United States law
Article II, Section 2 of the United States Constitution grants power to the President to make treaties with the "advice and consent" of two thirds of the Senate. This is difference from normal legislation which requires approval by simple majorities in both the Senate and House.
However, throughout U.S history, the President has also made "international agreements" through congressional-executive agreements that are ratified with only a majority from both houses of Congress, or sole executive agreements made by the President alone. Though the Constitution does not provide for any alternative procedure and although some noted Constitutional scholars, namely Laurence Tribe, believe that CEA's are unconstitutional, the Supreme Court has considered these agreements to be valid, and that any disagreements are a political question for the executive and legislative branches to work out amongst themselves.
In addition, U.S. law distinguishes between self-executing treaties, which do not require additional legislative action and non-self-executing treaties which does require additional legislative action.
These distinctions of procedure or terminology also do not affect the binding strength of such agreements under international law. Nevertheless, they do have major implications under U.S. domestic law.
In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the U.S. Constitution is a power separate from the enumerated powers of the Federal government, and hence the Federal government can use treaties to legislate in areas which would otherwise be the exclusive power of the states. By contrast, a
congressional-executive agreement can only cover matters which the Constitution explicitly places within the powers of Congress and the President, while an executive agreement can only cover matters within the President's authority or matters which Congress has delegated authority to the President.
Politically, the ratification process for treaties is different from the process for CEA's. Whereas a treaties requires a 2/3rd vote of the Senate only, a CEA requires a majority vote of both houses. Which venue is more advantageous for passage depends on the circumstance. In general, arms control agreements are ratified by the treaty mechanism because it is simpler to go through one house of congress than two. At the same time, trade agreements are generally voted on as a CEA because the 2/3 requirement makes it possible for agricultural interests to veto any tariff reduction.
The United States takes a different view concerning the relationship between international and domestic law than many other nations, particularly in Europe.
Unlike nations which view international agreements as always superseding national law, the American view is that international agreements become part of the body of U.S. federal law. As a result, Congress can modify or repeal treaties by subsequent legislative action, even if this amounts to a violation of the treaty under international law. The most recent changes will be enforced by U.S. courts entirely independently of whether the international community still considers the old treaty obligations binding upon the U.S. Additionally, an international agreement that is inconsistent with the U.S. Constitution is void under domestic U.S. law, the same as any other federal law in conflict with the Constitution, and the Supreme Court could rule a treaty provision to be unconstitutional and void under domestic law, although it has never done so.
The constitutional constraints are stronger in the case of CEA and executive agreements, which cannot override the laws of state governments.
The Supreme Court has also ruled in Goldwater v. Carter, 444 U.S. 996 (1979) that the President has the power to unilaterally abrogate a treaty without the consent of Congress or the Senate. The case in question involved President Jimmy Carter's termination of a defense treaty with the Republic of China on Taiwan.
The U.S. is not a party to the Vienna Convention. However, the State Department has nonetheless taken the position that it is still binding, in that the Convention represents established customary law.
The U.S. habitually includes in treaty negotiations the reservation that it will assume no obligations that are in violation of the U.S. Constitution.
Define these terms: Adoption, signature, ratification, declaration, accession, acceptance, approval.
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