January 8, 1999
Like almost every government official, the federal government itself has an in-box stuffed with documents begging for attention: in this case, a growing in-box of treaties signed by representatives of the United States over the years. Many of these treaties, however, have little prospect of ever being ratified or entering into force. In fact, as of October 21, 1998, over 50 treaties signed by U.S. representatives still languished in the Senate.1 Additionally, the State Department reports that over 30 treaties signed by the United States have yet to be submitted to the Senate.2
The accumulation of these treaties is far more than a federal paperwork nuisance. It represents no less than a threat to America's system of constitutional governance, since the terms of many of these treaties are being implemented by the Administration without the Senate's advice and consent.
According to customary international practice, countries are expected to refrain from actions that would undermine the object and purpose of treaties they have signed but not yet ratified. For the United States, this practice has become the means by which administrations implement treaties even though they are not yet legally binding.
For example, the Administration signed agreements in September 1997 to revive the 1972 Anti-Ballistic Missile (ABM) Treaty with the former Soviet Union and broaden its application.
The Kyoto Protocol to the United Nations Framework Convention on Climate Change was concluded in December 1997 but not signed by the United States until November 12, 1998. Nevertheless, the Clinton Administration was already imposing regulatory requirements on federal agencies, through executive order, that comply with the goals of the Kyoto Protocol.3
In short, the Senate's constitutional role in the treaty ratification process is being circumvented. There are several specific steps the Senate and the full Congress can take to correct this problem:
The Senate can change its standing rules governing treaty consideration under the constitutional procedure of advice and consent. The standing rules could be changed to ensure both that the executive branch cannot withhold treaties from the Senate for an extended period of time and that treaties sent to the Senate do not remain there indefinitely.
Congress can enact legislation to clarify the obligations of the executive branch regarding treaties which, while they have been signed, have not been ratified or have not entered into force. Such a law should make it clear that the Administration is not required to comply with a treaty whose ratification the Senate has not yet considered, and should bar the executive branch from implementing the provisions of any such treaty. In addition, whenever a period of six years has elapsed since a treaty was signed but the treaty still has not been ratified, the President should be authorized to announce the intention of the United States not to become a party to that treaty.
Treaties that the executive branch is withholding from the Senate. The executive branch has withheld signed treaties from the Senate, some for long periods. For example, the 1989 United Nations Convention on the Rights of the Child was signed with great ceremony in 1995 by then-U.S. Ambassador to the United Nations Madeleine Albright. Yet the Administration has shown little inclination to transmit this treaty to the Senate for consideration. Historically, this kind of delay has occurred when an administration believed the Senate would not consent to a treaty's ratification.
Treaties that have been submitted to the Senate but on which no action has been taken. In some cases, the Senate has neither voted to reject the ratification of a treaty submitted by the executive branch nor granted its consent. Such inaction may result from a failure to muster the two-thirds vote necessary for approval or from the reluctance of a treaty's supporters to see it defeated. Some treaties have remained before the Senate for years. President Jimmy Carter, for example, signed the United Nations Convention on the Elimination of All Forms of Discrimination against Women in 1980 and submitted it to the Senate for advice and consent. The Senate Foreign Relations Committee approved it in 1994 and sent it to the full Senate for consideration, but the Senate referred it back to the committee, where it remains.
Treaties that the executive branch is attempting to observe or implement prior to Senate approval. For example, the Clinton Administration is attempting to implement provisions of a series of signed ABM agreements that effectively revive the 1972 ABM Treaty.4 It is sharing confidence-building information and executing transparency measures with would-be new partners of the United States under these agreements.
The Strategic Arms Limitation Treaty II (SALT II), which was signed by President Carter in 1979 and which sought to impose limits on the number of U.S. and Soviet strategic nuclear weapons, is another example. President Carter asked the Senate to delay consideration of the treaty in 1980 following the Soviet invasion of Afghanistan. The U.S. Arms Control and Disarmament Agency (ACDA) then stated that customary international practice required the United States to refrain from acts that would defeat the object and purpose of the treaty, even though it had not been ratified. Later in 1980, President Carter announced that the United States would comply with the provisions of SALT II (which still lacked Senate approval) as long as the Soviet Union reciprocated. This policy of mutual restraint was extended under President Ronald Reagan until 1986.
Mutual restraint skirted the constitutional requirements for treaty ratification. It also demonstrated the misapplication of customary international practice regarding unratified treaties, which allows a signatory in situations like that presented by SALT II to declare that it has no intention of being a party to the treaty. This relieves the signatory of having to observe the treaty in any way. Because the Senate had no intention of approving SALT II and President Carter lacked the authority to ratify it, the appropriate action should have been for the President to announce to the Soviet Union that the United States would not be a party to the treaty. This would have relieved the United States of having to refrain from actions that would undermine the object and purpose of SALT II, such as exceeding the numerical limitations on deployed weapons.
Both houses of Congress need to act in order to establish an effective mechanism for dealing with the circumstances that allow treaties to languish in the treaty in-box. First, the Senate should change its rules for considering treaties to ensure that older treaties, as well as those that do not deserve consideration in the first place or that clearly lack Senate support, are returned directly to the President. Second, Congress should clarify what constitutes proper action by the executive branch, consistent with the Constitution and customary international practice, to implement treaties that have not been ratified and have not entered into force.
Changing the Senate's Standing Rules
Rule XXX of the standing rules of the Senate governs that body's treaty-making powers under Article II, Section 2 of the U.S. Constitution. This rule could be revised so that:
Any treaty transmitted to the Senate by the President later than two years after a recognized U.S. representative has signed it would automatically be returned. It also should be accompanied by a message stating that the Senate has not consented to ratification. This change would impose a reasonable time limit on the President's efforts to affect the outcome of the advice and consent process. If the President could not find an advantageous time for transmitting a treaty to the Senate within a two-year period, the treaty would be regarded as dead, since the Senate would not consider it under this rule. This change would help resolve the problem of treaties withheld from the Senate for lengthy periods. The rule should be waived only by unanimous consent of the Senate.
Any treaty that has been before the Senate for three Congresses5 without being approved would be returned to the President automatically upon the adjournment of the third Congress. Regardless of where a treaty stands in the process, the Senate should return it to the President at the adjournment of the third Congress since its submission, with a message stating that the Senate has not consented to ratification. This would prevent treaties from accumulating in the Senate's in-box for indefinite periods of time. In extraordinary circumstances, the Senate could waive the application of this rule to a particular treaty by unanimous consent prior to the adjournment of the third Congress.
Together, these procedural changes would
guarantee the timely transmittal of signed treaties to the Senate
for advice and consent and impose a six-year limit on the Senate's
Changing Statutory Law
To address the increasing efforts by the executive branch to circumvent the constitutional process and observe treaties or implement their provisions in the absence of Senate approval, the full Congress would need to change statutory law. Such a change should be designed to:
Establish domestic legal standards for signed treaties which have yet to be ratified and enter into force, including a procedure by which to extinguish all U.S. obligations under these treaties after a specified period of time.
Bar the executive branch from taking any positive steps to implement a treaty before its ratification and entry into force.6
Customary international practice regarding treaties that have not been ratified derives from Article 18 of the 1969 Vienna Convention on the Law of Treaties, which was signed by the United States but never ratified. The Vienna Convention states that nations should not take actions that undermine the object and purpose of a treaty during the time between signature and ratification and entry into force. Article 18, however, does not require a signatory state to take positive actions to implement a treaty that is not yet ratified and has not entered into force. And it makes it clear that a signatory does not need to refrain from actions that undermine the object and purpose of a signed treaty if it has announced its intention not to become a party to the treaty.7
Although the United States is not legally compelled to abide by the Vienna Convention, Congress should define precisely what actions are consistent with both the U.S. Constitution and customary international practice regarding unratified treaties. It also should authorize the President to announce to other signatory states that the United States has no intention of becoming a party to a signed treaty if six years has elapsed without ratification since that treaty was submitted to the Senate.8
Congress also needs to create a routine procedure for extinguishing U.S. obligations under unratified treaties. This procedure should apply to all treaties, including those that have been signed prior to the six years before the new policy is enacted, and should prohibit the executive branch from taking any positive actions that effectively implement the terms of a treaty that has not yet been ratified. The only exception would be actions that have been required by an expressed act of Congress. This provision would prevent, for example, the misapplication of customary international practice that occurred after SALT II was signed.
This procedural change would help eliminate the entire backlog of treaties currently awaiting ratification. It also would complement the proposed changes in Standing Rule XXX of the Senate by establishing similar deadlines for the executive branch regarding treaty ratification.
A New Mechanism for Clearing the Treaty
Creating a mechanism to ensure that treaties do not languish in the treaty in-box is particularly important in light of two treaties this Administration has signed: the three new agreements that revive the ABM Treaty and the Kyoto Protocol. Although it already is attempting to implement provisions of these treaties, the Administration has yet to submit either of them to the Senate for advice and consent to ratification. If the changes in the Senate's standing rules and statutory law outlined above were in effect now, the effective deadlines for submission of the ABM agreements and the Kyoto Protocol to the Senate would be, respectively, September 1999 and November 2000.
More than 130 treaties signed by representatives of the U.S. government have yet to receive the advice and consent of the Senate according to the treaty ratification process delineated in the Constitution. Whether these treaties languish because they have no hope of being approved by the Senate or because the Administration has not yet submitted them for the Senate's consideration is not the key issue. Rather, Congress should recognize that the treaty in-box will continue to grow--and Americans will continue to be subjected to the terms of treaties that have not been ratified and entered into force--unless the Senate and the executive branch have an automatic mechanism that forces them to clear it.
All legislation pending before Congress when each session concludes its business and adjourns is extinguished and must be reintroduced in the new Congress to be considered. Further, the executive branch may not implement any bills that have not been enacted into law. This process clears the congressional calendar of legislative business every two years.
Treaties, by contrast, can be withheld from or remain before the Senate for indefinite periods, and the executive branch has been allowed in the past to take at least preliminary action to implement unratified treaties before the Senate acts on them. The cumulative effect of this activity has been to weaken the Senate's constitutional authority to advise and consent to the ratification of treaties.
The Senate and Congress as a whole can change this process. An effective mechanism should be created that subjects all treaties to the same types of procedural limitations that apply to other legislation. The mechanism proposed above not only would institute a more orderly process for the consideration of treaties, but also would regularly clear the treaty in-box and ensure that the nation's system of constitutional government is protected.
Baker Spring is Senior Defense Policy Analyst and Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in The Kathryn and Shelby Cullom Davis International Studies Center at The Heritage Foundation.
3. President William J. Clinton, "Greening the Government Through Waste Prevention, Recycling, and Federal Acquisition," Executive Order 13101, signed September 14, 1998, in Federal Register, September 16, p. 49643. See also "Executive Order Draft Rewrite of #12902/12845, Greening the Government Through Efficient Energy Management," in U.S. Environmental Protection Agency, "Draft Executive Order on Energy Efficiency," Inside EPA Weekly Report, Vol. 19, No. 47 (November 27, 1998), p. 4.
6. Congress has taken similar actions in the past, such as including prohibitions and requirements on expenditures related to individual treaties. For example, Congress included two statutory provisions pertaining to the Kyoto Protocol in bills authorizing expenditures. The conference report accompanying H.R. 4194, the Departments of Veterans Affairs and Housing and Urban Development Appropriations for Fiscal Year 1999 (P.L. 105-276), states that "none of the funds appropriated by this Act shall be used to propose or issue rules, regulations, decrees, or orders for the purpose of implementation, or in preparation for implementation, of the Kyoto Protocol which was adopted on December 11, 1997, in Kyoto, Japan...which has not been submitted to the Senate for advice and consent to ratification." Section 573(a) of the Omnibus Consolidated and Emergency Supplemental Appropriations for Fiscal Year 1999 (P.L. 105-277) specifies that "Funds made available in this Act to support programs or activities promoting country participation in the Kyoto Protocol...shall only be made available subject to the regular notification procedures of the Committees."
7. The Vienna Convention entered into force without U.S. participation in 1980. An announcement that the United States has no intention of becoming a party to the Vienna Convention would demonstrate clearly that U.S. domestic law, particularly the Constitution, rather than customary international practice governs how the United States enters into treaties and implements them. However, such an announcement would not preclude Congress from passing legislation on its own that conforms to standard international practice.