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End Them, Don't Mend Them

Clinton signed some terrible treaties; Bush should repudiate them

11:00 PM, Jan 21, 2001 • By JEREMY RABKIN
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BACK IN 1992, when asked how he would deal with Iraqi aggression, Bill Clinton said he would have voted with the congressional majority to authorize a military response, but he remained personally opposed to military action. A decade later, as he prepared to leave the White House, President Clinton signed the U.N. treaty establishing a permanent, International Criminal Court. In his signing statement, Clinton explained that he did not actually approve of the treaty in its current form and urged that it not be ratified by the Senate.

Like other forms of law, treaties have been Clintonized in the last eight years -- reduced to PR gestures, which we can always evade through semantic tap-dancing. The new administration should demonstrate its integrity by formally repudiating Clinton's signing of the ICC treaty and then doing the same for some of the other treaties that Clinton signed without ever submitting to the Senate.

Standard legal treaties don't explain how a country can revoke its signature. Nobody seems to have contemplated the Clinton ploy of regularly signing ambitious treaty ventures and then walking away from them. But it will be sufficient, no doubt, to send a letter to the U.N. secretary general directing that the United States be removed from the list of countries that have "signed" this treaty.

Why bother? The ICC treaty establishes a global independent prosecutor, licensed to indict government officials and military officers for "aggression" and "war crimes" -- as these may be defined by the prosecutor and the court. So it would establish an international authority to sit on top of the American government and have the last word on the propriety of American actions. As currently structured, the treaty would extend this authority over Americans even if the United States did not consent to the treaty.

Of course, we still have enough cruise missiles and aircraft carriers to deter this court or its supporters from actually arresting (or holding) an American. But why should we endorse a principle whose practice we could never accept? Why wait for an actual confrontation to prove that we reject the court's authority?

According to the 1969 Vienna Convention on the Law of Treaties, a country which signs a treaty is "obliged to refrain from acts which would defeat [its] object and purpose" -- until it formally ratifies the treaty or has "made its intention clear not to become a party." This sets a reasonable standard to which we should hold ourselves, as we demand it of others. If the Bush administration, then, wants to "defeat the object and purpose" of the ICC treaty -- as it should -- it will show appropriate respect for international law by removing our name from the list of signatories.

Meanwhile, unsigning would register a clear policy direction for our own diplomats: The order of the day is not to refine and improve this treaty but to kill it, or at least keep it as far away from Americans as possible. At the same time, it would send a reassuring signal to the Senate: This administration will not use treaty signings as momentary mood enhancers, but will commit the prestige of the United States only when it can hope to bring the Senate along.

What goes for the ICC should also go for other ambitious treaties Clinton has signed and then declined to subject to open debate in the Senate. The 1997 Kyoto Protocol on global warming would commit the United States to a vast program of reduction in energy use, even while developing countries like China and India are free to increase their energy use without limit. The treaty has no chance of Senate ratification, and the United States should make clear that it won't be bound by it.

Clinton also signed the 1992 Biodiversity Treaty (which the previous Bush administration had rejected). While the Clinton team claimed it agreed with the underlying principles, Europeans used this treaty as the basis for a protocol restricting trade in genetically modified products -- over futile American objections. We should be in full opposition to this project, which threatens agricultural and pharmaceutical innovations of great importance. We can start our counteroffensive by repudiating the treaty.

In the arms control field, Clinton signed 1997 amendments to the ABM treaty and has claimed they are binding, though never ratified by the Senate. More remarkably, the Clinton administration claimed the U.S. was still bound by the Comprehensive Test Ban Treaty, rejected by the Senate in 1999, on the grounds that the treaty might be ratified someday. Both these measures should also be repudiated.

Clinton has signed the U.N. Convention on the Rights of the Child and a convention of the International Labor Organization on race discrimination in employment. Neither has much chance of Senate ratification. But they are unusually meaningless: The Clinton administration itself has claimed we would not need to change any existing policy to be in compliance with these treaties. It might be satisfying to repudiate these pretentious baubles, too, just out of principle. But as Churchill said -- to explain the focus of British bombing on strategic targets rather than German civilians -- "business before pleasure."

Jeremy Rabkin teaches constitutional law and international law at Cornell University.