The internal legal regime

• Author: Winston, Andrew M.
• Pages: 4-19

Study

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II. The internal legal regime

II.1. Laws governing the making and ratification of international

agreements

The United States enters into two types of international agreements: treaties and executive

agreements. Although international law does not distinguish between treaties and executive

agreements,25 and these terms are not clearly defined in the United States Constitution,26

there are different requirements under U.S. law for how each type is made. Additional

requirements with respect to advice and consent by the Senate and ratification by the

President apply to treaties.

II.1.1. United States Constitution

II.1.1.1 Treaties

The Uni ted States Constitution establishes the mechanism by which treaties are made and

ratified. The President has constitutional authority to negotiate and execute a treaty, which is

then presented to the Senate for advice and consent by the Senate. If the Senate provides its

advice and consent to the treaty, it is returned to the President, who ratifies it by executing an

instrument of ratification. As a matter of terminology, although the role of the Senate is

sometimes referred to as “ratification,” it is the President who formally ratifies treaties.

Article II, Section 2, Clause 2 of the Constitution 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.”27 The U.S. Supreme Court in 1919 confirmed that the

requirement of concurrence of two-thirds of the Senators present refers to two-thirds of a

quorum;28 the Constitution provides that a quorum for business requires the presence of a

majority of the members of the Senate.29

II.1.1.2 Executive agreements

Most of the international agreements to which the United States is a party are executive

agreements rather than treaties.30 Unlike a treaty, an executive agreement is neither

submitted to the Senate for advice and consent nor ratified by the President thereafter; the

validity of an executive agreement thus depends on having been made on adequate

25 CONG. RESEARCH SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE

4 (Comm. Print 2001) [hereinafter SFRC TREATY STUDY], https://www.govinfo.gov/content/pkg/CPRT-

106SPRT66922/pdf/CPRT-106SP RT66922.pdf. This committee print was prepared for the Senate Foreign

Relations Committee by the Congressional Research Service.

26 The United States Constitution refers separately to treaties, agreements, and compacts, but does not define

these terms or specify how they differ. Cong. Research Serv., Alternatives to Treaties: Overview, CONSTITUTION

ANNOTATED, https://constitution.congress.gov/browse/essay/artII-S2-C3-2-2-1-1-1/ALDE_00001148/ (last visited

July 3, 2020) [hereinafter CONSTITUTION ANNOTATED]. Prepared by the Congressional Research Service, the

Constitution Annotated provides comprehensive analysis and interpretation of the U.S. Constitution with

clause-by-clause annotations based on cases decided by the U.S. Supreme Court.

27 U.S. CONST. art. II, § 2, cl. 2.

28 Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 283-84 (1919).

29 U.S. CONST. art. I, § 5, cl. 1.

30 STEPHEN P. MULLIGAN, CONG. RESEARCH SERV., RL 3252 8, INTERNATIONAL LAW AND AGREEMENTS: THEIR EFFECT ON U.S. LAW 6

(2018); SFRC TREATY STUDY, supra not e 25, at 38-39.

Ratification of international treaties

United States of America

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constitutional authority. The State Department Circular 175 rules,31 described in section II.1.4

of this study, include criteria for determining whether an international agreement should be

made in the form of a treaty or an executive agreement.32

There are three categories of executive agreements.

– The first category, referred to as “congressional-executive agreements,” includes

executive agreements authorized by Congress either before or after they are

made.

– The second type includes executive agreements entered into pursuant to treaties

that have themselves been previously ratified.

– The third category, referred to as “sole executive agreements,” is made up of

executive agreements that have been entered into solely pursuant to the

President’s authority under the Constitution.

It is “well established” that congressional-executive agreements are valid under the U.S.

Constitution.33 A congressional-executive agreement is authorized by a statute or, in some

cases, a joint resolution that is passed by both chambers of Congress pursuant to the

legislative process.34 One of the most significant exampl es a statute authorizing the making

of executive agreements was the Lend-Lease Act enacted in 1941, pursuant to which the

President was given broad authority to have the federal government manufacture and sell,

transfer, lease, or lend munitions and other defensive articles to any country “whose defense

the President deem[ed] vital to the defense of the United States.” 35 The Lend-Lease Act

enabled the President to make mutual aid agreements by which the United States provided

$40 billion worth of military materials to its allies in World War II.36 Other important types of

congressional-executive agreements include trade agreements authorized by acts of

Congress37 and partici pation in international organizations.38 Although most congressional-

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

July 3, 2020).

32 Notwithstanding these criteria, executive agreements have varied in scope, significance, and subject matter. A

leading constitutional scholar has observed that ”executive agreements can be used for any purpose; that is,

anything that can be done by treaty can be done by executive agreement.” EDWIN CHEMERINSKY, CONSTITUTIONAL

LAW: PRINCIPLES AND POLICIES 401 (6th ed. 2019).

33 SFRC TREATY STUDY, supra note 25, at 5. See also LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 215-18 (2d

ed. 1996).

34 SFRC TREATY STUDY, supra note 25, at 5.

35 Act to Promote the Defense of the United States (Lend-Lease Act), ch. 11, § 3(a)(2), 55 Stat. 31 (1941).

36 Congressional Executive Agreements, CONSTITUTION ANNOTATED, supra note 26, https://constitution.congress.gov

/browse/essay/artII-S2-C3-2-2-1-1-3/ALDE_00001151/ (last visited July 3, 20 20).

37 Id. Some examples of trade agreements made by the U.S. as congressional-executive agreements include the

North American Free Trade Agreement, the Agreement Establishing the World Trade Organization, the Canada-

United States Free-Trade Agreement, and the United States-Israel Free Trade Area Agreement. See North

American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (app roved in 107 Stat. 2057);

Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154 (approved

in 108 Stat. 4809); Free Trade Agreement, Jan. 2, 1988, Can.-U.S., 27 I.L.M. 281 (approved in 102 Stat . 1851); and

Free Trade Agreement, Apr. 22, 1985, U.S.-Isr., 24 I.L.M. 653 (approved in 99 Stat. 82), respectively.

38 Id. Congressional-executive agreements authorizing U.S. involvement in international organizations include,

for example, the Articles of Agreement of the International Monetary Fund and the Articles of Agreement of

the International Bank for Reconstruction and Development. The articles for these organizations were adopted

at the United Nations Monetary and Financial Conference held at Bretton Woods, New Hampshire in July 1944.

See Articles of Agreement of the International Monetary Fund, Dec. 27, 1945, 60 Stat. 1401, T.I.A.S. No. 1512, 2

U.N.T.S. 39; Articles of Agreement of the International Bank for Reconstruction and Development, Dec. 27, 1945,