The Greatest Threat to American Sovereignty
Negotiations for a Kyoto II treaty will be multilateral in nature, which will make it difficult if not impossible for the U.S. to control the outcome. Unlike bilateral treaty negotiations, the U.S. will be only one of 192 countries participating in the Copenhagen conference and will therefore have much less say over the final terms of the negotiated text. Voting blocs such as the EU, the AU, and the "G-77" will likely pool their votes and negotiating resources to isolate the U.S. As was the case during the negotiations for the Rome Statute and the Kyoto Protocol, those powerful voting blocs may not have the best interests of the U.S. as their primary concern, to say the least.
Unlike multilateral human rights covenants, the proposed Kyoto II treaty would likely attempt to impose legally binding obligations on the U.S. The international community will be vigilant in requiring the U.S. to meet its obligations, even if many other nations fall short of their own emissions targets and other treaty requirements. Opportunist national leaders and U.N. officials will likely appeal, as they have in the past, to America's leadership role in the world and expect the U.S. to meet its treaty obligations even in the face of widespread noncompliance by other nations.
Onerous Obligations
The obligations sought of the U.S. in the post-Kyoto environment are onerous. They include:
Requirements to cap greenhouse gas (GHG) emissions that could negatively affect America's economy;
Payment of American taxpayer dollars to countries for the purpose of developing their clean energy capacity; and
Transfers of clean energy technology from the U.S. to other countries, possibly without fair compensation for the developers of such technology.
In short, the U.S. would be required not only to overhaul its domestic energy policy but to assist other countries to develop their own energy capacity with billions, if not tens or hundreds of billions, of U.S. taxpayer dollars over the course of many years.
Not only are the contemplated obligations of a Kyoto II treaty onerous, but the manner in which the obligations would be enforced would submit the U.S. to an unprecedented monitoring and compliance regime. The U.S. would apparently be required to submit itself to an intrusive international review of both its energy policy and its compliance with obligations to transfer wealth and technology to "developing countries." The current draft negotiating text is replete with references to "facilitative mechanisms," "monitoring, reporting and verification mechanisms," and requirements that financial commitments and transfers of technology be "legally binding."[3]
Furthermore, as conceived, the proposed Kyoto II treaty would require the U.S. and other parties to accept as binding the decisions and rulings of the international bureaucracy created to monitor compliance with the treaty. That is to say, the U.S. would not have the final authority on questions regarding its compliance. Instead, the Kyoto II treaty bureaucracy will decide:
Whether the U.S. has reduced its GHG emissions to the proper level within the proper timeframe;
Whether the U.S. has transferred sufficient amounts of money to develop the clean energy sector for a sufficient number countries in the developing world; and
Whether the U.S., its private corporations, and its patent holders have surrendered (perhaps without compensation) a sufficient amount of clean energy technology to developing countries including, supposedly, China.
Due to the unprecedented obligations that the U.S. would be required to make to the international community and the intrusive compliance mechanisms proposed to enforce those obligations, the contemplated Kyoto II treaty would be unlike any treaty the U.S. has ratified in its history.
No Leeway
Unlike other multilateral treaties, the obligations as set forth in the current draft negotiating text do not lend themselves to reservations, understandings, or declarations. The terms of any post-Kyoto agreement, if ratified by the U.S., would likely obligate it to reduce its GHG emissions by a certain percentage within a certain period of time. No reservation may be taken from that requirement without violating the object and purpose of such a treaty. Likewise, the U.S. would not be able to exclude itself through a reservation from the treaty's proposed compliance and enforcement mechanisms.
The proposed Kyoto II treaty would apparently allow no leeway from its terms--even if future circumstances compel the U.S. to deviate from its obligations regarding GHG emissions and financial transfers. A downturn in the American economy, for example, would not excuse the U.S. from its commitment to transfer billions of taxpayer dollars to support the advancement of clean energy in foreign countries. Ironically, the U.S. would continue to be bound by its obligations under Kyoto II even if future scientific research irrefutably debunks the theory of anthropogenic climate change.
Obama Administration Should Protect American Sovereignty
The contemplated post-Kyoto treaty is a serious threat to American sovereignty due to its legally binding nature, its intrusive compliance and enforcement mechanisms, and an inability on the part of the U.S. to submit reservations, understandings, or declarations to its terms. The Obama Administration should not sign any agreement reached in Copenhagen or thereafter that would deprive the U.S. of its sovereign right to determine the nature and extent of its treaty obligations and whether it has complied with those obligations.
Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation and a contributor to ConUNdrum: The Limits of the United Nations and the Search for Alternatives (Rowman & Littlefield Publishers, 2009).
http://www.heritage.org/Research/EnergyandEnvironment/sr0072.cfm
