There is confusion in the media
and elsewhere about United States law as it relates
to international agreements, including treaties.
The confusion exists with respect to such matters
as whether "treaty" has the same meaning in international
law and in the domestic law of the United States,
how treaties are ratified, how the power to enter
into international agreements is allocated among
the Executive Branch, the Senate and the whole Congress,
whether Congress may override an existing treaty,
and the extent to which international agreements
are enforceable in United States courts.
Under international law a "treaty"
is any international agreement concluded between
states or other entities with international personality
(such as public international organizations), if
the agreement is intended to have international
legal effect. The Vienna Convention on the Law of
Treaties sets out an elaborate set of international
law standards for treaties, broadly defined.
"Treaty" has a much more restricted
meaning under the constitutional law of the United
States. It is an international agreement that has
received the "advice and consent" (in practice,
just the consent) of two-thirds of the Senate and
that has been ratified by the President. The Senate
does not ratify treaties. When the Senate gives
its consent, the President--acting as the chief
diplomat of the United States--has discretion whether
or not to ratify the instrument. Through the course
of U. S. history, several instruments that have
received the Senate's consent have nonetheless remained
unratified. Those instruments are not in force for
the United States, despite the Senate's consent
Not all international agreements
negotiated by the United States are submitted to
the Senate for its consent. Sometimes the Executive
Branch negotiates an agreement that is intended
to be binding only if sent to the Senate, but the
President for political reasons decides not to seek
its consent. Often, however, the Executive Branch
negotiates agreements that are intended to be binding
without the consent of two-thirds of the Senate.
Sometimes these agreements are entered into with
the concurrence of a simple majority of both houses
of Congress ("Congressional-Executive agreements");
in these cases the concurrence may be given either
before or after the Executive Branch negotiates
the agreement. On other occasions the President
simply enters into an agreement without the intended
or actual participation of either house of Congress
(a "Presidential," or "Sole Executive" agreement).
The extent of the President's authority to enter
into Sole Executive agreements is controversial,
as will be noted below.
Although some Senators have
at times taken the position that certain important
international agreements must be submitted as treaties
for the Senate's advice and consent, the prevailing
view is that a Congressional-Executive agreement
may be used whenever a treaty could be. This is
the position taken in the American Law Institute's
Restatement Third of Foreign Relations Law of the
United States, § 303, Comment e. Under the
prevailing view, the converse is true as well: a
treaty may be used whenever a Congressional-Executive
agreement could be.
The President's authority to
enter into Sole Executive agreements, however, is
thought not to be so broad. Clearly, the President
has some authority to do so in his capacities as
commander in chief of the armed forces and as "chief
diplomat." Thus, armistice agreements and certain
agreements incidental to the operation of foreign
embassies in the United States could be done as
Sole Executive Agreements. The agreement-making
scope of these two sources of Presidential authority
is nevertheless somewhat vague.
Congress has attempted to curb
the President's claimed authority as commander in
chief to commit U. S. armed forces to positions
of peril by adopted the well-known War Powers Joint
Resolution in 1973, over a presidential veto. The
War Powers Resolution in practice has had the effect
of inducing Presidents to consult with, and report
to, Congress when U. S. armed forces are used in
combat situations, but it has not significantly
limited the President's practical power to commit
the United States to use military force.
Presidents have sometimes asserted
agreement-making authority stemming directly from
the basic constitutional grant to the President
of executive power. If this grant includes some
authority to enter into Sole Executive agreements
independently from more specific grants of presidential
power, it would be difficult to ascertain what limits,
short of those imposed on the government itself
by the Bill of Rights, there might be to it. For
this reason, many members of Congress and others
have disputed any claim by a President to base agreement-making
authority solely on the grant of executive power.
At one time there was some doubt
whether a treaty (adopted with the consent of two-thirds
of the Senate) must comply with the Bill of Rights,
and the Supreme Court has yet to hold a treaty unconstitutional.
Nevertheless, there is very little doubt that the
Court would do so today if a treaty clearly violated
the Bill of Rights. Even more certainly, it would
hold unconstitutional a Congressional-Executive
agreement or a Sole Executive agreement that is
inconsistent with the Bill of Rights.
As a matter of domestic law
within the United States, Congress may override
a pre-existing treaty or Congressional-Executive
agreement of the United States. To do so, however,
would place the United States in breach of the obligation
owed under international law to its treaty partner(s)
to honor the treaty or agreement in good faith.
Consequently, courts in the United States are disinclined
to find that Congress has actually intended to override
a treaty or other internationally binding obligation.
Instead, they struggle to interpret the Congressional
act and/or the international instrument in such
a way as to reconcile the two.
Provisions in treaties and other
international agreements are given effect as law
in domestic courts of the United States only if
they are "self-executing" or if they have been implemented
by an act (such as an act of Congress) having the
effect of federal law. Courts in this country have
been reluctant to find such provisions self-executing,
but on several occasions they have found them so--sometimes
simply by giving direct effect to the provisions
without expressly saying that they are self-executing.
There are varying formulations as to what tends
to make a treaty provision self-executing or non-self-executing,
but within constitutional constraints (such as the
requirement that appropriations of money originate
in the House of Representatives) the primary consideration
is the intent--or lack thereof--that the provision
become effective as judicially-enforceable domestic
law without implementing legislation. For the most
part, the more specific the provision is and the
more it reads like an act of Congress, the more
likely it is to be treated as self-executing. A
provision in an international agreement may be self-executing
in U. S. law even though it would not be so in the
law of the other party or parties to the agreement.
Moreover, some provisions in an agreement might
be self-executing while others in the same agreement
All treaties are the law of
the land, but only a self-executing treaty would
prevail in a domestic court over a prior, inconsistent
act of Congress. A non-self-executing treaty could
not supersede a prior inconsistent act of Congress
in a U. S. court. A non-self-executing treaty nevertheless
would be the supreme law of the land in the sense
that--as long as the treaty is consistent with the
Bill of Rights--the President could not constitutionally
ignore or contravene it.
Even if a treaty or other international
agreement is non-self-executing, it may have an
indirect effect in U. S. courts. The courts' practice,
mentioned above, of interpreting acts of Congress
as consistent with earlier international agreements
applies to earlier non-self-executing agreements
as well as to self-executing ones, since in either
case the agreement is binding internationally and
courts are slow to place the United States in breach
of its international obligations. In addition, if
state or local law is inconsistent with an international
agreement of the United States, the courts will
not allow the law to stand. The reason, if the international
agreement is a self-executing treaty, is that such
a treaty has the same effect in domestic courts
as an act of Congress and therefore directly supersedes
any inconsistent state or local law. If the international
agreement is a non-self-executing treaty, it would
not supersede inconsistent state or local law in
the same way a federal statute would, but the courts
nevertheless would not permit a state of the union
to force the United States to breach its international
obligation to other countries under the agreement.
The state or local law would be struck down as an
interference with the federal government's power
over foreign affairs.
To summarize: the Senate does
not ratify treaties; the President does. Treaties,
in the U. S. sense, are not the only type of binding
international agreement. Congressional-Executive
agreements and Sole Executive agreements may also
be binding. It is generally understood that treaties
and Congressional-Executive agreements are interchangeable;
Sole Executive agreements occupy a more limited
space constitutionally and are linked primarily
if not exclusively to the President's powers as
commander in chief and head diplomat. Treaties and
other international agreements are subject to the
Bill of Rights. Congress may supersede a prior inconsistent
treaty or Congressional-Executive agreement as a
matter of U. S. law, but not as a matter of international
law. Courts in the United States use their powers
of interpretation to try not to let Congress place
the United States in violation of its international
law obligations. A self-executing treaty provision
is the supreme law of the land in the same sense
as a federal statute that is judicially enforceable
by private parties. Even a non-self-executing provision
of an international agreement represents an international
obligation that courts are very much inclined to
protect against encroachment by local, state or
Frederic L. Kirgis is Law School Alumni Professor
at Washington and Lee University School of Law,
in Lexington, Virginia. He is the author of several
books and articles on international law, has served
as a member of the Board of Editors of the American
Journal of International Law, and currently chairs
the ASIL Insight Committee.
Restatement Third, Foreign Relations Law of
the United States, Chapter Two (1987).
Louis Henkin, Foreign Affairs
and the United States Constitution (2d ed. 1996).
The United States Constitution
in its Third Century: Foreign Affairs, 83 AJIL No.
4 (Symposium issue, Louis Henkin, Michael J. Glennon
& William D. Rogers, eds., 1989), published
separately as Foreign Affairs and the U. S. Constitution
Michael J. Glennon, Constitutional
Congressional Research Service,
Study of Treaties and Other International Agreements:
The Role of the United States Senate (Senate Foreign
Relations Committee Print No. 103-53, 1993).
Gary M. Stern & Morton H.
Halperin (eds.), the U. S. Constitution and the
Power to Go to War: Historical and Current Perspectives
David Gray Adler & Larry
N. George (eds.), The Constitution and the Conduct
of American Foreign Policy (1996).
Francis O. Wilcox & Richard
A. Frank (eds.), The Constitution and the Conduct
of Foreign Policy (Inquiry by a Panel of the ASIL,
The purpose of ASIL Insights
is to provide concise and informed background for
developments of interest to the international community.
The American Society of International Law does
not take positions on substantive issues, including
the ones discussed in this Insight.