Stealth Multilateralism: U.S. Foreign Policy Without Treaties

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...

Regrettably the rest of the article is only available to subscribers to this expensive publication. Below is discussion of it, though, by a reader. The good news is that some work does get done anyway. The bad news is it's kept as quiet as possible to avoid turning action into raw meat thrown to the GOP base, who these days can be counted on to be outraged at everything and anything they don't understand.

David Kaye on “Stealth Multilateralism”

by Chris Borgen

The new issue of Foreign Affairs has an article by David Kaye, entitled “Stealth Multilateralism.”He begins the piece by describing the point of view of the “sovereigntists,” (often conservative Republicans) who view treaty-making as a threat to national sovereignty. (See, for example, this recent post by Peter on sovereigntist views.)

After arguing that treaty-making is actually an expression of sovereignty, Kaye closes the introductory section in this way:

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.

What follows for the rest of the article is a careful examination of the foreign policy costs of near-wholesale treaty rejection, the “subtle form of rejection” in the U.S. practice of treaty reservations, and, how Presidents have found work-arounds, such as non-binding agreements, to remain engaged in a policy area despite the Senate’s refusal to ratify. Crucially, Kaye explains the limits of those tactics and why the American public loses when we do not have a real discussion of the pros and cons of a particular treaty.

Kaye’s essay is a great primer on the interplay of U.S. domestic politics with international treaty-making. Check it out.

Stealth Multilateralism: U.S. Foreign Policy Without Treaties—or the Senate

David Kaye on “Stealth Multilateralism”

Most of us here are women. How many of US, left or right - would oppose treaties

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