The Framers of the U.S. Constitution were prudent and wise in regard to the treaty power. They understood that treaties serve a crucial role in the foreign affairs of the U.S. and its relationships with other nations—and, at the same time, that the nation should not enter lightly into international commitments to other nations. For that reason the Framers set a high bar for ratification: Two-thirds of Senators voting, a quorum of the Senate being present, must vote to consent to ratification of a treaty before it can be ratified by the President.
Over the years, the U.S. has negotiated and ratified major and minor treaties that advance its vital national interests, including the Geneva Conventions, agreements delineating land and maritime borders with its neighbors, mutual defense treaties, and trade pacts. However, not all treaties are alike. Some treaties clearly advance U.S. interests while granting reciprocal rights and duties to all parties. Others, however, either place undue burdens on the U.S. or erode our national sovereignty, or both. Such treaties should not be negotiated, signed, or ratified.
Such cessions can be difficult to quantify, but hinge on whether the political, security or economic gains outweigh the constraints and obligations assumed. Specifically, the U.S. often cedes some amount of its ability to act alone when it ratifies a treaty, particularly a comprehensive multilateral treaty. The extent and impact of the cessions depends on the nature of the treaty obligations as well as the reciprocal nature of the obligations of the other parties to the treaty.
There are some treaties that the U.S. should never ratify: treaties that subject the U.S. to biased, unfair, or unwarranted scrutiny; treaties that impose unreasonable or disproportionate restrictions that would cause a significant negative impact on the American economy, our national interests, or the individual freedoms of the American people; treaties that degrade America’s ability to defend itself and erode U.S. military capabilities; and treaties that would subject U.S. citizens to the jurisdiction of an international criminal court. American sovereignty is threatened by treaties that seek to take power away from the nations that negotiate them.
If the treaty has clear benefits, but is unacceptable in narrow particulars, the Senate should exercise its authority to consent with binding reservations. This path allows the Senate to give its consent to ratification while protecting the U.S. from harmful aspects of a treaty. This forces the President to ratify the treaty with those reservations or not to ratify it at all. In addition, the Senate sometimes adopts an understanding or makes a declaration when it consents to ratification, which, though not binding in nature, often guides U.S. implementation of a treaty. Both practices are healthy exercises in the balance of power established in the U.S. Constitution, and help to ensure that the interests of the American people are fully considered in the treaty process.
Reject Treaties that Expose the U.S. to Unfair and Unwarranted Scrutiny of Its Implementation of International Human Rights. The U.S. need not become party to human rights treaties to demonstrate its strong commitment to those rights; the U.S. Constitution, the Bill of Rights, state and federal law, and law enforcement agencies already protect Americans from discrimination. Treaties like the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (which the President has not yet transmitted to the Senate) would do little to advance protections for those populations in the U.S., but would obligate the federal government to defer to an unaccountable committee of academics and human rights activists in violation of the principles of U.S. sovereignty and federalism. Two other treaties signed by the Obama Administration also fall into this category:
- U.N. Arms Trade Treaty. This treaty purports to establish criteria for international sales of a broad range of weapons, from warships to small arms. Even if the U.S. never ratifies it, proponents hope to argue that it establishes an international “norm” for purposes of customary international law, and thereby try to persuade U.S. executive and judicial authorities to follow the “norm” of an unratified treaty in ways that would restrict U.S. ability to arm its allies and defend its national interests.
- U.N. Convention on the Rights of Persons with Disabilities. This treaty, by the Obama Administration’s own admission, will not benefit a single American who has a disability. What U.S. ratification will achieve is a quadrennial embarrassment when the U.S. submits itself to review by a committee of international disability “experts” in Geneva who will assess the U.S. record on disability rights.
Reject Treaties Like the United Nations Convention on the Law of the Sea (UNCLOS) that Would Confiscate U.S. Oil and Gas Royalties and Redistribute Them to the “International Community.” Ratification of UNCLOS would require the U.S. to transfer a portion of the royalty revenue generated on the U.S. extended continental shelf (the shelf beyond 200 nautical miles from shore) to the International Seabed Authority in Kingston, Jamaica. The Authority is empowered to distribute those funds—considered “international royalties”—to developing and landlocked nations, including many UNCLOS parties that are led by corrupt and undemocratic regimes.
Reject Treaties that Would Subject U.S. Citizens to the Jurisdiction of an International Criminal Court. The American Founders did not rebel against King George III and England so that several hundred years later the U.S. could sign a treaty that subjects Americans to criminal trials in an international court. U.S. ratification of the Rome Statute of the International Criminal Court would do just that. Among the many concerns about the Rome Statute is that it creates a seriously flawed institution that lacks prudent safeguards against political manipulation, possesses sweeping authority without accountability to the U.N. Security Council, and violates national sovereignty by claiming jurisdiction over the nationals and military personnel of non-party states.
Reject Treaties that Erode America’s Ability to Defend Itself by Banning Certain Weapons Used by U.S. Armed Forces or by Degrading U.S. Nuclear Capabilities. The agenda of domestic and international advocates of arms control and disarmament includes pressuring the U.S. to ratify treaties that would harm our national security:
- Protocol banning autonomous weapons. Proponents support a total ban on the development and use of lethal autonomous weapons systems (LAWS). LAWS have the potential to increase U.S. effectiveness on the battlefield while decreasing collateral damage and loss of human life. The U.S. should oppose any effort to ban them.
- Convention on Cluster Munitions (CCM). The CCM, which bans cluster munitions, is a misbegotten treaty (often known as the Oslo Convention) that neither advances the laws of war nor enhances security. It is an all-or-nothing exercise in moral suasion that creates perverse incentives for insurgents to use civilian populations as human shields, undermines effective arms control efforts, and inhibits nation-states’ ability to defend themselves. It was also created by a process that denigrates the sovereignty of the U.S.
- Anti-Personnel Mine Ban Convention. The U.S. should reject this fatally flawed convention (often known as the Ottawa Treaty), which bans the use of all anti-personnel landmines. Such a ban would damage the U.S.’s ability to defend itself and its allies, particularly in Korea. Furthermore, the very process by which the convention was created is objectionable because it undermines responsible diplomacy and the sovereignty of the U.S. and other nation-states.
- Comprehensive Test Ban Treaty (CTBT). The CTBT would bar the U.S. from conducting explosive tests of nuclear weapons. It is a dangerous agreement that would undercut the U.S. policy of nuclear deterrence and, with it, U.S. national security. The treaty is not verifiable because the seismic monitoring system for detecting nuclear tests will not be able to detect prohibited tests of very low yields. It is not enforceable because ultimate enforcement powers are lodged in the U.N. Security Council, where China and Russia can veto effective responses to non-compliance. The CTBT’s most important flaw, however, is that it would put the U.S. irreversibly on the path to nuclear disarmament in a world in which hostile actors have, and are in the process of acquiring, nuclear weapons.
Selected Additional Resources
Ted R. Bromund, “A Simple Plan in 2017 for the Arms Trade Treaty: Return to Sender,” Heritage Foundation Issue Brief No. 4648, January 24, 2017.
Ted R. Bromund, “Top 10 Reasons Why the U.S. Should Not Sign the U.N. Arms Trade Treaty,” Heritage Foundation Issue Brief No. 4028, August 27, 2013.
Michaela Dodge, “New Strategic Arms Reduction Treaty: Time to Stop the Damage to U.S. National Security,” Heritage Foundation Backgrounder No. 3078, June 20, 2016.
Michaela Dodge, “Time to Withdraw from the Intermediate-Range Nuclear Forces Treaty,” Heritage Foundation Issue Brief No. 4675, March 29, 2017.
Steven Groves, “The Law of the Sea: Costs of U.S. Accession to UNCLOS,” testimony before the Committee on Foreign Relations, U.S. Senate, June 14, 2012.
Steven Groves, “A Manual Adapting the Law of Armed Conflict to Lethal Autonomous Weapons Systems,” Heritage Foundation Special Report No. 183, April 7, 2016.
Steven Groves, “Ratifying the Disabilities Convention Will Not Help Americans with Disabilities at Home or Abroad,” Heritage Foundation Backgrounder No. 2820, June 24, 2013.
Steven Groves, “The U.S. Should Oppose the U.N.’s Attempt to Ban Autonomous Weapons,” Heritage Foundation Backgrounder No. 2996, March 5, 2015.
Steven Groves, Charles Stimson, and Brett D. Schaefer, “U.S. Should Reject ICC Attempt to Prosecute American Servicemembers and Officials,” Heritage Foundation Issue Brief No. 4623, November 9, 2016.
Steven Groves and Ted R. Bromund, “The Ottawa Mine Ban Convention: Unacceptable on Substance and Process,” Heritage Foundation Backgrounder No. 2496, December 13, 2010.
Steven Groves and Ted R. Bromund, “The United States Should Not Join the Convention on Cluster Munitions,” Heritage Foundation Backgrounder No. 2250, April 28, 2011.
Nicolas D. Loris and Brett D. Schaefer, “Withdraw from Paris by Withdrawing from the U.N. Framework Convention on Climate Change,” Heritage Foundation Backgrounder No. 3220, May 25, 2017.
James Roberts, Ted R. Bromund, and Riddhi Dasgupta, “The U.S. Should Reject the European Commission’s Proposed Investment Court,” Heritage Foundation Issue Brief No. 4485, November 13, 2015.
Brett D. Schaefer and Steven Groves, “The U.S. Should Not Join the International Criminal Court,” Heritage Foundation Backgrounder No. 2307, August 18, 2009.
Baker Spring, “The Comprehensive Test Ban Treaty and U.S. Nuclear Disarmament,” Heritage Foundation Backgrounder No. 1330, October 6, 1999.