The Negotiated Treaty: Ratification And Law

The process of ratifying a negotiated treaty to become law involves several steps and requires the involvement of both the executive and legislative branches of the U.S. government. According to the U.S. Constitution, the President has the power to make treaties with the advice and consent of the Senate. This means that the President plays a primary role in negotiating and signing treaties, while the Senate provides input and must approve the treaty with a two-thirds majority vote for it to become binding federal law. The process typically begins with the Secretary of State authorizing negotiations, followed by representatives from the U.S. and other countries agreeing on terms and signing the treaty. The President then submits the treaty to the Senate, which considers it through the Senate Foreign Relations Committee. If the Senate approves the treaty, the ratification process is completed with the formal exchange of instruments of ratification between the U.S. and the other parties to the treaty.

The US President has the power to make treaties, with the advice and consent of the Senate

The US Constitution grants the President the power to make treaties, but this power is contingent on the "advice and consent" of the Senate. This is outlined in Article II, Section 2, Clause 2 of the Constitution, also known as the Treaty Clause. The President is the primary negotiator of agreements between the US and other countries, but for a treaty to become binding, it requires the approval of at least two-thirds of the Senators present.

The Treaty Clause was included in the Constitution to address the weaknesses of the Articles of Confederation, which was the first governmental framework of the United States. The Articles established a weak central government and granted significant autonomy to individual states. Under the Articles, a supermajority of states (nine out of thirteen) was needed for treaties to take effect, making it difficult to form foreign pacts. The Treaty Clause, therefore, shifted more power to the federal government in foreign affairs.

While the President has the sole power to negotiate treaties, the Senate plays a crucial role in providing advice and consent. The Senate's authority is generally confined to either disapproving or approving a treaty, with approval sometimes including the power to attach conditions or reservations. The Senate does not have a constitutionally mandated role in advising the President before the conclusion of a treaty. Once the Senate gives its advice and consent, the treaty is returned to the President, who then decides whether to ratify it.

Treaties made by the President with the advice and consent of the Senate are considered the "supreme Law of the Land" under the Supremacy Clause of the US Constitution. They are equivalent in status to federal legislation and are subject to judicial interpretation and review. Treaties can be self-executing, meaning they do not require additional legislative action to take effect, or non-self-executing, which need to be implemented by an act of the legislature.

In recent decades, Presidents have frequently entered into international agreements without seeking the advice and consent of the Senate. These are known as "executive agreements" and, while not brought before the Senate for approval, are still binding under international law.

Treaties are equivalent in status to federal legislation

Treaties are a serious legal undertaking in both international and domestic law. Once a treaty comes into force, it is binding on the parties and becomes part of international law. Treaties are negotiated and signed by the President, who then presents the proposed treaty to the Senate for its approval or disapproval. The Senate does not ratify treaties but considers them and either approves or rejects a resolution of ratification. If the resolution passes, ratification takes place when the instruments of ratification are formally exchanged between the United States and the foreign power(s).

In the United States, treaties are equivalent in status to federal legislation. The United States Constitution provides that 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" (Article II, Section 2). Treaties to which the United States is a party form part of what the Constitution calls "the supreme Law of the Land." This means that treaties have the same domestic status as federal statutes, and courts must regard them as such.

The effectiveness of a treaty as domestic law in the United States does not occur automatically upon its entry into force internationally. It only occurs when the treaty is "self-executing," meaning it operates without the need for implementing legislation. In the case of Foster v. Neilson, Chief Justice Marshall stated that "Our constitution declares a treaty to be the law of the land... 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."

In the event of a conflict between a self-executing treaty and a federal statute, legal primacy is given to the measure that is later in time. However, courts will attempt to harmonize the respective international and domestic obligations if possible. As indicated by the Supreme Court in Whitney v. Robertson, "By the Constitution, a treaty is placed on the same footing and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other."

Therefore, treaties are indeed equivalent in status to federal legislation in the United States, with both being considered part of the "supreme Law of the Land."

Treaties are binding agreements between nations and become part of international law

The Senate does not directly ratify treaties. Instead, it considers a resolution of ratification, which, if passed, leads to ratification when the instruments of ratification are formally exchanged between the United States and the foreign power(s). The Senate has approved the vast majority of treaties negotiated by the president and their representatives. In some cases, when the Senate leadership believes a treaty lacks the support needed for approval, the treaty may be withdrawn by the president.

Treaties are equivalent in status to federal legislation and are considered part of the "supreme Law of the Land" according to the United States Constitution. They are subject to judicial interpretation and review, with courts recognising their legally binding nature under the Constitution. Treaties made under the Articles of Confederation, the first governmental framework of the United States, required the approval of a supermajority of states (nine out of thirteen), which often prevented foreign pacts from being made.

In addition to treaties, there are also "executive agreements," which are international agreements entered into by the president without the advice and consent of the Senate. While not brought before the Senate for approval, these agreements are still binding under international law.

The US Constitution addresses international affairs from the President's powers

The President's authority in foreign affairs has been a subject of debate since the early days of the republic. The Constitution grants the President the sole power to negotiate and receive ambassadors, with the advice and consent of the Senate required to finalise treaties. This shared power between the President and the Senate is known as the Treaty Clause, which establishes the procedure for ratifying international agreements. The President acts as the primary negotiator, and with the Senate's approval, treaties become binding with the force of federal law.

The extent of the President's power in foreign affairs was affirmed in the 1936 United States v. Curtiss-Wright Export Corp. decision, where Justice George Sutherland reasoned that the National Government's power in foreign relations is inherent, and thus, the President has broader authority in this area compared to domestic issues. This decision set a precedent for recognising the President's preeminent role in conducting foreign relations.

However, it is important to note that the President's powers are not without checks and balances. The Zivotofsky v. Kerry case in 2015 highlighted that while the President has exclusive authority over the recognition of foreign sovereigns, Congress retains significant power in foreign affairs. For example, Congress can pass trade embargoes, declare war, or control funding for embassies, all of which can express opposition to executive policy without infringing on the President's recognition power.

Additionally, the President's power to make treaties is balanced by Congress's ability to modify or repeal them through subsequent legislative action, even if it violates the treaty under international law. This dynamic ensures a separation of powers and prevents any one branch from having unchecked authority in international affairs.

In conclusion, while the US Constitution grants the President significant powers in international affairs, these powers are not absolute. The President's role in negotiating and receiving ambassadors is clear, but the dynamic with the Senate and Congress in treaty-making and foreign policy-making is more complex and subject to ongoing interpretation and debate.

Treaties can be self-executing or non-self-executing

A self-executing treaty is a type of international agreement that becomes enforceable as domestic law immediately upon ratification, without the need for any additional legislation or implementation by the national legislature. In other words, it can be directly applied in the courts.

On the other hand, a non-self-executing treaty requires implementation through legislation before it becomes judicially enforceable. In other words, it requires legislative implementation before it may be applied by the courts and other domestic law-applying officials.

To identify whether a treaty is self-executing or non-self-executing, 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 determination of whether a treaty is self-executing or non-self-executing is not always straightforward, and there are several disputed aspects of this doctrine. One such dispute is whether a treaty's self-executing character is purely a matter of municipal law or is also addressed by international law. Most scholars in the United States regard a treaty's self-executing character as solely a matter of domestic law, while non-US scholars have taken the position that it is a matter of international law.

It is important to note that the distinction between self-executing and non-self-executing treaties does not affect the binding nature of treaties under international law. All types of agreements, whether treaties or executive agreements, are considered binding under international law.

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