U.S.
GOVERNMENT > Foreign Policy and International Affairs > Overview > Treaties
and Other International Agreements: The Role
of the U.S. Senate
Treaties and Other International Agreements: The Role of the U.S. Senate
<DOC>
[DOCID: f:66922.wais]
106th Congress COMMITTEE PRINT S. Prt.
2d Session 106-71
_______________________________________________________________________
TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE
UNITED STATES SENATE
----------
A S T U D Y
PREPARED FOR THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
BY THE
CONGRESSIONAL RESEARCH SERVICE
LIBRARY OF CONGRESS
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
JANUARY 2001
106th Congress
2d Session COMMITTEE PRINT S. Prt.
106-71
_______________________________________________________________________
TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE
UNITED STATES SENATE
__________
A S T U D Y
PREPARED FOR THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
BY THE
CONGRESSIONAL RESEARCH SERVICE
LIBRARY OF CONGRESS
[GRAPHIC] [TIFF OMITTED] TONGRESS.#13
JANUARY 2001
Printed for the use of the Committee on Foreign Relations
__________
U.S. GOVERNMENT PRINTING OFFICE
66922 cc WASHINGTON : 2001
COMMITTEE ON FOREIGN RELATIONS
JESSE HELMS, North Carolina, Chairman
JOSEPH R. BIDEN, JR., Delaware RICHARD G. LUGAR, Indiana
PAUL S. SARBANES, Maryland CHUCK HAGEL, Nebraska
CHRISTOPHER J. DODD, Connecticut GORDON SMITH, Oregon
JOHN F. KERRY, Massachusetts ROD GRAMS, Minnesota
RUSSELL D. FEINGOLD, Wisconsin SAM BROWNBACK, Kansas
PAUL WELLSTONE, Minnesota CRAIG THOMAS, Wyoming
BARBARA BOXER, California JOHN ASHCROFT, Missouri
ROBERT G. TORRICELLI, New Jersey BILL FRIST, Tennessee
LINCOLN D. CHAFEE, Rhode Island
Stephen Biegun, Staff Director
Edwin K. Hall, Minority Staff Director
Richard J. Douglas, Chief Counsel
Brian McKeon, Minority Counsel
LETTER OF SUBMITTAL
----------
Congressional Research Service,
The Library of Congress,
Washington, DC, January 2, 2001.
Hon. Jesse Helms,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In accordance with your request, we have
revised and updated the study ``Treaties and Other
International Agreements: The Role of the United States
Senate,'' last published in 1993. This new edition covers the
subject matter through the 106th Congress.
This study summarizes the history of the treatymaking
provisions of the Constitution and international and domestic
law on treaties and other international agreements. It traces
the process of making treaties from their negotiation to their
entry into force, implementation, and termination. It examines
differences between treaties and executive agreements as well
as procedures for congressional oversight. The report was
edited by Richard F. Grimmett, Specialist in National Defense.
Individual chapters were prepared by policy specialists and
attorneys of the Congressional Research Service identified at
the beginning of each chapter.
The Congressional Research Service would like to thank
Richard Douglas, Chief Counsel of the Committee, Edwin K. Hall,
Minority Staff Director of the Committee, Brian P. McKeon,
Minority Counsel of the Committee, and Robert Dove,
Parliamentarian of the Senate, for their comments on Senate
procedures for consideration of treaties. We would also like to
thank Robert E. Dalton, Assistant Legal Adviser for Treaty
Affairs, Department of State, and other staff members of the
Treaty Office for their assistance with various factual
questions regarding treaties and executive agreements.
Sincerely,
Daniel P. Mulhollan,
Director.
C O N T E N T S
----------
Page
Letter of submittal.............................................. iii
Introductory note................................................ xi
I. Overview of the treaty process................................ 1
A. Background................................................ 2
The evolution of the Senate role......................... 2
Treaties under international law......................... 3
Treaties under U.S. law.................................. 4
Executive agreements under U.S. law...................... 4
(1) Congressional-executive agreements............... 5
(2) Agreements pursuant to treaties.................. 5
(3) Presidential or sole executive agreements........ 5
Steps in the U.S. process of making treaties and
executive agreements................................... 6
Negotiation and conclusion........................... 6
Consideration by the Senate.......................... 7
Presidential action after Senate action.............. 12
Implementation....................................... 12
Modification, extension, suspension, or termination.. 13
Congressional oversight.............................. 14
Trends in Senate action on treaties...................... 14
B. Issues in treaties submitted for advice and consent....... 15
Request for consent without opportunity for advice....... 15
Multilateral treaties.................................... 16
Diminishing use of treaties for major political
commitments............................................ 17
Unilateral executive branch action to reinterpret,
modify, and terminate treaties......................... 18
Difficulty in overseeing treaties........................ 19
Minority power........................................... 19
The House role in treaties............................... 19
Vienna Convention on the Law of Treaties................. 20
C. Issues in agreements not submitted to the Senate.......... 21
Increasing use of executive agreements................... 22
Oversight of executive agreements--the Case-Zablocki Act. 22
Learning of executive agreements......................... 22
Determining authority for executive agreements........... 23
Non-binding international agreements..................... 23
D. Deciding between treaties and executive agreements........ 24
Scope of the treaty power; proper subject matter for
treaties............................................... 24
Scope of executive agreements; proper subject matter for
executive agreements................................... 25
Criteria for treaty form................................. 26
II. Historical background and growth of international agreements. 27
A. Historical background of constitutional provisions........ 27
The Constitutional Convention............................ 28
Debate on adoption....................................... 29
B. Evolution into current practice........................... 31
Washington's administrations............................. 32
Presidencies from Adams to Polk.......................... 35
Indian treaties.......................................... 36
Conflicts and cooperation................................ 37
Executive agreements and multilateral agreements......... 38
Increasing proportion of executive and statutory
agreements............................................. 40
Growth in multilateral agreements........................ 42
III. International agreements and international law.............. 43
A. The Vienna Convention on the Law of Treaties.............. 43
International law status................................. 43
Senate action on the convention.......................... 45
B. Treaty definition......................................... 49
C. Criteria for a binding international agreement............ 50
Intention of the parties to be bound under international
law.................................................... 50
Significance............................................. 51
Specificity.............................................. 52
Form of the agreement.................................... 52
D. Limitations on binding international agreements and
grounds for invalidation................................... 53
Invalidation by fraud, corruption, coercion or error..... 53
Invalidation by conflict with a peremptory norm of
general international law ( jus cogens)................ 54
Invalidation by violation of domestic law governing
treaties............................................... 56
E. Non-binding agreements and functional equivalents........ 58
Unilateral commitments and declarations of intent....... 59
Joint communiques and joint statements.................. 60
Informal agreements..................................... 61
Status of non-binding agreements........................ 62
IV. International agreements and U.S. law........................ 65
A. Treaties.................................................. 65
Scope of the treaty power............................... 65
Treaties as law of the land............................. 72
B. Executive agreements...................................... 76
Congressional-executive agreements...................... 78
Agreements pursuant to treaties......................... 86
Presidential or sole executive agreements............... 87
V. Negotiation and conclusion of international agreements........ 97
A. Negotiation............................................... 97
Logan Act................................................ 98
B. Initiative for an agreement; setting objectives........... 100
C. Advice and consent on appointments........................ 103
Unconfirmed presidential agents.......................... 105
D. Consultations during the negotiations..................... 106
Inclusion of Members of Congress on delegations.......... 109
E. Conclusion or signing..................................... 111
F. Renegotiation of a treaty following Senate action......... 112
G. Interim between signing and entry into force; provisional
application................................................ 113
VI. Senate consideration of treaties............................. 117
A. Senate receipt and referral............................... 118
Senate Rule XXX.......................................... 118
Executive session--proceedings on treaties............... 119
Action on receipt of treaty from the president........... 119
B. Foreign Relations Committee consideration................. 122
C. Conditional approval...................................... 124
Types of conditions...................................... 124
Condition regarding treaty interpretation................ 128
Condition regarding supremacy of the Constitution........ 131
D. Resolution of ratification................................ 136
E. Senate floor procedure................................... 136
Executive session........................................ 136
Non-controversial treaties.............................. 137
Controversial treaties.................................. 138
Consideration of treaties under cloture.................. 141
Final vote.............................................. 142
Failure to receive two-thirds majority.................. 143
F. Return or withdrawal..................................... 145
VII. Presidential options on treaties after Senate action........ 147
A. Ratification.............................................. 147
Ratification of the treaty............................... 147
Exchange or deposit of instruments of ratification (entry
into force)............................................ 149
B. Resubmission of the treaty or submission of protocol...... 150
C. Inaction or refusal to ratify............................. 152
Procedure when other nations attach new conditions....... 153
VIII. Dispute settlement, rules of interpretation, and obligation
to implement................................................... 157
A. Dispute settlement........................................ 157
Conciliation............................................. 158
Arbitration.............................................. 159
Judicial settlement...................................... 161
B. Rules of interpretation................................... 163
C. Obligation to implement................................... 166
IX. Amendment or modification, extension, suspension, and
termination of treaties and other international agreements..... 171
A. Introduction.............................................. 171
B. Amendment and modification................................ 176
Treaties................................................. 176
Executive agreements..................................... 183
C. Extension................................................. 184
Treaties................................................. 184
Executive agreements..................................... 187
D. Suspension................................................ 187
Treaties................................................. 187
Executive agreements..................................... 192
E. Termination or withdrawal................................. 192
Treaties................................................. 192
Terms of treaty; unanimous consent................... 192
Breach............................................... 193
Impossibility of performance......................... 194
Rebus sic stantibus.................................. 194
Jus cogens........................................... 195
Severance of diplomatic relations.................... 195
Hostilities.......................................... 196
State succession..................................... 196
F. U.S. law and practice in terminating international
agreements................................................. 198
General.................................................. 198
Treaties................................................. 201
Executive action pursuant to prior authorization or
direction by the Congress.......................... 202
Executive action pursuant to prior authorization or
direction by the Senate............................ 204
Executive action without prior specific authorization
or direction, but with subsequent approval by the
Congress........................................... 205
Executive action without specific prior authorization
or direction, but with subsequent approval by the
Senate............................................. 205
Executive action without specific prior authorization
or direction, and without subsequent approval by
either the Congress or the Senate.................. 206
Executive agreements..................................... 208
X. Congressional oversight of international agreements........... 209
A. The Case Act.............................................. 209
Origins................................................. 210
Provisions for publication.......................... 210
The Bricker amendment and its legacy................ 212
National commitments concerns....................... 213
Military base agreements (Spain, Portugal, Bahrain). 215
Separation of Powers Subcommittee approach.......... 216
Intent and content of the Case Act...................... 217
Implementation, 1972-1976............................... 218
Amendments of the Case Act, 1977-1978................... 222
Committee procedures under the Case Act................. 224
Senate Foreign Relations Committee procedures....... 224
House International Relations Committee procedures.. 225
Impact and assessment of the Case Act................... 225
Number of agreements transmitted.................... 226
Late transmittal of Case Act agreements............. 228
Insufficient transmittal of agreements to Congress.. 230
Pre-Case Act executive agreements................... 232
B. Consultations on form of agreement....................... 233
C. Congressional review or approval of agreements........... 235
D. Required reports to Congress............................. 238
E. Other tools of congressional oversight................... 239
Implementation legislation.............................. 240
Recommendations in legislation.......................... 240
Consultation requirements............................... 242
Oversight hearings...................................... 243
XI. Trends in major categories of treaties....................... 245
A. Political and security agreements......................... 246
National security and defense commitments................ 247
Treaty on the Final Settlement with Respect to
Germany............................................ 250
Maritime Boundary Agreement with the Soviet Union.... 251
Arms control treaties.................................... 251
INF Treaty........................................... 254
Threshold Test Ban Treaty and Protocol............... 256
CFE Treaty........................................... 257
CFE Flank Agreement.................................. 257
START I Treaty....................................... 258
START II............................................. 260
Open Skies Treaty.................................... 261
Chemical Weapons Convention.......................... 261
Comprehensive Test Ban Treaty........................ 262
B. Economic treaties......................................... 265
Friendship, commerce, and navigation treaties............ 265
Investment treaties...................................... 266
Consular conventions..................................... 269
Tax conventions.......................................... 270
Treaty shopping...................................... 271
Exchange of information.............................. 272
Allocation of income of multinational business
enterprises........................................ 272
Taxation of equipment rentals........................ 272
Arbitration of competent authority issues............ 272
Insurance excise tax................................. 273
C. Environmental treaties.................................... 273
No-reservations clauses.................................. 274
Fishery conventions...................................... 276
D. Legal cooperation......................................... 278
Extradition treaties..................................... 278
Mutual legal assistance treaties......................... 282
E. Human rights conventions.................................. 285
Genocide Convention...................................... 287
Labor conventions........................................ 288
Convention Against Torture............................... 290
Civil and Political Rights Covenant...................... 291
Racial Discrimination Convention......................... 292
Other human rights treaties.............................. 293
Appendixes
1. Treaties and other international agreements: an annotated
bibliography................................................... 295
A. Introduction.............................................. 295
B. International agreements and international law............ 295
1. Overview.............................................. 295
a. General........................................... 295
b. Treaties and agreements involving international
organizations...................................... 298
2. Negotiation and conclusion of treaties and
international agreements............................... 299
a. Negotiation and the treatymaking process.......... 299
(1) General...................................... 299
(2) Multilateral treaties........................ 299
b. Amendments, interpretive declarations, and
reservations....................................... 300
c. Acceptance, depositary, registration and
publication........................................ 301
(1) Acceptance................................... 301
(2) Depositary................................... 301
(3) Registration and publication................. 302
3. Entry into force...................................... 302
4. Interpretation........................................ 303
5. Modification, suspension, and termination of treaties. 307
a. Overview.......................................... 307
b. Questions of treaty validity...................... 310
6. Dispute settlement.................................... 312
7. Succession of states.................................. 313
C. International agreements and U.S. law..................... 314
1. General............................................... 314
2. Congressional and Presidential roles in the making of
treaties and international agreements.................. 319
3. Communication of international agreements to Congress. 330
4. U.S. termination of treaties.......................... 332
D. Guides.................................................... 334
1. Guides to resources on treaties....................... 334
2. Compilations of treaties, and indexes international in
scope.................................................. 335
3. U.S. treaties and the treatymaking process............ 338
a. Sources for treaty information throughout the
treatymaking process............................... 338
CIS/index........................................ 338
Congressional Index.............................. 338
Congressional Record............................. 341
Executive Journal of the Senate.................. 341
Senate executive reports......................... 341
Senate Foreign Relations Committee calendar...... 341
Senate treaty documents.......................... 341
Department of State Dispatch..................... 341
Department of State Bulletin..................... 341
Foreign Policy Bulletin.......................... 342
Department of State Press Releases............... 342
Federal Register................................. 342
Monthly Catalog.................................. 342
Shepard's United States Citations--Statutes
Edition........................................ 342
Statutes at Large................................ 342
Weekly Compilation of Presidential Documents..... 343
b. Official treaty series............................ 343
TIAS............................................. 343
UST.............................................. 343
c. Indexes and retrospective compilations............ 343
Current.......................................... 343
1950+............................................ 344
1776-1949........................................ 344
1776-1949 (Bevans)............................... 344
1776-1931 (Malloy)............................... 344
1776-1863 (Miller)............................... 344
d. Status of treaties................................ 345
Treaties in force................................ 345
Unperfected treaties............................. 345
Additional information........................... 345
4. Topical collections................................... 346
a. Diplomatic and national security issues........... 346
b. Economic and commercial issues.................... 347
c. International environmental issues and management
of common areas.................................... 348
2. Case-Zablocki Act on Transmittal of International Agreements
and Related Reporting Requirements............................. 349
3. Coordination and reporting of international agreements, State
Department regulations......................................... 351
4. Department of State Circular 175 Procedures on Treaties....... 357
710 Purpose and disclaimer................................... 357
711 Purpose (state only)..................................... 357
712 Disclaimer (state only).................................. 357
720 Negotiation and signature................................ 357
721 Exercise of the international agreement power............ 358
722 Action required in negotiation and/or signature of
treaties and agreements.................................... 359
723 Responsibility of office or officer conducting
negotiations............................................... 361
724 Transmission of international agreements other than
treaties to Congress: compliance with the Case-Zablocki Act 364
725 Publication of treaties and other international
agreements of the United States............................ 364
730 Guidelines for concluding international agreements....... 364
731 Conformity of texts...................................... 366
732 Exchange or exhibition of full powers.................... 366
733 Signature and sealing.................................... 366
734 Exchange of ratifications................................ 367
740 Multilateral treaties and agreements..................... 367
741 Official and working languages........................... 368
742 Engrossing............................................... 369
743 Full powers.............................................. 370
744 Signature and sealing.................................... 370
745 Disposition of final documents of conference............. 370
746 Procedure following signature............................ 371
750 Responsibilities of the Assistant Legal Adviser for
Treaty Affairs............................................. 371
5. The Vienna Convention on the Law of Treaties, Senate Ex. L,
92d Congress 1st Session, with list of signatures,
ratifications and accessions deposited as of December 11, 2000. 375
Letter of transmittal........................................ 377
Letter of submittal.......................................... 378
Vienna Convention on the Law of Treaties..................... 384
List of signatures, ratifications deposited and accessions
deposited as of December 11, 2000.......................... 407
6. Glossary of treaty terminology................................ 411
7. Simultaneous consideration of treaties and amending protocols. 415
1. Treaty with Mexico Relating to Utilization of the Waters
of Certain Rivers (Ex. A, 78-2, and Ex. H, 78-2)........... 415
2. Convention Between France and the United States as to
Double Taxation and Fiscal Assistance and Supplementary
Protocol (S. Ex. A, 80-1 and S. Ex. G, 80-2)............... 415
3. Tax Convention with Canada and Two Protocols (Ex. T, 96-2;
Treaty Doc. 98-7; and Treaty Doc. 98-22)................... 416
4. Treaties with the U.S.S.R. on the Limitation of
Underground Nuclear Weapon Tests and on Underground Nuclear
Explosions for Peaceful Purposes and Protocols (Ex. N, 94-
2; and Treaty Doc. 101-19)................................. 416
8. Treaties approved by the Senate............................... 417
2000......................................................... 417
1999......................................................... 420
1998......................................................... 422
1997......................................................... 425
1996......................................................... 426
1995......................................................... 429
1994......................................................... 430
1993......................................................... 430
9. Treaties rejected by the Senate............................... 433
1999......................................................... 433
10. Letter of response from Acting Director Thomas Graham, Jr. to
Senator Pell accepting the narrow interpretation of the ABM
Treaty......................................................... 435
Tables
II-1. Treaties and executive agreements concluded by the United
States, 1789-1989.............................................. 39
II-2. Treaties and executive agreements concluded by the United
States, 1930-1999.............................................. 39
X-1. Transmittal of executive agreements to Congress, 1978-1999.. 226
X-2. Agencies submitting agreements late, 1979-1999.............. 229
X-3. Statutory requirements for transmittal of agreements to
Congress....................................................... 236
X-4. Required reports related to international agreements........ 239
X-5. Legislation implementing treaties........................... 241
XI-1. Human rights treaties pending on the Senate Foreign
Relations Committee calendar................................... 286
A1-1. Publications providing information on U.S. treaties
throughout the treatymaking process............................ 339
Charts
1. Steps in the making of a treaty............................... 8
2. Steps in the making of an executive agreement................. 10
INTRODUCTORY NOTE
----------
This study revises a report bearing the same title
published in 1993. It is intended to provide a reference volume
for use by the U.S. Senate in its work of advising and
consenting to treaties. It summarizes international and U.S.
law on treaties and other international agreements. It traces
the process of making treaties through the various stages from
their initiation and negotiation to ratification, entry into
force, implementation and oversight, modification or
termination--describing the respective senatorial and
Presidential roles at each stage. The study also provides
background information on issues concerning the Senate role in
treaties and other international agreements through specialized
discussions in individual chapters. The appendix contains,
among other things, a glossary of frequently used terms,
important documents related to treaties: the Vienna Convention
on the Law of Treaties (unratified by the United States); State
Department Circular 175 describing treaty procedures in the
executive branch; the State Department regulation,
``Coordination and Reporting of International Agreements,'' and
material related to the Case-Zablocki Act on the reporting of
international agreements to Congress. Also included are a list
of treaties approved by the Senate from January 1993 through
October 2000, examples of treaty documents, and an annotated
bibliography.
I. OVERVIEW OF THE TREATY PROCESS \1\
---------------------------------------------------------------------------
\1\ Prepared by Richard F. Grimmett, Specialist in National
Defense.
---------------------------------------------------------------------------
----------
Treaties are a serious legal undertaking both in
international and domestic law. Internationally, once in force,
treaties are binding on the parties and become part of
international law. Domestically, treaties to which the United
States is a party are equivalent in status to Federal
legislation, forming part of what the Constitution calls ``the
supreme Law of the Land.''
However, the word treaty does not have the same meaning in
the United States and in international law. Under international
law, a ``treaty'' is any legally binding agreement between
nations. In the United States, the word treaty is reserved for
an agreement that is made ``by and with the Advice and Consent
of the Senate'' (Article II, Section 2, Clause 2 of the
Constitution). International agreements not submitted to the
Senate are known as ``executive agreements'' in the United
States, but they are considered treaties and therefore binding
under international law.
For various reasons, Presidents have increasingly concluded
executive agreements. Many agreements are previously authorized
or specifically approved by legislation, and such
``congressional-executive'' or statutory agreements have been
treated almost interchangeably with treaties in several
important court cases. Others, often referred to as ``sole
executive agreements,'' are made pursuant to inherent powers
claimed by the President under Article II of the Constitution.
Neither the Senate nor the Congress as a whole is involved in
concluding sole executive agreements, and their status in
domestic law is not fully resolved.
Questions on the use of treaties, congressional-executive
agreements, and sole executive agreements underlie many issues.
Therefore, any study of the Senate role in treaties must also
deal with executive agreements. Moreover, the President, the
Senate, and the House of Representatives have different
institutional interests at stake, a fact which periodically
creates controversy. Nonetheless, the President, Senate, and
House share a common interest in making international
agreements that are in the national interest in the most
effective and efficient manner possible.
The requirement for the Senate's advice and consent gives
the Senate a check over all international agreements submitted
to it as treaties. The Senate may refuse to give its approval
to a treaty or do so only with specified conditions,
reservations, or understandings. In addition, the knowledge
that a treaty must be approved by a two-thirds majority in the
Senate may influence the content of the document before it is
submitted. Even so, the Senate has found it must be vigilant if
it wishes to maintain a meaningful role in treaties that are
submitted.
The main threat of erosion of the Senate treaty power comes
not from the international agreements that are submitted as
treaties, however, but from the many international agreements
that are not submitted for its consent. In addition to
concluding hundreds of executive agreements, Presidents have
made important commitments that they considered politically
binding but not legally binding. Maintaining the Senate role in
treaties requires overseeing all international agreements to
assure that agreements that should be treaties are submitted to
the Senate.
A. Background
the evolution of the senate role \2\
---------------------------------------------------------------------------
\2\ See Chapters II and VI for references and additional
discussion.
---------------------------------------------------------------------------
The Constitution states 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.'' The Convention that drafted the Constitution did not
spell out more precisely what role it intended for the Senate
in the treatymaking process. Most evidence suggests that it
intended the sharing of the treaty power to begin early, with
the Senate helping to formulate instructions to negotiators and
acting as a council of advisers to the President during the
negotiations, as well as approving each treaty entered into by
the United States. The function of the Senate was both to
protect the rights of the states and to serve as a check
against the President's taking excessive or undesirable actions
through treaties. The Presidential function in turn was to
provide unity and efficiency in treatymaking and to represent
the national interest as a whole.
The treaty clause of the Constitution does not contain the
word ratification, which refers to the formal act by which a
nation affirms its willingness to be bound by a specific
treaty. From the beginning, the formal act of ratification has
been performed by the President acting ``by and with the advice
and consent of the Senate.'' The President ratifies the treaty,
but, only after receiving the advice and consent of the Senate.
When the Constitution was drafted, the ratification of a
treaty was generally considered obligatory by the nations
entering into it if the negotiators stayed within their
instructions. Therefore Senate participation during the
negotiations stage seemed essential if the Senate was to play a
meaningful constitutional role. At the time, such direct
participation by the Senate also seemed feasible, since the
number of treaties was not expected to be large and the
original Senate contained only 26 Members.
Within several years, however, problems were encountered in
treatymaking and Presidents abandoned the practice of regularly
getting the Senate's advice and consent on detailed questions
prior to negotiations. Instead, Presidents began to submit the
completed treaty after its conclusion. Since the Senate had to
be able to advise changes or deny consent altogether if its
role was to be meaningful, the doctrine of obligatory
ratification was for all practical purposes abandoned.
Although Senators sometimes play a part in the initiation
or development of a treaty, the Senate role now is primarily to
pass judgment on whether completed treaties should be ratified
by the United States. The Senate's advice and consent is asked
on the question of Presidential ratification. When the Senate
considers a treaty it may approve it as written, approve it
with conditions, reject and return it, or prevent its entry
into force by withholding approval. In practice the Senate
historically has given its advice and consent unconditionally
to the vast majority of treaties submitted to it.
In numerous cases, the Senate has approved treaties subject
to conditions. The President has usually accepted the Senate
conditions and completed the ratification process. In some
cases, treaties have been approved with reservations that were
unacceptable either to the President or the other party, and
the treaties never entered into force.\3\
---------------------------------------------------------------------------
\3\ These include treaties on income taxation with Thailand, signed
March 1965, and Brazil, signed March 13, 1967.
---------------------------------------------------------------------------
Only on rare occasions has the Senate formally rejected a
treaty. The most famous example is the Versailles Treaty, which
was defeated on March 19, 1920, although 49 Senators voted in
favor and 35 against. This was a majority but not the required
two-thirds majority so the treaty failed. Since then, the
Senate has definitively rejected only three treaties.\4\ In
addition, the Senate sometimes formally rejects treaties but
keeps them technically alive by adopting or entering a motion
to reconsider. This has happened, for instance, with the
Optional Protocol Concerning the Compulsory Settlement of
Disputes in 1960, the Montreal Aviation Protocols Nos. 3 and 4
in 1983, and the Comprehensive Test Ban Treaty in 1999.
---------------------------------------------------------------------------
\4\ Treaty on General Relations with Turkey, January 18, 1927; St.
Lawrence Waterway Treaty with Canada, July 18, 1932 (the St. Lawrence
Seaway was subsequently approved by legislation); and adherence to the
Permanent Court of International Justice, January 29, 1935.
---------------------------------------------------------------------------
More often the Senate has simply not voted on treaties that
did not have enough support for approval, and the treaties
remained pending in the Foreign Relations Committee for long
periods. Eventually, unapproved treaties have been replaced by
other treaties, amended by protocols and then approved, or
withdrawn by or returned to the President. Thus the Senate has
used its veto sparingly, but still demonstrated the necessity
of its advice and consent and its power to block a treaty from
entering into force.
treaties under international law \5\
---------------------------------------------------------------------------
\5\ See Chapter III for references and additional discussion.
---------------------------------------------------------------------------
Under international law an international agreement is
generally considered to be a treaty and binding on the parties
if it meets four criteria:
(1) The parties intend the agreement to be legally binding
and the agreement is subject to international law;
(2) The agreement deals with significant matters;
(3) The agreement clearly and specifically describes the
legal obligations of the parties; and
(4) The form indicates an intention to conclude a treaty,
although the substance of the agreement rather than the form is
the governing factor.
International law makes no distinction between treaties and
executive agreements. Executive agreements, especially if
significant enough to be reported to Congress under the Case-
Zablocki Act, are to all intents and purposes binding treaties
under international law.\6\
---------------------------------------------------------------------------
\6\ The Case-Zablocki Act (Public Law 92-403, as amended), is also
examined in Chapter X. See Appendix 2 for text of the law.
---------------------------------------------------------------------------
On the other hand, many international undertakings and
foreign policy statements, such as unilateral statements of
intent, joint communiques, and final acts of conferences, are
not intended to be legally binding and are not considered
treaties.
treaties under u.s. law \7\
---------------------------------------------------------------------------
\7\ See Chapter IV for references and additional discussion. See
also Chapter X.
---------------------------------------------------------------------------
Under the Constitution, a treaty, like a Federal statute,
is part of the ``supreme Law of the Land.'' Self-executing
treaties, those that do not require implementing legislation,
automatically become effective as domestic law immediately upon
entry into force. Other treaties do not become effective as
domestic law until implementing legislation is enacted, and
then technically it is the legislation, not the treaty unless
incorporated into the legislation, that is the law of the land.
Sometimes it is not clear on the face of a treaty whether
it is self-executing or requires implementing legislation. Some
treaties expressly call for implementing legislation or deal
with subjects clearly requiring congressional action, such as
the appropriation of funds or enactment of domestic penal
provisions. The question of whether or not a treaty requires
implementing legislation or is self-executing is a matter of
interpretation largely by the executive branch or, less
frequently, by the courts. On occasion, the Senate includes an
understanding in the resolution of ratification that certain
provisions are not self-executing or that the President is to
exchange or deposit the instrument of ratification only after
implementation legislation has been enacted.
When a treaty is deemed self-executing, it overrides any
conflicting provision of the law of an individual signatory
state. If a treaty is in irreconcilable conflict with a Federal
law, the one executed later in time prevails, although courts
generally try to harmonize domestic and international
obligations whenever possible.
executive agreements under u.s. law \8\
---------------------------------------------------------------------------
\8\ See Chapter IV for references and additional discussion. See
also Chapter X.
---------------------------------------------------------------------------
The status in domestic law of executive agreements, that
is, international agreements made by the executive branch but
not submitted to the Senate for its advice and consent, is less
clear. Three types of executive agreements and their domestic
legal status are discussed below.
(1) Congressional-executive agreements
Most executive agreements are either explicitly or
implicitly authorized in advance by Congress or submitted to
Congress for approval. Some areas in which Congress has
authorized the conclusion of international agreements are
postal conventions, foreign trade, foreign military assistance,
foreign economic assistance, atomic energy cooperation, and
international fishery rights. Sometimes Congress has authorized
conclusion of agreements but required the executive branch to
submit the agreements to Congress for approval by legislation
or for a specified waiting period before taking effect.
Congress has also sometimes approved by joint resolution
international agreements involving matters that are frequently
handled by treaty, including such subjects as participation in
international organizations, arms control measures, and
acquisition of territory. The constitutionality of this type of
agreement seems well established and Congress has authorized or
approved them frequently,
(2) Agreements pursuant to treaties
Some executive agreements are expressly authorized by
treaty or an authorization for them may be reasonably inferred
from the provisions of a prior treaty. Examples include
arrangements and understandings under the North Atlantic Treaty
and other security treaties. The President's authority to
conclude agreements pursuant to treaties seems well
established, although controversy occasionally arises over
whether particular agreements are within the purview of an
existing treaty.
(3) Presidential or sole executive agreements
Some executive agreements are concluded solely on the basis
of the President's independent constitutional authority and do
not have an underlying explicit or implied authorization by
treaty or statute. Authorities from the Constitution that
Presidents claim as a basis for such agreements include:
--The President's general executive authority in Article II,
Section 1, of the Constitution;
--His power as Commander in Chief of the Army and Navy in
Article II, Section 2, Clause 1;
--The treaty clause itself for agreements, which might be
part of the process of negotiating a treaty in Article
II, Section 2, Clause 2;
--His authority to receive Ambassadors and other public
Ministers in Article II, Section 3; and
--His duty to ``take care that the laws be faithfully
executed'' in Article II, Section 3.
Courts have indicated that executive agreements based
solely on the President's independent constitutional authority
can supersede conflicting provisions of state law, but opinions
differ regarding the extent to which they can supersede a prior
act of Congress. What judicial authority exists seems to
indicate that they cannot.
steps in the u.s. process of making treaties and executive agreements
Phases in the life of a treaty include negotiation and
conclusion, consideration by the Senate, Presidential
ratification, implementation, modification, and termination.
Following is a discussion of the major steps and the roles of
the President and the Senate in each phase.
Executive agreements are negotiated and concluded in the
same way as treaties, but they do not go through the procedure
for advice and consent of the Senate. Some executive agreements
are submitted to the Congress for approval and most are to be
transmitted to Congress after their conclusion. (See charts 1
and 2.)
Negotiation and conclusion \9\
---------------------------------------------------------------------------
\9\ See Chapter V for references and additional discussion.
---------------------------------------------------------------------------
The first phase of treatymaking, negotiation and
conclusion, is widely considered an exclusive prerogative of
the President except for making appointments which require the
advice and consent of the Senate. The President chooses and
instructs the negotiators and decides whether to sign an
agreement after its terms have been negotiated. Nevertheless,
the Senate or Congress sometimes proposes negotiations and
influences them through advice and consultation. In addition,
the executive branch is supposed to advise appropriate
congressional leaders and committees of the intention to
negotiate significant new agreements and consult them as to the
form of the agreement.
Steps in the negotiating phase follow.
(1) Initiation.--The executive branch formally initiates
the negotiations. The original concept or proposal for a treaty
on a particular subject, however, may come from Congress.
(2) Appointment of negotiators.--The President selects the
negotiators of international agreements, but appointments may
be subject to the advice and consent of the Senate.
Negotiations are often conducted by ambassadors or foreign
service officers in a relevant post who have already been
confirmed by the Senate.
(3) Issuance of full powers and instructions.--The
President issues full power documents to the negotiators,
authorizing them officially to represent the United States.
Similarly, he issues instructions as to the objectives to be
sought and positions to be taken. On occasion the Senate
participates in setting the objectives during the confirmation
process, or Congress contributes to defining the objectives
through hearings or resolutions.
(4) Negotiation.--Negotiation is the process by which
representatives of the President and other governments
concerned agree on the substance, terms, wording, and form of
an international agreement. Members of Congress sometimes
provide advice through consultations arranged either by
Congress or the executive branch, and through their statements
and writings. Members of Congress or their staff have served as
members or advisers of delegations and as observers at
international negotiations.
(5) Conclusion.--The conclusion or signing marks the end of
the negotiating process and indicates that the negotiators have
reached agreement. In the case of a treaty the term
``conclusion'' is a misnomer in that the agreement does not
enter into force until the exchange or deposit of
ratifications. In the case of executive agreements, however,
the signing and entry into force are frequently simultaneous.
Consideration by the Senate \10\
---------------------------------------------------------------------------
\10\ See Chapter VI for references and additional discussion.
Chapter VI also contains the text of Senate Rule XXX.
---------------------------------------------------------------------------
A second phase begins when the President transmits a
concluded treaty to the Senate and the responsibility moves to
the Senate. Following are the main steps during the Senate
phase.
(1) Presidential submission.--The Secretary of State
formally submits treaties to the President for transmittal to
the Senate. A considerable time may elapse between signature
and submission to the Senate, and on rare occasions a treaty
signed on behalf of the United States may never be submitted to
the Senate at all and thus never enter into force for the
United States. When transmitted to the Senate, treaties are
accompanied by a Presidential message consisting of the text of
the treaty, a letter of transmittal requesting the advice and
consent of the Senate, and the earlier letter of submittal of
the Secretary of State which usually contains a detailed
description and analysis of the treaty.
(2) Senate receipt and referral.--The Parliamentarian
transmits the treaty to the Executive Clerk, who assigns it a
document number. The Majority Leader then, as in executive
session, asks the unanimous consent of the Senate that the
injunction of secrecy be removed, that the treaty be considered
as having been read the first time, and that it be referred to
the Foreign Relations Committee and ordered to be printed. The
Presiding Officer then refers the treaty, regardless of its
subject matter, to the Foreign Relations Committee in
accordance with Rule XXV of the Senate Rules. (Rule XXV makes
an exception only for reciprocal trade agreements.) At this
point the treaty text is printed and made available to the
public.
(3) Senate Foreign Relations Committee action.--The treaty
is placed on the committee calendar and remains there until the
committee reports it to the full Senate. While it is committee
practice to allow a treaty to remain pending long enough to
receive study and comments from the public, the committee
usually considers a treaty within a year or two, holding a
hearing and preparing a written report.
The committee recommends Senate advice and consent by
reporting a treaty with a proposed resolution of ratification.
While most treaties have historically been reported without
conditions, the committee may recommend that the Senate approve
a treaty subject to conditions incorporated in the resolution
of ratification.
(4) Conditional approval.--The conditions traditionally
have been grouped into categories described in the following
way.
--Amendments to a treaty change the text of the treaty and
require the consent of the other party or parties.
(Note that in Senate debate the term may refer to an
amendment of the resolution of ratification, not the
treaty itself, and therefore be comprised of some other
type of condition.)
[GRAPHIC] [TIFF OMITTED] T6922.001
[GRAPHIC] [TIFF OMITTED] T6922.002
[GRAPHIC] [TIFF OMITTED] T6922.003
--Reservations change U.S. obligations without necessarily
changing the text, and they require the acceptance of
the other party.
--Understandings are interpretive statements that clarify or
elaborate provisions but do not alter them.
--Declarations are statements expressing the Senate's
position or opinion on matters relating to issues
raised by the treaty rather than to specific
provisions.
--Provisos relate to issues of U.S. law or procedure and are
not intended to be included in the instruments of
ratification to be deposited or exchanged with other
countries.
Whatever name a condition is given by the Senate, if a
condition alters an international obligation under the treaty,
the President is expected to transmit it to the other party. In
recent years, the Senate on occasion has explicitly designated
that some conditions were to be transmitted to the other party
or parties and, in some cases, formally agreed to by them. It
has also designated that some conditions need not be formally
communicated to the other party, that some conditions were
binding on the President, and that some conditions expressed
the intent of the Senate.
(5) Action by the full Senate.--After a treaty is reported
by the Foreign Relations Committee, it is placed on the
Senate's Executive Calendar and the Majority Leader arranges
for the Senate to consider it. In 1986 the Senate amended Rule
XXX of the Senate Rules, which governs its consideration of
treaties, to simplify the procedure in this step. Still, under
the full procedures of the revised Rule XXX, in the first stage
of consideration the treaty would be read a second time and any
proposed amendments to the treaty itself would be considered
and voted upon by a simple majority. Usually the Majority
Leader obtains unanimous consent to abbreviate the procedures,
and the Senate proceeds directly to the consideration of the
resolution of ratification as recommended by the Foreign
Relations Committee.
The Senate then considers amendments to the resolution of
ratification, which would incorporate any amendments to the
treaty itself that the Senate had agreed to in the first stage,
as well as conditions recommended by the Foreign Relations
Committee. Senators may then offer reservations,
understandings, and other conditions to be placed in the
resolution of ratification. Votes on these conditions, as well
as other motions, are determined by a simple majority. Finally,
the Senate votes on the resolution of ratification, as it has
been amended. The final vote on the resolution of ratification
requires, for approval, a two-thirds majority of the Senators
present. Although the number of Senators who must be present is
not specified, the Senate's practice with respect to major
treaties is to conduct the final treaty vote at a time when
most Senators are available. After approval of a controversial
treaty, a Senator may offer a motion to reconsider which is
usually laid on the table (defeated). In the case of a treaty
that has failed to receive a two-thirds majority, if the motion
to reconsider is not taken up, the treaty is returned to the
Foreign Relations Committee. Prior to the final vote on the
resolution of ratification, a Senator may offer a substitute
amendment, proposing that the Senate withhold its advice and
consent, or offer a motion to recommit the resolution to the
Foreign Relations Committee.
(6) Return to committee.--Treaties reported by the
committee but neither approved nor formally returned to the
President by the Senate are automatically returned to the
committee calendar at the end of a Congress; the committee must
report them out again in order for the Senate to consider them.
(7) Return to President or withdrawal.--The President may
request the return of a treaty, or the Foreign Relations
Committee may report and the Senate adopt a simple resolution
directing the Secretary of the Senate to return a treaty to the
President. Otherwise, treaties that do not receive the advice
and consent of the Senate remain pending on the committee
calendar indefinitely.
Presidential action after Senate action \11\
---------------------------------------------------------------------------
\11\ See Chapter VII for references and additional discussion.
---------------------------------------------------------------------------
After the Senate gives its advice and consent to a treaty,
the Senate sends it to the President. He resumes control and
decides whether to take further action to complete the treaty.
(1) Ratification.--The President ratifies a treaty by
signing an instrument of ratification, thus declaring the
consent of the United States to be bound. If the Senate has
consented with reservations or conditions that the President
deems unacceptable, he may at a later date resubmit the
original treaty to the Senate for further consideration, or he
may renegotiate it with the other parties prior to
resubmission. Or the President may decide not to ratify the
treaty because of the conditions or for any other reason.
(2) Exchange or deposit of instruments of ratification and
entry into force.--If he ratifies the treaty, the President
then directs the Secretary of State to take any action
necessary for the treaty to enter into force. A bilateral
treaty usually enters into force when the parties exchange
instruments of ratification. A multilateral treaty enters into
force when the number of parties specified in the treaty
deposit the instruments of ratification at a specified
location. Once a treaty enters into force, it is binding in
international law on the parties who have ratified it.
(3) Proclamation.--When the instruments of ratification
have been exchanged or the necessary number deposited, the
President issues a proclamation that the treaty has entered
into force. Proclamation serves as legal notice for domestic
purposes and publicizes the text.
Implementation \12\
---------------------------------------------------------------------------
\12\ See Chapter VIII for references and additional discussion.
---------------------------------------------------------------------------
The executive branch has the primary responsibility for
carrying out treaties and ascertaining that other parties
fulfill their obligations after treaties and other
international agreements enter into force, but the Senate or
the entire Congress share in the following phases.
(1) Implementing legislation.\13\--When implementing
legislation or appropriations are needed to carry out the terms
of a treaty, it must go through the full legislative process
including passage by both Houses and presentment to the
President.
---------------------------------------------------------------------------
\13\ In addition to Chapter VIII, see Chapter X.
---------------------------------------------------------------------------
(2) Interpretation.\14\--The executive branch interprets
the requirements of an agreement as it carries out its
provisions. U.S. courts may also interpret a treaty's effect as
domestic law in appropriate cases. The Senate has made clear
that the United States is to interpret the treaty in accordance
with the common understanding of the treaty shared by the
President and the Senate at the time the Senate gave its advice
and consent. This common understanding is based on the text of
the treaty, the provisions of the resolution of ratification,
and the authoritative representations provided by the executive
branch to the Senate during its consideration. The Senate has
further specified that the United States is not to agree to or
adopt an interpretation different from the common understanding
except pursuant to Senate advice and consent or enactment of a
statute.
---------------------------------------------------------------------------
\14\ In addition to Chapter VIII, see Chapter VI, and discussion of
INF Treaty in Chapter XI.
---------------------------------------------------------------------------
(3) Settlement of international disputes.--When disputes
arise between parties on the interpretation of a treaty or on
the facts relating to compliance with the obligations of a
treaty, the executive branch usually conducts negotiations
aimed at resolving differences in interpretation. Treaties
sometimes provide for formal procedures or mechanisms for
dispute settlement. Members of Congress have sometimes played
an important role by overseeing implementation of a treaty,
bringing about public discussion of compliance issues, and
urging procedures to resolve international disputes.
Modification, extension, suspension, or termination \15\
---------------------------------------------------------------------------
\15\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
Modifying and extending an international agreement amount
to the making of a new agreement that should be done by the
same method as the original agreement. For treaties, this means
with the advice and consent of the Senate. Practice on
termination, however, has not been consistent.
(1) Modification.--At the international level, treaties are
amended by agreement of the parties or in accordance with their
terms. In the United States, amendments to treaties are
ordinarily submitted to the Senate for its advice and consent,
unless the treaty provides for modification in some other way.
Less formal modifications have been made by executive
agreements or decisions.
(2) Extension.--An agreement to extend an existing
international agreement is considered a new agreement, and
ordinarily would be accomplished in the same fashion as the
original, with an extension of a treaty submitted to the
Senate.
(3) Suspension.--The President conveys notice of suspension
of a treaty and makes the determination that would justify
suspension, such as a fundamental change in circumstances or
material breach of a treaty by another party.
(4) Termination.--At the international level, treaties
often contain provisions regarding duration and the method of
termination, or nations may terminate treaties by mutual
consent. Grounds for termination include violation of the
agreement, but violation does not automatically terminate a
treaty.
Domestically, the Constitution does not prescribe the
process for the United States to terminate a treaty, and the
process continues to be controversial. Treaties have been
terminated in a variety of ways, including by the President
following a joint resolution of Congress, by the President
following action by the Senate, by the President and with
subsequent congressional or Senate approval, and by the
President alone.
Congressional oversight \16\
---------------------------------------------------------------------------
\16\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
Congress has responsibility for overseeing the negotiation
and conclusion of international agreements by the executive
branch and the manner in which the executive branch interprets
and carries out the agreements. It shares with the executive
branch the responsibility for assessing the general
effectiveness of international agreements at the international
level and determining the course of action when agreements are
not effective.
(1) Hearings and reports.--Congress reviews actions under
treaties and other international agreements as part of its
responsibilities for overseeing executive branch activities.
Senate and House rules direct committees to review the
application of those laws within their jurisdiction, so the
oversight function is distributed widely among the various
committees of Congress. Methods for oversight include hearings,
investigations, consultations, and requiring and reviewing
reports.
(2) Review of executive agreements.--Under the Case-
Zablocki Act, all executive agreements are to be transmitted to
Congress within 60 days of their entry into force, including
those that are classified for security reasons. The receipt is
noted in the Congressional Record, and unclassified agreements
are listed in committee publications. Members of Congress may
read the agreements in the Senate Foreign Relations and House
Foreign Affairs Committee offices.
trends in senate action on treaties \17\
---------------------------------------------------------------------------
\17\ See Chapter VI and Chapter XI for references and additional
discussion.
---------------------------------------------------------------------------
In recent years the Senate has endeavored both to improve
its efficiency in handling treaties and to assure a meaningful
role. Among steps to streamline procedures, in 1986 it amended
Senate Rule XXX to eliminate the requirement for consideration
by the Senate as in Committee of the Whole. It has frequently
approved groups of treaties with a single roll call vote, or
approved treaties by a division vote. The Senate Legis computer
system has made it easier for Senators to obtain current
information on action on treaties before the Senate.
Among steps to assure a meaningful role, the Senate has
appointed observer groups to negotiations on important
treaties, especially in the arms control and environmental
areas. In 1987 and 1988 the Senate reviewed the constitutional
principles of treaty interpretation and affirmed that the
United States should not agree to or adopt an interpretation
different from the common understanding shared by the President
and the Senate at the time the Senate gave its advice and
consent to ratification, except pursuant to Senate advice and
consent or enactment of a statute. The Senate also provided a
system to review the negotiating record of the Intermediate
Range Nuclear Forces (INF) Treaty. However, the Foreign
Relations Committee said that Senate review of negotiating
records should not become an institutionalized procedure, but
that reference to the record on a case-by-case basis might
sometimes be useful.
Treaties and Senate action on them have begun to reflect
new policy concerns since the end of the Cold War. Increased
recognition has been given to the importance of economic
treaties, including consular, investment, and tax agreements.
The use of friendship, commerce, and navigation (FCN) treaties
decreased after 1948 when the United States entered the General
Agreement on Tariffs and Trade (GATT). Since investment matters
were outside the scope of GATT at that time, in 1981 the United
States began to negotiate a series of bilateral investment
treaties (BITs). Subsequently, the Senate has given its advice
and consent to BITs with several countries.
Treaties providing for cooperation in bringing suspected
criminals to trial have become increasingly important with the
growth of transnational criminal activity, including narcotics
trafficking, terrorism, money laundering, and export control
violations. The two chief types are extradition treaties and a
new series called mutual legal assistance treaties (MLATs). The
Senate Foreign Relations Committee has supported recent
supplementary extradition treaties and new MLATs, although
sometimes with conditions.
Treaties for conservation of certain species of wildlife
and regulation of fisheries have been supplemented with broad
treaties for environmental cooperation. Although supportive of
environmental cooperation treaties, the Senate Foreign
Relations Committee has expressed concern about articles
prohibiting reservations and has cautioned that consent to
three multilateral environmental treaties containing such
articles should not be construed as a precedent.
B. Issues in Treaties Submitted for Advice and Consent
Although it can prevent a treaty from being ratified or
attach conditions for ratification, the Senate frequently finds
it difficult to advise on treaties effectively. Several
obstacles to a meaningful Senate role have developed.
request for consent without opportunity for advice
A major problem derives from the executive branch practice
of not submitting a treaty to the Senate until it is completed.
Seeing the terms of the treaty only after it has been signed,
the Senate frequently has little choice in practice except to
consent to a treaty exactly as it has been negotiated, or to
block it entirely. The President may present a treaty as vital
to good relations with a nation, relations that would be set
back immeasurably if the treaty were defeated. Or he may
present it as a package that has been so delicately negotiated
that the slightest change in understanding by the Senate would
unbalance the package and kill the treaty. Or he may present it
so late in the congressional session, or so near some type of
international deadline, that Senate consideration in depth is
pictured as impeding the beginning of a new beneficial regime.
Administrations almost always discourage significant
changes that might require renegotiation of a treaty, and the
Senate usually defeats attempted reservations that would
actually alter treaty obligations. Rather than adding
reservations or attempting to amend the treaty itself, the
Senate often addresses its concerns through understandings that
do not alter the obligations under the treaty and therefore do
not require renegotiation.
The Senate has the choice of rejecting a treaty by a public
vote, or by quietly not bringing the treaty to a vote. In
recent years it has almost always chosen not to conduct a vote
that might embarrass the U.S. negotiators, make the United
States appear divided, and impair relations with other
countries. In either event, Senate defeat of a treaty entails a
loss of the time, energy, and in some cases U.S. international
prestige invested in the negotiations.
An option for avoiding defeats is legislative-executive
consultation prior to or during negotiations. The President can
initiate consultation through meetings or by inviting
congressional observers to negotiations. The Senate can
initiate consultation through hearings and other meetings or
through resolutions or legislative directives. In the past,
some Senators have been concerned that participating in the
formulation of a treaty could pose a conflict of interest since
Senators are subsequently asked to pass judgment on the
completed treaty. With the increase in multilateral treaties
and other developments, this concern appears to have
diminished.
multilateral treaties
The Senate's problem of not receiving a treaty until it is
completed is particularly acute in multilateral treaties. These
treaties are often negotiated by many nations in large
international conferences, sometimes over a period of years.
States make concessions in one area to obtain concessions from
other states in other areas. The result is often an interwoven
package that the Senate is called upon to take or leave in its
entirety, without amendments or reservations, because
renegotiation may not be feasible.
Some multilateral treaties have contained an article
prohibiting reservations. The Senate Foreign Relations
Committee has taken the position that the executive branch
negotiators should not agree to this prohibition. The Senate
has given its advice and consent to a few treaties containing
the prohibition, but the committee has stated that approval of
these treaties should not be construed as a precedent for such
clauses in future treaties. It has further stated that the
President's agreement to such a clause could not constrain the
Senate's right and obligation to attach reservations to its
advice and consent.\18\
---------------------------------------------------------------------------
\18\ See section on Environmental Treaties in Chapter XI.
---------------------------------------------------------------------------
A related problem arises from reservations made by other
nations to a multilateral treaty. Although the reservations may
modify international obligations, the Department of State has
not been sending the reservations to the Senate for its advice
and consent. It has been assumed that the Senate, aware of this
practice, tacitly consents to the U.S. acceptance of the
reservations.\19\ Without information on the reservations,
however, the Senate cannot estimate the size or significance of
the problem.
---------------------------------------------------------------------------
\19\ See section on Amendment in Chapter IX.
---------------------------------------------------------------------------
The trend toward more multilateral agreements seems
inevitable. The United States entered virtually no multilateral
agreements until the late 1800s, but after 1900 multilateral
treaties steadily increased and their subject coverage
expanded. From 1980 through 1991 the United States entered 259
multilateral agreements of which 79 were treaties. For the
future, with the number of sovereign nations still growing,
multilateral agreements on a subject offer an efficient
alternative to bilateral agreements with 100 or 200 countries.
The great increase in multilateral diplomacy and
multilateral agreements is introducing another new phenomenon.
The United States now has bilateral international agreements
with approximately 50 international organizations. It might
appear that the Senate would encounter the same difficulty in
proposing modifications it does in the case of multilateral
agreements. Renegotiation of bilateral treaties with
multilateral organizations should be more feasible, however,
because the United States is one of only two negotiating
partners. Moreover, the United States is in most instances also
a major player in the international organization, the other
negotiating partner.
diminishing use of treaties for major political commitments \20\
---------------------------------------------------------------------------
\20\ See Chapter XI for references and additional discussion.
---------------------------------------------------------------------------
At the end of World War II, treaties played an important
part in shaping post-war U.S. foreign policy. Formal peace
treaties were concluded with all belligerents except Germany.
The Charters of the United Nations and the Organization of
American States established a framework for international
cooperation. The North Atlantic Treaty and other regional
security treaties built a network of mutual security that
endured throughout the Cold War.
After 1955 the building of commitments through treaties
appeared to halt, and many in Congress expressed concern with
commitments made through executive action. In 1969 the Senate
adopted the National Commitments Resolution expressing the
sense that a national commitment ``results only from
affirmative action taken by the executive and legislative
branches of the U.S. Government by means of a treaty, statute,
or concurrent resolution of both Houses of Congress
specifically providing for such commitment.'' Yet for the rest
of the Cold War, military and security commitments were not
made as treaties but as executive agreements, non-binding
political agreements, or unilateral executive branch statements
and actions.
Arms control treaties became the only type of agreement in
the political-military field that have been concluded primarily
in treaty form. In this area legislation specified that
agreements be concluded as treaties or authorized by
legislation, and the Senate insisted that most agreements be
submitted as treaties. As a result, arms control treaties have
been the main vehicle in recent years for special Senate
influence on foreign policy.
The end of the Cold War offers a new era in foreign policy
comparable to that which existed at the end of World War II. As
the agreements to provide the framework for the new era are
concluded, the significance of the Senate's treaty power is
again being tested. Some agreements to shape the new foreign
policy already have been undertaken by executive agreement,
non-binding political agreement, or unilateral executive branch
statements or actions. In other cases, the Senate has insisted
that agreements be concluded as treaties. Such insistence
appears to have become necessary to ensure that significant
political agreements are submitted as treaties.
unilateral executive branch action to reinterpret, modify, and
terminate treaties
The Constitution is silent on procedures for modifying or
terminating treaties, and agreement has not been reached
between the branches on a single proper mode.\21\ The general
rule is that international agreements are to be amended in the
same way that they were made, thus for treaties requiring the
advice and consent of the Senate. With the increase in numbers
and complexity of treaties, more frequent changes and
adjustments have become necessary. The Senate has again been
challenged to be vigilant for unilateral executive branch
action that might change a basic obligation agreed to in its
advice and consent to a treaty.
---------------------------------------------------------------------------
\21\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
What portion of treaty modifications have been submitted to
the Senate is unknown. Although certain changes have been
routinely submitted to the Senate, such as amendments to tax
treaties, others have been made solely by executive agreement
or action. The most controversial unilateral action of the
executive branch in recent years involved reinterpretation of
the Anti-Ballistic Missile (ABM) Treaty of 1972. In 1985, the
Reagan Administration sought to reinterpret the ABM Treaty to
permit development of mobile space-based anti-ballistic systems
for the Strategic Defense Initiative. The Senate became
concerned about both the future of the ABM Treaty and the
failure to obtain its advice and consent for a major change in
treaty obligations. It attached a condition to the INF Treaty
restating the principle that the President may not adopt a
treaty interpretation different from the common understanding
shared by the Senate at the time it gave its advice and
consent, without the advice and consent of the Senate or the
enactment of a statute. In action on subsequent arms control
treaties, the Senate affirmed the applicability of these
principles to all treaties. In 1993 the Clinton Administration
made clear it had returned to the ``narrow'' or ``traditional''
interpretation of the ABM Treaty.\22\
---------------------------------------------------------------------------
\22\ See Chapters VI, VIII, and IX for references and additional
discussion.
---------------------------------------------------------------------------
Twice in recent years the method of terminating a treaty
has raised serious controversy within the United States. In
1978, President Carter terminated the defense treaty with the
Republic of China without the concurrence of either the Senate
or Congress when he established diplomatic relations with the
People's Republic of China. In 1977, the new Panama Canal
Treaty terminated the 1903, 1936, and 1955 treaties with
Panama. Although a new treaty was approved by the Senate, some
contended that the termination of the earlier treaties required
an act of Congress, thus including approval by the House of
Representatives as well as the Senate.
difficulty in overseeing treaties \23\
---------------------------------------------------------------------------
\23\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
Once it has given its advice and consent to a treaty, the
Senate often lacks the information necessary to oversee further
action under the treaty. It does not receive a copy of the
resolution of ratification signed by the President, or the
proclamation, to enable comparison with the resolution of
ratification adopted by the Senate. It does not receive copies
of reservations or conditions established by other parties, to
enable a determination of whether the advice and consent of the
Senate should have been required. It is not always informed
when a treaty has entered into force or been modified in some
way. Completion by the Department of State of a computerized
information system on treaties, with Senate access, might
enable the Senate to oversee some aspects of the implementation
of treaties more effectively.
Compliance with treaties has also become an issue on some
occasions, especially in the arms control field. Oversight of
compliance has been done with traditional congressional tools
such as hearings, investigations, and required reports.
minority power
Questions are sometimes raised because of the power of a
minority to block a treaty. Since a two-thirds majority of the
Senators present is required to advise and consent to a treaty,
a minority of one-third plus one of the Senate may reject a
treaty. In some cases Senators in the minority seem to have
more influence on a treaty or the substance of future policy
than other Senators because those in the minority can win
concessions. The President may be certain of the support of a
simple majority; he must make special concessions to win the
extra votes necessary for a two-thirds majority. Nevertheless,
a two-thirds majority was clearly the intention of the Framers
of the Constitution, and any formal change would require a
constitutional amendment.
the house role in treaties
Because treaties become part of the law of the land,
concern is sometimes expressed that the House of
Representatives does not share in the treaty power. The Framers
confined the treatymaking power to the President and the Senate
in the belief that the latter's smaller size would enable it to
be a confidential partner in the negotiations. The need for
maintaining secrecy during negotiations and acting with speed
were also cited as justifications for not including the House.
In addition, by making the treaty power a national power and
requiring the advice and consent of the Senate, the Framers
gave expression to their desire to form a strong central
government while affording the states ample safeguards.
The Supreme Court, in INS v. Chadha, cited the Senate's
power to advise and consent to treaties negotiated by the
President ``as one of only four provisions in the Constitution,
explicit and unambiguous, by which one House may act alone with
the unreviewable force of law, not subject to the President's
veto.'' \24\ In 1945 the House adopted a resolution to amend
the Constitution to require the advice and consent of both
Houses for treaties, but the Senate did not act on the
measure.\25\
---------------------------------------------------------------------------
\24\ 462 U.S. 919 (1983).
\25\ H.J. Res. 60, Congressional Record (1945), pp. 4326-4368.
---------------------------------------------------------------------------
The House from the beginning has played a role in treaties
that require implementing legislation. On occasion, as in 1796
with the Jay Treaty, problems have arisen when Presidents have
completed ratification of treaties and then called upon
Congress to pass implementing legislation to prevent the United
States from defaulting on its international obligations.
Treaties approved by the Senate have sometimes remained
unfulfilled for long periods because implementing legislation
was not passed.
The increasing use of congressional-executive agreements
has also equalized to some extent the role of the House vis-a-
vis the Senate in the making of international agreements.
Executive agreements authorized or approved by legislation give
a majority in the House and Senate the power analogous to the
Senate's advice and consent by a two-thirds majority.
vienna convention on the law of treaties
A pending issue for the Senate is what action to take on
the Vienna Convention on the Law of Treaties, a codification of
the international law of treaties which is increasingly cited
as a source of international law, even though the United States
has not yet ratified it. The United States played a leading
role in negotiating the Vienna Convention at a conference of
more than 100 nations and signed it with almost 50 other
countries on May 23, 1969. As in the case of many treaties,
however, the executive branch conducted the negotiations
without congressional observers or consultations, although the
subject matter was of clear concern to the Senate.
The convention was signed by the United States on May 23,
1969, and submitted to the Senate on November 7, 1971. The
Senate Foreign Relations Committee ordered reported a
resolution of advice and consent to ratification, subject to an
understanding and an interpretation, on September 7, 1972, but
the Department of State and the Senate Foreign Relations
Committee could not agree on acceptable conditions and the
convention remains pending on the Foreign Relations Committee
calendar.\26\
---------------------------------------------------------------------------
\26\ See section on the Vienna Convention on the Law of Treaties in
Chapter III. The text of the Vienna Convention is contained in Appendix
5.
---------------------------------------------------------------------------
The main dilemma is that simple ratification would leave
unresolved important constitutional issues relating to
executive agreements. The Vienna Convention codifies an
international law definition of treaties that makes no
distinction between different forms of international
agreements. Article 46 permits a state to invalidate a treaty
if a violation of domestic law in concluding the treaty was
``manifest and concerned a rule of its internal law of
fundamental importance.'' In 1972, however, the Department of
State objected to the interpretation proposed by the Senate
Foreign Relations Committee that it was ``a rule of internal
law of the United States of fundamental importance'' that no
treaty as defined by the convention would be valid unless it
had received the advice and consent of the Senate or its terms
had been approved by law.
The second problem is that, although the United States has
traditionally supported the progressive codification of
international law, in a few instances the Vienna Convention
formally codifies rules of international law that may not have
been fully accepted as customary law by the United States. In
particular, the Vienna Convention provides that an
international agreement is void if it conflicts with a
fundamental norm of general international law ``accepted and
recognized by the international community of States as a whole
as a norm from which no derogation is permitted * * *.'' The
United States in principle does not object to this concept
known as jus cogens, but the convention does not state by whom
or how such norms are established.
Furthermore, the Vienna Convention provides that if a
treaty dispute relating to jus cogens is not resolved within 12
months, any party may invoke the jurisdiction of the
International Court of Justice unless the parties agree to
submit it to arbitration. While the United States has entered a
number of treaties providing for submission of disputes to the
International Court of Justice, unqualified Senate approval of
the Vienna Convention would appear to broaden significantly
U.S. acceptance of the court's jurisdiction, a matter which has
long been controversial. The United States withdrew its
declaration accepting the court's compulsory jurisdiction on
October 7, 1985. Moreover, in approving some treaties with
provisions for submission of disputes to the International
Court of Justice, the Senate has added conditions. In giving
its advice and consent to the Genocide Convention, the Senate
added a reservation that before any dispute to which the United
States was a party could be submitted to the jurisdiction of
the International Court of Justice, the specific consent of the
United States was required in each case.
C. Issues in Agreements Not Submitted to the Senate
Any problems the Senate has in influencing treaties pale in
comparison with problems in influencing many other
international agreements entered into by the United States. For
sole executive agreements, many executive agreements entered
into under the authority of a treaty, and non-legally binding
or political agreements, the Senate (and Congress as a whole)
often have little timely knowledge and no opportunity to change
them or prevent them from taking effect. An exception is the
category of congressional-executive agreements that are
authorized by Congress in legislation with procedures for
congressional review and approval. The problem is one of both
quantity and quality. The number of agreements not submitted to
the Senate as treaties has risen sharply while the number of
treaties has remained steady. At the same time, the subject
matter coverage of executive agreements has expanded and their
significance increased.
increasing use of executive agreements \27\
---------------------------------------------------------------------------
\27\ See Chapter II for references and additional discussion.
---------------------------------------------------------------------------
As the United States became more involved in world affairs,
international agreements multiplied. Most of the growth was in
executive agreements. The executive branch found it was much
easier to conclude an executive agreement than a treaty because
it was not submitted to the Senate. (Compare charts 1 and 2
above.) The Senate, too, accepted executive agreements as an
alternate method of making many international agreements, since
submitting all agreements to the Senate as treaties would
either overwhelm the Senate with work or force approval to
become perfunctory.
Of most concern to the Senate were executive agreements
concluded solely on the President's own authority, without any
influence from Congress. In other executive agreements, the
Senate played a role anyway. In the case of executive
agreements concluded under the authority of a treaty, the
Senate consented to the original treaty. In the case of
congressional-executive agreements, both Houses passed the
legislation that authorized, required scrutiny of, or approved
the agreements.
oversight of executive agreements--the case-zablocki act \28\
---------------------------------------------------------------------------
\28\ See Chapter X for references and additional discussion. The
text of the Case-Zablocki Act is contained in Appendix 2.
---------------------------------------------------------------------------
To help in oversight of executive agreements, in 1972 the
Case-Zablocki Act was enacted. This Act (1 U.S.C. 112b),
usually referred to as the Case Act, requires the Secretary of
State to transmit to Congress all executive agreements,
including oral agreements which are to be reduced to written
form, within 60 days after their entry into force. If the
President deems that the immediate disclosure of an agreement
would be prejudicial to national security, the agreement is to
be transmitted to the Senate Foreign Relations and House
International Relations Committees with a security
classification.
The Case Act has proved helpful in informing Congress of
executive agreements and has provided machinery for additional
oversight. If fully complied with by the executive branch and
utilized by Members of Congress, a system exists for Congress
to learn of executive agreements and to determine the adequacy
of their authorization.
learning of executive agreements
The first problem dealt with by the Case Act was
determining when executive agreements have been concluded. In
the past, Presidents have entered into agreements secretly, as
evidenced by the Yalta Agreement of 1945 and the Cuban missile
crisis of 1962. The Case Act requires the State Department to
send Congress copies of executive agreements. In most cases the
agreements are submitted within the required 60 days after
their entry into force, but some are submitted late. While the
fact that the agreements have already entered into force means
that Congress cannot prevent them from taking effect, timely
knowledge does permit Congress an opportunity to consider the
policy represented by the agreement and to use legislative
means to modify the policy if it wishes.
The Case Act has also helped the Department of State, as
well as Congress, learn of and have some supervision over
agreements made by agencies of the Government other than the
State Department. The Case Act requires any department or
agency that enters an international agreement to transmit the
agreement to the Department of State within 20 days. In
addition, it prohibits any international agreement from being
signed or otherwise concluded on behalf of the United States
without prior consultation with the Secretary of State. Such
consultation may cover a class of agreements rather than each
individual agreement.
U.S. agencies frequently make contracts and arrangements
with agencies in other countries. The Secretary of State
determines for the executive branch whether an arrangement
constitutes an international agreement required to be
transmitted to Congress under the Case Act. Members and
committees of Congress do not want to be deluged with trivia,
yet they want to be sure to receive important agreements. One
decision taken to this end by the Secretary of State with
congressional concurrence was to exclude agreements made by the
Agency for International Development to provide funds of less
than $25 million for a foreign project, unless the agreement
was otherwise significant.
determining authority for executive agreements
A basic concern of the Senate has been whether an executive
agreement is properly within the authority of a treaty or
statute. In 1973, in implementing the Case Act, the Department
of State agreed to send with each executive agreement
transmitted to Congress a background statement on the agreement
that would include a precise citation of legal authority.
Checking these citations could help the Senate distinguish
between those agreements that are within the authority of a
treaty or statute and those it would consider sole executive
agreements. In recent years, however, a majority of agreements
have been transmitted without such background statements.
non-binding international agreements \29\
---------------------------------------------------------------------------
\29\ See Chapters III and X for references and additional
discussion.
---------------------------------------------------------------------------
Some international agreements are not intended to be
legally binding, and these non-binding agreements may escape
regular congressional oversight procedures. Sometimes called
political agreements, these agreements are not considered
treaties under international law. They are not enforceable in
courts, and rules concerning compliance, modification, and
withdrawal from treaties do not apply. Nevertheless, these
agreements may be considered morally binding by the parties,
and the President may be making a type of national commitment
when he enters one. Moreover such agreements are occasionally
later converted into legally binding agreements.
Non-binding agreements are not new. Presidents have often
made mutual declarations and agreed on final acts and
communiques after international meetings. Recently some non-
binding agreements appear to have become quite formal, however,
assuming all the characteristics of a treaty except for a
statement that they are politically, not legally, binding.
Agreements under the Conference on Security and Cooperation in
Europe (CSCE) are an example.
Since non-binding agreements are not submitted to the
Senate as treaties and are not transmitted to Congress as
executive agreements under the Case-Zablocki Act, Congress may
need to learn of the agreements and oversee them through other
methods. In the case of the CSCE agreements, Congress has
carried out vigorous oversight through the Commission on
Security and Cooperation in Europe.
D. Deciding Between Treaties and Executive Agreements
The crux of the problem is determining when international
agreements should be concluded as treaties and when they should
be executive agreements. For what subjects is it essential to
use the treaty process? For what subjects are executive
agreements appropriate?
scope of the treaty power; proper subject matter for treaties \30\
---------------------------------------------------------------------------
\30\ See Chapters III and IV for references and additional
discussion.
---------------------------------------------------------------------------
The treaty power is recognized by the courts as extending
to any matter properly the subject of international
negotiations. In practice the subject matter dealt with by
international negotiations has steadily expanded, particularly
in the last half century, with new forms of international
cooperation in political, military, economic, and social
fields.
From time to time concern has been expressed that treaties
could have adverse implications for, or the effect of changing,
domestic law. For example, the negotiation of human rights
treaties under the auspices of the United Nations raised
concern in the 1950s that some clauses, if ratified by the
United States, might be in conflict with constitutional
provisions safeguarding human rights, or that matters clearly
in the domestic jurisdiction of the United States could be
changed into matters of international concern. Other concerns
were that some national powers might be transferred to an
international organization, or that powers traditionally
reserved to the states could be invaded by transferring them to
the Federal Government or international bodies.
Despite its breadth, the treaty power has certain
limitations in addition to the procedural safeguard of the
requirement for the Senate's advice and consent. Chief among
these is that treaties, like laws, are subject to the
requirements of the Constitution. Controversial constitutional
issues involving treaties include:
(1) Rights reserved to the states.--While it seems settled
that the unspecified reserved powers of the 10th amendment are
not a bar to exercise of the treaty power, specific powers
conferred on states arguably might provide restrictions.
(2) Subjects in which the Constitution gave participation
to the House of Representatives.--Powers delegated to Congress
are not a limitation on subject matter which can be embraced by
a treaty, but for many treaties, domestic effectiveness may
depend on implementing legislation.
(3) Authorizations of U.S. participation in proceedings
before certain types of international judicial tribunals.--The
Constitution's vesting of the judicial power in one Supreme
Court and such inferior courts as Congress might establish
provides a safeguard against infringement by treaty on the
domestic judicial power.
(4) Matters of domestic jurisdiction, not of international
concern.--While there is no clear test of what matters are of
international concern, the existence of such limitations
appears to be generally accepted.
(5) Separation of powers and rights under the Bill of
Rights.--As a general matter, an agreement cannot alter the
constitutional distribution of powers or impair
constitutionally protected rights.
scope of executive agreements; proper subject matter for executive
agreements \31\
---------------------------------------------------------------------------
\31\ See Chapter IV for references and additional discussion.
---------------------------------------------------------------------------
The extent to which executive agreements can be utilized
instead of treaties is perhaps the fundamental question in
studying the Senate role in treaties, and is by no means wholly
resolved.
Congressional-executive or statutory agreements, authorized
or approved by legislation, would appear to have the broadest
constitutional basis. They have been used for such important
subjects as joining international organizations, and the Senate
in legislation has endorsed their possible use for arms control
agreements and the making of national commitments.
Many legal scholars consider statutory agreements
interchangeable with treaties as a method of making
international agreements. Some might even argue that because
they require approval of both Houses of Congress, statutory
agreements might be more appropriate for those questions which
affect domestic law than treaties, which are considered only by
the Senate. When implementing legislation is required, they are
an efficient device because the approval of the agreement and
the necessary legislation may be accomplished in a single step.
Others might argue that to use congressional-executive
agreements instead of treaties, while preserving the
congressional role, could lead to erosion of the treaty power.
Not only would it circumvent the method set out in the
Constitution that deliberately made entering treaties more
difficult than passing legislation, but it would indirectly
reduce the influence of states whose interests were seen to be
protected by requiring a two-thirds majority of the Senators
voting. Some may object to the use of statutory agreements
instead of treaties, when initiated by the executive branch, on
the grounds that it allows the executive branch to pick and
choose between the two methods of making international
agreements according to the better prospects for approval; they
may not object if Congress specifically authorizes such an
agreement.
The other two types of international agreements have
narrower limits but pose other problems. Executive agreements
pursuant to treaties are supposed to be within the purview of
the treaty, that is, carry out the purposes of the treaty. Sole
executive agreements are supposed to be within the President's
independent executive powers under Article II of the
Constitution. However, the extent of the ``purview of the
treaty'' and the President's independent powers raise
judgmental matters subject to varying interpretations.
criteria for treaty form \32\
---------------------------------------------------------------------------
\32\ See Chapter X.
---------------------------------------------------------------------------
A perennial concern of Senators has been to insure that the
most important international commitments are made as treaties
rather than executive agreements. There have been recurrent
complaints that some agreements of major significance, such as
agreements to establish military bases, were not submitted to
the Senate as treaties.
Procedures for consultation between the executive branch
and Congress on the form of prospective international
agreements, primarily whether they should be treaties submitted
to the Senate, were developed in 1978 after the Senate passed
the International Agreements Consultation Resolution suggesting
that such consultation should occur. These procedures include
State Department consultation with appropriate congressional
committees in advance of negotiations. In addition, the
Department is periodically to send the Senate Foreign Relations
and House International Relations Committees a list of
significant international agreements that it has authorized for
negotiation. Congress can use the information provided as the
basis for discussions with the Department of State, or possibly
take more action, on the form an agreement should ultimately
take.
The State Department has developed the following criteria
for determining whether an agreement should be a treaty:
(1) The degree of commitment or risk for the entire Nation;
(2) Whether the agreement is intended to affect state laws;
(3) Whether the agreement requires enabling legislation;
(4) Past U.S. practice;
(5) The preference of Congress;
(6) The degree of formality desired;
(7) The proposed duration and the need for prompt
conclusion; and
(8) General international practice on similar agreements.
When there is a question as to whether an agreement should
be concluded as a treaty or executive agreement, State
Department procedures call for consultation with congressional
leaders and committees as may be appropriate. Fuller use of
these and other consultation procedures appear to offer the
most opportunity for assuring appropriate decisions, from the
Senate's perspective, on whether particular international
agreements should be concluded as executive agreements,
congressional-executive agreements, or treaties.
II. HISTORICAL BACKGROUND AND GROWTH OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------
\1\ Prepared by Louis Fisher, Senior Specialist in Separation of
Powers.
---------------------------------------------------------------------------
----------
The Framers of the Constitution expected the Senate to
serve as a council of advice to the President on treaty
matters, participating during the negotiation stage through the
end of the treatymaking process. The experience of President
George Washington in 1789, in meeting with Senators to discuss
the terms of a treaty to be negotiated with the Southern
Indians, proved discouraging to both branches. Although no
President again met with Senators in the Senate Chamber to
discuss a proposed treaty, other methods were used to include
Senators in the treaty-drafting process. The Senate's role
evolved into a more formal pattern of passing judgment on
completed treaties, approving or not approving them, or
approving them with conditions that the President must accept
if he ratifies them.
Senate action on treaties has changed dramatically,
particularly since World War II. While the number of treaties
concluded each year has remained fairly constant, the number of
international agreements other than treaties has skyrocketed.
Moreover, a growing proportion of treaties are now multilateral
rather than bilateral, and the subject matter of treaties and
other international agreements continues to diversify. All of
these changes challenged the Senate in maintaining its
constitutional role.
A. Historical Background of Constitutional Provisions
Four provisions of the Constitution expressly relate to
treaties and form the basis of U.S. law on treaties. By making
treaties the supreme law of the land and dividing the
treatymaking power between the President and the Senate, the
Constitution makes treaties uniquely important and difficult
for the United States.
Article I, Section 10, expressly prohibits states from
entering into ``any Treaty, Alliance, or Confederation,'' nor
may any state, without the consent of Congress, enter into any
agreement or compact or agreement with another state or with a
foreign nation.
Article II, Section 2, Clause 2, states 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 III, Section 2, Clause 1, provides: ``The judicial
Power shall extend to all Cases, in Law and Equity, arising
under this Constitution, the Laws of the United States, and
Treaties made, or which shall be made, under their Authority; *
* *''
Article VI, Section 2, includes treaties among the supreme
law of the land: ``This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary
notwithstanding.''
The background and records of the Constitutional Convention
of 1787 and early writings and practice help reveal the
intentions, concerns, and assumptions of the Drafters of the
Constitution.
the constitutional convention
The Articles of Confederation, completed in 1777 but not
ratified until 1781, formed the basis of the relationship among
the 13 colonies until superseded by the Constitution in 1789.
The Continental Congress was the only central organ of the
Confederation. The Articles vested in ``the united states in
congress assembled'' the power to enter into treaties and
alliances, ``provided that no treaty of commerce shall be made
whereby the legislative power of the respective states shall be
restrained from imposing such imposts and duties on foreigners,
as their own people are subjected to, or from prohibiting the
exportation or importation of any species of goods or
commodities whatsoever * * *.'' Congress, a single body
composed of delegates from each state, required the assent of
nine states for a treaty.The main problem concerning treaties
under the Articles was in securing agreement to make treaty
provisions binding on all the states.
At the Philadelphia Convention in 1787, a number of
proposals were put forth to replace the Articles of
Confederation. It was generally agreed that the single branch
of the Continental Congress would be replaced by three
branches: legislative, executive, and judicial. Well into
August, the delegates agreed to give the Senate the exclusive
power to make treaties and appoint ambassadors.\2\ Opposition
developed, however. On August 15, John Mercer of Maryland
objected to lodging the treatymaking power in the Senate,
contending that it belonged to the executive department, adding
that treaties ``would not be final so as to alter the laws of
the land, till ratified by legislative authority.'' \3\ On
August 23, James Madison pointed out that the Senate
represented the states alone and that for ``this as well as
other obvious reasons it was proper that the President should
be an agent in Treaties.'' \4\
---------------------------------------------------------------------------
\2\ The Records of the Federal Convention of 1787, at 143, 144-45,
155, 392 (Max Farrand ed. 1937) (hereafter cited as Farrand).
\3\ Ibid., p. 297.
\4\ Ibid., p. 393
---------------------------------------------------------------------------
By September 4 delegates had agreed that the President ``by
and with the advice and consent of the Senate, shall have power
to make treaties,'' and that no treaty shall be made without
the consent of two-thirds of the Senators present.\5\ This
portion of the report was brought up for discussion on
September 7. James Wilson of Pennsylvania moved to add the
words ``and House of Representatives'' after the word Senate
because, he said, since treaties ``are to have the operation of
laws, they ought to have the sanction of laws also.'' As to the
objection that secrecy was needed for treatymaking, he said
that factor was outweighed by the necessity for the sanction of
both chambers. Roger Sherman of Connecticut argued that the
requirement of secrecy for treaties ``forbade a reference of
them to the whole Legislature.'' Wilson's motion was
defeated.\6\
---------------------------------------------------------------------------
\5\ Ibid., pp. 495, 498-499.
\6\ Ibid., p. 538.
------- 
