The End of Treaties?

The End of Treaties?

So thinks James P. Rubin in an Op-Ed in today’s NY Times.  His argument comes in two parts.  First, a minority of the Senate plays an obstructionist role, which means that the United States simply doesn’t join important treaties: 

For much of the world, treaty ratification is a simple matter. In parliamentary systems like those in Britain and France, ratification is virtually automatic, because the government also controls the legislature. In China, it is a mere formality ordered from the top.

But the same treaties that are so easily ratified in other countries are, for good or ill, often left to languish in the Senate, where 67 votes are needed for approval. The result is international frustration with American leadership, as many widely shared goals — from children’s rights to a ban on nuclear weapons testing — are held hostage by a small group of senators, who often represent a tiny percentage of the American public.

Second, he argues that U.S. domestic law commitments can substitute for its treaty commitments

Fortunately, there is an alternative: we could achieve roughly the same results without signing a treaty. International negotiations would still be needed, but instead of a binding treaty, the administration could commit to pursuing Congressional action to accomplish the agreed terms. The effect would be the same, but the process would be much easier at home, requiring a simple majority in the Senate, instead of two-thirds.

This strategy is already being used on climate policy. After the Senate failed to ratify the Kyoto Protocol on climate change that was negotiated during the Clinton administration, it became clear that any treaty to cut greenhouse gas emissions would be a lost cause. In recent years negotiators have continued to pursue international climate agreements, but with the understanding that adherence would occur through domestic energy legislation that the rest of the world could then examine and assess.

I’m not sure that I buy either argument. The Senate’s role is nothing new to American politics or the world stage (see, e.g., Versailles).  Neither is the notion that simple majorities of the Congress can supplant the Senate’s supermajority (see, e.g., the Uruguay Round Agreements Act, authorizing U.S. participation in the WTO).  Moreover, the contemporary example Rubin cites — using congressional legislation rather than a treaty to limit greenhouse gas emissions — only seems to undercut his argument.  Last time I checked, Congress had refused to pass climate legislation, and future prospects of doing so remain dim.  On the contrary, a global treaty (assuming it solves the obvious coordination and collective action problems inherent in global warming) might actually be the one thing that could provide Congress with the necessary impetus to pursue such legislation. 

That said, Rubin’s Op-Ed did raise an interesting question about the on-going START stalemate.  Why do the United States and Russia need to do this via legally binding commitments at all?  Could the United States and Russia simply do a new START agreement via a political commitment?  That idea runs counter to the conventional wisdom on arms control treaties, which were always thought to require binding verification procedures to ensure both sides followed through on their deals.  And that may still be true for arms control today (or, I assume, there could be funding requirements, etc. that require some U.S. legislation in order for U.S. performance to occur).  But the United States never joined CTBT, and yet it has complied with that treaty’s contents as a political commitment.  So, perhaps a political commitment could be a way for the Obama Administration to work around the Senate’s unwillingness to put the treaty to a vote. On the other hand, as I’ve argued previously, I don’t think doing START commitments as a political commitment can (or should) exempt Congress entirely; it would likely have some continuing role to play, perhaps even some of the very legislation that Rubin touts.  

Finally, I wonder what readers make of Rubin’s final paragraph, where he concludes that global conditions have shifted to make treaty-making less necessary or routine:

For reasons that go beyond the Senate, the era of treaty-making may largely be over. Thanks to decades of global efforts, the international system has most of the rules it needs in the areas of human rights, terrorism, crime and nonproliferation. What’s more important is for individual governments to muster the will to enforce them. Treaties still have their uses, but they should be reserved for rare cases, like the creation of a mutual defense pact or perhaps President Obama’s vision for the elimination of nuclear weapons. In most circumstances, the bright light of national laws will work just fine.

Is this an accurate characterization of world conditions today? Have we really negotiated all the basic rules we need (and, if so, why doesn’t a similar argument apply to U.S. domestic legal rules?) Obviously, the Op-Ed is a difficult formula in which to make such an argument, so perhaps it might be more compelling in a longer form. As is, I’m not sure I buy it. What do you think?

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As a lawyer in a the treaty section of a western ministry of foreign affairs I can assure you that the era of treaty making is far from over. I have limited exposure to the types of multilateral law making treaties that Rubin describes but I suspect there are more bilaterals of a technical nature than ever before. The subject matters are often rather boring (tax, conformity assessment of technical equipment, etc.) but it is at this technical level that I see the legal bonds between nations increasing in their frequency and in their strength. It is not just a cliche to say we live in a more globalized world, and treaties have followed that pattern, there is an ever larger web of treaties linking countries. Moreover, the difficulties the U.S. has in reconciling its domestic legal process with the international legal process are not unique. The U.S. is perhaps on one end of the scale with the power of the Senate but many countries, mine included, are struggling to strike the appropriate balance between freedom to act on the international plane and proper domestic democratic oversight.

Tom K
Tom K

Good post.  There is in fact a precedent for non-binding non-treaty political commitments in the way of arms control.  When SALT I expired and it was clear that SALT II was going nowhere, Carter asked if the Senate Foreign Relations Committee Chair would object if he unilaterally extended SALT I ceilings.  There was none, and the deal was made.

Your post raises the question why there is such hyperventilation-urgency to ratify New START.  At the very least, telemetry exchange and inspections could plausibly be done by non-binding executive agreement.  The nuclear warhead reductions and the rest will probably have to wait; when it looked like START II was not going to be ratified (and it never was), Congress passed a law forbidding Clinton from unilaterally reducing nuclear weapons below START I levels.


It’s curious that someone with Rubin’s background should reach such an odd conclusion.  On the one hand, it’s true that (some) common standards can be set by national legislation or executive measures – but without any shared mechanism for drafting, verification or response to breach, the limitations of such an approach are self-evident, particularly in multilateral areas.

The Senate point is also not novel – while one may well despair at the tenor, priorities and possibly even competence of some senators, particularly since the latest intake, and even of the institution as a whole, the example of Sen. Proxmire’s 3,211 speeches necessary to secure advice and consent to the Genocide Convention is surely the most telling example both of the lack of attention given by senators to this aspect of their responsibilities and of the potential, however irritating the delay may be, for eventual success.

The suggestion that the world has “most of the rules” it needs, though, can only be Rubin’s attempt to follow Lord Kelvin’s dictum (in 1900) that “there is nothing new to be discovered in physics now”.


[…] Hollis, The End of Treaties?, Opinio Juris (Nov. 22, […]

Nick Ashton-Hart

This is a breathtakingly naive position, on pretty much every level. Treaties are a part of the everyday business of all sovereign states as anyone who has worked in international relations for any time at all should be aware of.  Given the proliferation in the number of states over the course of the last fifty years, the amount of treatymaking is actually increasing, not shrinking.

Far from treaties being passe as Rubin suggests they are indispensable: increasing the bonds of reciprocal action between states is inherently beneficial in helping create legal certainty for the increasing level of international commerce and increasing mobility of people.