U.S. Treaty-Making By the Numbers

21 Jul U.S. Treaty-Making By the Numbers

21.07.06 | 1 Comment

As I mentioned recently, the Bush Administration has long had a reputation for disdaining treaties. And, there’s some pretty substantial anecdotal evidence to back up that perception: e.g., withdrawing from the ABM treaty, dissing the Kyoto Protocol, announcing an intention not to ratify the Rome Statute for the International Criminal Court, not to mention its more recent efforts to read the Geneva Conventions out of the War on Terror. But what do the numbers tell us? Here’s the data over the last 20 years on U.S. treaty-making, courtesy of the State Department’s Treaty Office (with apologies for the need to scroll down a bit to get to the table due to formatting restrictions):

Year	Treaties & Other International Agreements Concluded	Treaties Receiving Senate Advice & Consent
1986	417	13 (3.1%)
1987	446	3 (.7%)
1988	408	19 (4.6%)
1989	378	9 (2.4%)
1990	418	14 (3.3%)
1991	297	15 (5%)
1992	324	31 (9.6%)
1993	273	20 (7.3%)
1994	362	7 (1.9%)
1995	317	10 (3.2%)
1996	282	28 (9.9%)
1997	293	15 (5.1%)
1998	246	51 (20.7%)
1999	215	12 (5.6%)
2000	200	39 (19.5%)
2001	151	3 (2%)
2002	185	7 (3.8%)
2003	251	18 (7.2%)
2004	297	21 (7.1%)
2005	310	22 (7.1%)

Now, I’m no statistician, so I’d welcome comments from readers on how they would interpret these numbers. My own reading suggests that the data demonstrates that the Bush Administration does rely on treaty-making less than earlier administrations, but at the same time might be used to rebut critics who suggest it disdains treaties enitrely. The United States has concluded an average of 304 treaties and other international agreements per year over the last twenty years, while the current Administration’s average is much lower: 239 (by way of contrast, during the eight-year Clinton Administration, an average of 274 agreements were concluded per year in contrast to 354 per annum during the senior President Bush’s administration). At the same time, however, the current President has increased the number of international commitments concluded in each year he has been in office – from a low of 151 in 2001, to an above-average 310 last year.

And the data suggests similar results if we focus only on Article II “Treaties” – i.e., those international commitments concluded by the United States following Senate advice and consent (which, as many readers will know, is a distinct domestic method for binding the United States to treaties under international law – the other three methods being (a) pursuant to congressional legislation; (b) pursuant to an existing Article II Treaty and (c) pursuant to the President’s own executive powers). Here, the 20 year average is 18 Treaties, contrasted with the current White House average of 14 (compared to 23 per year for Clinton and 17 for the elder Bush).

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Of course, one can critique how important these numbers are; after all, as aggregated data, they don’t distinguish as to the subject or scope of the agreements concluded. We don’t know how many of these agreements were bilateral and how many were multilateral; we don’t know the depth of the commitments assumed or their political, economic or social importance. Nor does the data tell us how many of these agreements renewed or amended existing agreements versus which ones are truly new, stand-alone commitments.

Still, putting the Bush Administration’s preferences aside, I find the data enlightening. At a minimum, I think it provides clear evidence of the near daily commitments undertaken by the United States under international law pursuant to the treaty form. No matter who is the President, from what party, or whether the federal government was unified or divided, over the last 20 years, the United States has concluded an international agreement, on average, 6 out of 7 days a week.

Moreover, for U.S. foreign affairs lawyers, the data reveals how relatively infrequent the Executive’s use of Article II has become. It’s been well documented that since the Founding other forms of treaty-making have gradually supplanted Article II at the same time as the total number of U.S. treaty commitments has expanded exponentially (currently, the United States has more than 10,000 treaties and other international agreements in force). This data reaffirms the relatively limited role retained by the Article II process today. On average over the twenty-year period only 6.5% of U.S. international commitments come through the Senate. Now, perhaps that 6.5% includes only the most politically important texts, but I doubt that is the case (for example, neither the WTO nor NAFTA went to the Senate). In any case, over 93% of U.S. treaty commitments (in the international law sense of the term) derive from congressional or executive powers, independent of the Senate’s advice and consent under Article II.

So, what do Opinio Juris readers make of this information? Is there anything in the data I’m missing? And, what about the Bush Administration – do you agree the data reinforces the perception of an Executive less interested in relying on treaty-making than the average President or this President’s two immediate predecessors? Or, if you have the skills, can you tell us whether any of these figures prove statistically significant?

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Max

I agree that the trend upwards in the Administration’s conclusion of international agreements is an interesting phenomenon and, probably, a concrete illustration that while it is less enthusiastic in its use of treaties, it has perhaps learned that it is difficult to get by without them. More widely, it could, possibly, be taken as an indication of movement away from neoconservative unilateralism and/or treaty-skepticism.

I would be interested to know, however, the extent to which the recent statistics may have been buoyed by such phenomena as proliferating SOFA/etc treaties as part of post-9/11 initiatives and art. 98 ICC agreements – I note that there were about 25 of the latter in 2004 alone.

There might also be an interesting empirical point as to the extent to which one could identify a bare operating minimum of less contentious and/or materially necessary agreements that the United States can’t practically do without, as opposed to innovative agreements such as the major multilaterals that are referred to.

U.S. Treaty-Making By the Numbers

21 Jul U.S. Treaty-Making By the Numbers

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