The Unratified — How the U.S. Lets the World Down by Not Ratifying Treaties

You may not know it, but the United States currently has 45 treaties its presidents have negotiated but that remain unratified. The oldest of these dates back 69 years, to 1948. These treaties were negotiated in good faith on behalf of the American people. While some of them perhaps did not serve the best interests of the American people, most do and were important to the development of a civil society.

Many of those that were not ratified were blocked by the war industry, polluters and other corporate criminals who control or influence senators. Not ratifying some of them is a deep betrayal.

Blame the way that presidents go about such treaty negotiations for part of the problem and the poor responsiveness by the Senate for the rest. Under any logical scenario, the foreign governments that negotiated those treaties in good faith with the U.S. government would be furious. The United States, a country for which logic on certain matters seems more fleeting than ever, is very bad – and known to be bad – at the rapid passage of treaties. So those foreign governments, for the most part, are used to America’s formal inaction in ratification and instead rely on a combination of hope and Executive Branch override of the Constitutional process for anything important.

The idea of a treaty is of course to create a unique binding agreement between the United States and other nations. It can cover everything from how wars are settled to how land and waters are divided at borders, how trade regulations are managed between countries (e.g., the North American Free Trade Agreement, or NAFTA) and issues such as weapons testing, environmental protections, international labor issues and human rights.

Under the U.S. Constitution, treaties are considered so important to the nature of the nation’s governance that they are included in its Article VI, Clause 2. This item, also known as the Supremacy Clause, makes it clear exactly how important these treaties are with just a few simple statements:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Over time, these treaties included not just countries beyond U.S. borders but also negotiated settlements with many different Native American tribes, the original first inhabitants of American soil.

The process involved in negotiating all treaties under the Constitution has been nearly identical. It usually begins with members of the Executive Branch, led by the U.S. President and almost always with the Secretary of State as a trusted advisor in the matter. Depending on the issues involved, other Cabinet members, such as the Secretary of the Interior (especially for Native American matters) and the Secretary of Commerce (often for trade negotiations), are also pulled in. Notably absent in most cases are senior advisors from the U.S. legislative branch, sometimes because the opposing party is in charge and sometimes just because the President’s team does not feel that help is needed anyway.

Having the legislative branch involved from the beginning was apparently more common in the early days of U.S. history. Its absence in both the planning and negotiation of treaties in modern times is also a major reason why so many treaties of the 20th and early 21st centuries remain unratified.

The reason why this is so important also once again resides in the language of the U.S. Constitution. In its Article II, Section 2, it states that the President of the United States “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” That two-thirds majority is tough to muster even in situations with the broadest agreement of all involved and even if the President and the Senate are run by the same party. So not involving the Senate much at all prior to bringing a treaty to its members for ratification is often a cause for indefinite delay, except in the simplest of situations.

There are cases where such a delay has an advantage. In the case of the Trans-pacific Partnership (TPP) agreement (an agreement negotiated more to help giant corporations rather than the citizens of the nations affected by it), it was considered by many to be a very bad deal that few in the United States besides President Obama and his negotiating team felt was a good one for the United States. In the end, it failed by Executive Order by the current President rather than in the U.S. Senate, but regardless, it was a good thing for it to get set aside.

About the Geneva Convention

One of the many important treaties with ratification issues that often comes up for discussion in the press and on television is something often referred to as the Geneva Convention. It is also one that many refer to as being “one” of the treaties that the United States has not signed. That statement is wrong.

To clarify one of the major misunderstandings about this, the Geneva Convention is properly referred to only in the plural, as the Geneva Conventions. It comprises four separate treaties going back to 1929 and then updated in 1949 with a few other additions later, concerning humanitarian treatment in war. The agreements consider how both non-combatants and prisoners of war are to be protected and accorded rights. With the United States’ nearly-continuous state of being at war with at least one major international enemy (and now several), one may often hear the statement that the United States is not a signer to the Geneva Conventions – though it tends to follow its protocols anyway.

The truth of this matter is that the United States is in fact a full signer of all four Geneva Conventions. What it has not ratified, which causes the confusion, are two amending protocols (Protocol 1 and Protocol 2) that came up during the administration of President Carter and were finally set aside by President Reagan in the 1980s.

Protocol 1 proposes to amend the existing protections of the Geneva Conventions to include victims in which “armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes” are to be considered ”international conflicts” under the terms of those conventions. As of June 2013, 174 nations had ratified this protocol. The United States, Israel, Iran, Pakistan, India and Turkey are some of the more significant nations that have so far not chosen to sign off.

Protocol 2’s amendment covers the situation of non-international armed conflicts, or conflicts that happen wholly within the borders of countries themselves without outside intervention. It proposes some specific international law modifications to provide protections for all involved under those circumstances. By January 2015, this protocol had been ratified by 168 countries. Once again, there were some major countries that did not ratify it, including the United States, Turkey, Israel, Iran, Pakistan and Iraq.

In the United States, when the issue was debated in the early 1980s, as part of his argument to the Senate, President Reagan felt the language of the amendments was too vague and prone to problems. He felt they could apply to “irregular forces” present in each case, regardless of whether or not those enemies would try to “distinguish themselves from the civilian population.” Even then, the idea of protecting what now would be called terrorists was not a popular idea.

There was also the issue of the protocols being applied to “wars of national liberation.” While the United States has a well-established track record of assisting others in overthrowing nations against their will, even for America this clause was considered too fuzzy to justify ratification.

The concept of protocol amendments such as these also illustrates one of the hidden complications in international treaties. Even when the original treaty may be ratified, usually after some time lapse, the parties involved may suggest future amendments based on any number of new considerations. Since considering those amendments raises their own challenges and may even suggest reconsideration of the original treaties, the truth is that often only the most straightforward of treaties get ratified quickly and stand a longterm “test of time.”

The 2017 List of the Unratified

For those interested in the details of the many items still on the unratified list, they range from the oldest being a 1948 treaty about the right to organize, as agreed upon at the 1948 International Labor Conference, to an extradition treaty negotiated between the United States and the Republic of Serbia as of August 2016. In between are items relating to

• Trafficking of illicit firearms

• Women’s rights

• Maritime boundaries

• The latest iteration of the Nuclear Test Ban Treaty (from 1996)

• Several items regarding pollution, including both airborne and in the oceans

• Protections against corporate and personal international tax evasion

• Support to “Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled”

The complete list as of May 8, 2017, and still the most current, is below. Hyperlinks to the actual treaty information are also included.

1. International Labor Organization Convention No. 87 Concerning Freedom of Association and Protection of the Right to Organize, adopted by the International Labor Conference at its 31st Session, held at San Francisco, June 17 - July 10, 1948 (Treaty Doc.: Ex. S, 81st Cong., 1st Sess. ); submitted to Senate August 27, 1949. 2. International Labor Organization Convention No. 116 Concerning the Partial Revision of the conventions adopted by the General Conference of the International Labor Organization at its first 32 sessions for the purpose of standardizing the provisions regarding the preparation of reports by the governing body of the International Labor Office on the Working of Conventions, adopted by the International Labor Conference at its 45th Session, held at Geneva, June 26, 1961 (Treaty Doc.: Ex. C, 87th Cong., 2nd Sess.); submitted to Senate June 1, 1962.

3. International Labor Organization Convention No. 122 Concerning Employment Policy, adopted by the International Labor Conference at its 48th Session, held at Geneva, July 9, 1964 (Treaty Doc.: Ex. G, 89th Cong., 2nd Sess.); submitted to Senate June 2, 1966.

4. Vienna Convention on the Law of Treaties, done at Vienna May 23, 1969, and signed by the United States April 24, 1970 (Treaty Doc.: Ex. L, 92nd Cong., 1st Sess.); submitted to Senate November 22, 1971.

5. International Covenant on Economic, Social and Cultural Rights, done at New York December 16, 1966, and signed by the United States October 5, 1977 (Treaty Doc.: Ex. D, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978.

6. American Convention on Human Rights, done at San José November 22, 1969, and signed by the United States June 1, 1977 (Treaty Doc.: Ex. F, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978.

7. Maritime Boundary Agreement between the United States of America and the Republic of Cuba, signed at Washington December 16, 1977 (Treaty Doc.: Ex. H, 96th Cong., 1st Sess.); submitted to Senate January 19, 1979.

8. Convention on the Elimination of All Forms of Discrimination Against Women, done at New York December 18, 1979, and signed by the United States July 17, 1980 (Trea-

ty Doc.: Ex. R, 96th Cong., 2nd Sess.); submitted to Senate November 12, 1980.

9. Amendment to the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), done at Gaborone April 30, 1983 (Treaty Doc.: 9810); submitted to Senate October 4, 1983.

10. Protocol II Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-international Armed Conflicts, done at Geneva June 10, 1977, and signed by the United States December 12, 1977 (Treaty Doc.: 100-2); submitted to Senate January 29, 1987.

11. Convention on Biological Diversity, done at Rio de Janeiro June 5, 1992, and signed by the United States at New York June 4, 1993 (Treaty Doc.: 103-20); submitted to Senate November 20, 1993.

12. United Nations Convention on the Law of the Sea, done at Montego Bay December 10, 1982 (the “Convention”) and Agreement relating to Implementation of Part XI of the Convention, done at New York July 28, 1994 (the “Agreement”); Agreement signed by the United States July 29, 1994 (Treaty Doc.: 10339); submitted to Senate October 7, 1994.

13. Comprehensive Nuclear-test-ban Treaty, done at New York September 10, 1996, and signed by the United States September 24, 1996 (Treaty Doc.: 105-28); submitted to Senate September 23, 1997.

14. International Labor Organization Convention No. 111 Concerning Discrimination in Respect of Employment and Occupation, adopted by the International Labor Conference at its 42nd Session, held at Geneva June 25, 1958 (Treaty Doc.: 10545); submitted to Senate May 18, 1998.

15. Inter-american Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials, done at Washington November 13, 1997, and signed by the United States November 14, 1997 (Treaty Doc.: 10549); submitted to Senate June 9, 1998.

16. Protocol for the Protection of Cultural Property in the event of Armed Conflict, done at The Hague May 14, 1954 (Treaty Doc.: 1061); submitted to Senate January 6, 1999.

17. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, done at Rotterdam September 10, 1998, and signed by the United States September 11, 1998 (Treaty Doc.: 10621); submitted to Senate February 9, 2000.

18. Treaty between the United States of America and the Republic of Nicaragua Concerning the Encouragement and Reciprocal Protection of Investment, signed at Denver July 1, 1995 (Treaty Doc.: 10633); submitted to Senate June 26, 2000.

19. Convention on the Safety of United Nations and Associated Personnel, done at New York December 9, 1994, and signed by the United States December 19, 1994 (Treaty Doc.: 1071); submitted to Senate January 3, 2001.

20. Stockholm Convention on Persistent Organic Pollutants, done at Stockholm May 22, 2001, and signed by the United States May 23, 2001 (Treaty Doc.: 107-5); submitted to Senate May 7, 2002.

21. 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, done at London November 7, 1996, and signed by the United States March 31, 1998 (Treaty Doc.: 1105); submitted to Senate September 4, 2007.

22. Agreement on the Conservation of Albatrosses and Petrels, with annexes, done at Canberra June 19, 2001 (Treaty Doc.: 110-22); submitted to Senate September 26, 2008.

23. Annex VI on Liability Arising From Environmental Emergencies to the Protocol on Environmental Protection to the Antarctic Treaty (Annex VI), adopted June 14, 2005 (Treaty

Doc.: 111-2); submitted to Senate April 2, 2009.

24. Convention between the Government of the United States of America and the Government of the Republic of Hungary for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, signed at Budapest February 4, 2010, with related exchange of notes (Treaty Doc.: 1117); submitted to Senate November 15, 2010.

25. Protocol Amending the Convention between the Government of the United States of America and the Government of the Grand Duchy of Luxembourg for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, signed at Luxembourg May 20, 2009, with related exchange of notes (Treaty Doc.: 1118); submitted to Senate November 15, 2010.

26. Protocol Amending the Convention between the United States of America and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income, signed at Washington October 2, 1996, signed at Washington September 23, 2009, with related exchanges of notes (Treaty Doc.: 1121); submitted to Senate January 26, 2011.

27. Protocols 1, 2, and 3 to the South Pacific Nuclear Free Zone Treaty, done at Suva August 8, 1986, and signed on behalf of the United States March 25, 1996 (Treaty Doc.: 1122); submitted to Senate May 2, 2011.

28. Protocols I and II to the African Nuclear-weapon-free Zone Treaty, done at Cairo April 11, 1996, and signed that day on behalf of the United States (Treaty Doc.: 1123); submitted to Senate May 2, 2011.

29. Protocol Amending the Convention on Mutual Administrative Assistance in Tax Matters, done at Paris May 27, 2010 and signed that day on behalf of the United States (Treaty Doc.: 1125); submitted to Senate May 17, 2012.

30. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly December 13, 2006, and signed on behalf of the United States June 30, 2009 (Treaty Doc.: 112-7); submitted to Senate May 17, 2012.

31. Convention between the Government of the United States of America and the Government of the Republic of Chile for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, with Protocol, signed at Washington February 4, 2010, as corrected by exchanges of notes effected February 25, 2011, and February 10 and 21, 2012, with related agreement effected by exchange of notes February 4, 2010 (Treaty Doc.: 1128); submitted to Senate May 17, 2012.

32. Protocol Amending the Convention between the United States of America and the Kingdom of Spain for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, and its Protocol signed at Madrid February 22, 1990, with memorandum of understanding signed at Madrid January 14, 2013, as corrected by exchange of notes July 23, 2013, and January 31, 2014 (Treaty Doc.: 113-4); submitted to Senate May 7, 2014.

33. Convention between the United States of America and the Republic of Poland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, signed at Warsaw February 13, 2013 (Treaty Doc.: 113-5); submitted to Senate May 20, 2014.

34. Protocol Amending the Convention between the Government of the United States of America and the Government of Japan for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, and a related agreement entered into by an exchange of notes, both signed at Washington January 24, 2013, as corrected by exchange of notes March 9 and 29, 2013 (Treaty Doc.: 114-1); submitted to Senate April 13, 2015.

35. Protocol to the Treaty on a Nuclear-weapons-free Zone in Central Asia, done at New York May 6, 2014, and signed that day on behalf of the United States (Treaty Doc.: 114-2); submitted to Senate April 27, 2015.

36. The United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York November 23, 2005, and signed that day on behalf of the United States (Treaty Doc.: 114-5); submitted to Senate February 10, 2016.

37. The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, done at Marrakesh June 27, 2013, and signed on behalf of the United States October 2, 2013 (Treaty Doc.: 1146); submitted to Senate February 10, 2016.

38. The United Nations Convention on the Assignment of Receivables in International Trade, done at New York December 12, 2001, and signed on behalf of the United States December 30, 2003 (Treaty Doc.: 114-7); submitted to Senate February 10, 2016.

39. The Beijing Treaty on Audiovisual Performances, done at Beijing June 24, 2012, and signed on behalf of the United States June 26, 2012 (Treaty Doc.: 114-8); submitted to Senate February 10, 2016.

40. United Nations Convention on Independent Guarantees and Stand-by Letters of Credit, done at New York December 11, 1995, and signed on behalf of the United States December 11, 1997 (Treaty Doc.: 114-9); submitted to Senate February 10, 2016.

41. Treaties on the delimitation of maritime boundaries between the United States of America and the Republic of Kiribati, signed at Majuro September 6, 2013, and between the United States of America and the Federated States of Micronesia, signed at Koror August 1, 2014 (Treaty Doc.: 114-13); submitted to Senate December 9, 2016.

42. The Arms Trade Treaty, done at New York April 2, 2013, and signed on behalf of the United States September 25, 2013 (Treaty Doc.: 11414); submitted to Senate December 9, 2016.

43. United Nations Convention on Transparency in Treaty-based Investor-state Arbitration, done at New York December 10, 2014, and signed on behalf of the United States March 17, 2015 (Treaty Doc.: 114-15); submitted to Senate December 9, 2016. 44. Treaty on Extradition between the Government of the United States and the Government of the Republic of Kosovo, signed at Pristina March 29, 2016 (Treaty Doc.: 115-2); submitted to Senate January 3, 2017.

45. Treaty on Extradition between the Government of the United States and the Republic of Serbia, signed at Belgrade August 15, 2016 (Treaty Doc.: 115-1); submitted to Senate January 3, 2017.

In the end, will it make a big difference that some of these are still NOT ratified, especially after a considerable amount of time has passed since they were originally created? The answer is that while it does depend somewhat on the specific treaty, in many cases the United States and its partners are already acting like the treaties are in place – for all practical purposes at least. In other cases, although the United States may be playing by the rules outlined in the treaty, not signing allows some flexibility of action while still giving the appearance of following what it signed up to do.

In other cases, not ratifying the treaty poses a threat or injustice. One example is the UN Convention on the Law of the Sea (UNCLOS) which defines the rights and responsibilities of nations with respect to their use of the world's oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. The US tries to impose the treaty on other nations while holding itself exempt, because it did not ratify the treaty.

Another example is the Inter-american Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials. Not ratifying this treaty allows the U.S. to be the world's largest arms dealer and encourages its war industry to manufacture conflict so that it can sell more weapons. At the same time it can use the treaty to reduce competition. The treaty should have been ratified.

Not ratifying treaties makes it easier for the United States to act as a bully, cheat other nations, violate human rights, destroy the environment, wage war for profit and rob people of their basic human rights and dignity.

In order for the U.S. to function as a civil society, we the people would have to start electing Senators who are not corrupt, evil or stupid and ensure that they do the right thing. For that to happen, we would have to change as individuals and as a society. We ourselves would have to become more civil but also more proactive.