International Law

Senate Approves Two More Treaties, Bringing Obama Administration's Treaty Record to Fifteen

By John Bellinger
Saturday, July 16, 2016, 3:34 PM

On Thursday night, the Senate approved two treaties by unanimous consent: an extradition treaty with Chile and an extradition treaty with the Dominican Republic.  This brings to six the number of treaties approved by the Senate in the Obama Administration’s second term. (In 2014, the Senate approved four fisheries treaties.)  The Senate approved nine treaties in the Obama Administration’s first term, bringing to 15 the number of treaties approved by the Senate during the Obama Administration.  This is the fewest number of treaties approved by the Senate in a four-year period or eight-year period at least since World War II (and probably much longer -- some intrepid law student will need to check).

In contrast, the Senate approved 163 treaties during the eight years of the Bush administration, including a record 90 treaties during the last two years of the Administration. Ironically, under a President who most Europeans and many international law professors are convinced did not believe in international law, the United States may have become party to more new treaty law than during any other eight-year period in U.S. history.  The 163 treaties included multilateral and bilateral treaties on numerous subjects including human rights, international humanitarian law, conservation and environmental protection, law enforcement, trade and investment, and arms control.  (These treaties did NOT include, as one incredulous European law professor asked me during a recent lecture, the more than one hundred Article 98 “non-transfer” agreements entered into between the Bush administration and many countries; those were executive agreements.) It is also worth noting that, while the Senate must give its advice and consent to all treaties, the President is personally involved at least twice with every treaty to which the U.S. becomes party: he personally signs the letter transmitting the treaty to the Senate and recommending Senate approval, and he personally ratifies the treaty after the Senate gives its advice and consent.

As I have written before, it is unfortunate that Senate Republicans have become so skeptical of international law (or perhaps so hostile to President Obama) that they seem reflexively to have opposed all treaties, including mundane commercial and law enforcement treaties for which there has historically been bipartisan support. Republican Senators need to do more to ensure that their constituents understand the benefits they enjoy every day from treaties such as the Road Traffic Convention, the Chicago Convention on International Civil Aviation, the Universal Postal Union, the Vienna Convention on Consular Relations, the Hague Child Abduction Convention, and numerous mutual legal assistance and extradition treaties. These treaties are not “favors” for foreigners; they deliver tangible benefits to Americans.

Although Republicans can be faulted for being too hostile towards treaties, the Obama administration must share some of the blame for its poor treaty record.   During its first term, when Democrats enjoyed a commanding majority in the Senate, the White House was focused on domestic issues and missed opportunities to secure Senate approval of important treaties, including the Law of the Sea Convention. Later, the Administration fumbled the U.N. Disabilities Convention by forcing it to a vote in a lame-duck session without addressing concerns (even if ill-founded) of Republican opponents.

Thirteen more treaties remain pending before the Senate, including eight tax treaties, three mutual legal assistance treaties, the Treaty on Plant Genetic Resources for Food and Agriculture, and the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary. Even if some of these treaties are approved in September or during a lame-duck session, the last seven years will have been one of the weakest periods in American history for the addition of new treaty law. It remains to be seen whether this trend will change with a new President and a potentially very different Senate.