Search this Guide Search. Treaty Research This guide describes resources and methods for locating and updating treaties of the United States and other countries. 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: National Treaty Law and Practice , Call No.
N38 print ; e-book version See Chapter 20, by Robert E. Dalton, on U. Senate: A Study , Call No. The constitutionality of congressional-executive agreements is well- settled. Historically, congressional-executive agreements have been made for a wide variety of topics, ranging from postal conventions to bilateral trade to military assistance. Agreements made pursuant to treaties are also well established as constitutional, 55 though controversy occasionally arises as to whether a particular treaty actually authorizes the Executive to conclude an agreement in question.
Sole executive agreements rely on neither treaty nor congressional authority to provide their legal basis. If, however, the President enters into an agreement and his constitutional authority over the agreement's subject matter is unclear, a reviewing court may consider Congress's position in determining whether the agreement is legitimate. Examples of sole executive agreements include the Litvinov Assignment, under which the Soviet Union purported to assign to the United States claims to American assets in Russia that had previously been nationalized by the Soviet Union, and the Vietnam Peace Agreement ending the United States' participation in the war in Vietnam.
Congressional-Executive Agreement : An executive agreement for which domestic legal authority derives from a preexisting or subsequently enacted statute. Executive Agreement Made Pursuant to a Treaty : An executive agreement based on the President's authority in a treaty that was previously approved by the Senate. Sole Executive A greement : An executive agreement based on the President's constitutional powers.
Recently, some foreign relations scholars have argued that the international agreement-making practice has evolved such that some modern executive agreements no longer fit in the three generally recognized categories of executive agreements.
There has been long-standing scholarly debate over whether certain types of international agreements may only be entered as treaties, subject to the advice and consent of the Senate, or whether a congressional-executive agreement may always serve as a constitutionally permissible alternative to a treaty. State Department regulations prescribing the process for coordination and approval of international agreements commonly known as the "Circular procedure" 83 include criteria for determining whether an international agreement should take the form of a treaty or an executive agreement.
Congressional preference is one of several factors identified in the text box below considered when determining the form that an international agreement should take. In addition, the Circular procedure provides that "the utmost care" should be exercised to "avoid any invasion or compromise of the constitutional powers of the President, the Senate, and the Congress as a whole.
In , the Senate passed a resolution expressing its sense that the President seek the advice of the Senate Committee on Foreign Relations in determining whether an international agreement should be submitted as a treaty. In determining whether a particular international agreement should be concluded as a treaty or an executive agreement, the State Department requires consideration to be given to the following factors:.
Not every pledge, assurance, or arrangement made between the United States and a foreign party constitutes a legally binding international agreement. The executive branch has long claimed the authority to enter such pacts on behalf of the United States without congressional authorization, asserting that the entering of political commitments by the Executive is not subject to the same constitutional constraints as the entering of legally binding international agreements.
Under State Department regulations, an international agreement is generally presumed to be legally binding in the absence of an express provision indicating its nonlegal nature.
The Executive's authority to enter such arrangements—particularly when those arrangements contemplate the possibility of U. The National Commitments Resolution took the form of a sense of the Senate resolution, and accordingly had no legal effect.
Unlike in the case of legally binding international agreements, there is no statutory requirement that the executive branch notify Congress of every nonlegal agreement it enters on behalf of the United States. The effects that international legal agreements entered into by the United States have upon U. Some provisions of international treaties or executive agreements are considered "self-executing," meaning that they have the force of domestic law without the need for subsequent congressional action.
Although the Supreme Court has not addressed the issue directly, many courts and commentators agree that provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing , and implementing legislation is required to give such provisions domestic legal effect.
Until implementing legislation is enacted, existing domestic law concerning a matter covered by a non-self-executing provision remains unchanged and controlling law in the United States.
Despite the complexities of the self-execution doctrine in domestic, treaties and other international agreements operate in dual international and domestic law contexts. When an international agreement requires implementing legislation or appropriation of funds to carry out the United States' obligations, the task of providing that legislation falls to Congress.
By contrast, the Supreme Court has addressed the scope of Congress's power to enact legislation implementing non-self-executing treaty provisions. In a case, Missouri v. Holland , the Supreme Court addressed a constitutional challenge to a federal statute that implemented a treaty prohibiting the killing, capturing, or selling of certain birds that traveled between the United States and Canada.
Commentators and jurists have called some aspects of the Justice Holmes's reasoning in Holland into question, and some scholars have argued that the opinion does not apply to executive agreements. United States. Bond concerned a criminal prosecution arising from a case of "romantic jealously" when a jilted spouse spread toxic chemicals on the mailbox of a woman with whom her husband had an affair.
Although a majority in Bond declined to revisit Holland 's interpretation of the Tenth Amendment, the Bond Court ruled in the accused's favor based on principles of statutory interpretation.
Sometimes, a treaty or executive agreement will conflict with one of the three main tiers of domestic law—U. For domestic purposes, a ratified, self-executing treaty is the law of the land equal to federal law and superior to U. Treaties and executive agreements that are not self-executing, on the other hand, have generally been understood not to displace existing state or federal law in the absence of implementing legislation.
When analyzing an international agreement for purposes of its domestic application, U. The executive branch frequently is responsible for interpreting international agreements outside the context of domestic litigation.
In Charlton v. Kelly , for example, the Supreme Court declined to decide whether Italy violated its extradition treaty with the United States, reasoning that, even if a violation occurred, the President "elected to waive any right" to respond to the breach by voiding the treaty. Congress also possesses power to interpret international agreements by virtue of its power to pass implementing or other related legislation.
The Constitution sets forth a definite procedure whereby the President has the power to make treaties with the advice and consent of the Senate, but it is silent as to how to terminate them. The following section discusses historical practice and jurisprudence related to the withdrawal from and termination of international agreements. In the case of executive agreements, it appears generally accepted that, when the President has independent authority to enter into an executive agreement, the President may also independently terminate the agreement without congressional or senatorial approval.
For congressional-executive agreements and executive agreements made pursuant to treaties, the mode of termination may be dictated by the underlying treaty or statute on which the agreement is based.
Congress also has asserted the authority to direct the President to terminate congressional-executive agreements. For example, in the Comprehensive Anti-Apartheid Act of , which was passed over President Reagan's veto, Congress instructed the Secretary of State to terminate an air services agreement with South Africa.
Presidents also have asserted the authority to withdraw unilaterally from congressional-executive agreements, but there is an emerging scholarly debate over the extent to which the Constitution permits the President to act without the approval of the legislative branch in such circumstances. Some scholars assert that the President has the power to withdraw unilaterally from congressional-executive agreements, although he may not terminate the domestic effect of an agreements implementing legislation.
Unlike the process of terminating executive agreements, which historically has not generated extensive opposition from Congress, the constitutional requirements for the termination of Senate-approved, ratified treaties have been the subject of occasional debate between the legislative and executive branches.
Some commentators have argued that the termination of treaties is analogous to the termination of federal statutes. On the other hand, treaties do not share every feature of federal statutes.
Whereas statutes can be enacted over the president's veto, treaties can never be concluded without the Senate's advice and consent.
Moreover, whereas an enacted federal statute can only be rescinded by a subsequent act of Congress, some argue that, just as the President has some unilateral authority to remove executive officers who were appointed with senatorial consent, the President may unilaterally terminate treaties made with the Senate's advice and consent.
The United States terminated a treaty under the Constitution for the first time in On the eve of possible hostilities with France, Congress passed, and President Adams signed, legislation stating that four U.
During the 19th century, government practice treated the power to terminate treaties as shared between the legislative and executive branches.
On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty. At the turn of the 20th century, government practice began to change, and a new form of treaty termination emerged: unilateral termination by the President without approval by the legislative branch.
The president's exercise of treaty termination authority did not generate opposition from the legislative branch in most cases, but there have been occasions in which Members of Congress sought to block unilateral presidential action. In , a group of Members filed suit in Goldwater v. Carter seeking to prevent President Carter from terminating a mutual defense treaty with the government of Taiwan as part of the United States' recognition of the government of mainland China.
Customary international law is defined as resulting from "a general and consistent practice of States followed by them from a sense of legal obligation. First, a nation that is a persistent objector to a particular requirement of customary international law is exempt from it. In examining nations' behavior to determine whether opinio juris is present, courts might look to a variety of sources, including, inter alia, relevant treaties, unanimous or near-unanimous declarations by the United Nations General Assembly concerning international law, and whether noncompliance with an espoused universal rule is treated as a breach of that rule.
Some particularly prevalent rules of customary international law can acquire the status of jus cogens norms—peremptory rules which permit no derogation, such as the international prohibition against slavery or genocide.
For much of the history of the United States, courts and U. In a landmark decision, Erie Railroad Co. Tompkins , the Supreme Court rejected the then-longstanding notion that there was a "transcendental body of law" known as the general common law, which federal courts are permitted to identify and describe in the absence of a conflicting statute.
Jessup argued that it would be "unsound" and "unwise" to interpret Erie to bar federal courts' application of customary international law.
While there is some uncertainty concerning the customary international law's role in domestic law, the debate has largely focused on circumstances in which customary international law does not conflict with an existing federal statute. When a federal statute does conflict with customary international law, lower courts consistently have concluded that the statute prevails.
In The Paquete Habana , the Court explained that customary international law may be incorporated into domestic law, but only to the extent that "there is no treaty, and no controlling executive or legislative act or judicial decision" in conflict. While it appears that federal statutes will generally prevail over conflicting custom-based international law, customary international law can potentially affect how courts construe domestic law.
Under the canon of statutory construction known as the Charming Betsy canon, when two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable. Customary international law plays a direct role in the U. Some statutes expressly reference customary international law, and thereby permit courts to interpret its requirements and contours.
Perhaps the clearest example of U. Pena-Irala , the U. Court of Appeals for the Second Circuit relied upon it to award a civil judgment against a former Paraguayan police official who had allegedly tortured the plaintiffs while still in Paraguay. Beginning with a decision, Sosa v. Alvarez-Machain , the Supreme Court began to place outer limits on the statute's application. Nine years later, in Kiobel v. Royal Dutch Petroleum Co. In some areas, courts have established settled rules.
For example, courts clearly have recognized that the Constitution permits the United States to make binding international commitments through both treaties and executive agreements. Because the legislative branch possesses significant powers to shape and define the United States' international obligations, Congress is likely to continue to play a critical role in dictating the outcome of these debates in the future.
Figure A Steps in the Making of a Treaty. Print Steps in the Making of an Executive Agreement. Recorded international law dates back to agreements between Mesopotamian rulers five thousand years ago, but international law as it now commonly understood began with the Roman Empire, whose scholars formulated a jus gentium law of nations they believed universally derivable through reason. See generally David J. Bederman, International Law in Antiquity Although originally governing nation-to-nation relations, the scope of international law has grown, beginning in the latter half of the 20th century with the emerging fields of human rights law and international criminal law, to regulate the treatment and conduct of individuals in certain circumstances.
See, e. GAOR, 3rd Comm. See also U. State Dept. Jackson, International Conference on Military Trials arguing that crimes against humanity were "implicitly" in violation of international law even before the Nuremberg military trials of Nazi leadership for such offenses following World War II. Hylton, 3 U. Georgia, 2 U. See also infra notes - citing statements by the judicial and executive branch concerning the application of international law into domestic law.
Neilson, 27 U. Percheman, 32 7 Pet. The Paquete Habana, U. See also, e. Immigration and Naturalization Service, 86 F. As used in this report, the term "pact" is a generic term intended to encompass non-binding commitments between nations and legally binding international agreements. For further detail of various types of international commitments and their relationship with U. Vienna Convention on the Law of Treaties, art.
Although the United States has not ratified the Vienna Convention, courts and the executive branch generally regard it as reflecting customary international law on many matters. New York, F. Airlines, Inc. Federal Exp. Asiana Airlines, F. The term "treaty" is not always interpreted under U. See Weinberger v. Rossi, U. United States, U. See id. For more on variations of the definition of the term "treaty," see supra notes 13 - See Curtis A. Constitution , 48 Harv. Int'l L. See , e.
Constitution 2d ed. On an occasion that has been described as the first and last time the President personally visited the Senate chamber to receive the Senate's advice on a treaty, President Washington went to the Senate in August to consult about proposed treaties with the Southern Indians. See 1 Annals of Cong. But observers reported that he was so frustrated with the experience that he vowed never to appear in person to discuss a treaty again.
Harris ed. See Zivotofsky v. Kerry, S. Curtiss-Wright Export Corp. Crandall, Treaties, Their Making and Enforcement 81 2d ed. As a general matter, "[r]eservations change U. Declarations are "statements expressing the Senate's position or opinion on matters relating to issues raised by the treaty rather than to specific provisions. E "The Senate sometimes uses 'declarations' to express views on matters of policy. Understandings are "interpretive statements that clarify or elaborate provisions but do not alter them.
C "The Senate has regularly used 'understandings' to set forth the U. Provisos concern "issues of U. D discussing the usage of provisos. See also United States v. Stuart, U. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States. For example, in giving its advice and consent to the first treaty that was to be ratified by the United States after the adoption of the Constitution—dubbed the Jay Treaty because it was negotiated by the first Chief Supreme Court Justice of the United States, John Jay, who was appointed a special envoy to Great Britain despite his role in the judicial branch—the Senate insisted on suspending an article allowing Great Britain to restrict U.
Senate Exec. Journal, 4th Cong. See Hayden, supra note 24 at Bradley, International Law in the U. Legal System 2d ed. Compare , e. Nat'l Security L. See Haver v.
Yaker, 76 U. Alvarez-Machain, U. Lynch, F. Gonzales, F. They are not binding on the successive presidents. An executive agreement needs renegotiation by the successive presidents. Executive agreements are of two types:. This is the most common type of executive agreement. The Congressional agreement requires approval by the Senate and the House of Representatives.
This procedure is taken when a two-thirds vote in the Senate seems unlikely. A sole agreement does not involve the Senate and is signed by the President. At present, the U. A treaty requires a two-thirds vote in the Senate while an executive agreement does not. A treaty is a formal agreement while an executive agreement is not as formal as a treaty.
A treaty is carried on to the successive Presidents while an executive agreement has to be renegotiated every time. An executive agreement is of two types while a treaty is not. A President may invoke an executive agreement but not a treaty. There are many more executive agreements as compared to treaties. Difference Between Treaty and Executive Agreement. Difference Between Similar Terms and Objects.
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