The last year and a half has seen the Executive Branch moving quickly to leave, threaten to leave, modify, and/or disregard treaties and “deals” made by previous administrations. So much so that it became apparent that I understand neither the role of the President plays in making treaties nor the ramifications of decisions to unilaterally enter or leave them. In this essay I don’t want to explore the details of any specific treaty – I just want to better understand the mechanics of how they are created or destroyed.
The first obvious question is to define exactly what a treaty is.
Essentially a treaty is a type of contract. A more formal definition – “A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same.” (1)
The United States bases its treaty making authority of Article 2, Section 2 of the Constitution which states –
“[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” (2)
The Senate is charged with 1. Giving the president the benefit of the Senate’s advice and counsel, 2. Checking presidential power, and 3. Safeguarding the sovereignty of the states by giving each state an equal vote in the treatymaking process.” (3)
The Senate does not actually ratify treaties, they simply approve or reject the treaty to move forward into ratification. If the treaty is approved by the Senate (requiring a 2/3 majority vote), once it is signed by the treaty partners it becomes ratified.
In its first 200 years, the US Senate approved more than 1500 treaties, denying only 21. (4) A more common way for the Senate to show its disapproval of a treaty is to simply not hold a vote on it, which it has done 85 times. (5)
Of note, the Constitution does not indicate how treaties are to be terminated.
All of this information, while interesting, seems to have little impact on the landscape of American treaty making and its impact on foreign relations post-World War II.
Enter – the Executive Agreement.
Executive Agreements are essentially politically binding international agreements done without getting Senate approval. The US Supreme Court held that validly made executive agreements held the same status as Senate approved and ratified international treaties. (United States vs. Pink, 1942) (6)
This has given presidents a great amount of leeway to implement their agendas without the need to get mired down in debate in Congress. In theory, Congress would ultimately have the ability to defund a president’s Executive Agreement, thereby giving some power to the checks and balances of our Republic. To give you a sense of how prevalent these Executive Agreements are, a US Senate study conducted in 1984 found that of all the international agreements conducted by the US between 1946 and 1972, only 6.2 % of it was done via treaty.
Not that treaties are any guarantee of the US actually doing the right thing, or in fact, even doing the thing they say they are going to do.
From 1778 to 1871, the US entered into more than 500 treaties with Native American tribes – the US violated each one of them. (7) If you want to take a tour of sadness and tears check out this NPR story “Broken Promises on Display at Native American Treaties Exhibit (8). The exploration of how the US has been faithless in the execution of its treaties is outside of the scope of this essay, but worth keeping in mind when people talk about “American exceptionalism”.
Although US treaties are fairly easy to research, other types of deals made by the Executive Branch are much more difficult to learn about. There is no single source for this material that I could find.
In addition to specifying that their own records should not be considered a primary source for treaty information, the State Department does not maintain a list of them, and gives this guidance as to why you may have trouble find them (9) –
- The treaty or agreement has only recently entered into force or been concluded and is not yet posted or published.
• The treaty or agreement is not in force.
• The treaty or agreement is not in force for the United States.
• The document is not, in fact, a binding international agreement for the United States.
• The treaty or agreement has not been filed with the Treaty Office.
• Disclosure is restricted.
There have been some important international agreements that have been in the spotlight in the last couple of decades and are in fact the reason I wanted to look more deeply into the mechanics of how they work.
The Trans Pacific Partnership (TPP) is one such deal – ending this was one of Trump’s first moves as President. The TPP was a President Obama era trade deal that was not approved by Congress. As such, it was simple to pull out of it.
The North American Free Trade Agreement (NAFTA) is another well known trade agreement. The idea for this treaty was germinated with President Reagan, bolstered by President Bush, and finally signed into law with President Clinton (10). Trump has indicated numerous times that he wants to pull out of this deal, but so far, nothing has been done. Because this was approved by Congress, it’s not clear from my research that Trump can unilaterally withdraw without Congressional approval.
The Iran Nuclear Deal, or more correctly the Joint Comprehensive Plan of Action was a landmark agreement intended to limit the proliferation of Iran’s nuclear weapons. This deal was not approved by Congress, so Trump was able to simply walk away from it.
I want to highlight that fact that these agreements (and many, many others like them) are essentially being entered into and abandoned with regularity based on the whims of the Executive Branch. In spite of the Constitutions seemingly clear instructions to have Congress approve such acts, all of the presidents since World War II have felt empowered to ignore it.
What is the ultimate outcome of a US political climate dominated by hyper partisanship and a woefully uneducated electorate? Trump is a symptom of a severe disease that has infected the United States. We have put the future of humanity into the hands of an amoral nationalist buffoon.
I have explored other features of the office of the president in previous essays, and with each kernel of information that I learn I become more dismayed than ever with the current office holder. I am only now beginning to understand the full implications of electing an unqualified and ignorant con man to the most powerful position on the planet. His power to affect things, although not unlimited, is profound. I only wish that Congress and the deplorables that put him into power understood this too.
Daniel Cashman, EAMP