The Senate Does NOT Ratify Treaties – This is a good primer on the ratification process
The President…shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur… Constitution of the United States, Art. II, Sec. 2
The Founders of our Nation understood that we might need to join international agreements – but they didn’t make it easy. The Constitution gives the President the power to commit the United States to treaties – but only with the advice and consent of two-thirds of the US Senate, and only if the agreement does not contravene the Constitution.
The process to ratify a treaty may be lengthy, but it is relatively straight forward:
Representatives of US Government work with those from other countries to reach agreement on the substance, wording, and form of an international agreement. With more than 190 countries involved today, gathering wide support for a document can take years! The Government, under presidents from both parties, led the way in the negotiations for the CRC, resulting in a treaty inspired by US laws.
If the President decides that a treaty is in the nation’s best interests (and does not violate the US Constitution!), the President (or designated representative) will sign the treaty. Signing a treaty does not make it become law! It means that the US Government believes the treaty is a good idea, and commits the President to seeking ratification. Secretary of State, Madeleine Albright signed the CRC on behalf of the US in 1995.
Sending the Treaty to the U.S. Senate:
Once signed, the next step in the ratification process is to send the treaty to the US Senate, more specifically, to the Senate Committee on Foreign Relations. To do so, the State Department is responsible for putting together a package of documents to go along with the treaty, including:
- Policy benefits and potential risks to the US;
- Any significant regulatory or environmental impact; or,
- Analysis of the issues surrounding the treaty’s implementation, for example, whether the agreement is self-executing, or whether it needs domestic implementing legislation or regulations to abide by the treaty.
In addition, the State Department may propose a set of Reservations, Understandings, and/or Declarations (RUDS). These provisions include any specific additions, changes or deletions in the language and substance of the treaty that the US will require in order for it to ratify.
Senate Consideration and “Advice and Consent”
With the treaty package in hand, the Senate Foreign Relations Committee can begin its consideration. It can vote to send the treaty to the full Senate for action, with a favorable or unfavorable recommendation, or even without any recommendation at all; it can also decide to ignore the treaty entirely. However, if the Committee fails to act on the treaty, it is not returned to the President. Treaties, unlike other legislative measures, remain available to the Senate from one Congress to the next, until they are actively disposed of or withdrawn by the President.
When the Committee on Foreign Relations sends a treaty to the full Senate, the Senate considers whether to give its “advice and consent” or approval. That requires 67 votes, or two-thirds of the 100 Senators. The Senate may make its approval conditional by including in the consent resolution amendments to the text of the treaty, its own RUDS, or other statements.
Back to the President
Even if the Senate votes in favor of a treaty, there is still another step in the ratification process. Only the President, acting as the chief diplomat of the United States, has the authority to ratify a treaty. With the Senate’s approval, the President can then move forward with the formal process of ratification. That means submitting documents giving the US Government’s agreement to abide by the treaty, as well as any RUDS, to an institution (called a “depositary”). The deposit of the instruments of ratification establishes the consent of a state to be bound by the treaty.