I’ve been surprised how quiet the Obama Administration has been in terms of treaty actions in its 5 years in office — you can pretty much count on one hand the number of treaties that have gone through the Senate Advice and Consent process (and nothing at all has happened this Congress). Now, some of the blame for this certainly rests with a recalcitrant (some might say new-sovereigntist) minority of U.S. Senators (see, e.g., UNCLOS and the UN Disabilities Convention fights). Still, the reality of the last few years has been that major U.S. treaty actions by the Executive are also fairly uncommon occurrences. So, the news today that John Kerry will sign the UN Arms Trade Treaty (ATA) for the United States is quite noteworthy given the paucity of such signatures of late.
The mainstream news media attention on the U.S. signing has (understandably) focused on the domestic opposition to the ATA, most notably the hostility of the National Rifle Association. As a result, the legal issues associated with treaty signature have gotten sparse attention. Indeed, in looking at today’s Washington Post, readers get no real sense that U.S. signature of the ATA will not actually commit the United States to comply with its provisions, nor the fact that the ratification which would involve such a commitment requires the advice and consent of the U.S. Senate (something that seems very unlikely at present). This is not to say that signature has no real world effects — it does. But the media has done little to explain them so I’ll flag the two that are most important. First, U.S. signature of the ATA serves a signaling function, letting the world know that the United States supports the treaty and will look to begin the domestic processes necessary to join the ATA (although I can tell you from my former life in the State Department that those processes can take years without anyone really batting an eye). Second, signature has one major legal consequences for the signing State as described in Article 18 of the Vienna Convention on the Law of Treaties:
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …
Now, the United States is not a party to the VCLT, but the VCLT is widely accepted within the U.S. Government as codifying customary international law. Article 18 in particular has been specifically treated as customary by the likes of former Secretary of State Colin Powell and John Bolton, most visibly in U.S. attempts to indicate an intention not to become a party to the Rome Statute or the Kyoto Protocol (see also Treaties and Other International Agreements, 2001 Digest of United States Practice in International Law 212-213 for more on Powell’s views).
If, as I believe, Article 18 is customary international law binding on the United States, that raises the interesting question of what obligations exactly will the United States assume by signing the ATA? Simply put, what acts by the United States would defeat the ATA’s object and purpose? Is there any content to Article 18 in this context — which may then legitimate the NRA’s very vocal objections to U.S. signature — or is the signature limited to its signaling value without any real restrictions on U.S. behavior going forward? I’d welcome reader input on one or more examples of things that would clearly cross the Article 18 line or thoughts on what acts the ATA does regulate but which cannot be said to trigger the object and purpose requirements associated with treaty signature.