Executive summary

• Author: Winston, Andrew M.
• Pages: 6-7

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VI

Executive summary

The United States of America participates extensively in the international community and is a

member of numerous international organizations. Its relationship with the European Union

dates back to the 1950s, when it first sent observers to the European Coal and Steel

Community, and was formalized in 1990 with the Transatlantic Declaration. Today, the U.S.

enjoys extensive governmental and nongovernmental relationships with the EU.

The process for making, approving, and ratifying treaties in the United States is a complex one,

involving the President and others in the executive branch; the Senate and its Committee on

Foreign Relations; and a framework of legal requirements set forth in the U.S. Constitution,

federal statues enacted by Congress, regulations of the Department of State, and opinions of

the U.S. Supreme Court. Treaties are reviewed by the Committee on Foreign Relations of the

Senate, approved by the Senate in the form of the “advice and consent” of the Senate, and

ratified by the President. In addition to treaties, the United States also enters into other

international agreements known as executive agreements. These agreements are not given

advice and consent by the Senate nor ratified by the President, but nonetheless constitute

binding international obligations on the United States and in some cases require

congressional approval.

The Constitution sets forth the process for approval of treaties by the Senate. Some types of

executive agreements are entered into under the authority of a federal statute enacted either

before or after the agreement is signed. In many cases, Congress must enact implementing

legislation in order to give a treaty or executive agreement domestic legal effect. Federal

regulations and the U.S. Department of State’s Foreign Affairs Manual govern the process for

negotiation and execution of treaties and executive agreements. The laws of the states that

comprise the United States do not control the making or ratification of treaties or executive

agreements.

The U.S. is viewed as having a hybrid monist-dualist approach in the application of

international law in its domestic legal system. Under the Constitution, treaties that do not

require implementing legislation have the status of federal law and are superior to state law.

In most cases, executive agreements that do not require implementing legislation also have

the status of federal law. The U.S. Supreme Court has held that in cases where there is a conflict

between (x) a treaty or and executive agreement with federal law status and (y) a federal

statute, the later in time of the two wil l control.

The President and the Department of State play a primary role in the making and ratifying of

treaties and the making of executive agreements. The Senate reviews and approves treaties

through its constitutional “advice and consent” role; before being considered by the Senate,

treaties are first reviewed by the Senate Committee on Foreign Relations. Congress may also

review and approve executive agreements entered into pursuant to federal statutes. The U.S.

Supreme Court and other federal courts do not participate in the treaty or executive

agreement process, although a legal challenge to the validity of a treaty or executive

agreement is a matter for the federal courts to decide. The states of the United States do not

play a role in the ratification process.

The procedure for adoption of both treaties and executive agreements begins with

negotiations by the President, or his designee, and officials of the Department of State. The

State Department provides written authorization to those who will be negotiating. Congress

as a body does not play a direct, formal part in negotiations, altho ugh members of Congress

may be included in negotiating delegations or attend as observers, and congressional

committees are often consulted during negotiati ons. Procedures of the State Department