Treaty Power

Author:Burns H. Weston

Page 2721

To enhance the pledged word of the United States in foreign relations, the Framers of the Constitution granted to the President, in cooperation with the Senate, the power to make and enter into treaties. They also provided that this power should vest exclusively in the federal government. The Framers neglected to define the term "treaty," however, leaving its meaning to subsequent clarification. Today, under international law, the term is used for all manner of formal instruments of agreement between or among nations that, regardless of the titles used, create relationships of reciprocal rights and obligations. Under United States law, the term "treaty" usually denotes only those international agreements that are concluded by the federal government and ratified by the President upon receiving the ADVICE AND CONSENT of the SENATE. All other international agreements?EXECUTIVE AGREEMENTS, for example?are brought into force for the United States upon a constitutional basis other than senatorial advice and consent.

The process of treaty making involves negotiation, signature, ratification, exchange of instruments of ratification, publication, and proclamation; but, other than prescribing that two-thirds of the senators present must give their advice and consent to the ratification of a treaty, the Constitution is silent on the subject. In the early days of the Republic, it was thought that the Senate would participate with the President by giving its advice and consent at every negotiating juncture. Today, it is the accepted practice for the President to solicit the advice and consent of the Senate only after a treaty has been negotiated and signed, although in many?especially important?instances, Senate and even House committees play active roles in advance of the conclusion of a treaty, sometimes on their own initiative, sometimes at the behest of the executive branch.

Once the negotiation of a treaty is complete, the President decides whether to sign the treaty and, if so, whether to submit it to the Senate for advice and consent to ratification. If the Senate is perceived as hostile, the President may choose to let the treaty die rather than suffer defeat. If the Senate receives the treaty, it refers the treaty to the Committee on Foreign Relations, which may or may not report the treaty to the full Senate for its advice and consent. Committee inaction is the usual method for withholding consent to controversial...

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