By Thomas W. Welch, J.D., American International Regulatory Coherence Institute
There are long overdue questions being raised about the rights and obligations of U.S. ‘States’ under the estimated 1,100 international treaties and 17,300 “Executive Agreements” concluded by U.S. Presidents since WWII. Has Congress been appropriately involved (see, e.g., Moore)? Are each of these international agreements being properly enforced, both here and abroad (see, e.g., Koplow)? Who in U.S. State and local governments actually even know what all of these international agreements require (especially before they are signed)? Do all States and localities have the sustainable resources to enforce them, if necessary? In my view, if this chaotic situation is left unresolved, the ambiguous legal duties of Statehood, created in the U.S. in our basic Constitutional (federation agreement) from 1791, could now potentially harm the environment, international stability and commerce.
As in many countries, the majority of enforcement powers in the U.S. have traditionally rested at the State and local levels. Moreover, as in other large nations, the average sized American “State,” like Massachusetts, has a population of about 7 million people, and is thus, more populous than most countries (also confusingly called ‘States‘). By comparison, 7 million is slightly less than the countries of Sweden, Hungary or Israel, but more than Norway, Jordan, or Laos. In fact, there are actually 139 so-called sovereign ‘States’ that have less than 7 million people, but are legally permitted to ‘punch above their weight’, for example, in the UN General Assembly, and in coordinated negotiations in many other IOs.
Even more concerning is that fact that several of these smaller countries claim complete sovereignty under international law, including, according to Transparency International, the right to remain opaque, de-facto kleptocracies. Even worse, many chronically “developing” countries have their own Billionaires, but pay little or no taxes or contributions to the UN. Their enforcement of many treaties is also unfunded or sporatic, and they can withdraw from, or ignore any of these treaties and agreements more or less at will. Given the perceived lack of uniform enforcement in the U.S., and the political sensitivities in critical negotiations, this apparently increasingly recalcitrant behavior is very difficult to control.
And what about consistent enforcement at sub-national levels in larger countries? Shouldn’t the details of environmental and other agreements legally or practically matter to other, larger nations’ sub-national, non-sovereign entities, like the police in Rio de janeiro (population about 7 million), or other authorities in larger states in UN Security Council member, Brazil? Most U.S. States are actually far smaller than the populations of each of 28 Chinese provinces and 19 Indian states, which have reportedly had chronic enforcement issues of their own.
And what about sustainable political will and resources? Are all of these 18,000 agreements essential priorities? What may sell at an international conference of experts and plutocrats may not work in the real world on the ground. In the ideal, representative democracy (originally from ancient Greece, estimated population less than 1 million), each citizen/resident is supposed to have one, equal vote, but also pay taxes to adequately support sustainable government functions. The real world is far different today, and how votes, customs duties and taxes now translate into real political will for enforcement resources, indicia of economic “development,” or even improved, individual “well-being” has become difficult to discern on the ground level.
Those that have worked on different continents, in several legal jurisdictions, and with many local, county, provincial, federal, and national government bodies and IOs know the mind-numbing complexity and incoherence of the still evolving legal and political structures of the many, different political entities. When I was a young lawyer, I worked with early European Community (EC) law. Since that time, the early EC agreements following the aftermath of bloody WWI and WWII have evolved into a complex web of treaties and agreements partially depicted in this handy diagram from Wikipedia:
[This diagram is also indirectly illustrative of the current, mind-numbing complexity of international copyright law (the Wikipedia licensing instructions for it is an example).]
Those complex European agreements have important consequences. Travel and other restrictions have reportedly led to the current political and social unrest in the Ukraine, whose poorer residents wish to travel (or illegally emigrate) to more affluent EU countries. (Yes, the attraction of lucrative work has created a significant immigration problem in Europe too.) Economic instability (one of the causes of both WWI and WWII) and tax disputes are again creating strains on this obtuse web of alliances. Residents of “P-5″ member, United Kingdom (combined population 63 million) are seriously considering withdrawal from other agreements. Given fiscal constraints, political will for compromise and prioritization is now at risk. This is a true threat to the entire world.
Conflicts and disasters should become the urgent priority. A reported 13 million people have been affected by the recent typhoon in Asia, and the Philippine government alone says 9.8 million have been affected in 44 provinces, 539 municipalities and 56 cities, but they have no money. There are also now 7 million displaced people in Syria alone, and many more millions that are hungry and unemployed in Egypt and other Israeli neighbors. In reality, their emergency ‘right to food’ (compare the International Covenant on Economic, Social and Cultural Rights) is more related to the risk that future Americans, Chinese, and Brazilians may be indirectly drawn into their future strife, either militarily or economically. The efficacy, structure and capacities of critical SURGE resources for emergencies (such as police to maintain order, food, clean water, medical care and heat), supported by sustainable duties and taxes, is most important. Overly ambitious agreements that would be “nice to have,” should be eliminated or postponed. Structural reform, and prioritization, are critically necessary.
One soldier from Massachusetts recently died in Libya. His family, and those remaining veterans from Massachusetts that fought for European and Asian peace, all know how important functioning international agreements and resources can be. Isolationism and strong domestic militaries cannot solve these problems forever. Our mutual well-being depend on greater legal clarity and buy-in at all levels– before it is too late…again.