The Senate's Distaste for Treaties - a Perennial Problem for US Diplomacy

When US senators resume their work later this month, they'll again face the challenge of ratifying a treaty. They will be required to give their advice and consent by a two-thirds vote to expanded membership of the North Atlantic Treaty Organization.

Historically, senators haven't been fond of treaties. Significant international agreements such as the 1919 Versailles Treaty have failed to get the necessary votes. Administrations, facing possible defeat, put off tests of others, such as the Strategic Arms Limitation Agreement with the Soviet Union (SALT II) of 1979. Some, such as the Panama Canal Treaties (1979), the North American Free Trade Agreement (1993), and the recent Chemical Weapons Convention gained the necessary votes only when an administration was prepared to wage an all-out effort on behalf of the agreement.

According to the Congressional Index, 70 treaties signed by the US and submitted to the Senate in the last 50 years remain unratified. These include important international conventions on human rights; economic, social, and cultural rights; biological diversity; the elimination of all forms of discrimination against women; the law of the sea; nuclear safety.

Senate reservations about treaties stem from a number of factors - some valid, some questionable. When the provisions of a treaty conflict with the US Constitution or federal or state law, reservations are understandable. The UN Convention on Economic, Social, and Cultural Rights, for example, relates to education, jobs, and cultural activities that, in the US, are the province of states or the private sector. Senators are sensitive, also, to the preservation of US sovereignty. Any agreement that would seem to give foreign entities the right to intervene in American domestic affairs is likely to have a difficult road to ratification. The costs of international obligations are another inhibiting factor.

As with most controversial issues in the US, ideology, politics, and a sense of nationalism enter the picture. The Law of the Sea Treaty is a good example. Under the treaty, the organization of an international entity to oversee the mining of the deep sea bed is anathema to those who believe it will place undue restrictions on private enterprise. Others would be likely to oppose provisions that would allocate the profits from mining to developing nations under the principle of "a common heritage of mankind." And any treaty today that stems from a UN initiative faces the animus of at least some members of the Senate.

SENATE reluctance to endorse treaties creates unique problems for US diplomats, whether secretaries of state or ambassadors. No US negotiator can assure a counterpart that what has been agreed between them will be accepted. Senate delays or rejections of treaties involving major elements of US foreign policy on nuclear, human rights, or environmental issues cast doubt on the commitment of the US in these areas.

Given the uncertain fate of international agreements in the Senate, the Clinton administration recently has been reluctant to sign such documents - the Convention on Land Mines, for example.

Whether or not senators realize it, the US is bound under international law to respect any agreement signed by US negotiators. Article 18 of the Vienna Convention on the Law of Treaties of 1969 says a state that has signed "is obligated to refrain from acts which would defeat the object and purpose of a treaty" until "it shall have made its intention clear not to become a party" (i.e. ratified or not). To those in the Senate, the question may seem moot. The Convention on Treaties is among the 70 that remain unratified.

* David D. Newsom, former undersecretary of state, is Cumming Memorial Professor of International Affairs at the University of Virginia.

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