U.S. Treaty Practice — Hostage to Unrealistic Demands?

         Treaty 1
 Treaty practice is an essential aspect of U.S. foreign policy. It is particularly important in trade and finance matters — from the WTO to bilateral investment treaties to international antitrust cooperation agreements. 
     Treaty practice is important also to a host of other areas where the U.S. has not yet acted — such as discrimination against women, disability rights, rights of children, law of the seas (law of the sea tribunal), and cybercrime. Unfortunately, this hesitancy is part of the DNA of the U.S. political system, where many conservatives are reluctant to ratify treaties or implement executive agreements because of unfounded concerns and misplaced and exaggerated emphasis on national sovereignty.
     This restrictive treaty attitude is part and parcel of a general conservative disdain for both customary and conventional international law, espoused recently and consistently by the Supreme Court, conservative law professors and neo-cons, despite the clear provisions of the U.S. Constitution. 
     This is the situation even though the U.S. is the strongest proponent of the rule-of-law approach to foreign policy. Where U.S. administrations have declared consistently that human rights and free-market capitalism are cornerstones of  U.S. foreign policy. It was the United states that was the principal architect of the rules-based system of the GATT and the WTO.
     Most recently, the flagrant violation of international agreements by Argentina over restructuring of its sovereign debt and rights of private hedge funds as creditors, highlights the potential chaos that disdain for international agreements can bring to global trade and investment systems. 
     This practice by Argentina  reflects its long history of rejecting international solutions to debt obligations and expropriations.  It further  highlights the necessity of developing more fully a global legal regime comprising both international agreements of the World Bank / IMF as well as domestic laws concerning foreign sovereign immunity. 
     Other commercial areas ripe for greater development are securities cooperation (as to foreign audits and financial disclosures), bankruptcy where assets are held globally, global taxation of foreign income, and global corruption in government procurement.
      Further national and global legal advances are necessary to address the commercial and financial demands inherent in global transactions today, in this ever-increasing cross-border and digital era of commerce.  The international trading and legal systems needs to adjust the multi-jurisdictional environment to rapidly expanding global transactions, by the largest and smallest of firms.

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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