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.

http://opiniojuris.org/2013/08/20/david-kaye-on-stealth-multilateralism/

2 Responses

  1. I’m not sure what Mr. Kaye’s point is in that article, other than “The U.S. should join every single treaty out there that it has not yet joined, including but not limited to CRPD, CTBT, Rome Statute, UNCLOS, Ottawa Mine Ban, CEDAW, CRC, Biodiversity, and, perhaps, the Treaty of Versailles — and by the way, no RUDs.”  As for “stealth multilateralism”?  We used to call that “the executive branch engaging in foreign policy.”  Waste of time (I say as an avowed “sovereigntist” — a word Kaye spits out with clear derision).

  2. This is a really excellent article – simply and clearly stating the case why outright rejectionism of treaties is misguided and why, to quote the concluding sentence of the article, “a responsible Senate would carefully weigh the costs and benefits of joining every treaty” – not join every treaty, but weigh the costs and benefits and make a decision. It would be very difficult to argue with such a point. Unfortunately, the previous response illustrates equally clearly the extent to which the rejectionist approach refuses to engage such balanced arguments and to attack artificial strawmen. All that’s missing are the black helicopters.
    That said, David’s article is focused on why the rejectionist position has hurt US interests. From an internationalist perspective, one of the benefits has been to embolden policy-makers in other States to move on without the US. As other States recognize that securing US participation is not indispensable, they will be less likely to make accommodations which weaken treaties. It would be great if the US would join, but sometimes a stronger treaty without US participation is better than a weakened treaty. 

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