The Difficulty of Obtaining U.S. Ratification of Multilateral Treaties

On December 4th the U.S. Senate once again demonstrated the difficulty of obtaining U.S. ratification of multilateral treaties.

Voting in U.S. Senate
Voting in U.S. Senate

The Senate that day voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities.  This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.

Former Senator Robert Dole in Senate
Former Senator Robert Dole in Senate

The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996,who was on the Senate floor in his wheelchair to garner support for the treaty.

Such Senate approval is only one critical step in the complicated U.S. procedures for such ratification. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.[1]

The difficulty of completing all of these procedures, including the Senate’s granting its Advice and Consent, is also seen by the 17 to 19 years and five presidencies it took before the U.S. had ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and before the treaty went into force for the U.S.

Yet another example of the mountain that must be climbed for ratification is the inability to date to obtain a two-thirds Senate vote for Advice and Consent to ratification of the United Nations Convention on the Law of the Sea despite endorsement by the Pentagon, labor and business and three presidents (Bill Clinton, George W. Bush and Barack Obama).

Reacting to the Senate’s rejection of the disabilities treaty, the New York Times’ “Room for Debate” feature posed the question–   “”Have Treaties Gone Out of Style?” Four people participated in this debate: David Kopel, Julian Ku, Catherine Powell and Jenny Martinez.

David Kopel [2] argues that the Senate was right to reject this treaty.  In his opinion, it “was rife with flaws — requiring government at every level in the U.S. to spend ‘the maximum of its available resources’ on disabled services, granting Congress new powers to regulate private homes and personal behavior, and creating a new legal right to abortion, independent of Roe v. Wade.” Moreover, he said, “Efforts by senators to add reservations to address some of these issues were rejected by treaty proponents.” Finally he asserted that “even if the textual language in the treaty were perfect, the fact that the future meaning of the disabilities treaty will be decided by U.N. bureaucrats” supported U.S. rejection.

Julian Ku[3] although generally skeptical of multilateral treaties like the one at issue this week, concluded that the stated fears of this treaty were unfounded. He said, the Obama Administration had “conditioned Senate approval on a ‘non-self-executing’ declaration that prevents any litigation under the convention in U.S courts [and] . . .  added a federalism reservation that would prevent the convention from overriding inconsistent state law.” In addition, the Administration “added a ‘private conduct’ reservation that would prevent it from regulating nonstate [sic] actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.”[4]

Supporting ratification of the treaty, Catherine Powell [5] said that the treaty “extends abroad the same basic rights Americans already enjoy at home,” [would strengthen] . . . disabilities rights for others,. . . [and] would have helped Americans who travel, live, work and study abroad, including our wounded warriors. It would also benefit American businesses that sell power wheelchairs and other adaptive technologies that assist people with disabilities.” According to Powell, the two asserted objections to the treaty were invalid.

  • “First, the claim that the treaty would lead to interference with home schooling is nonsensical. If anything it would expand educational opportunities. It defends autonomy, independence and choice for people with disabilities (including parents of children with disabilities), by prohibiting discrimination and interference in decisions.
  • Second, the claim that this treaty would threaten U.S. sovereignty is specious. . . . Ratifying the convention requires no change in our law and no new rights, and it cannot be used directly to bring lawsuits. No international organization, including the nonbinding advisory committee established by the treaty, can force us to do anything.”

Jenny Martinez [6] also rejected the sovereignty objection. This conception of sovereignty, she said,  is isolationistic “that focuses on minimizing ties to the community of nations, rather than seeking to lead that community. But autonomy is just one meaning of sovereignty, and an elusive one at that in a globalized world economy. Sovereignty is also the power to make law, and sovereignty wisely exercised is the power to make good law.” Indeed, in “wiser moments, leaders of both parties have recognized that participation in international treaties that serve our national interests and reflect our national ideals represents an exercise of sovereign power, not a diminution of it.”

The Senate indeed has an important responsibility under the Constitution to ensure that U.S. entry into any proposed treaty is in accordance with the national and international interest of the country. Because adopted treaties, under the Constitution, are part of the supreme law of the land, The Constitution requires the Senate’s vote on such matters to be at least two-thirds. I regret that we are in a period where one of our major political parties has lost sight of the previous bipartisan consensus that our participation in multilateral treaties usually advances our national interest. Although the U.S. in many respects is the most powerful country in the world, it still needs allies and means to project its values and interests to others. Such treaties are one important way of doing just that.

[1] The same procedures are necessary for approval of bilateral treaties, but such treaties are less controversial.

[2] Kopel is the research director of the Independence Institute and an adjunct professor of law at the University of Denver and the co-author of “Firearms Law and the Second Amendment.”

[3] Ku is a professor of law and the faculty director of international programs at the Maurice A. Deane School of Law at Hofstra University and the co-author (with John Yoo) of “Taming Globalization, International Law, the U.S. Constitution, and the New World Order.”

[4] Ku argues that the Republican Senators should have saved their efforts for opposing Advice and Consent to ratification of  the Law of the Sea treaty that will come before the Senate in the future.

[5] Powell is a visiting associate professor of law at Georgetown University Law Center (on leave from Fordham University School of Law) and former staffer on the Secretary of State’s policy planning staff and the national security staff in the White House.

[6] Martinez is the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School and the author of “The Slave Trade and the Origins of International Human Rights Law.”

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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