When domestic law arrives by the back door

Bush's focus on American economic growth rather than the environment shows a shrewd grasp of reality

Just when you thought the outrage over President George W.Bush's decision to reject the Kyoto protocol could not get any louder, along came Margot Wallstrom.

The European Commissioner for the environment landed in Washington on Monday to lambast Mr Bush for caving in to his father's oil industry buddies when he indicated the new administration would not support the treaty to reduce carbon dioxide emissions. Ms Wallstrom accused the US president of naïvety, reiterating her point that he demonstrated "a lack of understanding of political realities".

Ms Wallstrom has it backwards. Mr Bush is responding as he is precisely because he understands political realities. His decision to focus on domestic economic growth rather than environmental concerns may indeed be pro-business. But it is even more pro-democracy. Or, at least, "pro" the interests of the democracy Mr Bush represents: the US. In fact, you can even make the case that Mr Bush is acting more democratically than leaders of nations who push for international co-operation backed only in the broadest fashion by their parliaments.

In the case of the Kyoto treaty, the matter is clear. US law gives Mr Bush the brief of governing in his citizens' interest. No law obliges him to support treaties that have not been ratified by the Senate.

Let the reader forgive an environmental pun: the Kyoto squabble is really only the tip of an iceberg. That iceberg is not the global warming issue but rather what two political scientists, Richard Rose and Edward Page, dub "backdoor law". In a paper published by the London-based European Policy Forum today, the pair argue that the great problem of national governance this decade will be the intrusion of international accords that have received insufficient endorsement from citizens of the countries they affect.*

Governments that are party to such accords may back them wholeheartedly. Lobbyists and pressure groups also tend to like them. Convincing a roomful of wise national leaders of something is much easier than selling a cause to a gaggle of moody electorates. But what the authors call "soft laws" are problematic, because voters view them as challengeable.

Consider global warming. Combating it may be a good idea. In recent years, the scientific evidence that industrialisation affects the global climate has mounted. But the case remains unsettled and western powers including the US are hesitant to act without sufficient proof. What is more, conservative politicians in western capitals are concerned that Kyoto imposes less stringent controls on developing countries than it does on the big economic powers. A global standard that is not enforced globally will cut at their competitiveness.

This leaves a sitting American president and sitting American lawmakers with a quandary. They are not sure they have sufficient political capital to make the Kyoto treaty US law, or that they would want to do so even if they did. In the end, President Bill Clinton did not think he could garner sufficient support for the measure. That was why his envoys waffled at The Hague in November.

From Mr Bush, support for the Kyoto Treaty would be even more of an abuse. Mr Bush's campaign position on the environment was clear. He was the anti-regulation guy - in contrast to Mr Gore, the pro-Green guy. A reversal from Mr Bush today would be a betrayal of the citizens who voted for him.

One can also argue that it would be a betrayal of the new interests of US citizens. The White House that cheered on the accord at Kyoto 1997 was acting with the confidence of a country enjoying a boom. Many Americans then felt the economy could absorb tougher rules without serious economic cost. Now the US confronts the possibility of recession. Mr Bush's battle for US energy independence is a forthright recognition that America right now cannot afford luxurious measures. In other words, the president is responding to shifting needs. That is what leaders of democratic countries are supposed to do.

Kyoto, of course, is far from the only example of backdoor law. When German lawmakers killed off the D-Mark in the face of polls showing voters wanted to keep the currency, they too generated tension. When the European Union uses its political power to push Ireland to raise taxes in the name of European fiscal harmony, it is trying to foist an international policy on a domestic populace.

The problem of backdoor law also exists within countries. In the US, a hauliers association sued the Environmental Protection Agency for tightening clean air standards without returning to Congress for approval. They lost - but the point at issue, known in legal circles as "delegation", is legitimate.

Backdoor law is often seen as a matter of leftwing concern. Left-leaning pressure groups demand that industrialised countries forgive the debt of less developed nations, arguing that it was agreed without popular consent. But as Graham Mather, the European Forum's president, points out, the case against backdoor law can be made just as easily from a liberal perspective. New regulations from an international authority are unlegislated impositions. And what seems valuable for the sake of harmonisation in places such as Brussels looks untenable in practice in Dublin or Warsaw.

Some of the conflict over backdoor law is due to differences in political tradition. To top-down Europe, the US may seem populist, a place too much dominated by short-term political impulse. To American eyes, Europe may appear captive to the cause of multilateralism and suffering as a result from a democratic deficit.

What is clear is that whenever anyone holds forth about "political reality", the question must also be asked: whose?

* Lawmaking through the Back Door. European Policy Forum

© Copyright 2001 Financial Times

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