Comparing Obama and Bush’s Treaty Priorities

Last month, the Obama Administration informed the Senate of its treaty priorities via a letter from the State Department (you can access it here). The letter lists 17 treaties for which the Administration seeks Senate advice and consent “at this time,” including (as predicted here and here) CTBT, CEDAW, and UNCLOS. It also lists 12 treaties “on which the Administration does not seek Senate action at this time,” including the International Covenant on Economic, Social and Cultural Rights, the American Convention on Human Rights, and the Convention on Biological Diversity (the no action list also includes the 1969 Vienna Convention on the Law of Treaties, but that’s got to be a mistake, right? Seriously, despite the 40 year delay, I continue to hope that someone in the State Department will finally come to their senses and push for this treaty again; if only so those of us treaty lawyers would stop having to claim the whole treaty has become customary international law and instead let us focus on it as a set of treaty obligations).

The use of a treaty priority list has become a standard mechanism for updating and revising executive views on treaties submitted to the Senate for advice and consent. A treaty priority list is usually communicated to each new Congress (although that doesn’t always happen). I recall working on a few of them during my time in the State Department’s Treaty Office from 1999-2003. So, how does the Obama Administration’s treaty priority list stack up against its predecessors? Compare it with the Bush Administration’s last treaty priority list from 2007 (available here), and a few things jump out.

First, it’s remarkable how many fewer treaties are on the Senate calendar today vs. 2007. This is in large part due to the Senate Foreign Relations Committee’s push last fall to move non-controversial treaties through the Article 2 process, resulting in dozens of treaties receiving Senate advice and consent, most notably the 40-plus treaties with the EU and its member states on extradition and mutual legal assistance.

Second, there are actually not as many differences between the Bush and Obama Administrations’ treaty priorities as one might expect. In fact, only four treaties disfavored by the Bush Administration moved onto the new Administration’s list for Senate action — the aforementioned CTBT and CEDAW as well as the Convention on the Safety of United Nations and Associated Personnel and the Inter-American Convention on Illicit Arms Trafficking. The other treaties for which Senate action is sought either —

• were on Bush’s list as well (e.g., UNCLOS, POPs, PIC, and an ILO Convention (no. 111) that the Bush Administration intimated it might favor with the right Senate conditions);
• were submitted by the Bush Administration post-2007 and thus favored by it (e.g., Defense Trade Cooperation Treaties with Australia and the UK, the Albatross Agreement, the Plant Genetics Treaty, the 1996 Protocol to the London Dumping Convention, a bilateral investment treaty (BIT) with Rwanda, a tax treaty with Malta, and the Hague Convention on Recovery of Child Support); or
• were submitted by the Obama Administration itself (just one here, Annex VI to the Antarctic Treaty Protocol on Environmental Protection).

Meanwhile, there’s only one treaty that the Bush Administration wanted that the Obama Administration does not seek action on — the Protocol to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. All of the other treaties on Obama’s “no action” list had the same status in the Bush Administration’s 2007 list.

Third, in looking at both lists, I wonder if either conveys any real sense of what the Executive Branch actually wants the Senate to do in terms of timing. They simply give the Senate a green light on one set of treaties and, depending on how you interpret the “no action requested at this time” language, a yellow or red light on the rest. That’s a useful communication to pass along, but I’m not sure it gives any sense of what the actual priorities are. The Senate is left to guess on which among the 17 favored treaties it should focus first. Perhaps the State Department can signal via back-channel a more graduated sense of urgency among the favored treaties, but doing so would seem to run around the new Administration’s commitment to transparency. I’d rather they return to the practice followed when I was at the State Department of listing one or two treaties for which “urgent” Senate action was sought, a few more for which the executive branch strongly favored advice and consent, then those where advice and consent was favored and those where no action was sought. Putting such a list together is certainly harder than the current practice given the propensity for bureaucratic infighting to get a particular treaty into the urgent category (i.e., pro-UNCLOS folks end up trashing CEDAW and vice versa). Nevertheless, once the Administration comes up with such a priority list, it gives the Senate a real signal on where the Administration wants to go. Of course, the Senate still has to decide if it’s going there as well.

As for the current list, we’ll have to see in the coming months what the “real” treaty priorities are (I’m guessing UNCLOS gets another strong push). It’ll also be interesting to see if any of those treaties on which there are outstanding requests for “Senate action at this time” end up slipping into a more neutral position either because the Obama Administration does not push for them, or the Senate seems cool to moving forward for one or more reasons (just so long as it’s not the Vienna Convention on the Law of Treaties — that’s urgent. Really urgent).

Hat tip: ILIB