It might first be instructive to define each of the above terms and then discuss the implications. A treaty is a formally concluded and ratified agreement between countries. In the United States the word treaty is reserved for an agreement made “by and with the Advice and Consent of the Senate” per Article II, Section 2, Clause 2 of the Constitution.
An executive agreement is an international agreement but usually involves routine administrative matters not warranting a formal treaty. It is made by the executive branch without ratification by the Senate. And an international commission is an international body established on any number of subjects. For example, there is an International Whaling Commission, a commission against the death penalty and another on zoological nomenclature, and many more on most any subject of widespread interest internationally.
Each year the United Nations holds a treaty event in which they encourage country leaders to sign on to any of some 550-plus conventions covering a broad range such as human rights, disarmament and environmental protection.
Why hasn’t the United States ratified various international treaties? There is a difference between signing a treaty proposed by a president and then ratified by the Senate versus signing on to an international treaty or commission without that consent of the governed. The Constitution’s framers gave the Senate a share of the treaty power so the president could have the advantage of the Senate’s advice and counsel, but also as part of our checks and balances between the three branches of government, and to make sure the states had a say in treaties that would affect them, assuring the sovereignty of the states.
A treaty that is signed but not ratified demonstrates intention and is not supposed to be binding. For example, the Rome Statute aimed to establish a permanent International Criminal Court (the ICC) to prosecute individuals accused of genocide or crimes against humanity, war crimes, etc. The U.S. has refused to join the ICC because it lacks safeguards against political manipulation, possesses sweeping authority and threatens our national sovereignty.
According to CNSNews, former Secretary of State John Kerry stated that the White House did not pursue the nuclear agreement with Iran as an international treaty, “Because getting U.S. Senate advice and consent for a treaty has become physically impossible.” This perceived difficulty apparently gave Obama and Kerry license to circumvent the constitutionally required buy-in by the people through the U.S. Senate’s advice and consent.
Kerry likewise lamented the failure of The Convention on the Rights of Persons with Disabilities, which was rejected by the Senate. It sounds terrible to have rejected a treaty protecting the disabled around the world but there was fear that a U.N. committee charged with overseeing the treatment of the disabled, including our children, threatened parental rights and decisions.
Similarly people lost their mind with Trump’s withdrawal from the Paris Accord, but when an international law or treaty threatens U.S. sovereignty or our supreme right to authority over our own citizens with risk of substantial economic harm while at the same time requiring little or nothing of the major polluters, going the international route without the consent of the governed should never fly.
As citizens of a free republic it is our duty to preserve it. If you would like to take a free online course on the U. S. Constitution go to: www.freeconstitutioncourse.com.
Mikie Kerr is a Waikoloa resident and Constitutional enthusiast who writes a monthly opinion column for West Hawaii Today.