Jonah Patel
Treaties are considered the supreme law of the land in the US Constitution, but they are not domestic law unless Congress enacts implementing statutes or the treaty expresses an intention to be self-executing. The US Supreme Court has clarified that the treaty power is subject to certain constitutional restraints, and treaties may not alter the Constitution or authorize acts that the Constitution expressly prohibits. The US Senate considers and approves most treaties negotiated by the president and their representatives, but the president may terminate a treaty unilaterally if its terms permit this. The interpretation of treaties is generally left to the courts, but the meaning given to them by the departments of government involved in their negotiation and enforcement is given great weight.
| Characteristics | Values |
|---|---|
| Nature of treaties | Chief Justice Marshall wrote in 1829: "A treaty is, in its nature, a contract between two nations, not a legislative act." |
| Treaty power | The treaty power is not so broad as to override the Constitution. |
| Treaty-making power | The US Constitution's Treaty Clause gives the President the power to make treaties. |
| Treaty termination | It is unclear which branch of government is empowered by the Constitution to terminate a treaty. |
| Treaty as law of the land | Treaties are regarded in courts of justice as equivalent to an act of the legislature. |
| Treaty as supreme law of the land | Treaties are deemed the supreme law of the land when made under the authority of the United States. |
| Treaty vs. agreements | Article I, Section 10 of the US Constitution distinguishes between "treaties" (which states are forbidden to make) and "agreements" (which states may make with the consent of Congress). |
| Treaty procedure | The Article II treaty procedure is not necessary when there is no long-term commitment. |
| Treaty interpretation | The meaning of treaties is determined by the courts. |
| Treaty enforcement | Treaties may comprise international commitments but are not domestic law unless Congress has either enacted implementing statutes or the treaty conveys an intention to be self-executing. |
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What You'll Learn
Treaties are the 'supreme law of the land'
Treaties are considered the supreme law of the land in the United States. This means that they have the force of federal legislation and are regarded as equivalent to an act of the legislature. The US Constitution declares a treaty to be the law of the land, and as such, it takes precedence over state law and earlier federal legislation.
The process of treaty-making in the US involves the President and the Senate. While the President plays a key role in initiating and negotiating treaties, the Senate must approve or reject a resolution of ratification by a two-thirds majority. The Senate may also stipulate conditions or amendments to the treaty, which must be communicated to the other parties and may require reopening negotiations.
Treaties are generally binding, but they are not above the US Constitution. The Supreme Court has clarified that the treaty-making power is subject to constitutional restraints and cannot authorize what the Constitution forbids. While treaties can be self-executing, requiring no additional legislative action, they may also need to be implemented by an act of the legislature.
The US has been a party to various treaties, including those related to international commitments, extradition of fugitives, and the protection of migratory birds. The interpretation and enforcement of treaties are generally handled by the courts, with the International Court of Justice (ICJ) interpreting treaties in specific cases.
In summary, treaties under the US Constitution are special because they are considered the supreme law of the land, carrying the weight of federal legislation. They are formed through a collaborative process between the President and the Senate and are binding unless they violate the Constitution.
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The President's role in treaties
Treaties are considered the "'supreme law of the land' in the US Constitution. They are binding agreements between nations and become part of international law. The US President has a crucial role in the treaty-making process, as outlined by the Constitution.
The President has the power to negotiate and enter into treaties with the "advice and consent" of the Senate, provided that two-thirds of the Senators present concur. This shared power between the President and the Senate is a result of a compromise made during the Constitutional Convention. While the President has the authority to negotiate and sign treaties, the Senate provides a check on this power through its advice and consent role.
Once a treaty is negotiated, the President 'ratifies' or makes the treaty by signing an instrument of ratification and arranging for its deposit or exchange with the other parties to the treaty. The President is the final actor in expressing the United States' assent to be bound by a treaty. However, it's important to note that the President is not obligated to ratify a Senate-approved treaty, and there have been instances where the President has declined to do so.
While treaties are considered the supreme law of the land, they cannot override the Constitution itself. The Supreme Court has clarified that treaties cannot alter or violate the Constitution, and any international agreements must comply with constitutional restraints. Additionally, for a treaty to become domestic law in the US, it must be implemented by an act of Congress or be explicitly "self-executing" in its text.
In recent decades, Presidents have also entered into "executive agreements" with foreign nations without seeking the advice and consent of the Senate. While these agreements are binding under international law, they are distinct from formal treaties under US law.
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Treaties vs. agreements
Treaties and international agreements are written agreements between sovereign states or between states and international organisations. Treaties are one of the main sources of international law and are governed by international law. Treaties are typically binding only on the parties to the agreement.
In the US, treaties are considered to be the "supreme law of the land", equivalent to an act of the legislature. The US enters into more than 200 treaties and other international agreements each year. Treaties may preempt contradictory state law and supplant earlier federal legislation, but they cannot override the Constitution.
Treaties can be bilateral (between two parties) or multilateral (between several parties). They can be referred to by many names, including international conventions, agreements, settlements, pacts, accords, protocols, compacts, conventions, or covenants.
The process of treaty-making in the US involves the president and his representatives negotiating the terms of the treaty with a foreign power. The treaty is then considered by the Committee on Foreign Relations, after which the Senate approves or rejects a resolution of ratification. If the resolution passes, ratification takes place when the instruments of ratification are formally exchanged between the US and the foreign power(s).
Treaties are generally considered to be contracts between nations, not legislative acts. However, in the US, a treaty is considered to be a law made by the proper authority, and courts of justice cannot annul or disregard its provisions unless they violate the Constitution. The meaning of treaties is determined by the courts.
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Treaty termination
Treaties are considered the "
Treaties can be terminated in several ways, including by notice from one of the parties, by agreement of the parties, by breach, or by some other means. The power to terminate treaties lies with the President, the President and the Senate, or Congress. The President has the authority to remove Executive Officers who were appointed with senatorial consent, and some argue that the President may also unilaterally terminate treaties made with the Senate's advice and consent. This has been demonstrated in several instances, such as when President Reagan unilaterally terminated a Treaty of Friendship, Commerce, and Navigation with Nicaragua.
However, the termination of a treaty does not necessarily end the international contract. For example, when Congress repealed the "self-executing" clauses of a treaty, it did not terminate the treaty, but it may have provoked the other party to do so.
The Vienna Convention Law on Treaties provides specific guidelines for treaty termination. According to Article 54, termination or withdrawal from a treaty may occur in conformity with the provisions of the treaty or by consent of all the parties after consultation with other contracting states. Article 20 states that a multilateral treaty does not terminate if the number of parties falls below the required number for its entry into force, unless the parties intended to admit the possibility of denunciation or withdrawal. Article 21 specifies that any act of terminating a treaty must be made in writing and communicated to the other parties.
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Treaties and extradition
Treaties are considered the
Extradition is a legal procedure that governs international cooperation in criminal prosecution. It is a process that is both legal and political in nature. Extradition treaties lay out the terms and conditions under which one country agrees to hand over an individual suspected or convicted of committing a crime to another country for criminal prosecution or to serve a sentence.
There are two types of extradition treaties: list and dual criminality treaties. The most common type is the list treaty, which contains a list of crimes for which a suspect is to be extradited. Dual criminality treaties allow for the extradition of a suspect if the punishment is more than one year of imprisonment in both countries. Under both types of treaties, if the conduct is not considered a crime in both countries, it will not be an extraditable offense.
The extradition process can spark diplomatic disputes between countries, especially if the individual being extradited holds a high political or social status. Refusing to extradite or going through with it can sour international relations. For example, the potential use of the death penalty in the US is a solid ground for refusing extradition from many countries.
The US has extradition treaties with over 100 countries, including Canada, the UK, Australia, France, Germany, and Japan. However, the US does not have extradition treaties with all countries, such as China, Russia, Namibia, and the United Arab Emirates.
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Frequently asked questions
Treaties are considered the
The President and the Senate are involved in the treaty-making process. The President has the power to make treaties, but the Senate must consent by a two-thirds majority.
Yes, treaties can be terminated. However, it is unclear which branch of government has the power to do so under the Constitution. Treaties can be terminated unilaterally by the President if permitted by the treaty's terms.
No, treaties cannot override the Constitution. The Supreme Court has clarified that the treaty power is subject to certain constitutional restraints. Treaties may not alter the Constitution or authorize acts that the Constitution expressly prohibits.
