30 May 2019

Highlights

  • USMCA Treaty Not Binding Without US Senate Approval
  • Treaty May Become Victim of White House – Congress Politics
  • US Withdrawal From NAFTA Cannot Be Ruled Out

The signing of the United States-Mexico-Canada Agreement (USMCA) at the G20 summit in Argentina on 30 November 2018 was a much-publicized event.  But there are growing doubts as to whether it will ever come into force or whether the United States will remain a signatory to the North American Free Trade Agreement (NAFTA).

The USMCA was designed to improve and replace NAFTA.  And many thought that its mere signature by the President Trump, Canadian Prime Minister Justin Trudeau, and Mexican President Enrique Peña Nieto made it a new and enforceable treaty.  Unfortunately, both Canada and Mexico said they would not ratify the treaty until US steel and aluminum tariffs were lifted, which President Trump finally did on 17 May 2019. However, US domestic law makes approval by the United States more complicated. As of this writing, none of the three countries has formally approved of the agreement. Thus, the new agreement is not yet an enforceable new treaty.

The US Constitution provides 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" (Article II, section 2). The Constitution's framers gave the US Senate a share of the treaty power in order to give the president the benefit of the Senate's advice and counsel, check presidential power, and safeguard the sovereignty of the states by giving each state an equal vote in the treatymaking process. The Senate does not ratify treaties – it approves or rejects a “resolution of ratification.” If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).

Most treaties submitted to the Senate have received its advice and consent to ratification. During its first 200 years, the Senate approved more than 1,500 treaties and rejected only 21. A number of these, including the Treaty of Versailles following World War I, were rejected twice. Most recently, the Senate has simply not voted on treaties that its leadership deemed not to have sufficient support within the Senate for approval, and in general these treaties have eventually been withdrawn. At least 85 treaties were eventually withdrawn because the Senate never took final action on them. Treaties may also remain in the Senate Foreign Relations Committee for extended periods, since treaties are not required to be resubmitted at the beginning of each new Congress. There have been instances in which treaties have lain dormant within the committee for years, even decades, without action being taken.

When a treaty is submitted to the Senate for approval, the Senate has several options for action. The Senate may approve or reject the treaty as it has been submitted or it may make its approval conditional by including in the resolution amendments to the text of the treaty – reservations, understandings, interpretations, declarations, or other statements. The president and the other countries involved must then decide whether to accept the conditions and changes in the legislation, renegotiate the provisions, or abandon the treaty. Finally, the Senate may choose to take no definitive action, leaving the treaty pending in the Senate until withdrawn at the request of the president or, occasionally, at the initiative of the Senate.

In addition to treaties, which may not enter into force and become binding on the United States without the advice and consent of the Senate, there are other types of international agreements concluded by the executive branch and not submitted to the Senate. These are classified in the United States as executive agreements, not as treaties, a distinction that has only domestic significance. International law regards each mode of international agreement as binding, whatever its designation under domestic law.

The US Constitution is silent about how treaties might be terminated. Presidents have unilaterally broken treaties, such as when President Carter terminated the US defense treaty with Taiwan in order to facilitate the establishment of diplomatic relations with the People's Republic of China.

As part of the process of US approval of the treaty, the US International Trade Commission (USITC) recently released its independent assessment of the economic impact of the USMCA.  The next step is for Congress to consider the USMCA.  Both Democrats and Republicans are pushing for changes to the treaty before they will consider approving it.  One of the main issues is the US tariffs on steel and aluminum which have remained in place on both Mexico and Canada since the ratification of NAFTA.  Indeed, both Canada and Mexico placed their own retaliatory tariffs in US products.  Democrats are also concerned that the enforcement provisions of the USMCA are weak and that it may not go far enough in ensuring that Mexico meets its labor and environmental standards.

Should Congress not take up the treaty soon, or even approve it with terms unacceptable to President Trump, he might simply withdraw from NAFTA. This would have devastatingly disruptive effects on US-Mexico trade and relations. The research firm Trade Partnership Worldwide estimates that 1.8 million to 3.6 million mostly blue-collar US jobs and 2.3 million to 10.3 million Mexican jobs could be eliminated within a few years if the United States withdraws from NAFTA without a replacement agreement.

But this would not be the first time that President Trump has made good on his threats. He has already withdrawn the United States from the Trans-Pacific Partnership (TPP) and the Paris agreement on climate change.  Indeed, this current example of infighting between the Executive and the Legislature is nothing new in American history, and critics have cited the United States as an unreliable international partner. Many treaties were signed but never ratified, or were signed and then unsigned.  There have even been instances where the United States pressured other parties to sign then refused to sign itself.  Most notable are several international human rights treaties, the aforementioned Treaty of Versailles (1919), the International Labor Convention (1949) (still pending ratification in the Senate despite being signed by 154 countries, including the US), The Convention on the Elimination of All Forms of Discriminations Against Women (CEDAW) (1979) (still pending in the Senate), The UN Convention on the Law of the Sea (UNCLOS) (1982), the Rome Statute of the International Criminal Court (1998) (never submitted to the Senate for ratification at all), and the Kyoto Protocol (1997).

Outlook

President Trump and the US Congress remain at odds over numerous issues, including the Russia election meddling investigation, immigration, potential US confrontation with Iran and the US budget, with each side blaming the other for the economic consequences of the other’s actions or policies. The state of the US economy is likely to be a major issue in the 2020 presidential election. Blame for any negative effects of either failure to ratify the USMCA or possible withdrawal from NAFTA will be cast by both Democrats and Republications. As a pawn in the never-ending chess game between the White House and Congress, the USMCA will probably not be approved anytime soon.

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