How American Treaty Behavior Threatens National SecurityOriginal Article By: Antonia Chayes
International Security Fall 2008 vol 33 no 1
Major Topic: Politics
Minor Topic: Diplomacy
Précis:
America has been inconsistent and undependable in its formal international relations. This has generated turmoil and anger in the international community and ends up threatening America's national security. The author's thesis is “Today American treaty behavior serves neither the national interest nor American security.” (page 45)
The nature of the U.S. constitution and its domestic laws have traditionally been the excuse for American behavior. However, there is also a certain haughtiness against international law that seems to be more and more directed towards America's own institutions and which adds to the U.S.'s perceived behavioral problems.
Traditionally there have been three ways to make sense of American treaty behavior. Although none are complete, the author seeks to expand on the third.
The first explanation is called “Unilateralism.” Essentially this means that the U.S. can and does go it alone because America does not need anyone else. The U.S. has gone ahead and done things without the consent or support of the rest of the world but it, more often than not, does choose to cooperate and is often also willing to be held back due to the concerns of others.
The second explanation is called “Selective Multilateralism.” This is the idea that the U.S. only supports treaties that are in its best interests. If this were the best interpretation then there should be a clear consistent logic across a broad array of treaties. The Author cannot see any evidence for such a logic.
The third explanation is called “American Exceptionalism.” This explanation has three behavioral facets: First, the U.S. negotiates a treaty and then finds a reason not to follow through. Second, the U.S. keeps a double standard in favor of its friends and against its foes. Third, U.S. national laws trump international law. The author expands and distinguishes these three behavioral facets of American exceptionalism into eight specific behaviors in order to better understand the criticism directed at American treaty behavior.
First behavior: America often negotiates but then becomes unwilling to ratify a treaty. Criticism centers around the free rider problem: since most treaties are multilateral, the U.S. can benefit from the terms it helped negotiate while not having to pay the implementation price. This has lead to some copy-cat behavior in other countries and will lead to a loss of creditability in future negotiations.
Second behavior: America overuses the consensus building tools of 'reservations,' 'understandings' and 'declarations', collectively known as RUDs. Every treaty must have some RUDs in order to pass in the U.S. senate. Some are useful to accommodate special cases, but the U.S. often demands so many that the treaty becomes pointless. America's expanding use of RUDs has inspired other countries to follow suit. This will make it harder to negotiate effective treaties in the future.
Third behavior: America has, on occasion, failed to support a treaty by failing to provide funding and/or the resources necessary for making the treaty effective. Owing to the size and power of the U.S. its actions in this respect make other countries follow the same path because if the U.S. does not support the treaty regime other countries will not (and often cannot) take up the slack.
Fourth behavior: America has often just refused to comply. Non-compliance during the George W. Bush administration has shot up dramatically, especially in the field of human rights law.
Fifth behavior: although more rare, the Bush administration has undermined at least one treaty by “un-signing” it. Furthermore, the Bush administration has worked against the International Criminal Court by signing many bilateral immunity accords.
Sixth behavior: U.S. courts' application of the Last-in-Time rule effectively nullifies part or all of older treaties. One irritating trait for treaty enforcement in a common law tradition is that later laws automatically replace or override earlier laws (except in the case of the constitution). Therefore when a treaty and a federal law are in opposition U.S. courts use the last law that was passed as the effective law. A new law will outrank an old treaty. This leads to uncertainty about the future of many current treaties and ones that are under negotiation.
Seventh behavior: There are some international treaty restrictions under domestic U.S. law. Most significantly, The meaning of 'treaty' is much more narrow in U.S. law than in international law. In particular, under U.S. law a treaty is a contract between states that does not include citizens unless Congress passes additional laws. This means that a foreign national in the U.S. cannot invoke any human right from treaties unless they are included in the U.S. constitution or subsequent laws. This endangers the reciprocity principle in which states give each other's citizens similar rights and protections. This treaty behavior has lead to descriptions of U.S. actions as inconsistent, unenforceable and undependable.
Eighth behavior: In at least one case the U.S. illegally withdrew from a treaty. America signed the Anti-ballistic Missile treaty in 1972. However, it broke the treaty in 1985 with the development of the Strategic Defense Initiative. America finally formally (if not legally – as congress believed it should have been consulted) withdrew in 2001.
Why does America act this way? The author considers two accounts: decentralization and grassroots politics.
Decentralization refers to two facts (1) that the U.S. senators are beholden to their constituents (not their party or the president) and (2) that the senate needs a super-majority (that is two thirds of the senators must support the treaty) to ratify any treaty.
This means that the president must convince 67 senators and their constituents in order to pass a treaty.
Grassroots politics refers to the prevalence of special interest groups that are organized well enough to win over one third of the senators (or their constituents) thereby canceling any chance of ratification. Due to the super-majority requirement, negative or hampering campaigns are more likely to be successful.
The costs to the U.S. of these actions, in all likelihood, will be lower international cooperation. The U.S.'s squandered leadership will result in nothing getting done. The U.S. should be more patient in judging treaties because the eight behaviors described above seem to work against America's long term interests.
There are a number of strategies that may help overcome the misgivings of the people and the structural impediments. Consideration must be given to the fact that U.S. treaty ratification involves a “two-level game” in which the executive engages in simultaneous negotiations with international actors and domestic actors. A winning formula occurs when the concerns of both levels of actors overlap.
The author elucidates seven strategies to help the executive win over a recalcitrant senate and a doubtful world. First, the president should plan far in advance to gain as much bipartisan, industry and grassroots support as possible. Second, the president should preempt the use of inflammatory rhetoric by being the first to present the beneficial side to the domestic audience. Third, the president should secure the support of key senators beforehand. Such as the chairmen of the relevant senate committees. Fourth, the president should enlist the use of grassroots campaigns to pressure hesitant or indifferent senators. Fifth, the president should be the first to organize and deploy a grassroots or a public affairs campaign. Sixth, in the international arena the U.S. should drop any rhetoric that implies a double standard. Seventh, the U.S. should support other nations that are having trouble coping with their treaty obligations.
Overall there is hope on the horizon as many American citizens are starting to see the problems of unilateralism.
Added on: 2009-04-16 22:16:02
Précis by: James McLaren
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