In the past months one latent issue of the American political system has returned to the spotlight: The Senate´s minority rule. Especially through the so called “filibuster” a 41% Senate minority is in the position to impede legislation from being ratified. This affects international treaties, which must be consented to by the Senate. I argue that this internal legislative procedure -subjected as it is to the partisan whims of the Senate- plays into the wider American diffidence towards international law. It thus contributes to hindering the integration of international law in the legal order of one the biggest players on the global geopolitical scene.
The problem
According to the U.S. Department of State, 37 treaties have been submitted to the Senate between 1949 and 2018 which are still pending. Among these the Vienna Convention on the Law of Treaties, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Second Additional Protocol to the Geneva Conventions, the United Nations Convention on the Law of the Sea and -unsurprisingly- the Comprehensive Nuclear-Test-Ban Treaty. These are just some of the most relevant ones.
How does the system (that led to this amount of unfinished business) work?
The applicable law
Article II, Section 2 of the U.S. Constitution states that “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”. Thus, treaties work the following way:
- the President negotiates the treaty,
- the treaty is then presented to the Senate for advice and consent to be ratified,
- the treaty goes back to the President who ratifies it.
So far, so good.
As soon as the treaty gets to the Senate, the plot thickens. Senate Rule XXX 1a establishes that the treaty text be read once. Then, the treaty is forwarded to the Senate Committee on Foreign Relations, where it enters the realm of the Rules of the Committee on Foreign Relations. Its Rule 9 is the most relevant for our purposes. It has two main tenets.
First, the Committee on Foreign Relations is “the only congressional committee with responsibility for treaties” (Rule 9a). Second, there is no time limit for the Committee to conclude its work since the treaties remain on the Congress´ calendar “from Congress to Congress” and the proceedings start anew with each Congress (Rules 9b and 9c). This procedure illustrates part of the reason why treaties can stay pending for years or even decades: there is no time limit nor an alternative to the Committee. Treaties must pass through it. At the same time no effective control is guaranteed. If anything, quickness is structurally avoided.
As soon (or rather as late) as a treaty is reported back to the Senate its Rules come back into play. According to Rule XXX 1b-d the Senate may
- propose amendments and
- by a two-thirds majority decide to advise and consent to the ratification of the treaty or (with the same qualified majority) postpone it indefinitely.
The first option of proposing amendments “in the form of reservations, declarations, statements, or understandings” mirrors an established international law tradition which aims at making international treaties more flexible and is regulated in Articles 19 and following of the Vienna Convention on the Law of Treaties. Still, it has not gone uncontested. The ability of the US Senate to adopt international treaties after having changed their content and their applicability on US soil (especially by making some of their provisions not self-executing and thus requiring further domestic laws) has been rightly criticised.
Further, the second option, i.e., the power to postpone ratification indefinitely, means that treaties can remain in a -potentially everlasting- legislative limbo.
The sleeping beauty of Senate procedures if you will.
The filibuster
Combined with these structural procedural hurdles to an effective and quick senatorial consent to international treaties is the recent topic of debate: the filibuster.
The Congressional Research Service defines filibustering as “any use of dilatory or obstructive tactics to block a measure by preventing it from coming to a vote”. The use of such tactics is lawful precisely in reason of the procedural freedom granted to Senators by the Senate Rules (presented above). This lack of control is especially determined by the absence of time limits regarding both how long Senators may speak and also how long debates on the whole may last.
Furthermore, the fact that most bills are subjected to two motions (one on its consideration and another on the bill itself) means that each bill must “survive” two potential filibusters before being passed.
The one Senate rule that allows to end the consideration of a matter is the so-called cloture rule: Senate Rule XXII 2. This rule determines that if 16 Senators bring forward a motion to finish a debate and 3/5 of all Senators (60 Senators) answer “yea” to the question “Is it the sense of the Senate that the debate shall be brought to a close?”, the debate shall come to an end. Senators then will have a 1-hour time limit to speak and the whole procedure shall be terminated in 30 hours.
As is apparent, cloture is not an efficient way to react to filibusters since it needs 60 votes to be invoked. This vote percentage also must be repeated twice, thus opening the way to “change of hearts” midway through. In practice this procedure means that 41 Senators (a minority in relation to the 100 Senators total) can block any bill from passing.
Further, filibustering measures only have to be threatened to stop international treaties from being presented to the Senate for consent.
Two cases prove my point.
The International Criminal Court Statute was drafted with heavy US involvement. Still, although being signed by President Clinton in 2000, it was not submitted to the Senate. The Statute was later unsigned by President George W. Bush in 2002. The issues here stem from alleged incompatibility with the US constitution.
Similar was the situation for the Convention on the Rights of the Child. The treaty was signed but again not presented to the Senate because of internal religious conservative pressure and fears of external regulation of domestic matters. This non-ratification garnered international criticism, especially since it regarded a convention ratified by 196 countries and generally seen as implementing sensible guarantees for the wellbeing of children. Still, the US was the only country to sign it without ratifying it.
There emerges a tendency in US politics to react with diffidence -almost with allergic outbursts- to possible external influences.
It does not come as a surprise then, that relatively few treaties are actively rejected. Seen as those that do get to the Senate tend to stay pending in it (again, 37 treaties in about 70 years), it does not really do any good -and rather burns political energies- to submit treaties to the Senate for advice and consent.
Conclusion
The bottom line is that the US ratification system for international treaties is flawed.
Procedural stagnation and general diffidence towards external influences combine to render international treaties very hard to pass.
Thus, so long as international treaties are frozen in their “sleeping beauty”-limbo on the shelves of the US Senate the world will have to make do without having the US at the table of sensible and communal decision-making.
Zitiervorschlag: Francesca Mazzali, How the US Senate makes sleeping beauties of international treaties, JuWissBlog Nr. 75/2021 v. 16.7.2021, https://www.juwiss.de/75-2021/
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