Conclusions

• Author: Winston, Andrew M.
• Pages: 38-38

Study

38

VI. Conclusions

Understanding the making and, if applicable, ratification, of international agreements in the

U.S. requires familiarity with the complex system of constitutional, statutory, and regulatory

requirements that apply. For comparative purposes, it is important to be aware that these legal

rules, and the processes that follow from them, vary depending upon whether the

international agreement in question is a treaty or an executive agreement, although some

requirements and procedures apply to each.

The making and ratification of treaties in the United States is governed by legal rules that

include the U.S. Constitution and opinions interpreting it issued by the Supreme Court; federal

statutes and regulations; the rules of the Senate and its Committee on Foreign Rel ations; and

the procedures of the Department of State set forth in its Foreign Affairs Manual. Although

executive agreements are not subject to the same constitutional requirement for advice and

consent in the Senate, their validity can depend on sources of authority within the Constitution

or in federal statute, and they are subject to similar regulations and State Department

procedures with respect to how they are made.

The making of international agreements, is primarily the realm of the executive branch,

although the legislative branch plays a key part with respect to treaties and most executive

agreements. The President and others in the executive branch negotiate treaties, and it is the

President who formally ratifies treaties. The approval of the Senate in the form of its advice

and consent to a treaty is, however, a condition precedent to ratification. Executive branch

officials negotiate executive agreements. Congress may also play a formal role, either by

authorizing congressional-executive agreements or through Senate ratification of treaties

pursuant to which executive agreements are made. Action by Congress is also required to give

domestic legal effect to treaties and executi ve agreements that are not self-executing.

The United States legal system has elements of monism and dualism in its approach to

international law. The relationship between international agreements and the hierarchy of

laws within the United States is a multilevel one. A self-executing treaty enjoys the status of

federal law, superior to the law of the states of the U.S. and subordinate only to the

Constitution. Many self-executing executive agreements have similar stature. When a self-

executing treaty or executive agreement conflicts with a federal statute, the later in time will

prevail.