No, the undead aren’t Senators worried about the outcome of next Tuesday’s election. Nor are they the bodies of the departed, reanimated to feast upon the living. Citizens in the U.S. Capitol aren’t in any danger —well, no more danger than usual, anyhow—of having their brains sucked out and devoured. Rather, the undead in this case are treaties signed by Presidents past, treaties that are dead but yet still alive. Call them zombie treaties.
In order for a treaty to have domestic effect as law in the United States, they have to—in most cases—go through three steps. First, the President has to negotiate and sign the treaty. Second, the Senate has to give its advice and consent to the treaty (commonly known as ‘ratifying’ it). And third, usually, the House and Senate have to pass implementing legislation that makes the necessary alterations and additions to existing U.S. law. Zombie treaties are treaties that received presidential signature years ago, but have not gained the advice and consent of the Senate.
For example, President Clinton signed the Convention on Biological Diversity in 1993. It remains unratified. So does the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (commonly known as CIFTA), signed in 1997. So does the Comprehensive Test Ban Treaty, signed in 1996, which the Senate declined to ratify in 1999. So does the U.N. Convention on the Rights of the Child, signed in 1995. And so does the Convention on the Elimination of All Forms of Discrimination Against Women, signed by President Carter in 1980.
As the Comprehensive Test Ben Treaty shows, rejection by the Senate is not enough to kill a zombie treaty. Something more powerful is needed, for while these zombie treaties live a shadowy existence, they do matter. Because the U.S. has signed them, it is obligated under international law to avoid taking actions that run counter to their object and purpose. Furthermore, Presidents can use this obligation to justify changing administrative rules, or participating [1] as observers to treaty conferences or in subsidiary bodies created by the treaty. In short, signed but unratified treaties, even though they have not received the advice and consent of the Senate, can shape both U.S. domestic and diplomatic practice.
The time has come to put an end to the ghastly un-life of the zombie treaties. The Senate is a deliberative body, and it must be allowed a reasonable amount of time to consider the merits and flaws of a treaty. Similarly, Administrations must be allowed a reasonable amount of time to make the case for a signed treaty, and to work constructively with the Senate to craft a resolution of ratification that meets its concerns. But this process should not be allowed to continue indefinitely.
If a signed treaty has not received ratification after four years—one presidential term—or if the full Senate declines by vote to give its advice and consent to a signed treaty, the President should be required, by law, to notify the authority responsible for the treaty that the U.S. does not intend to ratify the treaty. Commonly known as “un-signing” a treaty, this is a legal process that would free the U.S. from its obligations under international law as they pertain to that treaty. Un-signing is not an act of unilateralism: it is, on the contrary, a demonstration of respect for international law, for the treaty-making process, and for the fact that—under the Constitution—the President’s power to negotiate treaties that bind the U.S. is subject to the approval of the states, as represented in the Senate.
What is truly disrespectful is allowing these zombie treaties to linger on, dead but still alive, shaping our conduct as a state without having gained the approval of the Senate. It is time to put them out of their misery.
Happy Halloween!
