Procedure for making and ratifying international agreements

• Author: Winston, Andrew M.
• Pages: 23-35

Ratification of international treaties

United States of America

23

IV. Procedure for making and ratifying international

agreements

IV.1. Negotiation

The negotiation of treaties and executive agreements is primarily the domain of the executive

branch of the federal government.188 In some cases, however, the impetus for proposing a

treaty on a subject may come from Congress through legislation or resolutions enacted by it,

as well as from congressional committees or indivi dual members of Congress.189

The President utilizes a representative (or representatives) to negotiate a treaty.190 The State

Department provides written authorization to those who will negotiate a treaty or executive

agreement. Written authorization from the Secretary of State or an officer specifically

authorized by the Secretary must be obtained before engaging in negotiations of treaties or

“significant” executive agreements (or extensions or amendments of them).191

Negotiation authority is requested under the Circular 175 procedure that is set forth in the

Foreign Affairs Manual of the Department of State. A request for authority under the Circular

175 procedure may be one of two types. The first is a request for a full power for the negotiator

to sign a treaty that will be submitted by the President to the Senate for advice and consent

to ratification.192 The second is made in the form of an action memorandum from a bureau or

office in the Department of State seeking authority to (a) negotiate, (b) conclude, or (c)

negotiate and conclude a treaty or executive agreement.193 In order to request authorization

to enter into and/or execute a treaty or executive agreement, an action memorandum must

be (1) submitted to the Secretary of State or other official having delegated authority and (2)

cleared with the State Department’s Office of the Legal Adviser, other appropriate bureaus,

and any other federal agency with “primary responsibility or a substantial interest in the

subject matter.”194 Authority may be requested to negotiate a treaty or executive agreement,

to conclude a treaty or executive agreement, or to negotiate and conclude.195 Any substantive

changes in the draft text are to be cleared with the State Department’s Office of the Legal

Adviser and specified regional and/or functional bureaus within the Department in advance

of a definitive agreement.196

When negotiating a proposed treaty or executive agreement, the responsible office or officer

must adhere to guidelines in the Foreign Affairs Manual. The responsible office or officer must,

among other things, stay within the parameters of the negotiation autho rity provided and not

188 SFRC TREATY STUDY, supra note 25, at 97-98.

189 Id. at 98, 100-03.

190 Id. at 98. The President typically selects negotiators with diplomatic experience: “usually an ambassador,

minister, or foreign service officer, or a delegation[.]” Id.

191 11 U.S. DEP’T OF STATE, FORE IGN AFFAIRS MANUAL, § 724.1, https://fam.state.gov/fam/11fam/11fam0720.html (last

visited July 3, 2020).

192 Circular 175 Procedure, U.S. DEP’T OF STATE, https://2009-2017.sta te.gov/s/l/treaty/c175/index.htm (last visited

July 3, 2020).

193 11 FOREIGN AFFAIRS MANUAL, s upra note 191, § 724.3(a)-(b).

194 Id. § 724.3(a).

195 Id. § 724.3(b).

196 Id. § 724.3(b).