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).