The Medellin opinion issued by SCOTUS yesterday has elicited much optimism and approval in circles relevant to this blog, limited though the Court’s ruling may be. One potential impact worth considering is how it could play in the Kyoto context — though that pact is not going to be ratified anytime soon by a Senate that has been sitting on it since November 1998.
The Court seems to have established a presumption against treaties being self-executing, unless they expressly state that they are. Kyoto does not — and it is doubtful that the U.S. would ever agree to a successor treaty that does.
Given that Kyoto is not enforceable on its own terms (Article 18), those who argue that we must ratify it because “everyone is doing it” must face the difficult fact that, actually, they aren’t doing it. Europe hasn’t had to pay for its broken promises and shifting emissions-reduction targets. The U.S. is the only nation whose courts could have forced the government to meet the terms of the treaty. That threat surfaced thanks to an earlier decision by the Court — which caused great distress to conservatives — under which treaties were considered not merely on a par with domestic laws, but superior to them in cases where the two conflict. Under Medellin, it now seems feasible that the U.S. could ratify Kyoto and, if lawmakers lacked the political will to adopt implementing legislation, green pressure groups could not sue their way to compliance.
One might argue: if two-thirds of the Senate were to approve a Kyoto-type treaty, that would demonstrate the political will to actually impose the restrictions that such a treaty calls for. I suggest that these steps remain quite different animals: the first involves feel-good press releases announcing bold action to join an international consensus for the sake of our children and grandchildren; the second — the implementing legislation — involves pesky Congressional Budget Office public estimates of the extraordinary costs.
Remember, Congress has had the option of imposing Kyoto-type legislation sans treaty for a decade — and certainly for the past 14 months while a Democratic majority has held the reins. When they were in the minority, Democrats bayed incessantly about how hearings were an irresponsible delay tactic and waste of time and that we must act now! Their present-day muttering about test-votes and gestures in anticipation of next year speak for themselves.
Apologists claim that fear of a Bush veto is the reason for Congressional Democrats’ inaction on climate-change legislation — an argument I’ve answered here; their real fear is advertising the costs of their preferred climate action.
In sum, Medellin offers no threat and possibly some succor for us anti-Kyoto types.