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Our Abandoned Treaties

Author: John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law
June 11, 2010
Washington Post

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Secretary of State Hillary Clinton, Defense Secretary Robert Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, testified before the Senate Foreign Relations Committee last month in favor of the new START treaty with Russia. President Obama signed the nuclear arms reduction agreement  April 8 in Prague and submitted the voluminous treaty documentation for Senate ratification just four weeks later. The lightning speed at which this was sent to the Senate and a Cabinet-level hearing scheduled reflects START's importance to the administration. But the priority the Obama administration has placed on START contrasts sharply with its approach to other international agreements pending before the Senate.

Despite the presence of 59 Democrats, the Senate has approved only one treaty (a tax agreement with France) during the 112th Congress. The Obama administration must make more vigorous efforts with respect to the many important treaties awaiting Senate approval.

Although the Bush administration was criticized for its alleged lack of respect for international law, it had a particularly good record on seeking and obtaining treaty approvals. It secured Senate advice and consent for 163 treaties from 2001 to 2009. These included 20 treaties during the administration's first two years and a record 90 treaties during its last two years -- more treaties approved by the Senate than during any single previous Congress in U.S. history.

Treaties approved by the Senate during the Bush years included more than a hundred bilateral agreements on such diverse subjects as the protection of polar bears in the Arctic and the return of stolen automobiles from Honduras. There were more than two dozen multilateral conventions on human rights, environmental and marine protection, arms control, nuclear proliferation, cybercrime and sports anti-doping rules. And senior Bush officials testified in favor of treaties restricting the involvement of children in armed conflicts, protecting the ozone layer and creating a marine preserve in the Caribbean.

I testified in support of five treaties on the law of war that had languished before the Senate for years, including agreements prohibiting the use of incendiary weapons (such as napalm) and blinding lasers, attacks on cultural property in wartime and pacts requiring the cleanup of unexploded ordnance after a war. The Senate approved all five in September 2008.

One especially important treaty that the Senate refused to approve was the U.N. Convention on the Law of the Sea, to which 158 countries are party. This multilateral treaty, which guarantees freedom of navigation, codifies sovereign rights over marine resources and protects the world's oceans, was strongly supported by all branches of the U.S. military, every major U.S. ocean industry and many environmental groups (and even then-Alaska Gov. Sarah Palin). Senior Bush administration officials testified in favor of the treaty in 2004 and 2007, and the Senate Foreign Relations Committee recommended passage in both years. Despite vigorous efforts by the Bush administration, the full Senate failed to vote on the convention because of concerns raised by conservative groups.

The Obama administration took office promising a "return" to the U.S. commitment to international law. Obama officials have publicly supported Senate passage of various multilateral conventions, including the Comprehensive Test Ban Treaty and the Convention on the Elimination of Discrimination Against Women (neither of which the Bush administration supported). But as time has passed, the Obama administration's commitment to the ratification of treaties has taken a back seat to health care and other legislative priorities. Sadly, the White House made no effort to obtain Senate approval for the Law of the Sea convention last year, when the political opportunity for passage was greatest (because the Democrats had both a cloture-proof majority for several months in a non-election year and political momentum after Obama's win).

Meanwhile, several other important treaties await Senate action, including agreements to limit illegal trafficking in firearms, dumping of waste at sea and production of toxic chemicals. All of these deserve vigorous support from the administration.

Even if the Senate approves START and several other bilateral tax conventions this year, the Obama administration will have presided over Senate approval of the smallest number of treaties during a two-year Congress in more than 50 years.

After November, the administration will have a narrow window to make substantial progress on treaty ratifications before the next election year. It must devote the same energy it has given to START to securing Senate approval for the equally important treaties remaining on the Senate calendar. It should begin with the U.N. Convention on the Law of the Sea.

The writer is a partner at Arnold & Porter LLP and an adjunct senior fellow in international and national security law at the Council on Foreign Relations. He served as State Department legal adviser from April 2005 to January 2009.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here.

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