Chairman Kerry’s proposed draft of a resolution of ratification for New START has now made its way to the blogs.  The text circulated by the Chairman so fundamentally misapprehends the purpose of a treaty resolution of ratification that it is difficult to see how it can even serve as a starting point for negotiations on such a text.

The purpose of such a resolution is to complete the domestic political process required by the Constitution to bring a treaty into force for the United States, while establishing the treaty’s meaning that is binding on the President as a matter of domestic law and binding on the United States as a matter of international law.  Commentators approvingly cite the Supreme Court case of Haver v. Yaker for the notion that Senate approval of a treaty is not a take-it-or-leave it proposition, but rather the Senate can give its consent to a treaty with conditions.  These conditions generally take the form of reservations, understandings, and declarations to the Resolution of Ratification (collectively known as RUDs).  The Congressional Research Service (CRS) has outlined what each of these conditions are:  

• Reservations change U.S. obligations without necessarily changing the text.
• Understandings are interpretive statements that clarify or elaborate provisions but do not alter them.
• Declarations are statements expressing the Senate’s position or opinion on matters relating to issues raised by the treaty rather than specific provisions.

CRS has also pointed out that such conditions have gone by various titles over the history of Senate practice, to include just being called “conditions.”

CRS further describes that once a treaty enters into force, it is the President who interprets the requirements of the agreement as applied to the United States.  The Department of Justice Office of Legal Counsel, whose interpretations of law are binding on the executive branch, has said that when the Senate includes conditions in its Resolution of Ratification, since they are communicated to the other treaty parties as part of U.S. acceptance of the treaty (generally in the exchange of instruments of ratification), the Senate’s conditions “are generally binding on the President, both internationally and domestically, in [the President’s] subsequent interpretation of the treaty.”  That office has gone on to say that “declarations,” however, “do not purport to interpret the treaty but only to express a ‘sense of the Senate’ with respect to related issues, [and thus] may or may not be included by the President in the instrument of ratification submitted to the other parties.” 

Herein lies a significant, and fatal, flaw of the Resolution of Ratification proposed by Chairman Kerry.  The draft is mostly a series of precatory declarations that essentially amount to nothing more than hortatory statements expressing the sense of the Senate on a variety of issues touched on by the treaty.  Most importantly, the draft text’s proclamations on missile defense for some reason are not in the Understandings section assured to be legally binding and included in the instrument of ratification, but rather appear in the Declarations section of the draft text.  Chairman Kerry was clearly capable of requiring that such positions be included in the instrument of ratification, as the Understandings section of his draft specifically states that the Understanding “shall be included in the instrument of ratification,” while the Declarations section contains no such statement.  A charitable explanation of this would be that it is just an oversight; a just as likely one would be that the Chairman’s draft reflects the Administration’s over-bearing concern not to annoy Russia in any way.  At a minimum, any proposed resolution of ratification of New START must include a legally binding Understanding that there are no constraints in the treaty (other than Article V) on the development or deployment of U.S. missile defenses to be included in the exchange of instruments of ratification with Russia so there is no doubt on this point. 

New START raises many other issues of concern, such as its limitations on prompt global strike capabilities, the scope of the Bilateral Consultative Commission, or its generally weak verification regime as compared to its predecessor.  To be fair, some of these issues are touched on in passing by the Chairman’s draft, but none are addressed in a legally enforceable way reinforcing the proper substantive interpretation of ambiguous clauses or otherwise protective of the Senate’s prerogatives.  Other issues of concern are not even broached by the draft text.  The Chairman’s proposed draft Resolution of Ratification is very much lacking in this respect, likely counseling for the effort to return to the drawing board rather than tinkering at the edges of a fundamentally unacceptable text.