Article II Treaty-Making: Alive and Well?

Article II Treaty-Making: Alive and Well?

A couple of years ago, I examined whether popular conceptions of the current Bush Administration’s disdain for treaties had quantitative support.  I found to my surprise that the Bush Administration did not appear to be concluding significantly fewer treaties (whether solely pursuant to Article II or to all forms of U.S. agreement-making combined).   Looking just at Article II treaty activity in the current Congress, however, I might have to amend those remarks; the Bush Administration appears to now be enthusiastic about Article II treaty-making in a wide range of areas (e.g., armed conflict, intellectual property, law enforcement, maritime, nuclear, tax, telecommunications, counter-terrorism).  As a result, for all its anti-internationalist credentials, the current Administration may actually end up setting a record in terms of the number of Article II treaties receiving Senate advice and consent in a single Congress.

Of course, if it does so, the Senate Foreign Relations Committee (SFRC) staff will share a large part of the credit.  Just as my former colleagues at the State Department have been hard at work getting treaties transmitted to the Senate, the SFRC has worked vigorously to get those treaties before the full Senate for votes on advice and consent.  Just look at what the SFRC and the Senate have already done during the 110th Congress:

The Senate has so far given its advice and consent to 10 treaties, including 

  • 5 bilateral treaties (4 tax treaties with Belgium, Denmark, Germany and Finland and an amendment to the FCN with Denmark);
  • 3 multilateral intellectual property treaties (the Singapore Treaty on Trademarks, the Patent Law Treaty, and the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs);
  • Amendments to the International Hydrographic Organization; and
  • The International Convention against Doping in Sport (done, not surprisingly, just before the Beijing Olympics).

More significantly, the SFRC has reported 78 treaties (62 bilateral and 16 multilateral treaties) favorably to the full Senate, including

  • 4 more tax treaties (two with Bulgaria, and one each with Canada, and Iceland);
  • 28 Extradition agreements (one with the EU, plus 22 amendments to extradition treaties with EU Member States, along with additional extradition agreements with Bulgaria, Estonia, Latvia, Malta and Romania);
  • 30 Mutual Legal Assistance Treaties (MLATs) (one with the EU, plus 25 amendments to existing MLATs with EU Member States, along with new MLATs with Bulgaria, Malaysia, Romania and Sweden); 
  • 5 multilateral humanitarian law treaties (e.g., Convention on the Protection of Cultural Proprety, 3 CCW Protocols on Incendiary Weapons, Blinding Laser Weapons, and Explosive Remnants of War, and the CCW Scope Amendment);
  • 3 multilateral environmental agreements (the Anti-Fouling Convention, the Protocol to the London Dumping Convention, and the Protocol to the Cartegena Convention on Land-based Sources of Pollution)
  • 3 multilateral counter-terrorism treaties (the Convention on the Suppression of Acts of Nuclear Terrorism, two SUA Protocols);
  • Amendments to the Convention on Physical Protection of Nuclear Materials; 
  • 2 Amendments to the ITU’s Radio Regulations; and, of course,
  • UNCLOS, along with the Agreement to fix Part XI

I doubt that all 78 pending treaties will get advice and consent in the remaining few months of the 110th Congress (indeed, UNCLOS and the accompanying Part XI Agreement are quite unlikely to do so).  But, I will bet that a substantial majority do get advice and consent (A&C to the EU Extradition and MLAT packages would rack up 49 treaties alone).  What significance would this have?  To be clear, I’m not saying that this means the Article II process will ever again outpace the far-more frequent use of congressional-executive agreements or executive agreements, which have proliferated in recent years.  Nor am I suggesting that there’s some coherency in these numbers.  Although I don’t necessarily agree with her thesis in all respects (see here and here), I do think Oona Hathaway’s recent work has highlighted the conceptual difficulities in trying to discern why certain treaties go to the Senate pursuant to Article II, while others are concluded via legislative authorization from the full Congress.  Indeed, its worth noting that more than 50 of the 78 reported treaties pending before the Senate are amendments to earlier Article II treaties.  Still, whatever the theoretical challenges or however strong actual competitors to the Article II process are, the numbers alone do suggest that the treaty-making method provided in the constitutional text still has continued salience for a wide array of U.S. international commitments.

[Update:  Thanks to the attention of a careful reader, I’ve revised the data on the treaties reported out of the SFRC to include a few treaties that I missed in my first go-around.]

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