Negotiated Treaties: Path To Becoming Law

The process of how a negotiated treaty becomes law varies depending on the country and the type of agreement. In the United States, the President has the power to negotiate treaties, but they only become law with the advice and consent of the Senate, with a two-thirds majority vote. Treaties are considered the supreme law of the land, equivalent in status to federal legislation. However, the President can also enter into executive agreements without the Senate's approval, which are still binding under international law.

The role of the President

The President plays a crucial role in the process of negotiating and ratifying treaties, which are binding agreements between nations that become part of international law. According to the United States Constitution, the President has the power to make treaties "by and with the Advice and Consent of the Senate, provided two-thirds of the Senators present concur". This means that while the President is the primary negotiator of treaties, the agreement must be approved by a supermajority in the Senate to become binding.

The President's role in the treaty-making process can be divided into several steps. Firstly, the President or another official from the Executive Branch negotiates the terms of the treaty. Once the negotiations are complete, the President or the Executive Branch official signs the draft treaty. At this stage, the President has the sole power to negotiate and sign treaties without requiring the approval of the Senate.

After the treaty is signed, the President submits it to the Senate for consideration. The Senate Foreign Relations Committee then reviews the treaty and reports back to the full Senate. The Senate can either approve or reject the treaty. If the Senate approves the treaty by a two-thirds majority, the process returns to the Executive Branch for final ratification.

It is important to note that the Senate does not have the power to ratify treaties. Instead, it provides advice and consent, and the President makes the final decision to enter into the treaty on behalf of the United States. The President has the authority to ratify or reject a Senate-approved treaty. If the President decides to ratify, they may proclaim the treaty to be in force by issuing an Executive Order.

Additionally, the President can enter into "executive agreements" with foreign nations without seeking the advice and consent of the Senate. These executive agreements are still binding under international law but do not have the force of federal legislation as treaties do.

The role of the Senate

The United States Constitution outlines the role of the Senate in the process of ratifying international agreements. According to Article II, Section 2, Clause 2, also known as the Treaty Clause, 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". This clause establishes the Senate's role in providing advice and consent, with a two-thirds supermajority vote, to render a treaty binding with the force of federal law.

The Senate's authority in the treaty-making process is generally confined to either disapproving or approving a treaty. While the President has the sole power to negotiate treaties, the Senate can put reservations on treaties, modifying or excluding certain legal effects. The President then has the choice to ratify or reject the treaty. This practice of attaching conditions or reservations by the Senate has been in place since the early Republic.

The standard process involves the President submitting the treaty to the Senate, which then considers and approves it by a two-thirds majority. The Senate Foreign Relations Committee plays a crucial role in this process. It is worth noting that the Senate does not directly ratify treaties. Instead, after the Senate's approval, ratification occurs through the formal exchange of instruments of ratification between the United States and the foreign power(s).

In modern times, Presidents have frequently entered into "executive agreements" without seeking the advice and consent of the Senate. These agreements are still binding under international law, but they are distinct from treaties, which carry the force of federal legislation in the United States.

The Treaty Clause

The Constitutional Convention of 1787 aimed to address these inefficiencies and debated the treaty-making process. Initially, it was proposed that the US Senate, as the upper house of Congress, would hold the power to make treaties. However, just before the Convention adjourned, it was decided that this power would be shared with the President, with the “advice and consent" mechanism allowing the Senate to provide input.

Leading federalists like John Jay, James Madison, and Alexander Hamilton supported this arrangement, with Madison describing the Treaty Clause as giving the Senate only "partial agency" in the President's foreign-relations power. Hamilton further argued that the procedure appropriately combined the two branches in foreign affairs.

Under the Treaty Clause, the President independently negotiates and signs treaties and then presents them to the Senate for approval or disapproval. The Senate does not have the power to advise the President before a treaty is concluded. The Senate's authority is limited to either approving or disapproving a treaty, with the power to attach conditions or reservations.

For a treaty to become binding and have the force of federal law, it requires the approval of a two-thirds supermajority of the Senate. Treaties are considered equivalent in status to federal legislation and are subject to judicial interpretation and review.

In summary, the Treaty Clause of the US Constitution outlines the process of ratifying international agreements, with the President and the Senate sharing the power to make treaties. The President negotiates and signs treaties, which are then presented to the Senate for approval. Treaties become federal law with the force of legislation upon approval by a two-thirds majority in the Senate.

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 self-executing treaty is one that may be directly applied in the courts, whereas a non-self-executing treaty requires legislative implementation before it may be applied by the courts or other domestic law-applying officials.

Most scholars in the United States regard a treaty's self-executing character as solely a matter of domestic law. This view finds support in the fact that, under the constitutional law of some states (for example, the United Kingdom), treaties as a rule may not be enforced by the courts except via implementing legislation. However, non-US scholars have taken the position that a treaty's self-executing character is a matter of international law.

In the United States, the Treaty Clause of the Constitution (Article II, Section 2, Clause 2) establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States and other countries, and holds that the advice and consent of a two-thirds supermajority of the Senate renders a treaty binding with the force of federal law.

Treaties and federal statutes are similarly regarded as the "supreme law of the land" per the Supremacy Clause of the U.S. Constitution, with "no superior efficacy ... given to either over the other". Thus, by virtue of ratification, a treaty is incorporated into the body of U.S. federal law no differently than a legislative act. As with statutes, treaties are subject to judicial interpretation and review.

In the 1829 case, Foster v. Nielson, Chief Justice John Marshall, while affirming that a treaty is constitutionally the "law of the land", first articulated the difference between self-executing and non-self-executing agreements domestically. He stated that:

> "Our constitution 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, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation 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."

Non-self-executing treaties

In the US, non-self-executing treaties are not directly enforceable in US courts, and Congress must generally pass legislation implementing the provision in a domestic statute to make it judicially enforceable. Compliance with non-self-executing treaty provisions may also be achieved through other avenues, such as judicial enforcement of legislation that predates the treaty or through other executive or administrative action outside the judicial system.

The US Supreme Court first recognised the self-execution dichotomy in an 1829 decision, Foster v. Neilson. In his opinion for the Court, Chief Justice John Marshall explained:

> "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 [a treaty is] only the equivalent of a legislative act when the treaty 'operates of itself without the aid of any legislative provision.' When the terms of treaty 'import a contract' or suggest that some future legislative act is necessary, Marshall explained, '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 revisited the self-execution doctrine in the 2008 decision, Medellín v. Texas, which held that a provision in 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.

Determining whether a treaty provision is self-executing is not always straightforward. In some cases, a treaty may specify whether it is intended to be given immediate domestic legal effect without further action. However, the Medellín Court 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.

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