President Trump is Unsigning the Arms Trade Treaty

Lindsay Tausch — Wednesday, July 31, 2019

 

On April 26, 2019, at the annual National Rifle Association meeting in Indianapolis, President Trump announced that the United States would revoke the effect of its signature on the Arms Trade Treaty. The following text is taken from his speech:

“Under my administration, we will never surrender American sovereignty to anyone. We will never allow foreign bureaucrats to trample on your Second Amendment freedom. And that is why my administration will never ratify the U.N. Arms Trade Treaty… And I am officially announcing today that the United States will be revoking the effect of America’s signature from this badly misguided treaty. We’re taking our signature back. The United Nations will soon receive a formal notice that America is rejecting this treaty. As part of this decision, I will sign right now––in front of a lot of witnesses––a message asking the Senate to discontinue the treaty ratification process and to return the now-rejected treaty right back to me in the Oval Office, where I will dispose of it.

Trump’s announcement at the NRA meeting in April was his most recent public statement on the Arms Trade Treaty. Most articles on the announcement refer to Trump’s announcement as the “unsigning” of the Treaty. However, it is important to note that the term “unsigning” is strictly rhetorical. More accurately, Trump stated that his administration would submit (1) a formal notice to the United Nations indicating the intention of the United States to reject the Treaty and (2) a message to the Senate asking it to return the Treaty and discontinue the ratification process. On April 29, the White House released a statement from President Trump, asking the senate to return the Treaty:

“TO THE SENATE OF THE UNITED STATES: I have concluded that it is not in the 

interest of the United States to become a party to the Arms Trade Treaty (Senate Treaty Doc. 144-14, transmitted December 9, 2016). I have, therefore, decided to withdraw the aforementioned treaty from the Senate and accordingly request that it be returned to me. DONALD J. TRUMP.”

Most recently, on May 13, Senator Rand Paul submitted a resolution, S.Res.204, referred to the Committee on Foreign Relations, asking the Senate to return the Treaty to the President. The Senate has yet to vote on the resolution. 

There does not appear to be a public record of any formal notice to the United Nations of the kind to which Trump referred in his announcement. The United Nations provides an online Digital Library, which includes letters that Member States have sent to the United Nations. This database does not include any recent notices from the United States in reference to the Arms Trade Treaty, so it is possible that the Trump administration has not submitted one.

Overview of the Arms Trade Treaty

The Arms Trade Treaty regulates the international trade of conventional arms, which includes almost all weapons other than weapons of mass destruction. Conventional arms include modern military weapons, such as tanks and fighter planes, as well as small arms, such as rifles, handguns, and other firearms that civilians can purchase. The stated intention of the Treaty’s supporters is to prevent countries from violating existing arms embargoes and to make it more difficult for terrorist groups and other criminal organizations to access weapons through international trade. The preamble to the Treaty underlines “the need to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts.” 

The preamble also affirms the right of States to control the trade of domestic firearms within their borders, recognizing “the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system.” Despite this affirmation, however, conservatives have rightly expressed concerns that the Treaty does not adequately protect Second Amendment rights for U.S. citizens. If the United States were to ratify the Treaty, it might create a troubling precedent that would eventually allow foreign nations to influence gun policy in the United States. President Trump echoed this concern in his announcement to the NRA when he stated that “We will never allow foreign bureaucrats to trample on your Second Amendment freedom.” 

A Brief History of the Arms Trade Treaty

Member States negotiated the Arms Trade Treaty during July 2012 under the auspices of the United Nations. The UN General Assembly adopted the Treaty on April 2, 2013, marking the end of negotiations on its content. The United States signed the Treaty on September 25, 2013 through the representation of President Barack Obama and Secretary of State John Kerry. The Treaty entered into force on December 24, 2014. As of June 2019, the Treaty has entered into force for 100 Member States. The United Nations reports that 30 States have signed but not ratified the Treaty, including the United States.

On December 9, 2016, the Treaty was printed for the use of the Senate. On the same date, the Senate read the Treaty for the first time and it was referred to the Committee on Foreign Relations. A study prepared by the Congressional Research Service for the Senate Committee on Foreign Relations outlines the role of the Senate in the treatymaking process. This study helps clarify the process by which control of the treatymaking process transitions from the President to the Senate and eventually back to the President. In particular, the President is responsible for the first phase of treatymaking, beginning with the negotiation process and ending with the President signing a treaty. This phase was complete for the Arms Trade Treaty in September 2013 when President Obama signed the Treaty.

Article II, Section 2 of the United States Constitution states that “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” This statement is the only reference in the Constitution to the roles of the President and Senate in the treatymaking process, but it is an important principle that underlies the modern treatymaking process. After the President signs a treaty, he may or may not choose to initiate the second phase of the treatymaking process by submitting the signed treaty to the Senate. The President submits the treaty as part of a document that also includes letters from both the President and the Secretary of State. President Obama submitted the Arms Trade Treaty with accompanying letters in December 2016, completing this step.

Once a treaty is submitted to the Senate, it is referred to the Committee on Foreign Relations. The text of the treaty is then printed and made available to the public. This step was completed on December 9, 2016, according to Senate documents. A treaty remains on the Committee calendar for the Committee on Foreign Relations until the Committee reports it to the full Senate. However, the Committee is not required to report the treaty to the full Senate, and it may remain in the Committee indefinitely. The Committee has not referred the Arms Trade Treaty to the full Senate. 

The study prepared for the Committee on Foreign Relations states the following:

“The President may request the return of a treaty, or the Foreign Relations Committee may report and the Senate adopt a simple resolution directing the Secretary of the Senate to return a treaty to the President. Otherwise, treaties that do not receive the advice and consent of the Senate remain pending on the committee calendar indefinitely.

In a separate section, the same study states that a President may choose not to ratify a treaty even once the Senate consents: “The President may decide not to ratify the treaty because of the conditions or for any other reason.” Senator Rand Paul is a member of the Foreign Relations Committee. The resolution that he introduced on May 13 is consistent with the standard practice that allows the Committee to return treaties to the President. Nonetheless, the Constitution does not specify the termination process for treaties, nor do the rules of the Senate. In fact, in the “Terminating Treaties” section of an article on its website, “The Senate’s Role in Treaties,” the Senate itself leaves its role ambiguous. It simply states that “The Constitution is silent about how treaties might be terminated,” referring to examples in which the President terminated a treaty unilaterally and in which either the President or Congress terminated a treaty with the other’s consent. Without a clear proscription in the Constitution, it is not certain how the Senate will respond to President Trump’s request for the Senate to return the Arms Trade Treaty. The lack of clear legal precedent related to the “unsigning” of treaties adds to this unknown.

Treaty Termination in the United States

Most of the legal scholarship related to the roles of the President and Congress in the dissolution of treaties relates to the termination of treaties that have already been ratified. On this issue, legal scholars and politicians disagree about whether the President has the right to terminate a treaty without congressional approval. In the past, the United States has terminated treaties through consent of both the President and Senate, through the President with subsequent Senate approval, and through the President alone. When President George W. Bush announced in December 2001 that the United States would withdraw from the Antiballistic Missile Treaty of 1972, his decision was controversial in part because it was unclear whether Bush could terminate the ABM Treaty without Senate approval. Despite some controversy, however, President Bush was able to successfully terminate the Treaty six months after he announced his intention to withdraw from it, consistent with the six-month waiting period stipulated in the terms of the Treaty. 

Another important case related to the termination of treaties comes from 1978, when President Jimmy Carter unilaterally terminated the Sino-American Mutual Defense Treaty. The Treaty was a defense pact between the United States and Taiwan that prevented China from taking over Taiwan. On December 15, 1978, President Carter announced that he intended to terminate the Treaty in order to establish diplomatic relations with China. Shortly after, Senator Barry Goldwater along with fourteen other members of Congress filed a lawsuit against the President and Secretary of State for unlawful termination of the Treaty. The case reached the Supreme Court, where it was dismissed by a majority of six justices. Justice Rehnquist wrote that the Supreme Court could not rule on the case because “it involves the authority of the President in the conduct of our country’s foreign relations.” 

Whether the President has or should have the power to unilaterally terminate treaties remains a controversial and unanswered question in the United States. Moreover, this question of whether the President can terminate an existing treaty is relevant to the question of whether he can “unsign” a treaty that has not yet been ratified. Arguably, it is a less significant act to “unsign” a not-yet-ratified treaty than it is to terminate an already-ratified one. If this is in fact true, then given the precedent for unilateral treaty termination set by Presidents Carter and Bush, it does not seem that President Trump is overstepping his authority in his decision to remove the United States’ signature from the Arms Trade Treaty. 

Precedent for “Unsigning” a Treaty

More similar to President Trump’s “unsigning” of the Arms Trade Treaty is President Bush’s “unsigning” of the Rome Statute in May 2002. On January 1, 2000, President Bill Clinton signed the Rome Statute, a treaty which established the International Criminal Court in order to prosecute those accused of genocide, war crimes, and similar acts. President Clinton signed the Treaty with significant reservations, even stating, “I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied.” Even without ratification, however, legal scholars argue that the United States’ signature of the Rome Statute carried symbolic and perhaps even legal significance. An article published in the Hastings International and Comparative Law Review describes signing as “a political tool used by states to show approval for a proposal without putting the proposal into effect.” The same reasoning suggests that President Bush’s “unsigning” of the Rome Statute signaled to foreign nations that the United States no longer supported the treaty.

On May 6, 2002, the U.S. Department of State sent a letter to the UN Secretary General stating the intention of the United States not to become a party to the treaty and that the United States therefore had no legal obligations arising from its signature. Congress nearly unanimously accepted President Bush’s decision to remove the signature of the United States, passing several laws to further remove U.S. support from the International Criminal Court. President Bush’s “unsigning” of the Rome Statute was unprecedented. In fact, it is the only example in which a President successfully and unilaterally removed the signature of the United States from a treaty that had been signed but not yet ratified.

Despite the lack of precedent for a President to unilaterally “unsign” a treaty, there is actually significant precedent for the Senate to pass resolutions to return treaties to the President before voting to ratify them. The Senate generally does not vote on treaties that lack the support of a two-thirds majority, and it is common practice to allow these treaties either to remain on the committee calendar or to return them to the President. In fact, since the 1980s, the Senate has approved dozens of resolutions to return treaties to the President. It has also failed to approve such resolutions, but these cases are rare. The study prepared for the Committee on Foreign Relations states the following:

“The President does not have the formal authority to withdraw a treaty from Senate 

consideration without the Senate’s concurrence. In practice, however, a President can 

render any pending treaty effectively moot, at least for the duration of his time in office, 

simply by declaring his unwillingness to ratify it, regardless of what action the Senate 

might take.

The study also states: “The decision to return one or more treaties usually reflects a mutual agreement between the Senate and the President, and is often primarily a housekeeping decision to remove obsolete or superseded treaties from the committee calendar.” Given the current composition of the Senate, and given that it is common practice to return unsupported treaties to the President, it seems likely that the Senate will vote in favor of the May 13 resolution to return the Arms Trade Treaty to President Trump. While the term “unsigning” may be useful from a public relations standpoint, logistically, the easiest way for President Trump to exit the Arms Trade Treaty is most likely to take the more conventional path of waiting for the Senate to approve its resolution to return the Treaty. The alternative would be for the President to attempt to unilaterally remove the signature of the United States from the Treaty. He might do this by instructing the Secretary of State to send a letter of intention to the UN Secretary General, similar to the letter sent under President Bush with regard to his “unsigning” of the Rome Statute.

Lindsay Tausch is an intern at CPI.