Treaties with Foreign Nations

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TREATIES WITH FOREIGN NATIONS

TREATIES WITH FOREIGN NATIONS. In international usage the term "treaty" has the generic sense of "international agreement." Rights and obligations, or status, arise under international law irrespective of the form or designation of an agreement. In constitutional usage, however, treaties are sometimes distinguished from less formal agreements by special requirements for negotiation or ratification, limitations of subject matter, or distinctive effects in domestic law.

The U.S. Constitution distinguishes treaties from other agreements and compacts in three principal ways. First, only the federal government can conclude a "Treaty, Alliance, or Confederation." States can make an "Agreement or Compact" with other states or with foreign powers but only with consent of the Congress (Article I, section 10).

Second, treaties are negotiated and ratified by the president, but he or she must obtain the advice and consent of the Senate, two-thirds of the senators present concurring(Article II, section 2, clause 2). President George Washington understood this provision to include Senate advice during both treaty negotiation and ratification. He attempted to consult with the Senate at an executive council concerning a proposed Indian treaty, but after a frustrating experience he declared that he "would be damned" if he ever did that again. Washington's successors sought the advice and consent of the Senate only after treaty negotiations, during the period of ratification.

Third, the Constitution distinguishes international treaties from "agreements and compacts" by making treaties part of the supreme law of the land that judges in every state are bound to enforce (Article VI, clause 2). The U.S. Supreme Court has on occasion asserted that it may nullify unconstitutional treaties, but it has never done so. International treaties are generally obligatory after signature and before formal ratification. In the United States, however, this is only true when a treaty is designated as "self-executing." Otherwise, under U.S. law, treaties are sent to Congress for legislative ratification and implementation.

Early American Treaties

After declaring independence from Great Britain in 1776, the United States concluded fifteen treaties before the ratification of the U.S. Constitution in 1789. These early treaties reflected the problems of political decentralization at the time. Commissioners appointed largely ad hoc by the Continental Congress negotiated the treaties and the agreements were subject to a very uncertain ratification process. Between 1776 and 1781 the assent of all states voting was required for treaty approval, with nine states constituting a quorum. After the creation of the Articles of Confederation in 1781, nine of the thirteen states had to approve each treaty.

These provisions posed many difficulties for America's nascent diplomats, operating without an established foreign service or a reliable framework of legislative support. At critical moments, the Continental Congress often skirted its stated rules to obtain desired treaty ratification. The Treaty of Alliance with France in 1778—a vitally important part of America's revolutionary struggle against Great Britain—obtained congressional ratification with a vote recorded as unanimous. Yet the representatives of two states were certainly absent from the vote. Two more states may also have failed to ratify the treaty. Proponents of the alliance with France disguised the absence of required consent for the treaty by depicting a vote of eight states, rather than the necessary nine, as a unanimous congressional voice.

Often employing similar procedures, the Continental Congress ratified the Treaty of Paris in 1783, which ended the war with Great Britain on very favorable terms for Americans. London acknowledged American independence and conceded the new nation free navigation of the Mississippi River, the key inland estuary for north-south commerce and communication. Americans also concluded a series of commercial treaties around this same time with the Netherlands (1782), Sweden (1783), Prussia (1785), and Morocco (1786). In 1788 the United States concluded a formal consular convention with France, assuring high diplomatic standing for American representatives in Paris.

After 1789, treaty making under the U.S. Constitution focused upon assuring American economic independence, freedom from entanglement in the Napoleonic Wars that convulsed the European continent, and territorial expansion in North America. In 1794 John Jay negotiated a treaty with Great Britain—Jay's Treaty—that sought to reduce growing tensions between the Americans and their former colonial masters. U.S. citizens objected to British restrictions on American trade with London's adversaries, especially France, and they found the British impressment of captured American sailors into British military service deeply offensive. Jay's Treaty did not prohibit London's continued attacks on American shipping, but it did secure the final withdrawal of British troops from a string of occupied western forts around the Great Lakes. The treaty also opened U.S. trade with British-controlled India and the West Indies. Many Americans, including then–Secretary of State Thomas Jefferson, opposed the Jay Treaty as too deferential to Britain. They demanded a stronger assertion of American neutral shipping rights. Recognizing that Jay had done the best he could from a position of U.S. weakness, President Washington personally pushed the treaty through the Senate, barely gaining ratification. The debate about the Jay Treaty began a long history of domestic controversy over the necessary and acceptable compromises required by the vagaries of international politics. Jay's "realism" was pragmatic, but it contradicted many of America's stated ideals.

Thomas Pinckney followed Jay's work by negotiating a treaty with Spain in 1795 known as Pinckney's Treaty. Under this agreement Spain granted the United States access to the Mississippi River—especially the port of New Orleans, under Spanish control—and the territories around the estuary. The Spanish also promised to help curb Indian attacks on American settlements. In return, the United States promised to respect Spanish holdings in North America. The Pinckney Treaty offered the United States unprecedented access to western and southern territories and it consequently avoided the controversies surrounding the Jay Treaty. The Senate ratified the Pinckney Treaty with minimal debate.

The Jay and Pinckney Treaties set precedents for American diplomatic efforts in the early republic. In each case a group of elite American representatives negotiated with their foreign counterparts in search of an agreement that would assure stability in European-American relations and U.S. domination on the North American continent. President Thomas Jefferson's treaty with Napoleon Bonaparte in 1803 accomplished both ends. Despite his revulsion at the despotism of the French emperor, Jefferson purchased the vast Louisiana Territory from Napoleon at the cost of $15 million. The new lands—828,000 square miles—provided room for America to grow and expand westward relatively free from the warfare that convulsed Europe at the time. Jefferson's distrust of a strong central government did not stop him from concluding a treaty that doubled the size of the United States and asserted a presidential right to transform the shape of the country.

The Treaty of Ghent, signed in 1814 at the conclusion of America's ill-considered War of 1812 with Great Britain, acknowledged U.S. predominance in North America. It also marked the end of Anglo-American hostilities. The so-called "special relationship" between leaders in Washington and London—based on general amity, trust, and cooperation—began in very nascent form with the signing of this treaty. Great Britain continued to assert a right of impressment over American shipping, but after 1814 London rarely exercised this prerogative. The United States, in return, pledged not to attack British-controlled Canada, as it had during its struggle for independence and during the War of 1812.

Treaties negotiated by the U.S. government between 1814 and 1848, including the Webster-Ashburton Treaty of 1842 and the Oregon Boundary Treaty of 1846, secured further expansion of American territorial holdings without jeopardizing British claims in Canada. The Treaty of Guadalupe-Hidalgo, signed at the conclusion of the Mexican-American War in 1848, provided the United States with possession of present-day California, Arizona, Nevada, and Utah, as well as parts of New Mexico, Colorado, and South Dakota. In return the administration of President James K. Polk paid Mexico a paltry $15 million and promised not to annex any further Mexican territory, despite contrary pressures from many American citizens.

By the middle of the nineteenth century America had, through warfare and treaty making, established itself as a colossal land power stretching from the Atlantic to the Pacific Ocean. The nation's asserted Manifest Destiny to dominate the continent reflected racial, religious, and cultural assumptions of American superiority that found their way into the treaties of the period. Time and again, American leaders asserted their right to expand. Time and again, they laid claim to territories they had never before controlled. The non-Americans—Indians, Mexicans, and others—who resided on many of the new U.S. territories received little voice in the treaties negotiated during this period.

Treaties and American Overseas Expansion

After the conclusion of the Civil War in 1865, U.S. treaties focused on expanding American economic, political, and cultural interests outside of North America. In 1867 Secretary of State William Henry Seward secured a treaty with Russia, which agreed to sell the territory of Alaska to the United States for $7.2 million. Seward foresaw that this northern "icebox" would provide important natural resources and help extend American economic interests across the Pacific Ocean. The U.S. Senate almost rejected this treaty, as it rejected many of Seward's other expansionist schemes. Nonetheless, the Alaska treaty created a precedent for American overseas expansion that would slowly reach its fruition around the end of the nineteenth century.

Following a few short months of warfare with the overextended and declining Spanish Empire, at the end of 1898 the United States secured the Treaty of Paris with Madrid's representatives. By the terms of this treaty, Spain vacated its colony in Cuba, acknowledging America's sphere of influence in the area. The Spanish also ceded Puerto Rico, Guam, and the Philippine archipelago to the United States. With Senate approvalin early 1899, these islands became America's first extended foreign colonies. The provisions for American occupation of the Philippines allowed President William McKinley to wage forty-one months of brutal ground warfare against a native Filipino resistance. By 1902, when the American counterinsurgency forces asserted nearly complete control over the archipelago, as many as twenty-thousand Filipino rebels had died opposing American colonialism. Some 4,200 Americans also perished in this battle to enforce U.S. occupation under the terms of the Treaty of Paris. Many Americans, the so-called anti-imperialists, opposed U.S. military activities in the Philippines, but President McKinley acted with the legitimacy provided by the treaty with Spain.

Following the Panamanian Revolution of 1903, the administration of President Theodore Roosevelt used a similar tact. Secretary of State John Hay negotiated the Hay-Bunau–Varilla Treaty with the newly created state of Panama in the same year. The treaty granted the United States the right to construct and operate an isthmian canal linking the Caribbean Sea with the Pacific Ocean. When completed in 1914, the fifty-one-mile canal allowed ships to travewl between the Atlantic and Pacific Oceans, saving the thousands of miles required to circumnavigate South America before the existence of this passage. The new transport route greatly facilitated trade between the productive eastern seaboard of the United States and the large markets of Asia. The Hay-Bunau–Varilla Treaty allowed for American construction of and control over the Panama Canal. After many subsequent treaty revisions—the most significant in 1977—the Panamanian government attained sovereignty over the canalzone in 2000.

The treaties negotiated by the United States with Russia, Spain, and Panama after the Civil War indicated that American interests had extended far beyond the North American continent and its established trading routes with Europe. An industrializing nation that had reached the end of its western frontier looked overseas for new markets and strategic possessions. American foreign expansion occurred primarily through treaties negotiated with declining empires (Spain), established states seeking new allies (Russia), and new regimes subject to foreign pressure (Panama). U.S. imperialism in the late nineteenth and early twentieth centuries was relatively costless for Americans because their leaders attained so much at the negotiating table.

Multilateral Treaties and a Liberal International Order

In the aftermath of World War I, many Americans sought new mechanisms for building international cooperation and averting future military conflicts. President Woodrow Wilson called for a new kind of diplomacy that rejected the competing alliances, autocracies, and arms races of old. Instead, he argued that only what he called a League of Nations could promise free trade, collective security, and long-term international stability. America had entered World War I to "make the world safe for democracy," according to Wilson, and he sought a peace treaty at the close of hostilities that carried this vision to fruition.

At the Paris Peace Conference in 1919 Wilson pressured his allied counterparts—particularly Georges Clemenceau of France, Vittorio Orlando of Italy, and David Lloyd George of Great Britain—to formulate a treaty that emphasized European reconstruction and cooperation rather than war revenge. The American president succeeded only in part, but he did manage to include a covenant creating a League of Nations in the final treaty authored largely by France, Italy, Great Britain, and the United States. On 28 June 1919 the defeated leaders of Germany signed the treaty at the Chateau de Versailles outside Paris, the site of more than five months of heated negotiations on the text of what became known as the Versailles Treaty.

In the next year, rancorous Senate debate resulted in the rejection of the Versailles Treaty by the United States. Despite President Wilson's tireless public speeches on behalf of the treaty, isolationists, led by Republican senator Henry Cabot Lodge, managed to depict Wilson's League of Nations as a harmful encumbrance that would embroil Americans in additional overseas difficulties. Lodge and his colleagues added numerous reservations to the treaty that would restrict American participation in the League. On 19 March 1920 these reservations and the Versailles Treaty itself failed to receive the necessary two-thirds majority in the Senate. An odd collection of Republican isolationists and Democratic supporters of Wilson's original proposal had prohibited American participation in a nascent liberal international order.

Through the 1920s and 1930s this isolationist sentiment spurned official U.S. alliance with foreign powers. Washington did, however, enter into a series of multilateral treaties aimed at naval disarmament (the Washington Treaty of 1921 and the London Treaty of 1930) and outlawing war (the Kellogg-Briand Pact of 1928). These treaties had few enforcement mechanisms, but they sought to guarantee a peaceful and open climate for American businesses that were then expanding their activities overseas.

World War II illustrated the shortcomings in these platitudinous treaties. When Germany, Italy, and Japan began to pursue militaristic policies in the early 1930s, the international community lacked the legal mechanisms and political will to react with necessary force. Without American participation, the League of Nations was a very weak reed. Without forceful penalties for treaty violations, the fascist powers were not deterred from attacking neighboring states.

During the course of World War II, many Americans vowed to correct the mistakes of the past. President Franklin Roosevelt made it clear that the war would only end with the unconditional surrender of the fascist powers and the creation of a new series of international treaties that guaranteed, with force, the kind of liberal international order envisioned by Wilson. In particular, Roosevelt called for a United Nations that would include a Security Council of the great powers, capable of employing force for collective security.

The United Nations Charter, signed in San Francisco on 26 June 1945, made this vision into a reality. In contrast to its rejection of the League of Nations in 1920, on 28 July 1945 the U.S. Senate approved the United Nations Charter by a vote of 89 to 2. A series of arrangements for multilateral economic cooperation came to fruition around this same time. The Bretton Woods agreements of 1944 stand out because they created the International Bank for Reconstruction and Development (the World Bank) and the International Monetary Fund (IMF), both designed to regulate and support capitalist wealth creation across the globe. At the center of these new international institutions, the United States took on an unprecedented role as the primary financier for global economic exchanges. Unlike the UN Charter, the ground-breaking Bretton Woods agreements were not handled as treaties, but rather as economic legislation, in the U.S. House of Representatives and Senate. At the time, international economics did not attract the same high political attention as issues of military security.

Cold War hostilities between the United States and the Soviet Union distorted American multilateralism. After 1945 U.S. treaties focused on building collective security alliances with states imperiled by communist infiltration and possible invasion. The North Atlantic Treaty Organization (NATO), created in 1949, provided for mutual security and close military cooperation among Western Europe, Canada, and the United States. Each government pledged that it would regard an attack on one member as an attack on all. By approving NATO the Senate affirmed a new bipartisan anticommunist consensus in the United States. In place of prior isolationist urgings, American politicians firmly committed themselves to the containment of communism abroad through extensive and long-term U.S. military and economic intervention. The creation of NATO marked the end of American isolationism by treaty.

In the 1950s the United States extended the NATO precedent to other areas of the world. In 1954 it joined Great Britain, France, Australia, New Zealand, the Philippines, Thailand, and Pakistan in the creation of the Southeast Asia Treaty Organization (SEATO). America also concluded a mutual defense treaty with the Guomindang government of Taiwan in late 1954. SEATO and the Taiwan treaty pledged their signatories to cooperate for mutual defense against communist threats. The treaties also obligated the governments to promote free markets and democracy.

SEATO commitments contributed to increasing American intervention in Southeast Asia after 1954. This was particularly true in Indochina, where the United States became the chief sponsor of an anticommunist South Vietnamese government. Belligerent autocrats in South Vietnam—as well as in Taiwan and Pakistan—used their nations' treaties with the United States to call upon American military support for anticommunist warfare rather than domestic development and democratization. The failure of U.S. military activities in Vietnam between 1965 and 1975 proved that SEATO and other treaties had misdirected American policies.

In the aftermath of the Vietnam War, the United States shied away from new treaties of defensive alliance. Instead, American officials focused on arms control in their attempts to reduce tensions with the Soviet Union. In 1972 the two superpowers signed the Strategic Arms Limitation Treaty (SALT I), which for the first time limited the future construction of nuclear weapons delivery systems. It also included an Anti-Ballistic Missile (ABM) Treaty that prohibited the two governments from building more than two missile defense sites. In 1974 they reduced this limit to one missile defense site for each nation.

SALT II, signed in 1979, pledged the two superpowers to additional limits on nuclear weapons delivery systems. President James Earl Carter withdrew the treaty from Senate consideration after the Soviet invasion of Afghanistan in December 1979, but his successor, Ronald Reagan, voluntarily followed through on the SALT II limitations. Despite Reagan's assertion that the Soviet Union was an "evilempire," he pressed forward with arms control negotiations. The world was too dangerous to do otherwise and the treaties of the 1970s had attracted strong support among citizens, intellectuals, and policymakers.

Reagan negotiated the most far-reaching arms control treaties of any American president. The Intermediate Nuclear Forces Treaty (INF) of 1988 eliminated an entire group of weapons for the first time: the intermediate and short-range nuclear missiles stationed by both superpowers in Europe. In 1991 Reagan's successor, George H. W. Bush, concluded negotiations for the Strategic Arms Reduction Treaty (START I) that reduced both American and Russian nuclear arsenals by 30 percent. These treaties contributed to the peaceful end of the Cold War.

In the post–Cold War world, where America's vision of a liberal international order appears triumphant, U.S. leaders have proven unsure about future treaty negotiations. Presidents William Jefferson Clinton and George W. Bush have pursued policies embracing both American unilateralism and international cooperation. President Bush, for example, withdrew from the ABM Treaty in 2001 while he was managing an international coalition of states fighting terrorist influences in Afghanistan and other areas. American presidents often prefer to act without the restrictions and senatorial oversight of treaty negotiations. This is likely to remain true in the twenty-first century, but future leaders will surely rely on treaties to affirm serious and long-standing political, military, and economic commitments abroad.

BIBLIOGRAPHY

Bundy, McGeorge. Danger and Survival: Choices about the Bomb in the First Fifty Years. New York: Random House, 1988.

Cooper, John Milton, Jr. Breaking the Heart of the World: Woodrow Wilson and the Fight for the League of Nations. New York: Cambridge University Press, 2001.

Dallek, Robert. Franklin D. Roosevelt and American Foreign Policy, 1932–1945. New York: Oxford University Press, 1979.

Gaddis, John Lewis. Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy. New York: Oxford University Press, 1982.

Garth off, Raymond L. Détente and Confrontation: American-Soviet Relations from Nixon to Reagan. Rev. ed. Washington, D.C.: Brookings Institution, 1994.

———. The Great Transition: American-Soviet Relations and the End of the Cold War. Washington D.C.: Brookings Institution, 1994.

LaFeber, Walter. The American Search for Opportunity, 1865–1913. New York: Cambridge University Press, 1993.

McMahon, Robert J. The Limits of Empire: The United States and Southeast Asia since World War II. New York: Columbia University Press, 1999.

Perkins, Bradford. The Creation of a Republican Empire, 1776–1865. New York: Cambridge University Press, 1993.

C. H.McLaughlin

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