Over the past two decades, the failure of the United States to ratify a string of global multilateral environmental agreements has become a significant source of frustration for environmentalists and diplomats. The common perception is that Washington politics is to blame. The problem has even led to scholarly suggestions that any new climate agreement coming out of the Paris negotiations later this year could be entered into by the U.S. as an Executive Agreement rather than a Senate-approved treaty.
Delay has been uniquely serious, however, with respect to the 1989 Basel Convention on Hazardous Wastes. Signed under the elder President Bush and approved by the Senate in 1992, the agreement has remained stuck in legal limbo for almost a quarter of a century – unratified and thus without U.S. membership.
In this article, we dispute the common perception that politics is the sole reason for ratification delays. Rather, a legal issue, which has received little attention, has proven to be an equally significant impediment - whether U.S. law provides adequate authority for domestic agencies to carry out treaty obligations. With respect to Basel Convention ratification, it has been commonly believed that further implementing legislation is necessary. Similar assessments of inadequate domestic implementing authority apply to other pending MEAs.
We make two central points in this article. First, with respect to the Basel Convention specifically, a careful review of existing legal authorities reveals that the Executive Branch already has, at this point in time, sufficient authority to implement Convention obligations.
Second, we argue that the Executive Branch needs to reconsider the underlying premises for ratification. Instead of conditioning ratification on the ability to achieve perfect compliance or “over-compliance,” we argue that a more appropriate standard is “substantial compliance.” The relaxed standard would ease ratification not only for Basel but other MEAs as well. It would also ensure that breach avoidance, the purpose of over-compliance, does not simply become treaty avoidance.
Ultimately, the promise that multilateral environmental agreements hold for helping our global environment lies both in the specific rules and obligations that they create for immediate action as well as in their development of institutions and entrenchment of environmental norms and values necessary for long-term behavior change. Effective realization of that promise, however, will require the full commitment of the U.S., which can only come with full membership.
Tseming Yang and C. Scott Fulton,
Breach Avoidance or Treaty Avoidance?: The Problem of Over-compliance and U.S. Ratification of the Basel Convention on Hazardous Wastes
Available at: https://digitalcommons.law.scu.edu/facpubs/903