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Arthur J. Rynearson: Office of the Senate Legislative Counsel

Arthur J. Rynearson

“Since the Senate may withhold its advice and consent for any reason whatsoever, it is implied that the Senate may condition its advice and consent.”

RITCHIE: The last time we met, we talked about the Panama Canal Treaty, and it might be good for the record to go back and to talk about exactly what the Senate’s role is in the whole treaty process.

RYNEARSON: Well, I’d certainly be glad to talk to you about it. The key thing to remember is that the Senate has no power to ratify treaties, but the Senate is required to give its advice and consent before the president may ratify a treaty. This derives from the constitutional provision in Article II, Section 2, Clause 2 that states that the president shall have power to make treaties, by and with the advice and consent of the Senate, two-thirds of the senators present concurring. This means, in effect, that the Senate’s action is a necessary, but not a sufficient, condition for the president to ratify a treaty. The president retains the discretion not to ratify a treaty to which the Senate has given its advice and consent. Since the Senate may withhold its advice and consent for any reason whatsoever, it is implied that the Senate may condition its advice and consent. It does this through the resolution of advice and consent by saying that its advice and consent is subject to certain conditions. As a legislative drafting matter, this meant that senators and the Foreign Relations Committee, which has jurisdiction over treaties, would come to me to request that I draft conditions to the Senate’s advice and consent.

The treaty is drafted in the executive branch through negotiations with the foreign party, and an agent for the United States, a United States diplomat, usually will be the person who initials the negotiated text of the treaty. The president is required to submit the treaty to the Senate before ratification. One of the interesting legal questions is that the president does not have to submit each and every international agreement to the Senate, but only those agreements that the president designates as “treaties.” This gives the president, of course, some discretion, and the Senate usually likes to guide the president in his exercise of that discretion. During my tenure, I know of at least one instance in which the chairman of the Foreign Relations Committee threatened to stall on approving diplomatic appointments unless the president would submit a specific agreement to the Senate for its advice and consent. So the Senate does have a nonlegal way of making its wishes known in this regard. There is also an administrative document, Circular 175, which is used by the Department of State to guide it in determining which agreements are submitted under the treaty power.

In any event, after the president decides to submit a particular agreement to the Senate under the treaty power, the original document of the treaty is submitted to the Senate and, under current practices, is held by the Executive Clerk of the Senate. Meanwhile, jurisdiction for consideration of the treaty is referred to the Committee on Foreign Relations. After the Committee on Foreign Relations acts, if it decides to act favorably or without recommendation, the treaty is placed on the Executive Calender and may be called up under the usual procedures. When it is called up in the Senate, a motion will be made to lift the injunction of secrecy on the treaty, whereupon senators may offer these conditions to the Senate’s advice and consent. Sometimes the conditions that are agreed upon by the Foreign Relations Committee are already incorporated in a draft resolution of advice and consent that is laid before the Senate for its further consideration and possible amendment.

If the Senate approves the resolution of advice and consent by the supermajority required by the Constitution, then the actual treaty document and the resolution of advice and consent are transmitted to the executive branch. If the president decides to go ahead with the ratification, he will direct the Secretary of State to prepare an instrument of ratification, which will contain most or all of the Senate’s resolution of advice and consent and affix the Great Seal of the United States to that document, the Secretary of State being the custodian of the Great Seal pursuant to United States statute. That instrument of ratification will then be exchanged with the foreign party in the case of a bilateral treaty, or deposited with what is known as the “depositary” in the case of a multilateral treaty, the depositary usually being an international organization such as the United Nations. In the case of a bilateral treaty, the foreign party must find that the United States action on the treaty is conformable or consistent with its own act in ratifying or acceding to the treaty. If the foreign party and the United States find that the two actions are consistent, they will then execute what is known as a protocol of exchange. That represents the point at which the two parties find themselves in agreement. The president will then, usually at a future date, proclaim the effectiveness of the treaty as supreme law of the United States by issuing a proclamation. This document may acknowledge that the treaty has a delayed date of entry into force. So a treaty, in sum, operates on two levels, the point at which the United States and the foreign party are bound under international law and the point at which it becomes effective for United States domestic purposes. Those dates may be very close in time. They may even be the same day, but they do not have to be the same day.

More from Arthur Rynearson on Treaties in the Senate