New zealand law commission

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A65 The United States (US) Constitution expressly provides for the treaty making power, albeit in bare outline. Article II, section 2, empowers the President, “by and with the Advice and Consent of the Senate, to Make Treaties, provided two-thirds of the Senators present concur . . .”.274 It is accepted practice that the President initiates and conducts the negotiation of treaties, bringing a signed or otherwise final draft to the Senate for its advice and consent. But members of Senate make suggestions to the President about possible treaty making, are consulted by executive branch representatives during the negotiating process, and act as members of or advisers to the US delegation negotiating a treaty.275

Circular 175 Procedure”

A66 The “Circular 175 Procedure” forms part of the US Department of State instructions issued to the Foreign Service, with regard to the negotiation and conclusion of treaties and other international agreements. The procedure provides criteria for determining whether the advice and consent of the Senate should be sought and requires that “due consideration is given to the following factors”, none of which are determinative, in addition to those referred to in the Constitution itself:

(a) The extent to which the agreement involves commitments or risks affecting the nation as a whole;

(b) Whether the agreement is intended to affect State laws;

(c) Whether the agreement can be given effect without the enactment of subsequent legislation by Congress;

(d) Past US practice as to a particular type of agreement;

(e) The preference of the Congress as to a particular type of agreement;

(f) The degree of formality desired for an agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

(g) The general international practice as to similar agreements – in determining whether any international agreement should be brought into force as a treaty or as an international agreement other than a treaty, the utmost care is to be exercised to avoid any invasion or compromise of the constitutional powers of the Senate, the Congress as a whole, or the President.

A67 The procedure is intended to ensure that the Senate (or Congress as a whole in some cases) is adequately consulted in relation to impending, ongoing and concluded treaty negotiations. A diplomat’s request for authorisation to negotiate or sign a treaty must indicate what arrangements have been made for congressional consultation and public submissions. With regard to negotiations, congressional leaders and committees are to be kept informed and consulted, “including especially whether any legislation is considered necessary or desirable for the implementation of the new treaty or agreement”. 276

A68 The Case Act277 requires international agreements, other than treaties, to which the US is a party, to be submitted to Congress within 60 days after entry into force. However, where national security interests dictate, the agreement will be submitted to the Senate Foreign Relations Committee and the Foreign Affairs Committee of the House of Representatives under an appropriate injunction of secrecy.278

A69 After a treaty has been negotiated by the executive, it is submitted to the Senate for its advice and consent. In the Senate, treaties are referred to the Foreign Relations Committee which has exclusive jurisdiction over treaties, and conducts hearings which include testimony from executive branch witnesses. The Committee then reports on the treaty and votes on whether or not to recommend a resolution of ratification to the full Senate.

A70 The recommendations of the Committee may contain proposed amendments and conditions, namely, reservations, understandings, declarations or provisos. The Senate then considers the treaty under Rule 30 of the Senate Rules. In its unabbreviated form, the treaty is considered article by article, proposed amendments being examined by the Senate first sitting as a Committee of the Whole; the Senate thereafter sitting as the Senate must vote again on each proposed amendment. After voting on the amendments, the Senate is then to consider conditions to the resolution of ratification, which will at the final stage set out any agreed amendments and conditions.

A71 Where the Rule 30 procedure is abbreviated, which is usual, the Senate first considers the treaty as a whole, voting on any proposed amendments. The Senate then considers the resolution of ratification reported by the Foreign Relations Committee (including any proposed conditions) and any additional conditions suggested. The Senate lastly votes on the resolution of ratification, which requires a two-thirds majority of members present. All other votes are by a simple majority. Following a favourable vote by the Senate, the President may proceed to ratify the treaty, provided that conditions properly attached to the resolution of ratification are fulfilled (eg, by their incorporation in the instrument of ratification). The President then proclaims the treaty.279

A72 The Senate does not have the power to compel the President to ratify a treaty or modify its terms. However, the Senate can refuse to pass a resolution or alternatively give its consent subject to conditions which require the making of reservations at the time of ratification.280

A73 The requirement that a two-thirds majority of the Senate approve a treaty appears at first sight the ultimate in parliamentary involvement and mandate. However, objection has been made to the fact that Senators representing as little as 7% of the population (the 17 least populous states) are able to defeat a treaty or to impose a condition on their consent.281

Executive agreements

A74 An exception to the requirement of consent by the Senate is the executive agreement. An executive agreement is made by the President under his or her own executive power and, while it is not considered a “treaty” within Article II section 2(2) of the Constitution, it is considered a valid treaty at international law. This type of agreement usually relates to foreign relations or military matters, which do not tend to affect the rights and obligations of citizens. However, by virtue of the Case Act mentioned previously an executive agreement must be transmitted to Congress within 60 days of its entry into force.282

The Congressional-executive agreement process

A75 The Congressional-executive agreement process is another means of entering into treaties. The process involves the Congress passing a joint resolution of both Houses, or passing legislation, which authorises or approves the conclusion of an international agreement by the President. In contrast to the Article II procedure, there is no requirement to obtain a two-thirds approval of the Senate. A simple majority in each House is all that is required to authorise the ratification of a treaty. Although human rights and arms control treaties have not yet been the subject of the Congressional-executive agreement process, it is often employed for trade agreements, since Congress has the constitutional authority to regulate commerce with foreign nations under Article I of the Constitution.283

A76 Recently, a “fast-track” procedure, which is a modified form of bicameral congressional approval, has been developed to implement international trade agreements. Here Congress agrees to impose limits upon itself in exchange for commitments from the President. When the President signals his intention to negotiate an international trade agreement under the fast-track procedure, the President commits the executive to consultation with Congress concerning the agreement and implementing legislation. In exchange, Congress commits to certain internal rule changes which are designed to guarantee an expeditious consideration of a completed agreement and proposed imple­menting legislation. Further, Congress agrees to vote on the agree­ment and legislation without amendment. It has been noted that this procedure has enhanced congressional input in the treaty making process, an example being the North American Free Trade Agreement, in which Congress played an active role in the arrangements in respect of the environment.284

A77 In relation to the status of treaties in domestic law, Article VI Section 2 of the Constitution Act states:

[A]ll treaties made or which shall be made with the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or Laws of any state to the contrary notwithstanding.285

However, the United States has a mixed or partly dualist legal system with respect to international treaties.286

A78 A distinction is drawn between self-executing and non-self-executing treaties. Self-executing treaties do not require implementing legislation and are directly cognisable by municipal courts. In contrast, non-self-executing treaties require further legislative or administrative action before effect can be given in municipal law to the treaty provision. Whether a treaty is directly effective is usually determined by the courts and depends upon the nature of the treaty itself. Treaties which require substantial expenditure of public funds generally require enabling legislation before they can take effect in domestic law. In some cases the Senate will qualify its consent to the ratification of a treaty with a declaration that the treaty shall not be self-executing.287

A79 In summary it can be noted that both Argentina and Mexico have based their treaty making practice upon the United States system, which perhaps is a reflection of its success.288 Treaty making in the United States is governed by a network of inter-related legislation, Department of State instructions, Senate Rules and the Constitution itself. This arrangement ensures that the various bodies involved in treaty making such as the Department of State, as well as the Senate and House of Representatives are kept well-informed and have adequate opportunity to effectively participate in the scrutiny of proposed agreements at all stages of development.

A80 Agreements are subjected to one of various forms of Senate approval and, importantly, the Senate is adequately informed of impending, ongoing and concluded treaty negotiations. Arrange­ments for congressional consultation and public submissions are made before signature or negotiation. The Case Act ensures that international agreements not considered treaties be submitted to Congress after their conclusion. The procedure whereby committees of the House of Representatives and Senate consider agreements which bear upon national security interests in conditions of secrecy is a viable alternative to the practice recently adopted in Australia of excepting sensitive treaties from any sort of parliamentary scrutiny or approval.

A81 Parliamentary approval of treaties is rigorous, with a two-thirds majority vote of the Senate required before the President can ratify a treaty. The executive agreement and the Congressional-executive agreement processes are, however, exceptions to this requirement.

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