United States Economic Treaty

United States Wiki

Arthur L. Finkle

General information about the policy process

A treaty is an agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, all of these forms of agreements are, under international law, equally considered treaties and the rules are the same. (Nicolson, Harold. (1934). Diplomacy, p. 135.)

Bilateral treaties are concluded between two states or entities. It is possible, however, for a bilateral treaty to have more than two parties; consider for instance the bilateral treaties between Switzerland and the European Union (EU) following the Swiss rejection of the European Economic Area agreement. Each of these treaties has seventeen parties. These however are still bilateral, not multilateral, treaties. The parties are divided into two groups, the Swiss ("on the one part") and the EU and its member states ("on the other part"). The treaty establishes rights and obligations between the Swiss and the EU and the member states severally—it does not establish any rights and obligations amongst the EU and its member states. (Nicolson, Harold. (1934). Diplomacy, p. 135.

Articles 46–53 of the Vienna Convention on the Law of Treaties set out the only ways that treaties can be invalidated—considered unenforceable and void under international law. (Article 60 of the Vienna Convention on the Law of Treaties).

Negotiation of treaties is the President’s role; the Senate’s role in relation to treaties is today essentially legislative in character. “He alone negotiates. Into the field of negotiation, the Senate cannot intrude; and Congress itself is powerless to invade it,” declared Justice Sutherland (1936) for the US Supreme Court in 1936.

The Senate must content itself with such information as the President chooses to furnish. In performing the function that remains to it, however, it has several options. It may consent unconditionally to a proposed treaty, it may refuse its consent, or it may stipulate conditions in the form of amendments to the treaty, of reservations to the act of ratification, or of statements of understanding or other declarations, the formal difference between the first two and the third being that amendments and reservations, if accepted by the President must be communicated to the other parties to the treaty, and, at least with respect to amendments and often reservations as well, require reopening negotiations and changes, whereas the other actions may have more problematic results. The act of ratification for the United States is the President’s act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present, which signifies two-thirds of a quorum, otherwise the consent rendered would not be that of the Senate as organized under the Constitution to do business. (US Constitution., Art. I, § 5, cl. 1; Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 283-84 (1919).

'''U.S. Treaties & Agreements - The Process'''

Under U.S. law,

treaties are equivalent in status to Federal legislation;

a distinction is made between the terms treaty and agreement;

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);

agreements not submitted to the Senate are known as executive agreements; and

regardless of whether an international agreement is called a convention, agreement, protocol, accord, etc., if it is submitted to the Senate for advice and consent, it is considered a treaty under U.S. law.

Note that under international law, both types of agreements are considered binding.

For more information about treaties, see Frederic Kirgis, International Agreements and U.S. Law and Treaties and Other International Agreements: The Role of the United States Senate: A Study, prepared for the Committee on Foreign Relations, United States Senate, S. Print 106-71 (note that this is a long document and can take some time to load).

Ratification & Implementation of U.S. Treaties and Agreements

When conducting U.S. treaty research, it is important to understand the ratification and implementation process. Negotiation of treaties and international agreements is the responsibility of the Executive Branch.

Outline of the Treaty Making Process

Secretary of State authorizes negotiation.

U.S. representatives negotiate.

Agree on terms, and upon authorization of Secretary of State, sign treaty.

President submits treaty to Senate.

Senate Foreign Relations Committee considers treaty and reports to Senate.

Senate considers and approves by 2/3 majority. President proclaims entry into force.

Main national actors

National actors involved

Secretary of State

President of the United States

Senate of the United States

(US Treaties and Agreement: The Process. https://www.law.duke.edu/ilrt/treaties_3.htm)

Regional or local actors involved

§  Lobby groups represented economic interests

§  Other executive Department may involve themselves, such as the Commerce Department

The relationship between actors

The Executive Brach has exclusive competence to negotiate a treaty. However, such agreement is conditional upon 2/3 of the US Senate’s agreement. There is a procedure for changes when the Senate and Executive Branches disagree. Of course the other party (in this case, the EU) has to be noticed.

(Ratification of International Agreements by EU Member States, 1916. EU Parliamentary Research Blog, 2016; https://epthinktank.eu/2016/11/30/ratification-of-international-agreements-by-eu-member-states/)

The EU Commission enters into negotiations with non-member states involving economic treaties

Ratification procedures follow certain principles but differ from one country to another depending on constitutional and legal requirements and the type of agreement. In EU Member States, the national and regional parliaments’ involvement varies, as does the possibility of holding referendums. For ‘mixed’ agreements between the EU with third countries where Member States need also to ratify, they each apply their own domestic procedures.

Procedure for concluding international agreements varies for each member.

A few members call for Referendums to ratify.

Ratification of international agreements in Member States

The executive branch has near exclusive competence in the process of concluding IAs, although may be subject to a mandate voted in parliament. In general, the government negotiates an agreement, agrees on the text and subsequently the state representative, endowed with full powers, and signs it. A clear distinction should be made between definitive signature of an International Agreement and a signature subject to ratification, acceptance or approval. A definitive signature does not require further ratification in order for the agreement to enter into force.

However, a signature subject to ratification, accept­ance or approval does not establish the party’s consent to be bound, which h only obtains with the appropriate members’ domestic procedure.

Depending on the specific state’s constitution, approval of ratification involves either the executive or parliament. Agreements requiring parliamentary approval are in most cases those of greater political or financial importance, or otherwise significant.

The role of EU Parliaments

Involvement of EU regions and their parliaments or assemblies

National/regional parliaments

References

American Lawinstitute, Restatement (Third) Of The Law, The Foreign Relations Law of the United States § 314, 1987.

Fourteen Diamond Rings V. United States, 183 U.S. 176, 183 (1901).

Diplomacy: A Basic Guide to the Conduct of Contemporary Foreign Affairs Diplomacy: a Basic Guide to the Conduct of Contemporary Foreign Affairs (1939)

Treaties and Other International Agreements: The Role of the United States Senate, A Study Prepared for the Senate Committee on Foreign Relations by the Congressional Research Service, 103d Cong., 1st Sess. (Comm. Print) (1993), 96-98.

US Constitution., Art. I, § 5, cl. 1; Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 283-84 (1919).