Actors in the making and ratification of international agreements

• Author: Winston, Andrew M.
• Pages: 20-22

Study

20

III. Actors in the making and ratification of international

agreements

III.1. The executive branch

Under the U.S. Constitution, the making of treaties is the prerogative of the President. Article

II of the Constitution expressly provides that the President “shall have Power, by and with the

Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators

present concur.”163 The President also holds the constitutional power to appoint, with Senate

advice and consent, “Ambassadors, other public Ministers and Consuls”164 and to “receive

Ambassadors and other public Ministers.” 165

Ambassadors and Foreign Service officers in the Department of State negotiate treaties and

executive agreements on behalf of the executive.166 In some cases, representatives of the

President who have not been confirmed by the Senate negotiate treaties, such as the Assistant

to the President for National Security Affairs (also known as the National Security Advisor) and

negotiators upon whom the President has granted the “personal rank” of ambassador without

Senate advice and consent.167 The Secretary of State is responsible for ensuring that proposed

treaties and executive agreements are “fully consistent with United States foreign policy

objectives.”168

III.2. The legislative branch

The role of the legislature varies depending on the nature of the agreement. In the case of a

treaty, the Senate performs its constitutional advice and consent role, described in section

II.1.1.1 of this study. For an executive agreement, Congress’ involvement may include

authorizing the making of such an agreement, reviewing and approving or disapproving a

proposed agreement, or merely receiving the agreement after it has been signed.

Under Article II, Section 2, Clause II of the Constitution, the Senate receives a treaty executed

by the President and determines whether to provide its advice and consent to the treaty.

Before the Senate determines whether to advise and consent to a treaty transmitted by the

President, at least one Senate committee, and at times more,169 play a role in the process. The

treaty is referred to the Senate Committee on Foreign Relations, which may report the treaty

to the Senate or take no action on it. If the committee reports the treaty out, two-thirds of

163 U.S. CONST. art. II, § 2, cl. 2.

164 U.S. CONST. art. II, § 2, cl. 2.

165 U.S. CONST. art. II, § 3.

166 SFRC TREATY STUDY, supra note 25, at 103.

167 Id. at 105-06.

168 22 C.F.R. § 181.4 (2019).

169 Although the Committee on Foreign Relations is the only congressional committee with the authority to

formally recommend action on treaties, other Senate committees have at times held hearings on and issued

reports about treaties, such as hearings held by the Senate Committee on Armed Forces regarding the Treaty

Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Strategic

Offensive Arms and the Protocol Thereto (known as SALT II) and other major arms control treaties. Id. at 121-

22.