11/24/2010 12:00 pm ET Updated May 25, 2011

Giving Treaties the Short Shrift

What to make of James P. Rubin 's blithe "Farewell to the Age of the Treaty"?

In a New York Times op-ed yesterday Rubin, a State Department spokesperson back when Madeleine Albright was Secretary of State, posited that treaties aren't "even worth the trouble anymore."

The "trouble," it appears, is not with international agreements themselves. Troublesome, rather, is securing 2/3 consent of the Senate, a Constitution-mandated condition for U.S. ratification of a treaty. The requirement's now bedeviling President Barack Obama's bid for ratificationof the U.S.-Russia New Start disarmament treaty.

"'Fortunately, there is an alternative,'" Rubin breezed. He argued that statutes, which pass upon simple majorities of both houses of Congress, usually "will work just fine."

Even putting aside the glib assertion that "the international system has most of the rules it needs," Rubin's argument falters on a number of points:

History: The op-ed wrongly implies that this is a new problem. In fact, Presidential struggles to secure approval date at least to Woodrow Wilson, and the Senate's rejections of the Versailles Treaty, in 1919 and again in 1920 -- years surely within the putative "Age of Treaties." Rubin himself no doubt recalls President Bill Clinton's failure to secure ratification of the Comprehensive Test Ban Treaty back in 1999.

Politics: The op-ed seems to assume that congressional majorities easily may be obtained. Rubin points to legislative efforts on climate change as an example of his position "already being used." But these efforts have yet to bear statutory fruit. Given that the New Year will inaugurate a House of Representatives with a heavy GOP lean, getting Congress to okay internationally aimed reforms would seem far from simple.

International Relations: Legislation alone seems unlikely to boost U.S. status abroad as much as Rubin suggests. Statutes and treaties are quite different legal animals. A statute may be altered, even repealed, at any time. A lone legislative path thus would add instability to the United States' foreign relations. What's more, while a statute is the unilateral enactment of a single sovereign, a treaty embodies that sovereign's consent not just to act, but to do so out of an international obligation. Treaties represent a deeper level of commitment, a promise to pursue global cooperation even if domestic political winds shift. Opting always for the U.S. statutory fix, at a time when other countries are urged to join treaty regimes, will not ease what Rubin rightly calls "international frustration with American leadership."

Hard to see the op-ed's effort -- in essence, to put a brave face on an inferior option -- as much more than advance spin in the event that New Start founders in the Senate.