28 Sep A Treaty-Happy Senate?
With all the attention to the bailout legislation last week, few noticed how much the Senate did on the treaty front. But, as I suggested in my recent post, the Senate had an opportuntity to set a record in terms of its treaty actions and it easily did so, passing resolutions of advice and consent for some 78 treaties (the whole list can be found here). The resolutions are printed in the Congressional Record, starting here, here, and here. For those looking for further details, Jacob Cogan over at the International Law Reporter has done a nice job compiling the treaty transmittal packages and Senate Foreign Relations Committee (SFRC) reports as well (see here, here, and here).
With the expected exceptions of UNCLOS and its Part XI Amendment along with the Protocol to the London Dumping Convention, the Senate essentially cleared the floor of all the treaties reported favorably to it by the SFRC this Congress. There was debate and little attendant controversy over any of these treaties. It looks like all the resolutions of advice and consent came via division votes, which has become the norm of late; I don’t think the Senate has actually had a floor debate or anything resembling a real vote on a treaty since the failed effort involving U.S. ratification of the Comprehensive Test Ban Treaty back in 1999 (readers should feel to correct me if I’m wrong here).
Still, whether the Senate closely considered them or not, the resolutions themselves are quite novel in two respects. First, although I’ve not looked at every resolution, those I have reviewed follow the SFRC-recommendations, including declarations of self- or non-self-execution. As I suggested last week, the idea that a resolution will be made for each treaty marks a new practice. And to the extent these declarations are part of the instruments of ratification, I wonder how other nations will react? Although one might argue that they should not care so long as the United States complies with the treaty in question, if foreign reaction to U.S. human rights treaty RUDs (i.e., reservations, understandings and declarations) is any guide, some states may well object (e.g., making the argument that the declarations actually constitute inadmissible reservations or are otherwise unacceptable).
Second, from a U.S. law stand-point there’s the question of the Senate’s ability to make a declaration of self-execution, which I don’t think it has ever done before, at least not in the resolution of advice and consent itself (past SFRC reports have, of course, expressed opinions on whether the SFRC understood the treaty to be self-executing in one or more senses of that term, or otherwise dependent on ex-ante or ex-post legislation in some way). At a workshop at Duke this past weekend, a number of academics I highly respect raised questions about whether the Senate specifically (or the U.S. treaty-makers more generally) could issue declarations of self-execution regardless of the treaty’s terms, in the same way as many assume that they can when it comes to non-self-execution. I’m not sure if this is a real, or merely a theoretical problem; indeed, I’d expect U.S. courts will welcome anything resembling clear statements on a treaties’ justiciability from the treaty-makers rather than having to find their own way. But, I would be interested in reader reaction to the Senate declarations. Are they problematic? Or, is the Senate appropriately exercising its own constitutional powers here?
[Update: Blog in haste, regret at leisure. So, it turns out the SFRC made it clear that the declarations of self- and non-self-execution were not to be included in instruments of ratification; the new practice, rather, is the inclusion of those declarations in the Senate’s Resolution of Advice and Consent, whereas previously the topic was usually left to the SFRC reports themselves (and even then addressed only occasionally). I expect that this will make it less likely (and harder) for other nation states to oppose these declarations. Finally, at least one reader has suggested that the Senate has done some declarations of self-execution in the past, but I can’t think of an example where it has done so. Readers — do you have any examples to offer where the Senate issued a declaration of self-execution?]