The International Criminal Court: Issues for Consideration by the United States Senate
McNerney, Patricia, Law and Contemporary Problems
PATRICIA MCNERNEY [*]
Staff in the Senate like to joke that there are one hundred Secretaries of State, so I start by noting that my comments do not presume to be on behalf of any particular senator. Rather, this comment will simply outline some of the problems as I see them, and some actions that have been taken to date by Congress.
The Senate takes seriously its constitutional role of advice and consent to the ratification of treaties. While counsel to the Foreign Relations Committee, I worked on numerous treaties during the past five years. The Committee gives its advice and consent to an average of about fifty treaties a Congress. These treaties relate to such mundane topics as maritime borders and migratory birds, and to topics such as bilateral extradition, tax, and investment.
Two of the most worrisome and controversial multilateral U.N. treaty negotiations in my portfolio included the Kyoto Protocol to the Climate Change Conventions  and the Rome Statute of the International Criminal Court (the "ICC,,).  Although the United States has signed one of the two treaties, neither has been submitted to the United States Senate for its advice and consent. Undoubtedly both as currently drafted would fail to get the two-thirds support necessary for ratification.
There is some comparison to be made between the two treaties. Although the subject matters are very different, as a matter of treaty law, both treaties represent a growing trend in multilateral treaty negotiations. The treaties erode aspects of sovereignty by placing international legal obligations more directly on the citizens of nations--whether in their individual or corporate capacity--rather than governments. For example, the Rome Treaty would permit trial of individuals without a nation's consent. Such trials could result in imprisonment, revoking the most fundamental right of a democratic society, that of liberty.
The Kyoto Protocol creates and grants value to a new property right, carbon emissions, and establishes an institution called the Clean Development Mechanism that would regulate the investment of businesses seeking to obtain credit for environmentally sound technology used abroad.
The nearly simultaneous negotiation of both these treaties suggests the U.S. Administration is increasingly comfortable with a more robust legislative role for U.N. institutions. Therein lies the tension between the Senate and the Executive Branch in the debate on the ICC Treaty.
Ironically, these multilateral treaties are negotiated far away from the seats of government. For example, when a U.S. Treasury team negotiates a bilateral tax treaty, they sit down with key government officials in both of their capitals. The United States generally has a bottom-line that must be acceptable to both parties before it is willing to initiate treaty discussions. Once accepted, the negotiations begin and enable a fair amount of information sharing, which serves to strengthen domestic institutions, particularly in developing countries, and ensure that key U.S. concerns form the basis of the treaty.
In large multilateral treaty negotiation settings, countries often cannot afford to send delegations and instead depend on delegates of non-governmental organizations ("NGOs") to represent them, some of whom may have their own agenda at these negotiations that may be inconsistent with the interests of the country they are representing. In Rome, I witnessed one instance in which an NGO was accredited by a small nation to sit in the nation's chair and speak on behalf of that country. Rather than strengthening domestic institutions, such negotiations stretch budgets of small nations and inevitably lead to new and costly international institutions located in distant cities.
Today, the United States pays assessed contributions to more than fifty international organizations and contributes on a somewhat voluntary basis to some thirty others. …