In the United States treaties are negotiated by the president and require

Under U.S. law, the term “treaty” is reserved for international agreements submitted by the executive branch to the U.S. Senate for its advice and consent.  Only if the Senate ratifies a treaty by a two-thirds majority may the treaty enter into force.  International agreements that enter into force without the advice and consent of the Senate are often referred to generically as “executive agreements.”  Bear in mind that this generic term encompasses three distinct types of agreements:

• Agreements concluded on the basis of the president's constitutional authority (executive agreements);
• Agreements concluded pursuant to a statute enacted by Congress (congressional-executive agreements); and
• Agreements concluded pursuant to the terms of a duly ratified treaty.

The president must transmit the text of an executive agreement to Congress within 60 days of its entry into to force, pursuant to a 2005 amendment to the Case-Zablocki Act (codified at 1 U.S.C. §112b), as implemented by 22 CFR Part 181.

The Office of the Legal Advisor of the U.S. State Department is responsible for deciding whether an international agreement should be classified as a treaty.  The criteria for making this determination are set forth in the Circular 175 Procedure, which is codified in Volume 11 of the State Department’s Foreign Affairs Manual (11 FAM 720).  The Circular 175 Procedure also establishes uniform guidelines for negotiating, concluding, reporting, and publishing U.S. treaties and other international agreements.

For more in-depth discussion and analysis of the distinction between treaties and other types of international agreements, and for more information about the process of negotiation and ratification, consult the following resources:

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 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.

Outline of the Agreement Making Process

• Secretary of State authorizes negotiation.
• U.S. representatives negotiate.
• Agree on terms, and upon authorization of Secretary of State, sign agreement.
• Agreement enters into force.

For more information on the ratification and implementation process, see Robert E. Dalton, National Treaty Law and Practice: United States 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.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

How did this distinctive feature of the Constitution come about, by virtue of which the treaty-making authority is enabled to stamp upon its promises the quality of municipal law, thereby rendering them enforceable by the courts without further action? The short answer is that Article VI, paragraph 2, makes treaties the supreme law of the land on the same footing with acts of Congress. The clause was a direct result of one of the major weaknesses of the Articles of Confederation. Although the Articles entrusted the treaty-making power to Congress, fulfillment of Congress’s promises was dependent on the state legislatures. Footnote
S. Crandall, Treaties, Their Making and Enforcement ch. 3 (2d ed. 1916). Particularly with regard to provisions of the Treaty of Peace of 1783, Footnote
Id. at 30–32. For the text of the Treaty, see 1 Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers (1776-1909), 586 S. Doc. No. 357, 61st Congress, 2d Sess. (W. Malloy ed., 1910). in which Congress stipulated to protect the property rights of British creditors of American citizens and of the former Loyalists, Footnote
Id. at 588. the promises were not only ignored but were deliberately flouted by many legislatures. Footnote
R. Morris, John Jay, The Nation, and the Court 73–84 (1967). Upon repeated British protests, John Jay, the Secretary for Foreign Affairs, suggested to Congress that it request state legislatures to repeal all legislation repugnant to the Treaty of Peace and to authorize their courts to carry the treaty into effect. Footnote
S. Crandall, supra, at 36-40. Although seven states did comply to some extent, the impotency of Congress to effectuate its treaty guarantees was obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation. Footnote
The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 The Records of the Federal Convention of 1787, at 47, 54 (Max Farrand ed., 1937), and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id. at 245, 316, 2 id. at 27–29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present Supremacy Clause; the draft omitted the authorization of force from the clause, id. at 183, but in another clause the legislative branch was authorized to call out the militia to, inter alia, “enforce treaties” . Id. at 182. The two words were struck subsequently “as being superfluous” in view of the Supremacy Clause. Id. at 389–90.

What other treaty provisions need congressional implementation is debatable. A 1907 memorandum approved by the Secretary of State stated that the limitations on the treaty power that necessitate legislative implementation may “be found in the provisions of the Constitution which expressly confide in Congress or in other branches of the Federal Government the exercise of certain of the delegated powers. . . .” Footnote
Anderson, The Extent and Limitations of the Treaty-Making Power, 1 Am. J. Int’l L. 636, 641 (1907). The same thought has been expressed in Congress Footnote
At the conclusion of the 1815 debate, the Senate conferees noted in their report that some treaties might need legislative implementation, which Congress was bound to provide, but did not indicate what in their opinion made some treaties self-executing and others not. 29 Annals of Cong. 160 (1816). The House conferees observed that they thought, and that in their opinion the Senate conferees agreed, that legislative implementation was necessary to carry into effect all treaties which contained “stipulations requiring appropriations, or which might bind the nation to lay taxes, to raise armies, to support navies, to grant subsidies, to create States, or to cede territory. . . .” Id. at 1019. Much the same language was included in a later report, H. Rep. No. 37, 40th Congress, 2d Sess. (1868). Controversy with respect to the sufficiency of Senate ratification of the Panama Canal treaties to dispose of United States property therein to Panama was extensive. A divided Court of Appeals for the District of Columbia reached the question and held that Senate approval of the treaty alone was sufficient. Edwards v. Carter, 580 F.2d 1055 (D.C. Cir.), cert. denied, 436 U.S. 907 (1978). and by commentators. Footnote
T. Cooley, General Principles of Constitutional Law 175 (3d ed. 1898); Q. Wright, The Control of American Foreign Relations 353–356 (1922). Resolution of the issue seems to be for legislative and executive branches rather than for the courts.

“Treaty provisions which define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war and neutrality, have been so considered . . . .”

Controversy over Holmes' language apparently led Justice Black in Reid v. Covert Footnote
354 U.S. 1 (1957) (plurality opinion). to deny that the difference in language of the Supremacy Clause with regard to statutes and with regard to treaties was relevant to the status of treaties as inferior to the Constitution. “There is nothing in this language which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in ‘pursuance’ of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights —let alone alien to our entire constitutional history and tradition—to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V.” Footnote
354 U.S. at 16–17. For discussions of the issue, see Restatement, Foreign Relations, § 302; Nowak & Rotunda, A Comment on the Creation and Resolution of a “Non-Problem” : Dames & Moore v. Regan, the Foreign Affairs Power, and the Role of the Courts, 29 UCLA L. Rev. 1129 (1982); L. Henkin, supra, at 137-156.

Typically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties? Footnote
The matter was most extensively canvassed in the debate with respect to President Carter’s termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination: Hearings Before the Senate Committee on Foreign Relations, 96th Congress, 1st Sess. (1979). On the issue generally, see Restatement, Foreign Relations, § 339; CRS Study, supra, 158-167; L. Henkin, supra, at 167-171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties: The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger, The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577 (1980). Reasonable arguments may be made locating the power in the President alone, in the President and Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is also required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.

Definitive resolution of this argument appears only remotely possible. Historical practice provides support for all three arguments and the judicial branch seems unlikely to essay any answer.

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