Foreign Policy of The United States - Law

Law

In the United States, there are three types of treaty-related law:

• Executive agreements
  • Congressional-executive agreements are made by the president or Congress. When made by Congress, a majority of both houses makes it binding much like regular legislation. While the constitution does not expressly state that these agreements are allowed, and constitutional scholars such as Laurence Tribe think they're unconstitutional, the U.S. Supreme Court has upheld their validity.
  • Sole executive agreements are made by the president alone.
• Treaties are formal written agreements specified by the Treaty Clause of the Constitution. The president makes a treaty with foreign powers, but then the proposed treaty must be ratified by a two-thirds vote in the Senate. For example, President Wilson proposed the Treaty of Versailles after World War I after consulting with allied powers, but this treaty was rejected by the U.S. Senate; as a result, the U.S. subsequently made separate agreements with different nations. While most international law has a broader interpretation of the term treaty, the U.S. sense of the term is more restricted. In Missouri v. Holland, the Supreme Court ruled that the power to make treaties under the U.S. Constitution is a power separate from the other enumerated powers of the federal government, and hence the federal government can use treaties to legislate in areas which would otherwise fall within the exclusive authority of the states.

International law in most nations considers all three of the above agreements as treaties. In most nations, treaty laws supersede domestic law. So if there's a conflict between a treaty obligation and a domestic law, then the treaty usually prevails.

In contrast to most other nations, the United States considers the three types of agreements as distinct. Further, the United States incorporates treaty law into the body of U.S. federal law. As a result, Congress can modify or repeal treaties afterwards. It can overrule an agreed-upon treaty obligation even if this is seen as a violation of the treaty under international law. Several U.S. court rulings confirmed this understanding, including the 1900 Supreme Court decision in Paquete Habana, a late 1950s decision in Reid v. Covert, and a lower court ruling in 1986 in Garcia-Mir v. Meese. Further, the Supreme Court has declared itself as having the power to rule a treaty as void by declaring it "unconstitutional", although as of 2011, it has never exercised this power.

The State Department has taken the position that the Vienna Convention on the Law of Treatiesrepresents established law. Generally when the U.S. signs a treaty, it is binding. However, because of the Reid v. Covert decision, the U.S. adds a reservation to the text of every treaty that says, in effect, that the U.S. intends to abide by the treaty, but if the treaty is found to be in violation of the Constitution, then the U.S. legally can't abide by the treaty since the U.S. signature would be ultra vires.