Modern Developments In The Treaty Process

Horner Study Published By The Federalist Society

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Treaties are agreements between nations, or states. They range from bilateral agreements to multilateral pacts including each of the 189 member states of the United Nations. Throughout history treaties have addressed all manner of international discourse, from rules of military engagement to mutual defense and termination of hostilities, creating a UN and a European Union, international border delineation, liability in international transportation, establishing trade terms and intellectual property protections. <?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />

As such treaties, or “conventions” with amendments thereto called “rounds”, protocols, etc. which are typically discrete treaty agreements requiring independent ratification, are the manner by which states formalize codes for their relationships, both civil and criminal. Depending on their nature treaties are therefore properly viewed either as contracts, in that they establish civil procedures, or as establishing the equivalent of laws applicable to the parties.


In modern practice states have increasingly turned to treaties to address matters not clearly involving international discourse such as trade or conduct on the high seas but establishing norms of purely domestic behavior. States, which under the Constitution have no treaty power, have nonetheless waded into areas which are the subject of modern treaties, negotiating international agreements addressing topics such as the theory of “man-made global warming”.

The 1997 Kyoto Protocol, also addressing that theory of man-made global warming is exemplar of efforts addressing (principally) domestic activities.7 It does claim a purported global phenomenon as its basis and the bulk of the world’s recognized states as parties, but selectively commits certain developed nations to reduce domestic energy use emissions. Given current technology, for the foreseeable future Kyoto thereby effectively rations and redistributes particular domestic economic activity by instituting this selective cap, in perpetuity and not indexed for economic or population growth. As such, Kyoto is arguably in truth an economic instrument by which foreign competitors hope to mitigate U.S. competitive advantages.

Cornell University Professor of Law Jeremy Rabkin writes:

“In 1929 Chief Justice Hughes of the U.S. Supreme Court – who had already served as a justice on the Permanent Court of International Justice — reaffirmed the doctrine that the treaty power cannot be invoked as a mere pretext for altering domestic policies:

‘[T]he treaty making power was intended for the purpose of having treaties made relating to foreign affairs and not to make laws for the people of the United States in their internal concerns through the exercise of the asserted treaty-making power.’”

Nonetheless, agreements such as Kyoto now proliferate. In this context, it seems fair to paraphrase Clausewitz on war: treaties are the extension of politics by organized state lobbying.

Treaties purporting to involve binding commitments are enforceable against parties to the agreement . Disputes over compliance or implementation of the bulk of treaties, best characterized as civil agreements, are heard before the International Court of Justice. “The Court has two functions: to render judgments on disputes submitted to it by States and to furnish advisory opinions on questions referred to it by authorized bodies.”

Originally, the Framers conceived of treaties not as the creation of laws, but more contracts between states bearing the force of law. Time and intervening “criminal” agreements, of course, have further clouded this assessment.

A body of international common or “customary” law evolved to assist in treaty interpretation. This body of law was purportedly codified by the 1969 Vienna Convention on the Law of Treaties. In the pursuit of enforcing such agreements, canons of statutory and contractual construction recognized domestically by an individual state may offer insight and even guidance as to what a party intended, but do not strictly apply.

Individual agreements obtain their popular name, typically, from the site of some meaningful level of agreement, e.g., Ghent, Vienna, Rome, Kyoto. Occasionally a treaty is popularly characterized by its formal name, e.g., the General Agreement on Tariffs and Trade (or GATT, agreed to in 1947, subsequently the subject of further rounds, e.g., its eight-year “Uruguay Round,” etc.).

The agreed-to language emerging from organic treaty negotiations can, though does not universally, rise to the level of an enforceable treaty. That is, it can but does not always include sufficient detail to make it a “meeting of the minds”. Even treaties open for ratification are not necessarily completed to the point of offering sufficient detail for coherent, uniform understanding and compliance. Indeed, states have ratified treaties including Kyoto despite numerous negotiations remaining to define what was actually agreed. The obvious problems associated with this phenomenon are discussed briefly, in “Ratification”, infra. Regardless of whether the treaty terms declare the document open for ratification, such language is occasionally merely a starting point, or near thereto.

The initial level of agreement is typically manifested by publication of the terms agreed, and listing the agreeing parties. This is an at best a symbolic practice. That is, a state not “agreeing” to a document at its inception does not impede it from subsequently following the treaty’s terms toward accession. Indeed, numerous countries not even signing, for example the Kyoto Protocol, ratified it nonetheless. It is theoretically possible, though not in the case of the United States, for a treaty to impose legally enforceable obligations at the “agreement” stage, given that some states’ constitution permits such commitment by executive signature alone.

The U.S. Constitution is more typical in that it requires a level of legislative concurrence with an executive treaty commitment for the treaty to be binding. The U.S. Constitution requires Senate “advice and consent” to any treaty prior to it coming into effect against the U.S., both the language and application of which having created tensions between our Constitution and international law. Treaty commitments inherently cede some level of sovereignty by transferring accountability to a supranational authority without the safeguards of our system, developing binding policy without the U.S. Constitution’s checks and balances. Therefore these agreements, the permissibility of which was authorized by the Constitution, also inherently create tensions with its framework.

Treaty negotiations formally involve only participant states, although in multilateral negotiations a (not quite) quasi-formal role exists for interested — and UN approved — third parties. These nongovernmental organizations, or NGOs, if approved obtain credentials and participate in the summits in an informal capacity. They are provided access to negotiators, attendance in plenary and subsidiary body sessions, and briefings denied the public but have no voting or formal negotiating role. NGOs are, in short, lobbying organizations. The UN’s system is akin to a more controlled (i.e., subjectively selective) version of the pre-1995 U.S. congressional practice of issuing special passes allowing special access.

There are four necessary stages prior to a treaty taking binding effect against the United States. This is typical of most systems, with minor exceptions. These stages are, in this order: agreement; signature – a discrete window for which is provided by each treaty; ratification — also provided for in each treaty; and submission of ratification instruments.

Also relevant are post-ratification requirements — is a treaty self-implementing, or does it require implementing legislation? — and withdrawal — at what point is a commitment real enough that withdrawal is required, and how is it effected at various relevant stages?

This paper examines this process and certain implications arising from the stages of treaty agreement. It particularly explores unsettled questions regarding modern application of “advice and consent”, including the scenario where an executive eschews “advice”, what requirements exist of the U.S. post-signature but prior to Senate “consent”, must a president transmit a treaty to the Senate before the Senate may attempt “consent”, and which branch of government may withdraw us at what stage, and how? It also examines the burgeoning role of NGOs in the treaty process.

This discussion occurs principally in the context of the Kyoto Protocol. That unique agreement is signed, but not ratified. President Bush assures Americans that by his being unhappy with the U.S. signature on the document the U.S. has “rejected” it, yet the signature remains unmolested. Compare this with the Rome Treaty, the Administration’s rhetorical “rejection” of which was identical yet followed by formal expression of this position to the UN consistent with Vienna Article 18. Also, the Bush State Department has in fact actually rejected a request to submit an instrument to the same effect. Kyoto’s highly charged politics, and the treaty-status limbo those political pressures have yielded begs so many questions that it provides an excellent vehicle to study the relative commitments accompanying each step.