Negotiated Treaties: The Path To Becoming Law

The process of a negotiated treaty becoming law is known as ratification. In the United States, the President has the power to make treaties, but they are not binding until two-thirds of the Senators present concur. Once a treaty is ratified, it becomes part of federal law and is considered the supreme law of the land. Treaties are typically negotiated by members of the Executive Branch, such as the Secretary of State, and then signed by the President. The President then submits the treaty to the Senate for approval or disapproval, with the latter including the power to attach conditions or reservations.

The US President's role in negotiated treaties

The US President plays a crucial role in negotiated treaties, as outlined in the Treaty Clause of the US Constitution (Article II, Section 2, Clause 2). This clause establishes the President as the primary negotiator of agreements between the US and other countries, empowering them to make treaties with the "advice and consent" of the Senate.

The President has the sole power to negotiate and sign treaties, which are then presented to the Senate for approval or disapproval. The Senate cannot amend the treaty but can attach conditions or reservations to it. The President then has the choice to ratify or not ratify the treaty. This process ensures that treaties are formed with the input of both the executive and legislative branches of the US government.

The President's role in treaty-making is further influenced by their position as the Commander-in-Chief of the US Armed Forces and their authority to appoint ambassadors, ministers, and consuls. This allows them to shape foreign policy and international relations, which is essential when negotiating treaties.

In addition to formal treaties, the President can also enter into "executive agreements" with foreign nations without seeking the advice and consent of the Senate. These agreements are still binding under international law but do not carry the force of federal law domestically.

The President's power to make treaties is not unlimited, however. The Supreme Court has ruled that treaties cannot violate the individual rights provisions of the Constitution, as outlined in the Reid v. Covert case in 1957. Additionally, there is ambiguity regarding the President's power to terminate treaties unilaterally, as seen in the Goldwater v. Carter case in 1979.

The Senate's role in approving treaties

The United States Constitution outlines the role of the Senate in approving treaties. 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 procedure for ratifying international agreements, empowering the President as the primary negotiator.

The process of treaty-making typically involves the following steps:

• The Secretary of State authorises negotiation.
• US representatives, including the President or another executive branch official, negotiate the terms.
• The US representatives and foreign parties agree on terms and, upon the authorisation of the Secretary of State, sign the treaty.
• The President submits the treaty to the Senate.
• The Senate Foreign Relations Committee considers the treaty and reports back to the Senate.
• The Senate considers and approves the treaty by a two-thirds majority. The President then proclaims its entry into force.

It is important to note that the Senate does not directly ratify treaties. Instead, it approves or rejects a resolution of ratification. If the resolution passes, ratification occurs through the formal exchange of instruments of ratification between the US and the foreign power(s).

In modern times, Presidents have frequently entered into "executive agreements" with foreign nations without seeking the advice and consent of the Senate. While these agreements are not subject to Senate approval, they remain binding under international law.

Treaties as law of the land

Treaties are considered the "supreme law of the land" in the US, with the same status as federal legislation. The US Constitution's Treaty Clause establishes the procedure for ratifying international agreements, empowering the President as the primary negotiator of agreements between the US and other countries. The advice and consent of a two-thirds supermajority of the Senate are required to render a treaty binding, with the force of federal law.

The process of making treaties involves several steps. First, the Secretary of State authorises negotiation, and US representatives negotiate the terms. Once the terms are agreed upon, the treaty is signed by the US representatives, with the authorisation of the Secretary of State. The President then submits the treaty to the Senate, which considers and approves it by a two-thirds majority. Finally, the President proclaims the treaty's entry into force.

Treaties are generally regarded as pacts among sovereign countries, although in modern practice, other entities such as international organisations have also joined treaties. Treaties can operate simultaneously as domestic law in the US and as tools of foreign policy in the form of pacts between nations.

It is important to distinguish between treaties and agreements. Under US law, the term "treaty" is reserved for agreements made with the advice and consent of the Senate (Article II, Section 2, Clause 2 of the Constitution). Agreements not submitted to the Senate are known as executive agreements. Regardless of their name, if an international agreement is submitted to the Senate for advice and consent, it is considered a treaty under US law.

The Supreme Court has distinguished between self-executing and non-self-executing treaties. Self-executing treaties have domestic force in US courts without requiring further legislation. On the other hand, non-self-executing treaties need additional legislation to have such domestic force. The Court has suggested that there may be a presumption against finding treaties self-executing unless the treaty text clearly indicates otherwise.

The distinction between treaties and agreements

A treaty is a formal agreement between states or international organisations. Treaties are a more direct and formal method of creating international law. They are usually concluded by the process of ratification and are binding in international law. Treaties can be bilateral, between two states, or multilateral, between several states. The Vienna Convention on the Law of Treaties (1969) sets out the rules for interstate treaties.

An agreement, on the other hand, can be created between people, corporations, organisations, and other entities with legal personalities. It is a mutual understanding between two or more competent parties, and it is legally enforceable. Agreements can take various forms, including trade agreements, property transfer agreements, sale agreements, and contracts.

In the context of US law, the distinction is also made between treaties and executive agreements. Treaties are submitted to the Senate for advice and consent, while executive agreements are not. Regardless of their name, if an international agreement is submitted to the Senate, it is considered a treaty under US law.

The Treaty Clause of the US Constitution establishes the procedure for ratifying international agreements, with the President acting as the primary negotiator. Treaties are considered the "supreme law of the land", equivalent to federal legislation.

The process of treaty-making

The Executive Branch's Role:

The President's Role:

After the negotiators sign the treaty, the President submits it to the Senate for their consideration and approval. The President plays a crucial role in treaty-making, as they are responsible for initiating and conducting negotiations, as well as seeking the Senate's consent.

The Senate's Role:

The Senate Foreign Relations Committee then considers the treaty. This committee reviews the treaty's content, assesses its potential impact, and evaluates its alignment with U.S. interests and values. The committee may hold hearings, seek expert opinions, and make amendments to the treaty if necessary. After thorough deliberation, the committee reports its findings and recommendations to the full Senate. The Senate then debates and votes on the treaty. For a treaty to be approved, it requires the support of a two-thirds supermajority of the Senators present, as outlined in Article II, Section 2, Clause 2 of the United States Constitution. If the Senate approves the treaty, the President proclaims its entry into force, making it officially binding on the nations involved.

Executive Agreements:

It is worth noting that not all international agreements made by the United States are treaties. In recent decades, presidents have frequently entered into "executive agreements" with other nations without seeking the advice and consent of the Senate. These agreements are still binding under international law, but they are not considered treaties under U.S. law. Executive agreements are typically used for less formal commitments or when speed and flexibility are required in the decision-making process.

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