Thursday, December 6, 2018

Breaching Treaties - A Washington Pastime

Let's open this posting by looking at the definitions (according to the United Nations) of two words that are connected to treaties, signing, ratification and accession :  

"1.) Signature Subject to Ratification, Acceptance or Approval:

Where the signature is subject to ratification, acceptance or approval, the signature does not establish the consent to be bound. However, it is a means of authentication and expresses the willingness of the signatory state to continue the treaty-making process. The signature qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates an obligation to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty.

2.) Ratification:

Ratification defines the international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, while in the case of multilateral treaties the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation. The institution of ratification grants states the necessary time-frame to seek the required approval for the treaty on the domestic level and to enact the necessary legislation to give domestic effect to that treaty.  

3.) Accession:

"Accession" is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states. It has the same legal effect as ratification. Accession usually occurs after the treaty has entered into force. The Secretary-General of the United Nations, in his function as depositary, has also accepted accessions to some conventions before their entry into force. The conditions under which accession may occur and the procedure involved depend on the provisions of the treaty. A treaty might provide for the accession of all other states or for a limited and defined number of states. In the absence of such a provision, accession can only occur where the negotiating states were agreed or subsequently agree on it in the case of the state in question."   

In other words, signing a treaty indicates a nation's general willingness to the concept of the treaty but, until it is ratified or acceded to, it is not binding to a signing party/nation.  Signing a treaty does, however, signal to the world that a nation agrees with the intent of the treaty and is willing to work towards ratification/accession.

Now, let's look at some recent comments from United States Secretary of State Mike Pompeo at a meeting held at NATO Headquarters in Brussels regarding Russia's alleged violations of the INF Treaty:

"Finally, and I want to be clear about this, America is upholding the rule of law. When we set forth our commitments, we agree to be bound by them. We expect the same of our treaty counterparts everywhere, and we will hold them accountable when their words prove untrustworthy. If we do not, we’ll get cheated by other nations, expose Americans to greater risk, and squander our credibility."

Let's examine the veracity of Mr. Pompeo's claims regarding Washington's trustworthiness when it comes to the signing and ratification of international treaties.

1.) International Covenant on Economic, Social and Cultural Rights (1966):  This covenant built on the Universal Declaration of Human Rights and expanded the notion of basic rights beyond political and civil provisions.  The agreement has been ratified or acceded to by 169 nations and was signed by the United States on October 5, 1977 but never ratified.

2.) Convention on the Elimination of All Forms of Discriminations Against Women (1979): This Convention sought to promote women's rights and reduce the extensive discrimination that existed against women. The agreement has been ratified or acceded to by 189 nations and was signed by the United States on July 17, 1980 but never ratified.

3.) Convention on the Rights of the Child (1989):  This Convention is a defining agreement which formally recognized that children require special care and assistance and that international cooperation was necessary to ensure that children's rights were protected.    The agreement was ratified or acceded to by 196 nations and was signed by the United States on February 16, 1995 but never ratified, making the United States the only nation to not ratify the Convention.

4.) Comprehensive Nuclear-Test-Ban Treaty (1996): This Treaty bans all nuclear explosions for both military and civilian purposes.  The Treaty was signed by 184 nations and ratified by 167 nations.  It was signed by the United States on September 24, 1996 but never ratified. Other nations that have signed but not ratified the Treaty include China, Egypt, Iran, Israel, Yemen and Zimbabwe.

5.) Kyoto Protocol (1997): This Protocol was designed to limit carbon emissions in an attempt to reduce the threat of global climate change. The Protocol was signed by 83 nations and ratified or acceded to by 192 nations and was signed by the United States on November 12, 1998 but never ratified, making the United States the only nation to not fully adopt the Kyoto Protocol. 

6.) Rome Statute of the International Criminal Court (1998): This Statute established an international criminal court to deal with genocide, war crimes, crimes of aggression and crimes against humanity.  The Statute was signed by 123 nations including the United States (on December 31, 2000) which played a key role in the creation of the Rome Statute.   Following the signature, then President Clinton did not submit the Rome Statute to the U.S. Senate for ratification stating that the U.S. still had concerns. On May 6, 2002, John Bolton, then Under Secretary of State for Arms Control and International Security sent the following message to United Nations Secretary Kofi Annan:

"Dear Mr. Secretary-General:

This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary's status lists relating to this treaty.

Sincerely, S/John R. Bolton"  

7.) Convention on the Rights of Persons with Disabilities (2006): This Convention was designed to ensure that persons with disabilities had the same rights as all other persons and guaranteed their fundamental freedom.  This agreement was ratified or acceded to by 177 nations and was signed by the United States on July 30, 2009 but never ratified.  The United States joins 12 other nations including Bhutan, Cameroon, Chad, Kyrgyzstan, Lebanon, Somalia and Tajikistan in not ratifying this Convention.

In addition, there are two other treaties of note:

1.) Paris Agreement: on June 1, 2017, the United States backed out of the Paris Agreement on mitigating climate change which it signed on April 22, 2016 and acceded to on September 3, 2016.  As the only nation to back out of the Paris Agreement, it now joins a small group of nations including Iran, Iraq, Libya, Oman, Russia and Yemen which have signed and not ratified the Agreement.

2.) Joint Comprehensive Plan of Action (JCPOA) (2015): The JCPOA was reached between Iran and P5+1 (China, France, Germany, Russia, the United Kingdom and the United States) in an effort to eliminate Iran's ability to build nuclear weapons.  The JCPOA was signed by the United States on July 14, 2015 and was adopted by the United Nations on July 20, 2015.  The United States withdrew from the JCPOA on May 8, 2018.

Here is a full listing of the international treaties that have been submitted to the Senate but not received Senate advice and consent to ratification:

According to international law, when a nation signs a treaty, it does not bind the signatory to the terms of the treaty, however, it does signal that the nation believes that there are merits to the treaty as a whole. When Washington signs a treaty, it signals to the world that it wishes to proceed with the intents of the treaty; when Washington fails to ratify or accede to the terms of a treat, it signals to the world that its word is essentially worthless.  Mike Pompeo's recent comments regarding America's commitments to the treaties that it has signed prove that he is quite capable of rewriting history in favour of Washington's narrative.  Despite his criticisms of Russia and Iran and their breaching of international treaties, it is quite apparent that Washington's signature on many key treaties is not worth the ink used to sign those documents.

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