Treaties no treat?

What to make of Jamie Rubin's blithe Farewell to the Age of the Treaty?
In an 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 constitutional sine qua non for U.S. ratification of a treaty. The requirement's now bedeviling President Barack Obama's bid for ratification, detailed here, of the U.S.-Russia New Start disarmament treaty. (prior posts) (credit for White House photo of April 2010 signing)
"'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's ahistorical in its implication that this is a new problem. Presidential struggles to clear the 2/3 Senate hurdle are "nothing new," as our Opinio Juris colleague Duncan Hollis pointed out. Failure to secure approval dates at least to President Woodrow Wilson, and the Senate's rejections of the Versailles Treaty (right) and the League of Nations Covenant, in 1919 and again in 1920 -- years surely within the putative "Age of Treaties." Rubin himself no doubt recalls President Bill Clinton's CTBT debacle back in 1999.
► Politics: Also implicit is an assumption that congressional majorities easily may be obtained. Rubin points to legislative efforts on climate change as an example of his position "already being used." He pretermits, however, that 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: Rubin's solution seems unlikely to give U.S. status abroad the hefty boost he suggests. Statutes and treaties are quite different legal animals. A statute may be altered, even repealed, at any time. Preferring the legislative path thus adds instability to the United States' foreign relations. What's more, a statute is the unilateral enactment of a single sovereign. In contrast, 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, seems unlikely to 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 should New Start founder in the Senate.

Will ITLOSe?

In a Halloween post available here (scroll down to the nicely named "Trick or Treaty?"), our Opinio Juris colleague Duncan Hollis predicted smooth sailing in the U.S. Senate for the U.N. Convention on the Law of the Sea, about which we too have posted. 'Fraid he might be mistaken.
True, the Foreign Relations Committee has voted "aye" by a 17-4 margin -- more progress than the 1982 Convention, which entered into force in 1994 and now has 155 states parties, ever has made in the United States. (History of U.S. involvement in negotiating the treaty and thereafter here.)
Yet as noted in a comment by our colleague Andreas L. Paulus, University of Göttingen, Germany, at least 1 Republican foresees failure in the full Senate. "This treaty will not be adopted. There aren't the votes to pass it," Sen. Jon Kyl (R-Ariz.) told the Associated Press. Echoing him in the same story was Sen. Trent Lott (R-Miss.), who's declared: "I am absolutely convinced it undermines U.S. sovereignty."
Lott's not alone in sounding the sovereignty alarm.
Presidential hopeful Mike Huckabee's called U.S. involvement in the treaty "'the dumbest thing we've ever done,'" and staked out treaty defeat as "'[o]ne of the defining issues of our time,'" Gail Collins reports in the New York Times. A quick Google search suggests that Huckabee has a corner of the virtual world on his side. What's more, Collins writes, many of Huckabee's rivals for the Republican nomination are falling in line with him, notwithstanding that the treaty's supported by the United States' Defense Department, the State Department, and incumbent President.
Might be time to run up that stormy weather flag.