The Treaty Of Amity: Constitution's First Approval

The Treaty Clause of the US Constitution gives the power to make treaties to the President, acting with the advice and consent of the Senate. Treaties are international agreements between two or more countries that are intended to be legally binding and are governed by international law. The first treaty approved under the US Constitution was the Jay Treaty in 1795, which settled open disputes with Great Britain.

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The Treaty Clause

The process of treaty-making under the Treaty Clause typically involves the President independently negotiating and signing treaties. The proposed treaty is then presented to the Senate for approval or disapproval. The Senate may consent unconditionally, refuse its consent, or stipulate conditions in the form of amendments or reservations. The Senate's approval requires a two-thirds majority, emphasising the need for treaties to transcend political and partisan divisions.

While the President plays a pivotal role in the treaty-making process, it is essential to note that their power is not absolute. The Senate, as representatives of the states, provide a crucial check on the President's power by approving or disapproving treaties. This dynamic ensures that treaties are aligned with the national interest and have the necessary support to become binding.

The President's role

The US Constitution's Treaty Clause gives the President the power to make treaties, with the advice and consent of the Senate. Treaties are international agreements between two or more countries that are intended to be legally binding and are governed by international law.

The President has the power to ratify, or make, a treaty by signing an instrument of ratification and arranging for its deposit or exchange. However, the President is not obligated to ratify a Senate-approved treaty and can decline to do so. The President may also terminate a treaty unilaterally if permitted by the treaty's terms, although it is unclear if they can do so without the approval of Congress.

The Treaty Clause was influenced by the perceived flaws of the Articles of Confederation, which established a weak central government and gave significant power to individual states. Under the Articles of Confederation, treaties required the approval of nine out of thirteen states, which prevented many foreign pacts from being made. The Treaty Clause addresses international affairs from the President's vantage point, giving them the authority to make treaties with the advice and consent of the Senate.

Presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements," which are still binding under international law. The Senate does not ratify treaties; it approves or rejects a resolution of ratification. The Senate has approved most treaties negotiated by the President, but some have been withdrawn due to a lack of support.

Senate approval

The Treaty Clause of the US Constitution outlines that the power to make treaties is shared between the President and the Senate. Treaties come into effect when they are ratified by the President, with a two-thirds majority of the Senate also required to concur.

The President independently negotiates and signs treaties and then presents the proposed treaty to the Senate for its approval or disapproval. The Senate does not ratify treaties; instead, it approves or rejects a resolution of ratification. If the resolution passes, then ratification takes place when the instruments of ratification are formally exchanged between the US and the foreign power(s).

The President may terminate a treaty unilaterally if permitted by the treaty's terms. For example, President George W. Bush unilaterally withdrew the US from the Anti-Ballistic Missile Treaty in 2002. However, the Senate can also play a role in treaty termination. In 1854-1855, President Pierce received Senate approval to terminate a treaty with Denmark.

Presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements". These are still binding under international law.

The first treaty approved under the US Constitution was the Jay Treaty in 1795. The treaty was negotiated by Chief Justice John Jay, who was sent to London to settle open disputes with Great Britain. The treaty's opponents, mostly Jeffersonian Republicans, demanded that the terms of the agreement be renegotiated, but the treaty was approved on June 24, 1795, thanks to Federalist senators.

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Judicial interpretation

The US Constitution's Treaty Clause gives the President the power to make treaties with the consent of the Senate. Treaties are subject to judicial interpretation and review. The US courts have consistently recognised the legally binding nature of treaties under the Constitution. The US Supreme Court, in Ware v. Hylton, applied the Supremacy Clause for the first time in ruling that a treaty superseded conflicting state law. The Ware decision held that states and private citizens were bound to comply with the treaty obligations of the federal government, which was, in turn, bound to the "law of nations" with respect to honouring treaties.

The Treaty Clause was influenced by the perceived flaws and limitations of the Articles of Confederation, the first governmental framework of the United States. The Articles established a weak central government and accorded significant autonomy and deference to the individual states. The Treaty of Paris with Great Britain highlighted the weakness of the Articles with respect to foreign affairs. The Treaty Clause, for the first time, addresses international affairs from the vantage of the President's powers.

The President 'ratifies' or makes the treaty by signing an instrument of ratification and arranging for its deposit or exchange. The President has no obligation to ratify a Senate-approved treaty, and in some cases, the President has declined to do so. The President may consent unconditionally to a proposed treaty, refuse consent, or stipulate conditions in the form of amendments to the treaty, reservations to the act of ratification, or statements of understanding. The act of ratification for the US is the President's act, but it may not be forthcoming unless the Senate has consented to it by the required two-thirds of the Senators present.

Presidents have frequently entered the US into international agreements without the advice and consent of the Senate. These are called "executive agreements" and, although not brought before the Senate for approval, are still binding on the parties under international law. Treaties are comparatively rare in modern US foreign policy. Between 1946 and 1999, the federal government completed nearly 16,000 international agreements, of which only 6% (912) were treaties submitted to the Senate for approval under Article II of the Constitution.

There is no Supreme Court ruling on whether the President has the power to break a treaty without the approval of Congress. It remains unclear which branch of government is empowered by the Constitution to terminate a treaty. In practice, a President may terminate a treaty unilaterally if permitted by the treaty's terms. President George W. Bush unilaterally withdrew the US from the Anti-Ballistic Missile Treaty in 2002, six months after giving the required notice of intent, but faced no judicial interference or legal action.

Historical context

The Treaty Clause in the US Constitution outlines the power to make treaties, vesting it in the national government. This was influenced by the perceived flaws and limitations of the Articles of Confederation, which was the first governmental framework of the United States. The Articles established a weak central government, with a unicameral Congress that held both legislative and executive functions, including the power to make treaties. However, for a treaty to take effect, a supermajority of states (nine out of thirteen) had to approve, making foreign pacts difficult to achieve. The Treaty Clause, therefore, addresses international affairs from the vantage of the President's powers.

The President, acting with the advice and consent of the Senate, has the authority to make treaties for the United States. The President ratifies the treaty by signing an instrument of ratification and arranging for its deposit or exchange. The Senate does not ratify treaties but can approve or reject a resolution of ratification. Treaties are subject to judicial interpretation and review, and their legally binding nature has been consistently recognized by the courts.

Historically, the first treaty approved under the Constitution was the 1795 Jay Treaty, which settled open disputes with Great Britain. The Treaty of Paris with Great Britain, the Treaty of Watertown, and the Model Treaty of 1776, which became the template for future international treaties, were all approved before the US Constitution was ratified.

In recent decades, presidents have frequently entered into international agreements without the advice and consent of the Senate, known as "executive agreements," which are still binding under international law.

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