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U.S. Trouble with START and Other Treaties

Interviewee: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law; Former Legal Advisor, Department of State, Council on Foreign Relations
Interviewer: Toni Johnson, Staff Writer, CFR.org
July 9, 2010

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President Barack Obama has made the new Strategic Arms Reduction Treaty (START) with Russia a priority for Senate ratification, but it is proving a contentious issue. CFR Fellow John Bellinger, a former State Department legal adviser, says the treaty will likely be approved this year by the Senate, but "Republicans don't want to make it easy for the president." Bellinger says Obama should be pushing harder for a host of other treaties, particularly the Law of the Sea Convention. "They support most of them, but they haven't made the effort to get the Senate to act," he says. Overall, the U.S. pattern of failing to ratify a number of treaties even after winning desired changes undermines U.S. credibility, Bellinger says. He cited the Law of the Sea Treaty (LOST) and Rome Statute of the International Criminal Court as examples. "It may well be that we will sign the treaty, but our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate."

The new arms reduction treaty with Russia topped President Obama's list of treaties for ratification by the Senate. Now we're beginning to see some opposition among Senate Republicans build. How significant are these concerns and how much of it is just politics?

The new START Treaty will end up being approved this year by the Senate, but the Senate Republicans don't want to make it easy for the president. The votes are there, many Republicans do support the treaty, but particularly in this election year, Republicans in the Senate and Republican voices outside the Senate don't want to have this as a freebie for President Obama. So they've been asking difficult questions, using delaying tactics, making burdensome requests for additional information from the executive branch to make the process more arduous. But at the end of the day, I do think it's most likely to get done this year.

What about some of the concerns raised by former governor Mitt Romney in a recent op-ed (WashPost)? He mentioned ambiguities in the treaty, saying it was a better deal for Russia than the United States.

My sense is that he, in writing this op-ed, is more the standard bearer for conservative Republicans who want to give the president a hard time and make this difficult. Many other Republicans, including the Bush administration, were not concerned that arms reduction would threaten our missile defense.

Governor Romney and several Republican members of the Senate Foreign Relations Committee have criticized the new START treaty for potentially preventing the United States from building a missile defense system to use against Russia. Even the Bush administration was clear that it did not intend the missile defense system it proposed to build in Eastern Europe (or any other possible missile defense system) to be directed against Russia. So while there may be some kernels of concern in some of the issues that have been raised, by and large these are issues that are being pushed as a way for conservative Republicans to oppose a foreign policy initiative of the president in an election year.

You contend in your recent Washington Post op-ed that the Obama administration has so far done a pretty poor job of pushing treaties on the Senate's agenda. Does the president always have to be involved in pushing ratification or is it only those treaties that would otherwise face difficulties?

The president doesn't have to personally get involved in most treaties. There are some highly controversial or important treaties that the president himself needs to make an issue of, for example, the new START Treaty--[which is] important, and the Law of the Sea Treaty because it is controversial. In many other treaties, the president himself doesn't need to be involved. Nonetheless, the White House and the executive branch need to push the treaties through, so it is disappointing that the Obama administration has not pushed through some of the less controversial treaties pending before the Senate.

It's not that they're opposed to the treaties before the Senate, they support most of them, but they haven't made the effort to get the Senate to act. The Bush administration was pretty successful in simply pushing the Senate to hold hearings, to schedule votes, to finish up their reports, to bring them to the Senate floor, and to run down the issues that individual senators had even for treaties that were not hugely controversial, but when individual senators would raise questions like about the Council of Europe's Cybercrime Convention, or the UN Organized Crime Convention or some of the law of war treaties like the Hague Cultural Property Convention. These were not enormously divisive treaties, but they would not have ultimately been approved if the Bush administration had not pushed.

According to the State Department, there were thirty or so outstanding treaties when the Obama administration took office. Why does this administration stand a better chance of getting these treaties through the Senate than the previous administration?

Some of those treaties fall in different categories. On the Law of the Sea Convention, the administration missed a real opportunity in 2009 to push it through the Senate. The [Democratic] majority was clearly there to vote it through. Other treaties like the Comprehensive Test Ban Treaty will be more controversial and it will take more effort to get done. Others that are pending, like the defense trade control treaties with the UK and with Australia--despite the real interest of our allies--the administration has just simply not made them a priority.

The administration could get through some of these treaties, not all of them. Some of them would be quite difficult, some of them would require going to the Senate floor for a vote. It's clear that the administration would not be able to do the Law of the Sea Treaty, the Comprehensive Test Ban Treaty, and the Convention on the Elimination of the Discrimination Against Women all at one time because all of them would require going to the Senate floor for a vote. But the administration has really done the reverse, in that they've not really given much priority to treaties at all, which is why they are poised to have gotten the fewest number of treaties through the Senate in more than fifty years during a single Congress.

Why do you think that is?

They have not made it a priority. They focused on domestic political issues in their first year, and through much of this year, and they've not wanted to take on controversial treaties in an election year. And then we had in fact cleared away during the Bush administration many of the treaties that had been languishing for a number of years, so there were fewer treaties pending on the Senate calendar when the Obama administration began.

You pointed out the Law of the Sea as one that the administration should focus on. If it's such a big deal and there's so much support, why hasn't the Senate just ratified it on its own?

Most of the members of the Senate do know individually that this treaty is in the U.S. interest, that it is supported by all branches of the military, and by all parts of the industry that have an interest in the world's oceans as well as environmental groups. But they are concerned about the controversy that bringing the Law of the Sea Treaty up for a vote would bring.

The senators in Alaska and Maine, for whom the oceans are very important, are very supportive of the treaty and have been pushing their colleagues hard to schedule a vote. But for the vast majority of senators, while they will privately admit that the treaty is in the interest of the United States, they don't see it as being in their own political interests because they just don't have people in their district pushing for it. If anything, they know they are more likely to get letters in their mailbag from conservative groups. So this is why the Senate has not acted on its own and has been waiting instead for a signal from the administration.

Given that both the president and the vice president served on the Senate Foreign Relations Committee, it's been a little bit surprising that neither of them has pushed through or at least made more of an effort. It's certainly not going to be raised this year now because it's an election year. But the big question will be whether in 2011 the White House and the State Department make a greater effort on treaties generally, including some of the less controversial treaties but then to also pick one or more (probably one is all the traffic will bear) of these quite controversial treaties and try to push them through the Senate before the 2012 election year.

There are several treaties that are already in force, including LOST. What happens when the United States isn't a party to these treaties because they haven't ratified?

In some cases the United States is observing the treaty anyway, or even treating it as a matter of customary international law which is generally what we do with the Law of the Sea Convention. In many cases though, our treaty partners expect that we will put them forward to our Senate, have them approved, and ratify them, and they lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don't ultimately become party to them.

I talked to an international law expert before the Copenhagen meeting on climate change and he said that one of the vexing issues of dealing with the United States on treaties is that U.S. officials use their significant leverage to get the treaty to look as much like the United States wants, and then afterward walks away or fails to ratify.

That is a real problem in treaty negotiation. The United States tends to be successful negotiators, we have the respect of those with whom we negotiate, we have generally expert policy officials and lawyers on our negotiating teams, and we are sticklers for getting the words right in these treaties. Other countries will often accede to many of our requests, not all of them; we never get all of what we want. But it then becomes highly frustrating to other countries when we have in fact gotten changes made to a treaty and then we don't become party.

Perhaps the most prominent example is the Law of the Sea Treaty, where the Reagan administration complained bitterly about Article 11 of the treaty relating to deep sea bed mining as did a number of other countries. The treaty was then renegotiated in the 1990s and changes were made to address the U.S. concerns. Other countries then all became party, but the United States still declined. The Rome Statute regarding the International Criminal Court is another example. Many changes were made to address U.S. concerns. Admittedly, the principal concerns were not addressed and that is why the U.S. ultimately voted against the treaty at the end of the day. But this is a common refrain now that we hear from our negotiating partners, and it undermines the effectiveness of U.S. negotiators in trying to cut deals. If we say, "If we make this change, then we will come along," then it's a little bit like the boy who cried wolf. It may well be that we will sign the treaty, but our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate. That does undermine the negotiating effectiveness of our State Department and other negotiators.

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