirds majority needed for ratification. The United States thereby joined a handful of other countries that have signed but not ratified the treaty, including Libya, North Korea, and Uzbekistan. One-hundred-sixty other countries have ratified the treaty, including Canada, Japan, most European countries, and indeed most of the world.
The 38 Senators in opposition, all Republican, were persuaded by anti-UN activists that the Treaty “would surrender our nation’s sovereignty to unelected UN bureaucrats.” They also argued that since this country already had such protections in the ADA, joining the treaty was of no benefit to the United States. They feared that the treaty would somehow prevent home schooling and other parental rights.
To a remarkable extent, the Republican Party has thrown down the gauntlet on UN treaties: If the rest of the world agrees on something, even something modeled on US leadership, it is treated as suspect and even dangerous for the United States to join with those countries in a treaty, on the ostensible grounds that the treaty obligations would infringe US sovereignty.
The list of global agreements in which the United States refuses to participate is long and growing. Another notable case is the Convention on the Rights of the Child, to prevent the abuse, exploitation, and capital punishment of children. This treaty was adopted by the UN in 1989 and came into force in 1990, after a sufficient number of countries had ratified it. The United States held out. Others kept joining. Now every single UN member state except the United States has ratified the treaty, but US Senate Republicans still balk. Once again, US conservatives argue that the treaty would violate US sovereignty.
The United States has stayed out of the UN Convention on the Law of the Sea (1991), the Convention on Biological Diversity (1992), the Comprehensive [Nuclear] Test Ban Treaty (1997), the Ottawa Land Mine Treaty (1997), and the International Criminal Court (1998), among many others. In each case, one argument is that treaty membership would limit US sovereignty.
Other reasons are given as well. The US Senate, again largely on the Republican side, objected to the UN Law of the Sea on the grounds that it would limit American companies from earning profits from deep-sea mining. It objected to the Convention on Biological Diversity on the grounds that protecting endangered species would threaten the private property rights of US farmers and ranchers, especially in the large landholdings in the west. Hard-line senators objected to the Comprehensive Test Ban Treaty on the grounds that it was not verifiable, despite expert opinion to the contrary. The United States has stayed out of the land mine treaty not just because of Senate opposition but because the US military has continued to use land mines in the defense of South Korea.
The US failure to join the International Criminal Court is especially revealing. First, the United States voted against the ICC in the UN General Assembly, alongside Iraq, Libya, China, Yemen, and a few others, after unsuccessfully demanding the right as a permanent member of the UN Security Council to veto cases before the court. Then, in 2000, President Clinton signed the Rome Statute establishing the ICC but did not submit the statute for Senate ratification. Next, George W. Bush formally notified the court that the US would not seek membership, expressing concern that US military personnel might be subjected to ICC charges. The US pursued a policy of signing more than 100 “bilateral immunity agreements” (BIAs) in which countries commit not to deliver US nationals to the ICC. Some countries faced cutoffs in US foreign aid when they balked at signing BIAs. In 2009, Obama declared that the US would participate in the ICC as an observer.
While strongly resisting ICC jurisdiction vis-a-vis US nationals, the US government has repeatedly and insistently called on the ICC to take judicial action against other countries’ leaders — for example, Omar al-Bashir, the president of Sudan.
The Senate’s aversion to any form of UN treaties is now so intense and pervasive that none have been ratified in the past decade and only one (on cybercrime) in the past 15 years. The list of unsigned or unratified treaties continues to grow, and the US increasingly stands almost alone in the world in remaining aloof from these UN agreements. Our disdain for globally shared and negotiated rules is clear for all the world to see.
The logic of treaty-making should be clear enough. In principle, treaties involve areas where nation states can potentially do serious harm to other nation states (pollution, arms races, arms trade, war) or where vital global protection of vulnerable populations (children, refugees) is at stake. Countries give up their sovereignty reciprocally. On issues of interstate relations, each individual nation agrees to refrain from harmful actions against the other nations on the condition that the other nations agree to refrain from the same actions against the country in question. It is, of course, nothing more than the Golden Rule put into the framework of international law.
In general, there is no global “sheriff” to enforce the treaty, and opponents of these treaties routinely argue that they are indeed unenforceable. Yet there is a reason why the foes of these treaties work so hard to prevent their ratification by the US Senate. They believe, and rightly, that if the United States actually ratifies an agreement, it is more likely to follow through on its implementation. To break a treaty, after all, is to incur a global reputation as a deal breaker and to risk not just a bad reputation but also a coalition of countries pressing for a return to compliance. In some cases, including violations of the rules of international trade under the World Trade Organization (WTO), the treaty provides for specific enforcement terms.
Moreover, the US government is typically very happy, even insistent, that other countries are living up to the terms of international agreements. I’ve noted the US support for various ICC proceedings. Similarly, the US routinely relies on the UN Convention on the Law of the Sea. Likewise, the United States had aimed to further many of the specific objectives of the Convention on Biological Diversity while not being a signatory to the agreement.
The Republican Party objection to international law has three underpinnings. The first is a historical image, essentially a founding myth, of America as untethered in its fate from the rest of the world. This attitude is expressed in a draft trade policy agenda released by the Trump administration: “Ever since the United States won its independence, it has been a basic principle of our country that American citizens are subject only to laws and regulations made by the US government – not rulings made by foreign governments or international bodies. This principle remains true today. Accordingly, the Trump administration will aggressively defend American sovereignty over matters of trade policy.”
The second is an implicit belief that America’s security and economic interests – in the sea, or the environment, or armaments – can all be achieved largely through American actions alone rather than the sum of the actions of all of the world. According to this view, the US has little interest in what other countries are doing.
The third is an overarching faith in “US primacy,” the idea that the US can protect its interest through its power alone, without the need to rely on international rules and international law.
These beliefs are wrong. From the start of our nation’s history, but especially today, America’s prosperity and security depend on a body of international law developed over the course of centuries that help to govern international trade, intellectual property, global health, international financial flows, arms control, and nuclear nonproliferation, human rights, environmental protection, and other areas. Without international law, today’s global economy could not function, nor could the world successfully fight newly emerging diseases, control cross-border criminal activities, or preserve the peace among the major powers.
The United States needs to care profoundly what other countries do. We need to care about nuclear nonproliferation, pollution control, climate change, the movements of terrorists, the laundering of illicit funds, narcotics trafficking, human trafficking, tax administration, financial stability, and the countless other areas governed by treaties and other forms of international law. Without international treaty agreements on such issues, there are no reliable and practical ways to promote the peaceful and beneficial behavior of the world’s 193 nations.
Nor could US military power alone begin to accomplish this task in the absence of international law. At the apex of US power after World War II, when the United States constituted roughly 30 percent of global output, American leaders recognized the urgent need for a greatly expanded body of international law to guide an increasingly complex and interdependent world. From the 1940s to the 1970s, the US led the way in promoting UN-based treaty law. Yet more recently, with America’s relative power diminishing, the Republican Senate has turned its back on this indispensable means of protecting America’s vital interests and security, not to mention well-being and peace.
Rumors are swirling that the Trump administration will further turn America’s back on global law; neglect or abandon the recent agreements on climate change; unilaterally redraw the rules on trade; slash US support for the United Nations; break free of longstanding arms agreements; and more. Time will tell. Yet if America indeed goes in this direction, not only will our national security be profoundly damaged, so too will America’s decline in global leadership be confirmed and accelerated.
If the United States continues to turn inward, China will be more than happy to take up the slack. This year at Davos, Chinese President Xi Jinping offered a stirring defense of globalization and international responsibility. “When encountering difficulties,” he said, “we should not complain about ourselves, blame others, lose confidence, or run away from responsibilities. We should join hands and rise to the challenge. History is created by the brave. Let us boost confidence, take actions and march arm-in-arm toward a bright future.”