Inaugural Countdown: Treaties Pending U.S. Ratification

With the inauguration of U.S. President-elect Barack Obama one week away, here is a brief look at 7 major treaties that the United States has not ratified. These treaties have been awaiting the advice and consent of the Senate. They cover topics such as human rights, biodiversity, the protection of victims in armed conflicts, the law of the sea, and nuclear weapons testing. Vice President-elect Joseph R. Biden Jr. served as the chair of the committee responsible for review and consideration of international treaties, the Senate Foreign Relations Committee. Of the seven major treaties, Obama has previously stated that he supports ratification of three of them: the Comprehensive Nuclear Test-Ban Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Law of the Sea.

The treaties are given below in chronological order, according to the date each treaty was sent to the Senate by the President. The list begins with one of the older treaties lingering on the Senate calendar.

1. Vienna Convention on the Law of Treaties (VCLT)

U.S. Treaty Document: 92-12
Senate Date: November 22, 1971
Status: Signed April 24, 1970, awaiting ratification

The Vienna Convention on the Law of Treaties entered into force on January 27, 1980 as a means of codifying customary international law principles governing the making, operation, suspension, and termination of treaties. Within international law, the VCLT is generally seen as an authoritative source for treaty interpretation. For example, Article 26 of the Vienna Convention on the Law of Treaties holds that “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” Under Article 62 of the VCLT, a party may be able to modify or terminate a treaty due to an unforeseeable and fundamental change of circumstances. Articles 53 and 64 address jus cogens norms, such as slavery and genocide, and allow the invalidation of an entire treaty if part of the treaty violates one or more of these norms.

Although the United States voluntarily follows many provisions within the VCLT, the U.S. Senate is reluctant to ratify the treaty and thus accept all of its provisions as legally binding. Evan J. Criddle contends that U.S. reluctance is due, in part, to three reasons. First, the U.S. Supreme Court relies on domestic ratification materials, whereas the VCLT does not consider these resources as authoritative. Second, the U.S. Supreme Court is deferential to the executive branch’s interpretation of a treaty, whereas the VCLT contemplates the consideration of interpretations from other treaty parties. Third, domestic U.S. courts may not want to construe treaties within the context of the transnational community of courts. Rather, U.S. courts may want to maximize domestic sovereign interests. Criddle concludes in support of increased systematic and express application of the VCLT by U.S. courts. His observations about the tension between the United States and the VCLT are intriguing. His conclusion, however, requires a blind leap that the adoption of the VCLT and the abandonment of domestic common law principles and U.S. Supreme Court canons of interpretation would produce a “more coherent and sustainable foundation” for U.S. jurisprudence. For his complete argument, see: Criddle, Evan J., The Vienna Convention on the Law of Treaties in U.S. Treaty Interpretation, 44 Va. J. Int’l L. 2 (2004).

2. American Convention on Human Rights

U.S. Treaty Document: 92-21
Senate Date: February 23, 1978
Status: Signed June 1, 1977, awaiting ratification

The American Convention on Human Rights is an international human rights treaty under the auspices of the Organization of American States. Two entities are responsible for monitoring and enforcing compliance with the Convention: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Currently, 24 of the 35-member states of the OAS are party to the Convention and legally bound by its provisions.

Although the United States has not ratified the treaty, the U.S. government has defended against allegations of human rights violations under the Convention before the Inter-American Commission on Human Rights. Canada similarly has not ratified the Convention.

One barrier to ratification is Article 4, which guarantees the right to life. The question is whether the United States can enter a reservation to the treaty to protect the right to abortion and the death penalty under domestic law. Critics contend that such a reservation would defeat the purpose of the treaty and thus be invalid.

Another barrier is Article 28 on domestic compliance by federal and state governments. Specifically, Article 28 requires the federal government to take “suitable measures” to fulfill the obligations within the Convention. How this requirement would be interpreted by U.S. courts or the Inter-American Court is unclear. Would such an obligation violate the principles of federalism within the United States? Would the federal government need to exercise its jurisdiction over matters previously
under state control?

Lastly, would the ratification of the Convention create individual rights beyond those existing under U.S. law? In essence, would the treaty be self-executing and thus grant a right of action to individuals for violations not previously justiciable under the Constitution or U.S. law?

3. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

U.S. Treaty Document: 96-53
Senate Docket Date: November 12, 1980
Status: Signed July 17, 1980, awaiting ratification

The Convention on the Elimination of All Forms of Discrimination Against Women prohibits gender inequity. The Convention seeks to provide comprehensive affirmative legal rights to all women worldwide. The scope of these rights is very broad and includes, in part, areas such as education, employment, health care, family relations, financial, laws, marriage, and politics. As of January 2009, 185 states are parties to the Convention and are legally bound by its provisions.

The United States has considered a reservation to the Convention to clarify that it is a non-self-executing treaty. Women’s rights advocates argue that ratification would strengthen the position of the United States as a champion of international human rights and women’s equality. Under President George W. Bush, the U.S. government maintained that ratification would not enhance domestic protections and that it would be unnecessary. Further, ratification would impose the increased burden of ongoing reports to the Committee on the Elimination of Discrimination against Women Convention for the purpose of compliance monitoring.

U.S. State Department, John B. Bellinger, Legal Adviser
Remarks at the Hague, Netherlands, June 6, 2007

Similarly, in the case of the Convention for the Elimination of Discrimination Against Women (CEDAW), we have not been persuaded that the binding international obligations contained in that treaty would add anything to the measures we take domestically. Our law is already highly protective of women’s rights. In addition to a constitutional guarantee of equal protection, we have robust federal anti-discrimination laws and the recently reauthorized Violence Against Women Act. Further, the United States is a world leader in promoting women’s rights and participation in the political process. We have spent billions of dollars in foreign aid to improve women’s political participation, economic status, education, health care, and legal rights. Indeed, our levels of direct assistance for women around the world have increased substantially over the past four years. It cannot seriously be maintained that our decision not to push for ratification of this treaty reflects a lack of respect for, or attention to, women’s rights.

As a candidate, President-elect Obama supported the ratification of CEDAW.

4. Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts

U.S. Treaty Document: 100-2
Senate Date: January 29, 1987
Status: Awaiting signature, ratification.

Protocol II is an amendment to the Geneva Conventions that applies to civil wars and other internal conflicts. The Protocol provides for humane treatment and basic due process for detained persons, protection of the wounded, sick and medical units, and protection of noncombatants from attack and deliberate starvation. In his message to the Senate transmitting the Protocol for advice and consent, then-President Ronald Reagan stated” “This Protocol makes clear that any deliberate killing of a noncombatant in the course of a non-international armed conflict is a violation of the laws of war and a crime against humanity, and is therefore also punishable as murder.”

Protocol II’s fate has been closely tied with the signing and ratification of Protocol I. President Reagan deemed Protocol I “fundamentally and irreconcilably flawed.” Specifically, he criticized the inclusion of “wars of national liberation” because it was a subjective, rather than objective, standard. As such, he felt that Protocol I could be used for political purposes to undermine humanitarian law and endanger civilians during wars. Proponents of Protocol II took no action in the Senate fearing that separate action solely on Protocol II may endanger future action on Protocol I.

5. Convention on Biological Diversity (CBD)

U.S. Treaty Document: 103-20
Senate Date: November 20, 1993
Status: Signed June 4, 1993, awaiting ratification

The Convention on Biological Diversity recognizes the value of sustainable conservation and calls for technology transfers and funding mechanisms to ensure fair and equitable sharing from genetic and biological resources.

The United States is a holdout. In January 2009, there were 191 parties to the Convention. The last action in the U.S. Senate was in 1994, after a contentious procedural and political defeat. Initially, the Senate Foreign Relations Committee recommended ratification by a 16-3 vote. A Minority Report questioned whether the provisions of the Convention were overly broad and whether the treaty could result in regulatory takings of property. (Exec. Rept. 103-30.) The Senate Majority Leader withdrew the treaty from the Senate’s docket and thus precluded a floor vote by the Senate. Despite the time lag since 1994, the treaty currently can be rescheduled for a floor vote by the Senate Majority Leader.

6. United Nations Convention on the Law of the Sea

U.S. Treaty Document: 103-39
Senate Date: October 7, 1994
Status: Signed July 29, 1994, awaiting ratification

The Third United Nations Convention on the Law of the Sea (UNCLOS III) was adopted in 1982 as a comprehensive treaty for the oceans. It covers delimitation, environmental control, marine scientific research, economic and commercial activities, transfer of technology, and the settlement of disputes relating to ocean matters. Coastal states are granted sovereign rights over the continental shelf and in a 200-nautical mile exclusive economic zone (EEZ). Land-locked and geographically disadvantaged states enjoy a right to equitable economic access and benefit to “exploit” the resources within another state’s EEZ. States are required to transfer marine technologies “on fair and reasonable terms and conditions.” Also, states must settle disputes in international courts, such as the International Court of Justice or the International Tribunal for the Law of the Sea, or arbitration.

Critics of the treaty argue that it may threaten the security, sovereignty, and independence of the United States. The main security concern involves the right of “innocent passage” through the 12-mile territorial limit over which each state has sovereign control from its coastline. This right, however, is subject to the constraints that the passage not interfere with the “sovereignty, territorial integrity or political independence” of that foreign state.

The treaty’s proponents, including President George W. Bush, point out that the disadvantages of not ratifying the treaty are greater than the disadvantages should the United States ratify the treaty. The treaty continues to provide the customary right of “innocent passage.” The technology transfers are not mandatory.

The greatest arguments for ratification include the absence of territorial claims by the United States during a global “sea-grab” for territorial waters and the absence of the United States at the table when the vital interests of military, economic, and environmental maritime rights and obligations are being debated and interpreted.

As a candidate, President-elect Obama supported the ratification of the UN Convention on the Law of the Sea.

7. Comprehensive Nuclear Test-Ban Treaty (CTBT)

U.S. Treaty Document: 105-28
Senate Date: September 23, 1997
Status: Signed September 24, 1996, awaiting ratification

The Comprehensive Nuclear Test-Ban Treaty (CTBT) prohibits all nuclear testing. Specifically, the treaty requires states: “not to carry out any nuclear weapon test explosion or any other nuclear explosion.” Article IV establishes a verification mechanism with an International Monitoring System. The treaty requires the 44 states with nuclear reactors to ratify the treaty before it enters into force.

Under President George W. Bush, the administration honored a moratorium on nuclear testing but did not want to preclude the option of future testing. One of the concerns is whether the United States can rely on the safety and readiness of its nuclear weapons stockpiles through science-based stockpile stewardship, without pragmatic and periodic field testing. For greater details, see (a) CRS Report 97-1007, Nuclear Testing and Comprehensive Test Ban: Chronology Starting September 1992, by Jonathan Medalia, and (b) CRS Report RL34394, Comprehensive Nuclear-Test-Ban Treaty, updated November 15, 2006, by Jonathan Medalia.

William Perry, the former U.S. Defense Secretary who advised President Bill Clinton to sign the treaty, stated in a UN press conference on the CBT in September 2008 that Obama, if elected, would “provide substantial support to ratifying the CTBT.”

As a candidate, President-elect Obama supported the ratification of the CTBT.

Trivia Quiz: What is the oldest pending treaty?

Convention No. 87
Ex. S, 81-1 (Treaty Doc. 81-19) August 27, 1949
Convention No. 87 concerning freedom of association and protection of the right to
organize adopted by the International Labor Conference at its 31st session held at San
Francisco, June 17 to July 10, 1948.

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