United States Unilateralism and the Kyoto Protocol, CTBT and ABM Treaties:
The Implications under International Law

Duncan Currie, LL.B. (Hons.), LL.M.
9 June, 2001

Full Report

Executive Summary

Climate change and nuclear proliferation are quintessentially global problems, and the United States has both a major interest and a determinative role in both. Yet senior officials in the Bush administration have announced that the United States does not support the Kyoto Protocol, have signaled that it is considering abrogating the ABM Treaty, have stated its intention not to ratify the CTBT and have announced an intention to proceed with a unilateral missile defence shield. This course of action signals not only a retreat from international co-operation but an abandonment of existing legal and political commitments and is a serious impediment to future international co-operation.

International co-operation is undermined by a rejection of existing agreements, which leads to a lack of confidence that agreements made will be honoured, and by unilateral actions rather than co-operation in the face of international conventions where the effects and implications will be felt globally. Environmental law has in recent decades developed a growing network of multilateral conventions, regional and bilateral treaties which today form a complex and interrelated body of international law. Multilateral conventions contribute to the development of international consensus on both goals and methods for important international goals such as protecting the environment and preventing the proliferation of nuclear weapons, provide important reference points and criteria to guide States' activities and domestic legislation and provide a focal point for discussion and negotiations on the subject matter of the convention. Without such agreements, individual national efforts, no matter how well intentioned, would fail to bring about comprehensive solutions to global problems.

Within multilateral agreements, consensus is an indispensable tool in arriving at decisions in international institutions, and the actions of the United States in withdrawing or resiling from international agreements which were arrived at by consensus undercut both the decision and the decision making process.

On a legal level, membership of the international community carries with it the duty to submit to the body of international law, and no State can determine that it wishes to be subject to some laws but not to others. States are obliged under international law to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty until it shall have made its intention clear not to become a party to the treaty. The substitution of national or political preferences for existing agreements undermines international law and accordingly these functions of peaceful international co-operation and action.

The interlocking nature of international commitments gives rise to further difficulties for the approach taken by the United States officials. These concerns are analyzed in the context of the Comprehensive Test Ban Treaty (CTBT), the Antiballistic Missile Treaty (ABM) and the Kyoto Protocol. The expressed intention not to ratify the CTBT runs contrary to an agreement which was made as part of the decision to gain the indefinite extension of the Nonproliferation Treaty (NPT), and thus will be seen by both other signatories of the CTBT and by parties to the NPT as a betrayal of that agreement, weakens efforts to achieve nuclear disarmament and nonproliferation and discourages other nuclear weapon States from signing and ratifying the treaty.

While there is considerable doubt that the United States could legally abrogate the ABM Treaty, statements raising the possibility suggest an unwillingness to fulfil international commitments and a desire to unilaterally move outside the rule of law and negotiated frameworks, at the risk of international stability. Already there are indications that amending or abrogating the ABM Treaty will not be consistent with the nuclear weapon States' unequivocal undertaking under the Nonproliferation Treaty (NPT) to accomplish the total elimination of their nuclear arsenals.

The interlocking nature of international law is seen too in the context of the Kyoto Protocol: The White House has stated that President Bush opposes the Kyoto Protocol, yet as a party to the Climate Convention, the United States is bound by that convention, and if the US announces its intention to withdraw from the Kyoto Protocol, then that itself is a breach of the parent Convention. It is clear law that a change of government is not a ground for non-compliance with international obligations, so a change of political leadership does not carry the ability to unilaterally reverse concluded negotiations. Thus United States actions with respect to all three treaties risk breaching related agreements.

The results, if this approach is not reversed, are likely to include an undermining of the rule of law, an unravelling of international consensus and reduced willingness by States to enter into and conclude negotiations, with particular consequences for nonproliferation and climate change. The consequences also may be disadvantageous to the United States, in loss of legitimacy of leadership and loss of confidence in negotiating and implementing multilateral agreements important to the United States such as trade agreements.

Bush v. the Climate