In a speech before the National Rifle Association (NRA) on April 26, 2019, President Trump announced that he was requesting the return of the Arms Trade Treaty (ATT) from the Senate and that the United States would unsign this treaty.Footnote 1 Shortly thereafter, Trump issued a formal letter to the Senate requesting the ATT's return.Footnote 2 As of late September, the Senate had not formally approved Trump's request.Footnote 3 Nonetheless, on July 18, 2019, the Trump administration communicated to the secretary-general of the United Nations that the United States does not intend to become a party to the ATT and thus has no future legal obligations stemming from signature.Footnote 4
The ATT seeks to “[e]stablish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms” and to “[p]revent and eradicate the illicit trade in conventional arms and prevent their diversion.”Footnote 5 In particular, the ATT requires each state party to establish and maintain a national control system to regulate and document the international export, import, transit, trans-shipment, and brokering of conventional arms.Footnote 6 The national control system documentation as well as a report of the national laws and regulations enacted to implement the provisions of the treaty are to be made available to the other state parties.Footnote 7 Additionally, each state party must consider whether a transfer of conventional arms “would contribute to or undermine peace and security” in the international community, and the state is entirely prohibited from engaging in a transfer if the state knows that the transferred arms would be used in the commission of genocide, crimes against humanity, or war crimes.Footnote 8 Presently, 104 nations are party to the ATT.Footnote 9
The UN General Assembly adopted the ATT on April 2, 2013,Footnote 10 and it entered into force on December 24, 2014.Footnote 11 The U.S. secretary of state at the time, John Kerry, signed the ATT on September 25, 2013, and President Obama transmitted the treaty to the Senate for its advice and consent on December 9, 2016, within his last two months in office.Footnote 12 In his letter accompanying the transmission, Obama noted that the United States did not need to change or enact any regulations or laws to comply with the treaty.Footnote 13 The Senate referred the ATT to the Senate Foreign Relations Committee on the same date, but no further action has been taken by the Committee.Footnote 14
Speaking at an NRA convention on April 26, 2019, Trump publicly announced his intent to withdraw the ATT from the Senate's advice and consent process, simultaneously signing a letter requesting the ATT's return.Footnote 15 Trump also stated: “[T]he United States will be revoking the effect of America's signature from this badly misguided treatment [agreement]. We're taking our signature back. The United Nations will soon receive a formal notice that America is rejecting this treaty.”Footnote 16 Following Trump's statement, the White House issued a public statement reiterating Trump's announcement “that he will never ratify the ATT and will ask the Senate to return it.”Footnote 17 The statement continued:
• The ATT is being opened up for amendment in 2020 and there are potential proposals that the United States cannot support.
…
• By announcing the United States will not join the ATT, President Trump is ensuring this agreement will not become a platform to threaten Americans’ Second Amendment rights.
…
• Currently, 63 countries are completely out of the agreement, including major arms exporters like Russia and China.
• The ATT cannot achieve its chief objective of addressing irresponsible arms transfers if these major arms exporters are not subject to it at all.Footnote 18
Three days later, Trump issued an official letter to the Senate, stating:
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. 114-14, 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.Footnote 19
Trump's request to the Senate is not unprecedented. In 1856, President Pierce sent an analogous request to the Senate, which formally returned the treaty shortly thereafter.Footnote 20 Since then, this request-and-return procedure has occurred periodically.Footnote 21 Other presidents to make this type of request include President Wilson,Footnote 22 President Franklin D. Roosevelt,Footnote 23 and President Nixon.Footnote 24 In the modern era, the Senate's process for returning a treaty involves a resolution referred out by the Senate Foreign Relations Committee, which the Senate then has the opportunity to adopt by a majority vote.Footnote 25 In a major report prepared in 2001 about the role of the Senate with respect to treaties and other international agreements, the Congressional Research Service stated: “The President does not have the formal authority to withdraw a treaty from Senate consideration without the Senate's concurrence.”Footnote 26 Historically, the Senate has apparently always consented to the return of a treaty requested by the president.Footnote 27 This may stem in part from the fact that, as a matter of U.S. constitutional practice, treaties can only be ratified with the concurrence of the president, and the president is under no legal obligation to ratify a treaty even after the Senate has given its advice and consent.Footnote 28
For the ATT, Senator Rand Paul, a member of the Senate Foreign Relations Committee, presented a resolution to return the treaty to Trump approximately two weeks after Trump's formal request to the Senate.Footnote 29 As of late September of 2019, the Committee had not yet acted on the resolution.Footnote 30
Trump did not wait for the Senate to return the ATT before communicating to the United Nations that the United States did not intend to become a party to the ATT. On July 18, 2019, his administration sent the following message to the UN secretary-general:
This is to inform you, in connection with the Arms Trade Treaty, done at New York on April 2, 2013, 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 September 25, 2013.
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, and all other publicly available media relating to the treaty be updated to reflect this intention not to become a party.Footnote 31
This language closely tracks language from Article 18 of the Vienna Convention on the Law of Treaties regarding the duration of international legal obligations arising from treaty signature. Article 18 provides that, after it has signed a treaty, “[a] State is obliged to refrain from acts which would defeat the object and purpose of [this] treaty … until it shall have made its intention clear not to become a party to the treaty.”Footnote 32 A common interpretation of this provision is that a state party may not act in such a manner that would make it impossible or substantially more difficult for the state to ultimately comply with the treaty.Footnote 33
An earlier example—the initial exampleFootnote 34—of treaty “unsigning” by the United States occurred when the administration of President George W. Bush sent an analogous letter to the United Nations in 2002 in connection with the Rome Statute establishing the International Criminal Court.Footnote 35 The Rome Statute was in a different procedural posture than the ATT, however, because it had not yet been submitted to the Senate for advice and consent.Footnote 36 Thus, Trump's unsigning is the first time a United States president has unsigned a treaty at a time when, as a matter of U.S. domestic legal procedure, the treaty was pending before the Senate. Few commentators have thus considered whether such an action is permissible as a matter of U.S. constitutional law or whether the Trump administration's notification to the United Nations can be taken as adequate for purposes of Article 18 at a time when the treaty is pending before the Senate.Footnote 37