President Obama Calls out the Senate on Treaties

by Duncan Hollis

Earlier today, President Obama took time out during his commencement address at the Air Force Academy to make a pointed plea for the value of treaty-making.  Here’s the relevant excerpt from his remarks:

By the way, one of the most effective ways to lead and work with others is through treaties that advance our interests.  Lately, there’s been a mindset in Congress that just about any international treaty is somehow a violation of American sovereignty, and so the Senate almost never approves treaties anymore.  They voted down a treaty to protect disabled Americans, including our veterans, while Senator and World War II veteran Bob Dole was sitting right there in the Senate chambers in a wheelchair.

We don’t always realize it, but treaties help make a lot of things in our lives possible that we take for granted — from international phone calls to mail.  Those are good things.  Those are not a threat to our sovereignty.  I think we can all agree on that.

But also from NATO to treaties controlling nuclear weapons, treaties help keep us safe.  So if we’re truly concerned about China’s actions in the South China Sea, for example, the Senate should help strengthen our case by approving the Law of the Sea Convention — as our military leaders have urged.  And by the way, these treaties are not a new thing.  The power to make treaties is written into our Constitution.  Our Founding Fathers ratified lots of treaties.  So it’s time for the Senate to do its job and help us advance American leadership, rather than undermine it.  (Applause.)

Three paragraphs is not much to fully articulate U.S. interests in treaty-making (let alone give a balanced overview of the arguments over UNCLOS).  Thus, I think the more noteworthy thing here is the fact that the remarks are coming from the President himself.  It’s one thing to call out the Senate on a specific treaty like the Disabilities Convention, but this slap is more systemic. President Obama has not had a good record when it comes to making treaties through the Article II Advice and Consent process.  With the exception of the new START treaty, the Senate has refused to act on most treaties, including certain types of treaties (e.g., tax treaties, fish treaties) that in prior Administrations were entirely uncontroversial.  Thus, we might see this speech as a late shift in strategy, where the White House is moving off treaty-specific pro’s and con’s to reconstruct this issue in constitutional terms.  I’m not too sanguine that the move will be any more successful at getting votes on pending treaties, but the Senate’s response (if any) will bear watching.

What do others think?  Is there anything I’m missing here?

[UPDATE: An astute reader points out that I was incorrect to cite fish treaties as an example of Senate hostility to treaty-making.  In fact, all four treaties that have received Senate advice and consent since 2012 involved fish; in other words, fish treaties are the only treaties that have gotten through in the last four years.  Tax treaties and treaties on scientific cooperation and conservation, which in the past were, like fish treaties, non-controversial, are better examples of the ongoing hostility to treaty-making]

http://opiniojuris.org/2016/06/02/president-obama-calls-out-senate-on-treaties/

4 Responses

  1. Kerry had four hearings on UNCLOS and didn’t even bother to bring it to a committee vote. The Senste voted the Disabilities Treaty down on the floor, as noted by the President. The Senate is acting on the President’s favored treaties — it’s just rejecting them, properly so in my view. So the President is merely whining here.

    And how laughable as well since he has treated the Paris Agreement on climate change as a mere executive agreement in a blatant move to avoid Article II treatment of an agreement that is clearly a treaty. Hypocrisy much?

  2. Mr. Hollis – I have very much enjoyed studying in depth your Guide to Treaties, and am overjoyed with a chance to follow up with what I have learned with the author himself.
    As an Indigenous person, an Alaska Native, I spend a lot of time examining options for the adoption of laws and policies that allow for self-determination of Alaska Natives and Native Americans. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly in 2007, and it wasn’t until 2010 that the State Department accepted the articles of the declaration that are already a part of federal Indian law, and more or less vetoed through reservations, understandings, and declarations (RUDs) the remaining articles that did not already automatically fall in line the federal Indian law.

    UNDRIP is a universal document and general guideline, granted – not legally binding by any means, for the accommodation settler states should aspire to, in recognizing the inherent sovereignty and self-determination Indigenous peoples have a right to and should be practicing internally and externally though domestic law of the settler nation they happened to be a part of during colonialism and imperialism.

    The US Senate, in ratifying the International Covenant on Civil and Political Rights, through RUDs, simply stated the multilateral treaty is “non self-executing.” Has the Senate since taken up, or executed action, bringing domestic law in line with articles 1-27? Perhaps in part in many instances, but certainly not in whole over time. If the Senate cannot allow US sovereignty to be “compromised” by bringing domestic law in line with the aspirations of ICCPR, how can Alaska Natives and Native Americans expect the Senate to even briefly consider incorporating the aspirations of UNDRIP into federal Indian law? This is much less expecting the federal and state bureaucracies expeditiously allowing long-lived assimilation and termination laws and policies to be repealed, of which those topics are not mentioned as viable in the text of any of the articles.

    Ever since September 2007 when the UNGA adopted UNDRIP, this has been an endless frustration – the US even voted against the adoption, but reversed course during the opening stages of the Obama administration – especially as an Indigenous, Alaska Native person. I am not the only frustrated Alaska Native person, to say nothing of our Native American relations in the Lower 48 contiguous states.

  3. Steve — I’m not sure I agree that we can say that the Senate has acted on the President’s favored treaties. I take your points re Disabilities and UNCLOS, but there were 17 treaties on Obama’s original 2009 treaty priority list, and that’s not counting any he concluded during his two terms of office. The fact is that Senate Advice and Consent has not been this slow in at least 50 years and we have had no treaties approved in the current Congress.

    I also agree with you that it’s interesting to see the Obama Administration embrace political commitments like the Iran Deal and the Paris Agreement. But I guess I’m less quick to agree to the charge of hypocricy, since it’s an open question as to why the Administration is doing so — i.e., is this a logical reaction to a breakdown of the Senate A&C process, which leaves room for pleas like this to restore that process rather than continue to pursue political arrangements (which as I’ve written elsewhere, are largely treated as NOT giving rise to constitutional questions).

    Alaskaindigenous: nice to make your acquaintance (even if only virtually). My recollection on the ICCPR is that the U.S. Government took the position that it could be self-executing because existing U.S. law already satisfied all the obligations assumed by the United States (that is, the ICCPR as modified by U.S. RUDs – reservations, declarations, and understandings). Thus, although I imagine you might disagree, the U.S. view was that there was no need for further legislative implementation of articles 1-27. Whether that’s still the case given the current state of U.S. law and/or the views of the State Dept., I can’t say.

  4. Response…RUDS not art. 50

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