In 2013, more careful treatment of treaties?

The advent of President Barack Obama’s 2d term invites analysis of the United States’ stance respecting treaties that it helped to negotiate yet neglected to ratify.

wheelchairsymbolA case in point presented itself amid last month’s flurry of holiday ads and fiscal-cliff admonitions: on December 4, the U.S. Senate refused to give its constitutionally required advice and consent to the 2006 U.N. Convention on the Rights of Persons with Disabilities. The failure of supporters to secure  a 2/3 Senate majority prompted a range of commentary:

  • John B. Bellinger III, who served as U.S. State Department Legal Adviser in the 2d administration of President George W. Bush, placed blame on Bush’s successor. In a New York Times op-ed entitled “Obama’s Weakness On Treaties,” Bellinger argued that Obama must “work harder to gain Senate support for treaties in his second term,” particularly given increased Republican resistance to international agreements.
  • That argument prompted a retort from St. John’s Law Professor Chris Borgen. He wrote at Opinio Juris that trying harder may not do much, for the very reason of “rising Republican intransigence against treaties – any treaties.”

Both had a point, yet both also missed a point. Worth asking is what underlay the decision to present that rights treaty at that time. Did the administration expect to win – yet fall a full 5 votes short? Or did it expect to lose – yet hope that recalcitrants would be shamed into voting “aye” in the next Congress? Neither option gives confidence: the first points to ineptitude; the second, to an idealism rosier than the current political context.

The decision appears even more inexplicable when viewed against the backdrop of history. Via the December 4 vote, the Disability Rights Convention became only the 3d treaty that the Senate has rejected in the last half-century. The fact indicates that U.S. administrations have endeavored only to present treaties sure to win in the Senate. As for other treaties, Republican and Democratic administrations alike have deployed different kinds of agreements, executive orders,  and other means to achieve a modicum of international cooperation. Yes, such halfway measures provoke complaint from abroad. But that’s small potatoes compared with what Senate rejection wreaks – outright ridicule overseas, plus entrenched opposition at home.

Here’s hoping that the New Year rings in greater care with respect to the United States’ treatment of international agreements.

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