Treaties Becoming Law In The Us: The Process Explained

Treaties are written agreements between sovereign states or between states and international organisations, governed by international law. In the US, the President is the primary negotiator of treaties, which are then ratified by the Senate. Treaties are incorporated into the body of US federal law in the same way as a legislative act. The US enters into more than 200 treaties and other international agreements each year, covering a wide range of subjects, including peace, trade, defence, territorial boundaries, human rights, law enforcement, and environmental matters.

The President's role in treaty-making

The President has the sole power to negotiate the terms of a treaty, and this power is not shared with the Senate. Once the treaty negotiations are complete, the President or another official from the Executive Branch signs the draft. At this stage, the treaty is not yet binding, as it requires the approval of the Senate. The President then submits the treaty to the Senate for their advice and consent. The Senate can choose to consent unconditionally, refuse consent, or stipulate conditions, such as amendments or reservations.

If the Senate consents, with a two-thirds majority, the process returns to the Executive Branch. The President then has the final decision on whether to ratify the treaty and make it officially binding for the US. It is important to note that the President is not obligated to ratify a treaty even if the Senate has approved it. They have the discretion to abandon the treaty if they are dissatisfied with the conditions or amendments attached by the Senate.

While the President has the primary role in treaty-making, the Senate also has important functions. Their advice and consent are necessary for a treaty to come into effect. Additionally, the Senate can play a role in treaty negotiations by enacting legislation that encourages the Executive Branch to pursue specific objectives. However, the President is not required to seek the Senate's advice before concluding a treaty, and their role is primarily legislative in nature.

In summary, the President's role in treaty-making is central and encompasses the power to initiate, negotiate, and finalise treaties. While the Senate has a crucial role in providing advice and consent, the President ultimately decides whether to ratify and make the treaty binding for the US. This process reflects the separation of powers and the checks and balances within the US system.

The Senate's role in treaty-making

The US Constitution grants the Senate a share of the treaty-making power. This is to give the President the benefit of the Senate's advice and counsel, to check presidential power, and to safeguard the sovereignty of the states by giving each state an equal vote in the treaty-making process. Treaties are binding agreements between nations and become part of international law. Treaties to which the US is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land".

The Senate does not ratify treaties. Following consideration by the Committee on Foreign Relations, the Senate either 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 US and the foreign power(s). The President has the final responsibility for completing the treaty-making process.

The Senate has considered and approved for ratification all but a small number of treaties negotiated by the President and his representatives. In some cases, when Senate leadership believed a treaty lacked sufficient support for approval, the Senate simply did not vote on the treaty and it was eventually withdrawn by the President.

In recent decades, Presidents have frequently entered the US into international agreements without the advice and consent of the Senate. These are called "executive agreements" and are still binding on the parties under international law.

Treaties as law of the land

Treaties are an important aspect of international relations, and in the United States, they are considered the "law of the land". The process of treaty-making in the US is outlined in the Treaty Clause (Article II, Section 2, Clause 2) of the US Constitution. This clause empowers the President as the primary negotiator of agreements with other countries and establishes that a treaty becomes binding with the force of federal law when it receives the "advice and consent" of two-thirds of the Senate.

The history of the Treaty Clause is rooted in the weaknesses of the Articles of Confederation, which lacked a mechanism to ensure individual states complied with international obligations. The Treaty Clause was added to the Constitution to address this issue and give treaties the force of law.

Once a treaty is ratified by the President and receives the required approval from the Senate, it becomes part of US federal law, just like a legislative act. Treaties are subject to judicial interpretation and review, and courts have consistently recognised their legally binding nature.

It's important to distinguish between self-executing treaties and non-self-executing treaties. Self-executing treaties do not require additional legislative action to take effect, while non-self-executing treaties must be implemented by an act of the legislature. This distinction has significant implications under US law, as only self-executing treaties can supersede prior inconsistent acts of Congress.

While treaties are an important tool for conducting foreign relations, they are not the only type of international agreement. Other types include congressional-executive agreements and sole executive agreements. The use of these alternative agreements has become more common in modern US foreign policy, with treaties becoming comparatively rare.

In conclusion, treaties in the United States are considered the "law of the land", with a specific process outlined in the Constitution for their ratification. They carry the force of federal law and are subject to judicial interpretation. The distinction between self-executing and non-self-executing treaties is crucial, as it determines their effect on domestic law.

Self-executing treaties

The distinction between self-executing and non-self-executing treaties is important in the US legal system. All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty, on the other hand, would not supersede a prior inconsistent act of Congress in a US court.

The US Constitution declares a treaty to be the law of the land. Chief Justice Marshall explained in 1829 that:

> Our [C]onstitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature. But when the terms of the treaty import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court.

The Supreme Court first recognised the self-execution dichotomy in the 1829 decision, Foster v. Neilson. In this case, the Court held that the treaty provision at issue—which stated that certain land grants from the King of Spain shall be ratified and confirmed—was non-self-executing because it suggested that Congress would ratify the land grants through a future legislative act.

Determining whether a treaty is self-executing or non-self-executing can be complex. Various indicators can be considered, including statements by Congress or the Executive regarding the treaty, the indeterminate language of the treaty, or whether the treaty deals with matters within the exclusive law-making power of Congress, indicating that Congress must create implementing legislation.

The Supreme Court revisited the self-execution doctrine in the 2008 decision, Medellín v. Texas. In this case, the Court held that Article 94 of the Charter of the United Nations was not self-executing because it was not a directive to domestic courts and could not be judicially enforced in the face of contrary state law.

The Supreme Court has deemed a treaty non-self-executing when the text manifested an intent that the treaty would not be directly enforceable in US courts, or when the Senate conditioned its advice and consent on the understanding that the treaty was non-self-executing. Other relevant factors include whether the treaty provisions are suitably precise or obligatory to be capable of judicial enforcement, and whether the provision contemplates that implementing legislation or other legal measures will follow the treaty's ratification.

Non-self-executing treaties

The distinction between self-executing and non-self-executing treaties first emerged in the early 19th century in the United States, where it has thoroughly confounded the courts. A non-self-executing treaty is one that requires legislative implementation before it may be applied by the courts and other domestic law-applying officials.

The determination of whether a treaty is self-executing or not is not always a straightforward task. In some cases, a treaty may specify whether it is intended to be given immediate domestic legal effect without further action. However, the Supreme Court has disapproved of the notion that certain special words or phrases are necessary to make a treaty self-executing. Instead, the primary question is whether the President and the Senate intended the treaty to be self-executing.

The Supreme Court has deemed a treaty non-self-executing when the text manifested an intent that the treaty would not be directly enforceable in US courts, or when the Senate conditioned its advice and consent on the understanding that the treaty was non-self-executing. Other relevant factors include whether the treaty provisions are suitably precise or obligatory to be capable of judicial enforcement, and whether the provision contemplates that implementing legislation or other legal measures will follow the treaty's ratification.

Many courts and commentators agree that treaty provisions that would require the US to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing. Although the Supreme Court has not addressed these constitutional limitations, lower courts have concluded that, because Congress controls the power of the purse, a treaty provision that requires the expenditure of funds must be treated as non-self-executing. Other lower courts have suggested that treaty provisions that purport to create criminal liability or raise revenue must be non-self-executing because those powers are the exclusive prerogative of Congress.

Despite the importance of the self-execution doctrine in US domestic law, self-execution does not impact treaties' status under international law. Under international law, treaties create rights and obligations that nations owe to one another that are independent of each nation's domestic law. International law generally allows each country to decide how to implement its treaty commitments into its own domestic legal system. The self-execution doctrine concerns domestic enforcement of treaties but does not affect the US' obligation to comply with the provision under international law. Thus, even if courts cannot enforce a treaty provision in domestic courts because it is non-self-executing, that provision may still be binding under international law, and the US may still have an international legal obligation to comply.

Frequently asked questions