Treaties and International Agreements: Important Concepts

“Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. Vienna Convention on the Law of Treaties, May 23, 1969, art. 2(1)(a), 1155 U.N.T.S. 331.

• Types of Treaties
  • Bilateral – only two states are parties to the treaty
  • Multilateral – multiple state are parties to the treaty
• Dates
  • Signing: Only the first step. It shows that the country who signed it in principle intends to be bound but this does not bind it in and of itself
  • Ratification by specific state
  • Entry into force: Usually there is some triggering mechanism (often a date) that has to occur before a treaty goes into effect.
  • Accession to a treaty: Occurs when a party who did not originally sign the treaty agrees to be bound by it after the treaty has already taken effect.
• Reservation & Declarations/Understandings
  • Reservations
    • A party may “understand” or declare that portion of a treaty means a particular thing
    • Unless expressly forbidden by the treaty, a party may choose to “reserve” a portion of the treaty
  • Declarations / Understandings
    • May be entitled “reservation”, “declaration”, “understanding”, “interpretative declaration” or “interpretative statement”
    • A party may "understand" or declare that a portion of a treaty means a particular thing
    • Defined Article 2(1)(d) of the Vienna Convention: “Unilateral statements, however phrased or named, purporting to exclude or modify the legal effect of certain provisions of a treaty in their application to the reserving State”.
    • True “declarations” merely clarify the state’s position and do not purport to exclude or modify the legal effect of a treaty

1. Negotiation

A treaty often undergoes a number of negotiations and revisions before it is signed, but that is only the first step that it takes on the way to becoming an official, ratified treaty. Negotiation of treaties is the responsibility of the Executive Branch.

• First, the Secretary of State authorizes the beginning of the negotiation process.

• The U.S. Department of State Foreign Service generally conducts treaty negotiations. Representatives from the United States, which can include any number of diplomats, members of the Senate, and representatives from the Executive Branch, negotiate with the other states that will be parties to the agreement. Do not assume that the countries involved in negotiation are the only countries party to the treaty; other countries can later sign onto a treaty after it has entered into force through a process called "accession," which has the same effect as ratification.

• Once terms are agreed upon, the Secretary of State will authorize the signing of the treaty. Note that this does not automatically place the treaty in force.

• Once a treaty is negotiated and signed by the President, an announcement is often made via Press Release from both the White House and the Department of State.

The White House and the Department of State will usually announce when the Executive Branch begins negotiation of a treaty via press release.

2. Transmission to Senate

Under U.S. law, a treaty is an agreement made "by and with the advice and consent of the Senate," pursuant to Article II, Section 2, Clause 2 of the Constitution. In order to be considered a treaty under U.S. law, the document must go through a second set of steps in which it is approved by the Senate.

• After the document is finalized by the Executive, it must be sent to the Senate for consideration before it can be ratified. 
• The Senate Foreign Relations Committee considers the treaty and reports to the full Senate.
• A two-thirds majority vote is required in order for the Senate to approve the treaty.

3. Entry into Force

After approval, the President may proclaim that the treaty has entered into force.

• Each treaty is different; multilateral treaties will have specific language about how and when a treaty will enter into force. For multilateral treaties, often a certain threshold number of parties must sign and ratify the treaty--through the process specific to that country--before it enters into force. Read the treaty language carefully when researching to determine whether the treaty is in force.

Remember that there are other international agreements entered into by the United States that do not constitute treaties and do not require the advice and consent of the Senate to be binding. Such agreements are generally referred to as executive agreements (see below).

International agreements brought into force on a constitutional basis other than with the advice and consent of the Senate are "international agreements other than treaties" and are often referred to as "executive agreements." Congress generally requires notification upon the entry of such an agreement.