US treaty ratification

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Date produced: 11/08/2011

1. Is there any way to circumvent the 2/3 Senate majority requirement in the USA Constitution for the USA to be able to ratify a treaty (other than a change to the Constitution)? (Please also confirm if this is a correct interpretation of the Constitution.) Are there other procedures for implementing treaties into US law?

2. What other options are there for the US to ‘join’ an international treaty regime, in conformity, if not actuality? Are there examples of treaties which the USA has not ratified, but has effectively ‘joined’ (i.e. it adheres to)?

3. The example of UNCLOS is widely mentioned in regard to question 2 above. How does this work in practice? Is the US an active negotiator in the process? Does it confirm to all elements, or does it choose which elements to conform to? How much of UNCLOS is captured in USA domestic legislation? Are there any legal (domestic or national) implications if the US does not conform with any part of the UNCLOS agreements?

4. What would the options in 2) above mean in practice for the UNFCCC?

Summary:

1) & 2) The consent of two thirds of the Senate is required for the US President to make treaties. However, there are other ways to incorporate treaties into US law, including ‘executive agreements’ which derive their authority from the President’s constitutional powers, or from congressional approval (‘congressional-executive agreements’). An example of a congressional-executive agreement is NAFTA. Even if treaties are ratified by the Senate, many are considered ‘non-self-executing’ under US law, i.e. they do not create domestic law without congressional approval. The UNFCCC is a non-self-executing treaty, and therefore does not impose any US domestic law obligations without congressional authorisation.

3) UNCLOS was not ratified by the US; it has no legal authority and the US executive does not enforce its provisions. Where it is referred to, it is as a reflection of customary international law (CIL). It is probably not a viable precedent for joining a new international climate treaty. To the extent that they are arguably CIL, the US tends to adopt beneficial UNCLOS measures and ignore provisions which have the potential to be detrimental to it. As the US is a non-party, if it violates a UNCLOS agreement there are no courts with jurisdiction to hear the dispute – it must be resolved politically.

4) A new international climate change regime under UNFCCC could become binding US law without undergoing the treaty ratification process (through the US Senate). However, the regime would have to be approved by Congress in some fashion, either through an earlier law or through a congressional-executive agreement.
1) Is there any way to circumvent the 2/3 Senate majority requirement in the USA Constitution for the USA to be able to ratify a treaty (other than a change to the Constitution)? (Please also confirm if this is a correct interpretation of the Constitution). Are there other procedures for implementing treaties into US law?

1. The Constitutional requirement that 2/3 of the Senate ratify treaties is explicit and cannot be circumvented for treaties. However, international agreements can take other formal shapes that allow the Executive Branch to bypass the 2/3 requirement while achieving virtually identical legal effect.

Article II Section 2 of the US Constitution grants the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” However the Constitution does not limit the power of the President to make diplomatic agreements other than treaties with foreign nations, nor does it limit the power of Congress to pass legislation in support of these agreements. Indeed, the US has entered into more than five times as many “executive agreements” as it has formal treaties.

One advantage of the treatymaking process is that treaties are automatically constitutionally binding (as a political matter, it may also be relevant that treaty ratification provides a method for excluding the House of Representatives, which has no role in ratification under the Constitution). According to the Supremacy Clause of the US Constitution, all treaties “shall be the supreme Law of the Land,” equal in legal status to laws passed by Congress. Executive agreements, on the other hand, must derive their authority from some other source. Their commands must either fall within the President’s exclusive constitutional powers or correspond to the duties created by a congressional statute or other treaty.

Yet the Supremacy Clause is less of an advantage for formal treaties that it first seems. Many treaties, and especially the broadest treaties, are considered “non-self-executing” under US law. Such treaties do not themselves create domestic law. Instead, Congress must pass separate legislation to translate international legal commitments into binding US law. Indeed, the UNFCCC itself is a non-self-executing treaty. Although the UNFCCC was ratified by the Senate, the US is not bound under domestic law to comply with any obligations imposed by the treaty in the absence of separate Congressional authorization.

2. The standard approach for US participation in an international treaty regime without Senate ratification is the executive agreement, negotiated by the President. Executive agreements with binding domestic force can take many forms. In the field of climate change, the most promising approach is the congressional-executive agreement, although sole executive agreements and treaty agreements may have some use for imposing certain international commitments.

Sole executive agreements derive their authority from the US president’s independent constitutional powers to manage foreign affairs and execute the law. This authority is not well defined. Although the Supreme Court has never found that a sole executive agreement exceeds the limits of presidential power, the use of sole executive agreements is concentrated in the military and foreign relations fields. Supreme Court case law strongly suggests that the President’s sole executive authority does not extend to compelling the creation of anything like the comprehensive domestic economic regulatory system likely to be mandated by an international climate change regime.

A more promising approach is the congressional-executive agreement. According to the leading Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer, presidential authority is “at its maximum” when the executive “acts pursuant to an express or implied authorization of Congress . . . for it includes all that he possesses in his own right plus all that Congress can delegate.” Thus, an executive agreement authorized by statute can have greater scope than a sole executive agreement. A congressional-executive agreement can be constructed in any order. In an ex ante agreement, the executive makes an international commitment within the bounds of a law already enacted by Congress. In an ex post agreement, by contrast, an executive agreement is approved as legislation by both houses of Congress as a full substitute for treaty ratification.

Executive agreement can also achieve binding legal status through a related ratified treaty. The President’s executive powers allow him to implement an existing treaty commitment in many different ways. The obvious candidate treaty in the climate change arena is the UNFCCC. However, the UNFCCC’s lack of specifics, coupled with the Senate’s clearly expressed intention at the time of ratification that the UNFCCC did not enable the president to impose defined emission limits on the US without further Senate action, mean that this avenue holds little promise for the President.

There are numerous examples of international treaty regimes being fully integrated into US law without formal ratification. For instance, the NAFTA never received the support of 2/3 of the Senate, and was instead authorized as a congressional-executive agreement passed as a statute with the agreement of a simple majority of the Senate and the House. Such circumvention of the treaty provision of the Constitution is uncontroversial, and NAFTA’s non-treaty status has had no practical consequences.

3. The US relationship with UNCLOS is distinct from the executive agreement pattern. UNCLOS itself has no legal authority in the US, and the executive branch has not agreed to enforce its provisions. To the extent UNCLOS is nevertheless used as a legal source in the US, it is used solely as a reflection of customary international law (CIL). This UNCLOS-CIL model is probably not a viable model for giving binding force to a specific and operational international climate change regime.

The US participated fully in the negotiation of UNCLOS, but the final result was considered unacceptable by the administration of President Reagan. The US did not ratify the treaty, made no attempt to circumvent the ratification process domestically, and indeed tried to negotiate delays in the international UNCLOS ratification process to prevent the treaty from coming into force. While later administrations have at times acted to revive the treaty, as of 2011 UNCLOS was not in force in the US, either as a treaty or as an executive agreement.

The power of UNCLOS in the United States, if any, stems from its status as a mirror of CIL. Long before the drafting of UNCLOS, consistent state practice had created a set of expectations surrounding international maritime behavior, including the critical issues of national control over maritime and seabed resources. Some of these conventions had achieved international legal force as custom, even in the absence of a written source. The very preamble of UNCLOS describes the treaty as a “codification and progressive development of the law of the sea.” To the extent that UNCLOS codifies the general “law of the sea,” ratification is irrelevant. The US cannot escape an existing CIL obligation by refusing to ratify the mirroring treaty. So the US has claimed a contiguous zone “[i]n accordance with international law, reflected in the applicable provisions of the 1982 Convention on the Law of the Sea.” In this way, UNCLOS is compelling evidence of the non-UNCLOS law of the sea.

Viewing UNCLOS as a reflection of CIL argument should not, as a theoretical matter, allow the US government to choose which parts of the treaty bind the US and which do not. While the US may like to participate in the Assembly of the International Seabed Authority created by UNCLOS, for instance, there is no plausible argument that membership in UNCLOS bodies is a CIL right. The creation of an international body is not a codification of existing law, and so cannot be invoked by a non-party. By contrast, UNCLOS’ basic rule that artificial additions to a coastline can change the boundaries of a territorial sea has been applied as CIL by the US Supreme Court, even though the result is a perplexing scenario in which the international boundaries of the US no longer correspond to the boundaries of its constituent states.

Yet the CIL status of certain UNCLOS provisions does in practice give the US more flexibility to pick and choose which beneficial provisions to abide by. It is very difficult to define exactly which UNCLOS provisions codify CIL, as CIL is potentially in a constant state of flux, and a UNCLOS provision that was not CIL in 1985 may be binding in 2011 after twenty-five years of consistent state practice. In this climate of uncertainty, US administrations of course will tend to construe beneficial UNCLOS provisions as reflecting CIL, and detrimental provisions as constituting simple treaty obligations which may be ignored by non-parties.

Within the US, domestic courts act as a legal check on any outlandish claims by the US government. But, since the US did not join UNCLOS, there is no court empowered to correct US claims about CIL on an international level. If the US violates a true international obligation, an injured nation could pursue countermeasures against the US without violating international law. Yet in the absence of judicial jurisdiction, any consequences would be political actions and any resolution would come from diplomatic negotiation.

Note that where UNCLOS does act as a constraint on US law, its strength comes from the centuries-old strength of the law of the sea and not from its status as a particularly influential treaty. A new international climate change instrument would, by definition, lack such deep roots in CIL (unlike navigation on the high seas, climate change did not exist as an international law issue until the 1980s at the earliest). Although some argue that the general duty to mitigate climate change has become a customary duty over the last twenty years, the simple fact that the US has failed to take meaningful action on the issue belies this claim, as the requisite opinio juris and state practice are lacking.

4. A more detailed climate change regime contained in a UNFCCC protocol or similar instrument could become binding US law without undergoing the treaty ratification process. However, the regime would have to be approved by Congress in some fashion, either through an earlier law or through a congressional-executive agreement.

First, it is worth emphasizing that the UNFCCC has itself been ratified by the United States. Yet substantive progress on climate change may involve a more specific treaty agreement (a successor agreement to the Kyoto Protocol). The availability of executive agreements means the 2/3 barrier for Senate approval is a red herring. An international climate change agreement could without question become binding in every relevant sense after a 51-49 Senate vote (ignoring the filibuster), given House and Presidential approval.

Of course, any Kyoto successor will have to derive its authority from some source. This could take the form of ratification, or a functionally equivalent congressional-executive agreement. But it could also take the form of an existing statute or treaty. The specific contours of the international agreement will determine whether new Congressional authorization is needed. Notably, Senate documents surrounding the UNFCCC ratification emphasize that existing executive authority is insufficient to impose a “legally binding commitment to reduce greenhouse gas emissions.” Any treaty with legally binding reduction commitments will most likely need either ratification of ex post congressional authorization.

An ex ante congressional-executive agreement seems the most likely candidate for giving effect to a new international climate change agreement in some limited form, especially in the context of a hostile Congress. Unfortunately, the US’ general air pollution statute, the Clean Air Act (CAA), does not constitute sufficient ex ante authorization. The CAA gives the Environmental Protection Agency a general duty to regulate greenhouse gases through a congressionally-defined rulemaking process, which is not authorization for, or even consistent with, a separate emission reduction commitment made by the President on the international stage. Perhaps the CAA could convey ex ante approval on an international instrument exactly echoing the CAA’s own language, but this is hardly a realistic possibility. More promisingly, a variety of statutes in the fields of research, information sharing, and development assistance may provide an ex ante basis for a more targeted congressional-executive agreement on climate change.