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DAVID KAYE is a Professor at the University of California, Irvine, School of Law.See more by this author
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.