Will the Next President Rejoin the Kyoto Protocol?

on April 11, 2008

The following remarks were given in at “God Is Great. Is God Green? A Conference on Evangelicals and the Environmental Task.”  The conference took place in Washington, DC on November 14, 2008.

 

My first opportunity to talk about the Kyoto Protocol occurred in April 2002. President Bush had announced that the United States was withdrawing from the treaty a couple of months before in favor of a series of voluntary measures to reduce greenhouse gas emissions, so I spoke about “The Bush Administration’s Alternative to the Kyoto Protocol.” Alas, I was speaking at a university in Shanghai, where the American withdrawal from the treaty was not particularly popular. In fact, the title of my talk was sufficiently alarming that only those students who had already been taught the Chinese perspective on climate change were allowed to come to hear me. They were perhaps the best prepared audience that I have ever addressed, though I doubted that they had heard some of the aspects of China’s own greenhouse gas emissions that I mentioned that day. 

 

As I have revisited my remarks five years later, I am struck by how much remains the same. We are still debating the virtues and vices of the Kyoto Protocol five years later. We have already heard much of that debate discussed today. My contribution is to focus on the questions of national sovereignty and international law that are raised by climate change generally and the Kyoto Protocol in particular. These questions are prominent in the discussions about climate change, but they are increasingly raised in other aspects of American engagement with the international community as well.

I told the students in Shanghai that there were three reasons why Americans objected to the Kyoto Protocol. Those reasons are still articulated today, as seen in the positions that the 2008 presidential candidates have taken with respect to climate change. First, there was a debate about the legitimacy of the science related to climate change. That has continued, though the scientific evidence has accumulated since then. “The scientific consensus is clear and overwhelming,” asserts Hillary Clinton, that “we are causing the planet to warm, with potentially devastating consequences. [1] By contrast, Fred Thompson, Duncan Hunter, and Ron Paul continue to assert that there is no scientific consensus on climate change. This is an important debate, but it is not really about national sovereignty and international law. 

The second and third reasons why Americans have objected to the Kyoto Protocol were voiced by a resolution passed 95-0 by the United States Senate in 1997. [2] That resolution insisted that the United States should not consent to any climate change agreement that was too costly for the American economy. The costs—and benefits—of the Kyoto Protocol are still disputed even as it has been implemented by other nations and as numerous American businesses have acted to reduce their greenhouse gas emissions voluntarily. Hillary Clinton, for example, acknowledges that “[c]ritics contend that action will be too costly, but I believe that action is both an environmental necessity and an economic opportunity.” This, too, is an important debate, but again it is not really about national sovereignty. Imagine, for example, that the United States Congress considered legislation containing the precise terms of the Kyoto Protocol. Such a bill would be attacked as prohibitively expensive and praised as economically and environmentally necessary. It might be an unwise bill, but it would be one that we have agreed to ourselves without any outside interference with our national sovereignty. 

The other reason cited by the 1997 Senate resolution brings us closer to the concerns about national sovereignty and international law. The Senate protested that any international climate change agreement that exempted developing countries is unfair. That is what the Kyoto Protocol does. China may have already passed the United States as the world’s leading emitter of greenhouse gases, yet China is not subject to the emissions targets. The perceived unfairness of exempting large developing countries such as China and India while regulating the United States looms large in the response of the presidential candidates to climate change. “We need a global response to climate change,” says Barack Obama, but rather than endorsing the Kyoto Protocol, he supports “binding and enforceable commitments to reducing emissions, especially for those that pollute the most: the United States, China, India, the European Union, and Russia.” Rudy Giulani observes that “if you don’t have restrictions on China, if you don’t have restrictions on India, our contribution, ultimately, is going to be minor.” Mitt Romney counsels against acting “solely on a unilateral basis to reduce our greenhouse gases if we have developing nations like China and India continue to increase their output of greenhouse gases and not be a party to a greenhouse gas effort.” Joe Biden agrees that developing countries “must be part of the solution,” but he would have the United States act first so that we can exert pressure on them.

Perhaps what is most striking about the way in which the 2008 presidential candidates are approaching climate change is that so few of them are willing to endorse the Kyoto Prototol. Only Bill Richardson and Dennis Kucinich favor the ratification of the agreement. The other candidates call for a global solution, but not the existing Kyoto Protocol. John Edwards argues that “America has to lead the way in dealing with the crisis of climate change and global warming,” but he would exercise that leadership by negotiating “a new climate treaty that commits other countries—including developing nations—to reduce their pollution.” John McCain opposed the Kyoto Protocol, though he has said that “the United States should seriously consider—on our own terms—joining with every other nation in the world to reduce greenhouse gases” if China and India were included, too.

Consider this juxtaposition of growing popular support for a response to climate change and an unwillingness to embrace the solution that has been adopted by most of the world. Is the reluctance because of the contested facts involving climate change? Or is it because of a more general antipathy toward committing to a multinational treaty?

The Kyoto Protocol is just one of a number of prominent international agreements that the United States has refused to join in recent years. We have not approved the Convention on Biodiversity negotiated in 1992, and which now has 189 parties. We are still debating whether to join the Law of the Sea Treaty, which was drafted in 1982, and now has 154 parties. [3] We have refused to approve the treaty establishing an International Criminal Court. As one senator explained, “I will be darned if American sovereignty and the U.S. Constitution become subject to an International Criminal Court on my watch.”

This comment strikes at the heart of the concern that I want to examine today. Many Americans are unwilling to subject the sovereignty of our nation to an international organization or to international law. The underlying premise is that America’s moral authority should not be compromised. Yet much has changed since that Senator told his colleagues that “I will be darned if American sovereignty and the U.S. Constitution become subject to an International Criminal Court on my watch,” for the Senator was Larry Craig, and he made that statement on September 10, 2001.

America’s standing in the world has suffered since 9/11. (Senator Craig’s standing has suffered as well, though that’s not my concern here). Much of that suffering has resulted from conflicting visions of international law. For much of the world, international law is the vehicle for achieving a more just and peaceful global society. Similarly, law professors and other American elites champion the use of international law to establish a global society. Their argument is that an increasingly global society is best governed by laws that are applicable throughout the world. This international law agenda extends from human rights to conflict resolution to trade. In the words of Professor Mary Ellen O’Connell, a devout Catholic and my Notre Dame colleague, “International law is the right vehicle to advance these values [of democracy, liberty, toleration, humility, and faith] for a rule-of-law-based nation like the United States. A foreign policy that includes a recommitment to the means and ends of international law would pay enormous dividends for our nation and our world.” [4]   

But many Americans, especially evangelicals, have been skeptical about international law because it submits Americans to the questionable values and laws of other parts of the world. For example, Mike Huckabee recently asked, “’Are we in favor of increasing the power and authority of the United Nations and its subsidiaries at the expense of American sovereigntyand vital interests? . . . Or are we opposed to world government . . . charged with implementing a hopelessly outdated and counterproductive socialist and redistributionist agenda from the 1970s?’” [5] The Bush Administration has been more likely to follow this view of international law, as evidenced in the rejection of the Kyoto Protocol and other international agreements. [6]

The sovereignty of the United States is of keen concern to many Americans. As well it should be. American history, while replete with many instances of flawed governance, attests to the enduring wisdom of the founders and subsequent leaders who have pursued a government “of the people, by the people, and for the people.” Americans, more than most people, are especially committed to the Constitution and laws that govern us. Again, we have enacted bad laws and suffered from unwise interpretations of the Constitution, but the response is nearly always to repair to a legal regime that is more faithful to that envisioned by the Constitution.

It should be remembered, therefore, that the Constitution itself anticipates a role for international law in our governance. Treaties are designated “the supreme Law of the Land.” [7] The Constitution also gives Congress the power “[t]o define and punish . . . offenses against the Law of Nations.” [8] This reference to the law of nations – what we know today as international law – hearkens back to a legal tradition that was already well established by the time the United States adopted its Constitution. Indeed, the roots of international law can be traced to the natural law writings of medieval Christians such as Thomas Aquinas. One scholar has even described how “the ten commandments formed insurmountable constraints on the law of nations” during its formative period. [9] These roots are notable as the insights of natural law are becomingly of greater interest to some evangelical legal and political scholars. To be sure, the natural law influences of international law have been superseded by other ideas in recent years, but the original principles of the United States Constitution have not always been faithfully followed either.

So how should we reconcile the claims of international law with the national sovereignty embedded in the United States Constitution? The scholarly case for such a view of international law is best made by Jack Goldsmith and Eric Posner. Goldsmith is a Harvard Law School Professor who served in the Bush Administration as the Assistant Attorney General for the Office of Legal Counsel (OLC), the office that advises the President and the Attorney General on questions of constitutional law, international law, and nearly every other sensitive legal issue of the moment, and where I had the privilege of working during the first Bush Administration. Posner is a professor at the University of Chicago, and the son of the prominent federal appeals court judge and prolific legal scholar Richard Posner. Together, Goldsmith and Posner wrote about “The Limits of International Law” in 2005. 

The thesis of their book is that “international law emerges from states acting rationally to maximize their interests, given their perception of the interests of other states and the distribution of state power.” [10] In other words, international law “is not a check on state self-interest,” as is commonly believed, but instead “it is a product of state interest.” [11] They see nations as acting through some combination of a coincidence of interests, the need for coordination, a desire to cooperate, and the possibility of coercion. Beyond these motivations, Goldsmith and Posner deny that nations possess a moral obligation to obey international law or to act contrary to their own self interests. In doing so, they reject the popular “cosmopolitan theory” which “maintains that the United States should focus less on the interests of its own people and more on the interests of all humanity.” [12] Churches, charities, nongovernmental organizations, and individuals can act to achieve such cosmopolitan ends, say Goldsmith and Posner, but states face several difficulties in doing so. Moreover, Goldsmith and Posner assert that “we should not expect individual altruism to extend to people who are physically or culturally more distant.” [13]

Many of these ideas are anathema to the majority of international law scholars. Unlike Goldsmith and Posner, they view international law as containing moral commands that are binding upon nations even when it is contrary to a nation’s interests. And the responsibility of the United States to implement its moral ideals via its foreign policy has been contested at least since the beginning of the twentieth century. The scholarly reviews of The Limits of International Law also contend that (1) the book’s constitutional theory is contested insofar as it presumes the importance of national sovereignty and the separation of powers within the federal government, (2) cosmopolitanism is actually good, and (3) international law norms play an important role in influencing private and governmental behavior. [14] In the academic community, Goldsmith and Posner are in a decided minority regarding their understanding of international law.

Yet their explanation of treaties explains how most of the 2008 presidential candidates view the Kyoto Protocol. Goldsmith and Posner “are skeptical that genuine multinational collective action problems can be solved by treaty, especially when a large number of states are involved,” because it is unlikely that nations will be willing and able to punish violators who seek the benefits of the treaty without abiding its costs. [15] Turning to the Kyoto Protocol, Goldsmith and Posner argue that the collective action problem raised by climate change persists under the treaty, except that now each nation has to ensure that all others are actually reducing their greenhouse gas emissions. They further suggest that the apparent popular support for the treaty presumes that the United States will be better off by entering the treaty or that all other nations will abide by its requirements as well. Goldsmith and Posner give greater weight to the stated positions of political leaders who “have powerful reelection incentives to learn about the costs of international action and the resources to do so.” [16]   The evidence of the 2008 presidential candidates shows that most of our political leaders believe that supporting the Kyoto Protocol is unwise until the self-interest of the United States is protected by making sure that all other polluting nations—especially China and India—are subject to the same terms.

That still begs the question of whether the United States should agree to the Kyoto Protocol in its current form. Goldsmith and Posner frame the question as simply asking whether participation in the Kyoto Protocol is in the interest of the United States. The attention that the presidential candidates have given to developing nations such as China and India suggests that the United States should not bear the costs of reducing greenhouse emissions unless we will receive the benefit of similar reductions in all other polluting nations. The self-interest of the United States, however, may also include preserving America’s role as a world leader, presumably even if the economic calculus as not as favorable as we would prefer. A number of the presidential candidates identify America’s leadership position as an important factor in responding to climate change. More fundamentally, whether the United States should rejoin the Kyoto Protocol could depend upon whether Goldsmith and Posner are correct that our decisions respecting international law should be guided by our self-interest. Numerous states, cities, and private organizations have adopted measures to combat climate change in the years since the United States withdrew from the Kyoto Protocol. These measures either presume that it is in the best interest of the United States to reduce greenhouse emissions even if some other nations fail to follow suit, or that such reductions are simply the right thing to do even if they are costly for us.

I began this paper by noting my speech in Shanghai in 2002, so let me finish there as well. My talk to the students in Shanghai reached three conclusions. First, the Kyoto Protocol is flawed. It contains too many special deals for different nations, and requires the expenditure of resources that could be better allocated to other problems. The best argument for rejoining is that nearly every other nation in the world approves of it, so that participating in the treaty’s regime will further our position as a world leader. But the positions of most of the presidential candidates confirm that we should exercise our leadership by working for a better treaty.

My second conclusion focused upon what the United States was doing instead of participating in the Kyoto Protocol. At the time, the Bush Administration’s alternative approach was the leading mechanism for addressing climate change in the United States. The Administration’s plan rightly emphasized funding for research, alternative energy, and debt relief for the developing world. The plan’s use of greenhouse gas intensity could be effective, but not without setting a more ambitious reduction target. 

My final conclusion was that we should continue to explore innovative measures such as obtaining information about who is emitting how many greenhouse gases, emphasizing reductions in methane, and working to reduce all pollution instead of shifting it from greenhouse gases to something else. My hope for progress in policy development has been fulfilled. Since 2002, states and local governments have adopted a variety of other techniques for reducing greenhouse gas emissions, federal agencies have implemented programs that respond to their concerns (such as endangered species), and Congress is considering numerous bills aimed at the problems associated with climate change. These measures offer countless resources for crafting a more effective response to climate change. 

Of course, the question remains whether any of these actions will make a difference if they are only adopted by the United States (or even smaller jurisdictions within the United States). Another question is whether international commitments to reduce greenhouse emissions will in fact result in such reductions. We should ask which countries actually reduce their emissions, not just those that talk about it. These are familiar kinds of questions for international law. How we answer them depends upon how we judge the threat from climate change, how we envision international law, and when we decide that our nation’s interests are best served by undertaking a commitment to the other nations of the world.

 

Dr. John Copeland Nagle is a professor at the University of Notre Dame Law School.


[1]   All of the statements with respect to the positions of the 2008 presidential candidates regarding climate change are taken from The Presidential Candidates on Climate Change, N.Y. Times, Nov. 1, 2007.

[2] See S. Res. 98, 105th Cong., 1st sess. (1997).

[3]   The debate over the Law of the Sea Treaty is summarized at Corine Hegland, Pinging Law of the Sea, Nat’l J., Oct. 20, 2007, at 56.

[4] Mary Ellen O’Connell, Letters to the Editor, The International Herald Tribune May 24, 2007, p. 9.

[5] Michael D. Sheer, The Law of the Sea, Wash. Post, Nov. 1, 2007, at A4 (quoting Huckabee).

[6] Authority for this point may be unnecessary, but for a representative example, see David Gray, Rule-Skepticism, “Strategery,” and the Limits of International Law, 46 Va. J. Int’l L. 1, 14  (2006 ) (contending that “the administration of President George W. Bush is notoriously skeptical of international law and incursions of international law into domestic jurisprudence”). 

[7] U.S. Const., art. VI, cl. 2.

[8]  Id., art. I, § 8.

[9] Wilhelm G. Grewe, The Epochs of International Law 86 (2000).

[10] Jack L. Goldsmith & Eric A. Posner, The Limits of International Law 3 (2005).

[11] Id. at 13.

[12] Id. at 206.

[13] Id. at 212.

[14]  See, e.g., Oona A. Hathaway & Ariel N. Lavinbuk, Rationalism and Revisionism in International Law, 119 Harv. L. Rev. 1404 (2005) (advocating Paul Schiff Berman, Seeing Beyond the Limits of International Law,84Tex. L. Rev. 1265 (2005) (defending a cosmopolitan conception of law);

[15] Goldsmith & Posner, supra note 10, at 87.

[16] Id. at 217.

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