Isabella Carter
A constitution is a set of fundamental principles that govern a country, outlining the powers and duties of the government and establishing the rights and responsibilities of its citizens. On the other hand, a treaty is an agreement between two or more countries, which becomes part of international law. Treaties are often used to address specific issues or establish relationships between nations, and they can vary in their scope and duration. While both constitutions and treaties play crucial roles in shaping international relations and domestic policies, they serve distinct purposes and operate at different levels. Constitutions establish the framework for governance within a state, while treaties govern the interactions between states, with both being subject to judicial interpretation and review.
| Characteristics | Values |
|---|---|
| Definition | Treaty: A binding agreement between nations that becomes part of international law. |
| Constitution: The supreme law of a nation, establishing the rules and principles that govern the country. | |
| Nature | Treaty: A contract between two or more nations, not a legislative act. |
| Constitution: A legislative act that outlines the rights and responsibilities of the government and its citizens. | |
| Hierarchy | Treaty: In the U.S., treaties are considered the "supreme law of the land," on par with federal statutes and ordinary legislation. |
| Constitution: The highest law of the land, taking precedence over other laws and treaties. | |
| Ratification | Treaty: Requires the approval or consent of a supermajority, such as two-thirds of the Senators in the U.S. Senate. |
| Constitution: Typically requires a higher threshold of approval, such as a referendum or a supermajority vote in the legislature. | |
| Amendment | Treaty: May be amended or terminated by the parties involved, following established procedures. |
| Constitution: Usually requires a more complex process for amendment, often involving legislative bodies and, in some cases, a referendum. | |
| Implementation | Treaty: May require additional legislative action to be implemented, depending on the type of treaty (self-executing vs. non-self-executing). |
| Constitution: Directly applicable and enforceable, serving as the basis for other laws and regulations. |
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What You'll Learn
- Treaties are binding agreements between nations, becoming part of international law
- The US Constitution gives the President power to make treaties with the consent of the Senate
- Treaties are incorporated into US federal law, like a legislative act
- Treaties are subject to constitutional review and can be modified or repealed
- Treaties are rare in modern US foreign policy, with most agreements being congressional-executive
Treaties are binding agreements between nations, becoming part of international law
Treaties are legally binding agreements between nations and are considered part of international law. They are contracts between sovereign powers, carried out by the "executive of each nation". In the United States, treaties are also incorporated into federal law, becoming part of what the Constitution calls "the supreme law of the land".
The US Constitution outlines the procedure for ratifying international agreements, with the President acting as the primary negotiator of treaties. Treaties require the "'advice and consent' of at least two-thirds of the Senate to be ratified, at which point they become binding with the force of federal law. The Senate does not ratify treaties, but it can approve or reject a resolution of ratification.
While the President has the power to make treaties, the Senate can attach conditions or reservations to its approval. The President may also refuse consent or stipulate amendments to the treaty, but these must be communicated to the other parties, and negotiations may need to be reopened.
Treaties are distinct from executive agreements, which are either congressional-executive agreements or sole executive agreements. All three are considered treaties under international law, but they are subject to different requirements and implications in the US. Treaties are comparatively rare in modern US foreign policy, with only 6% of international agreements being treaties between 1946 and 1999.
The legal significance of treaties has been recognised by courts, with the US Supreme Court ruling in 1796 that a treaty superseded conflicting state law. Treaties are subject to constitutional review and are considered equivalent to ordinary legislation, though human rights treaties have been given a higher status in some countries.
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The US Constitution gives the President power to make treaties with the consent of the Senate
The US Constitution outlines the powers of the President and the Senate in the context of treaty-making. According to Article II, Section 2 of the US Constitution, 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". This clause, known as the Treaty Clause, vests the President with the authority to make treaties, but it requires the approval of at least two-thirds of the Senators present. This process of seeking senatorial advice and consent is unique to the US treaty-making process and sets it apart from the international law definition of a treaty.
The Treaty Clause addresses international affairs from the perspective of the President's powers. It grants the President the authority to act on behalf of the United States in international negotiations. The President submits the treaty to the Senate, and if a resolution of advice and consent is passed by at least two-thirds of the Senators, the process moves forward. The Senate does not directly ratify treaties; instead, it approves or rejects a resolution of ratification, and the ratification is finalised through the formal exchange of instruments between the US and the foreign power(s).
The role of the Senate in the treaty-making process is primarily confined to approval or disapproval, with the power to attach conditions or reservations to the treaty. The Senate's "advice and consent" role does not necessarily make it a full partner in negotiating treaties. In fact, the Executive Branch, including the President, generally leads treaty negotiations, and the Senate's role is to provide input and guidance.
While the Constitution outlines the process of treaty-making, it does not explicitly address the termination of treaties. There has been debate over whether the President has the authority to terminate treaties without Senate consent. In the case of Goldwater v. Carter (1979), the Supreme Court vacated a lower court's decision that President Carter had the authority to unilaterally terminate a mutual defence treaty with Taiwan. This case highlights the complexities and uncertainties surrounding the President's power in treaty termination.
In recent times, Presidents have sometimes entered into international agreements without seeking the advice and consent of the Senate, which are known as "executive agreements". While these agreements are not ratified by the Senate, they are still considered binding under international law.
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Treaties are incorporated into US federal law, like a legislative act
In the United States, treaties are incorporated into federal law, much like a legislative act. The US Constitution outlines the procedure for ratifying international agreements, empowering the President as the primary negotiator of agreements with other countries. The Treaty Clause of the US Constitution (Article II, Section 2, Clause 2) states 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".
The US Constitution recognises treaties as the "supreme Law of the Land", and they are thus regarded in courts as equivalent to an act of the legislature. This was affirmed by Chief Justice John Marshall in 1829, who stated that a treaty is "to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision".
However, it's important to note that the US Constitution does not grant the Senate the power or duty to advise the President before a treaty is concluded. The Senate's authority is limited to either approving or disapproving a treaty, with the approval including the power to attach conditions or reservations.
Treaties are subject to constitutional review and share the same hierarchical position as ordinary legislation. This was recognised as early as 1796, when the US Supreme Court applied the Supremacy Clause, ruling that a treaty superseded conflicting state law.
It's worth mentioning that the term "treaty" has a distinct and more restricted legal definition in the US compared to international law. US law differentiates between "treaties" as defined in the Constitution and "executive agreements", which can be further classified as "congressional-executive agreements" or "sole executive agreements". These classifications are based on the method of approval, with treaties requiring the "advice and consent" of two-thirds of the Senators present, while sole executive agreements are executed by the President alone.
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Treaties are subject to constitutional review and can be modified or repealed
Treaties are binding agreements between nations and become part of international law. In the United States, treaties are also incorporated into federal legislation, forming part of what the Constitution calls "the supreme law of the land".
The United States Constitution outlines the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States and other countries. The Treaty Clause of the Constitution (Article II, Section 2, Clause 2) states that the "advice and consent" of a two-thirds supermajority of the Senate is required to make a treaty binding. This process is distinct from that of executive agreements, which are executed by the President acting alone, or congressional-executive agreements, which require majority approval by both the House and the Senate.
While treaties are considered "the supreme law of the land", they are subject to constitutional review and can be modified or repealed. The courts have established that treaties are subject to the same hierarchical position and scrutiny as ordinary legislation. This means that treaties can be reviewed and interpreted by the judiciary, and their constitutionality assessed.
For example, in the 1829 case of Foster v. Nielson, Chief Justice John Marshall affirmed the legal status of treaties while also articulating the difference between self-executing and non-self-executing agreements. He stated that while a treaty is "the law of the land", it may require legislative action for execution, depending on its terms. This distinction highlights that treaties can be subject to further legislative conditions or amendments, which may involve reopening negotiations with the other parties to the treaty.
Additionally, James Madison contended that Congress has the constitutional right and duty to modify or repeal treaties based on its determination of the national interest. This suggests that treaties, once ratified, are not static and can be subject to change by legislative bodies.
In summary, while treaties are internationally binding agreements, they are subject to constitutional review and can be modified or repealed through legislative action or by the authority of bodies such as Congress. The constitutional review process ensures that treaties are in alignment with the supreme law of the land and can be adjusted as needed to uphold this principle.
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Treaties are rare in modern US foreign policy, with most agreements being congressional-executive
The United States 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" (Article II, section 2). Treaties to which the United States is a party also have the force of federal legislation, forming part of what the Constitution calls "the supreme Law of the Land.".
The process of treaty-making has been approached differently by various presidents. For instance, Theodore Roosevelt argued that ratification was necessary when an international accord would bind subsequent governments. On the other hand, he also acknowledged that the Constitution did not explicitly grant him the power to reach an agreement with Santo Domingo, but that it also did not forbid his actions.
While treaties are rare, alternatives such as congressional-executive agreements and executive agreements are common. Congressional-executive agreements require simple majorities in both the Senate and the House of Representatives, followed by the signature of the President. Executive agreements, on the other hand, are entered into unilaterally by the President under their constitutional executive powers. These non-treaty agreements have been generally upheld by the Supreme Court in limited circumstances.
In summary, treaties are rare in modern US foreign policy due to their binding nature and the availability of alternative agreement-making mechanisms. Congressional-executive agreements and executive agreements allow for more flexibility and have become the preferred methods for conducting US foreign policy.
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Frequently asked questions
A constitution is a document that outlines the fundamental principles and laws that govern a country or state. It establishes the structure and powers of the government, as well as the rights and duties of its citizens.
A treaty is a binding agreement between nations that becomes part of international law. Treaties are often used to establish peace and cooperation between countries, and they can cover a wide range of issues such as trade, military alliances, and environmental protection.
While both treaties and constitutions are legal documents, they serve different purposes. A constitution is a domestic document that establishes the rules and principles for a single country or state, while a treaty is an international agreement between two or more countries. Treaties become part of the domestic law of the countries that ratify them, but they do not replace or supersede the constitution of those countries. Instead, treaties are regarded as equivalent to an act of the legislature and are subject to constitutional review.
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