TREATIES, NEGOTIATION AND RATIFICATION OF

TREATIES, NEGOTIATION AND RATIFICATION OF. A treaty is a formal agreement signed by one or more countries. Article II, Section 2, of the Constitution gives the president the "Power, by and with the Advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Although the drafters of the Constitution intended for the president and the Senate to collaborate in negotiating and ratifying treaties, throughout U.S. history, the responsibility for treaty making has rested with the chief executive.

In the United States, only the federal government can make treaties with other nations. Article I, Section 10, of the Constitution provides that "No State shall enter into any Treaty, alliance, or Confederation" nor "without the Consent of Congress … enter into any Agreement or Compact with another state, or with a foreign power."

There are five stages in arriving at a treaty. In the first stage, the president prepares instructions about the terms of the treaty. The president assigns a representative to negotiate the agreement with counterparts from the other nation or nations and president then signs the draft of the treaty. In the second stage, the president submits the treaty to the Senate for its consideration. The Senate can consent to the treaty; reject it, block it by tabling it; or consent with reservations. If the Senate consents, the president proceeds to the third stage, known as ratification. In the fourth stage, the president exchanges ratifications with the co-signing country. The U.S. Department of State and American diplomats abroad typically handle this step. In the fifth and final stage, the president proclaims the treaty the law of the land.

If the Senate refuses to consent to the treaty, the process is halted and the president cannot ratify the agreement. Or, if the Senate attaches reservations or amendments to the treaty, the president may accept or reject them. Congress did not change seventy-two percent of treaties until 1945. Since World War II, however, presidents have evaded Senate oversight of treaty making by entering into what are called "executive agreements" with foreign nations. These agreements do not have the force of law but are generally binding on the courts while they are in effect, which is the term in office of the president who made them.

Executive agreements have varied widely in importance. Some have concerned inconsequential matters, such as adjusting the claim of an individual citizen. Or they have involved routine diplomacy, such as recognizing a government.

However, many of America's most significant inter national accords have been in the form of executive agreements. Examples are the Open Door Notes (1899) concerning American trade in China, the exchange of American destroyers for access to British military bases (1940), and the Yalta and Potsdam agreements after World War II.

Since World War II, the number of executive agreements has far exceeded the number of treaties. From time to time, Congress has tried to limit the President's ability to enter into such agreements. Sen. John W. Bricker of Ohio launched the most ambitious attempt to curtail what he perceived as a usurpation of power by the executive branch. In 1953, Bricker proposed a constitutional amendment that would give Congress the power to "regulate all Executive and other agreements with any foreign power or international organization." The amendment failed in the Senate by one vote in February 1954 and was never passed.

Trade and Territory

For much of American history, U.S. treaty making has primarily involved two areas of interest: the promotion of overseas business and the acquisition of land across North America.

During the early decades of the Republic, American leaders sought trade and territory while dealing with the unfinished business of the revolutionary war. The most important treaties signed by the United States in the eighteenth century were Jay's Treaty (1794) and the Pinckney Treaty (1795), which established peaceful relations with Britain and Spain.

Despite the formal end to warfare between the United States and England (Treaty of Paris, 1783), relations between the revolutionary upstart and the Mother Country remained poor. In 1794, President Washington appointed John Jay to negotiate a settlement of American and British grievances to avert another war. Under the terms of the Jay Treaty, signed on 19 November 1794, the central source of friction was removed when Britain agreed to cede control of military forts on the northwestern frontier to the United States. The United States agreed to grant England most-favored-nation trading status.

Under the Pinckney Treaty with Spain, the border separating the United States and Spanish Florida was established at the thirty-first parallel. The United States also gained vital trading rights along the Mississippi River in addition to the right of deposit at the port of New Orleans.

By virtue of these two treaties, the United States could reasonably expect to extend its grasp as far west as the Mississippi and south to include Florida. During the next half century, those territorial aims were exceeded as a result of the Louisiana Purchase (1803) and later annexation treaties.

In what is considered one of history's greatest land deals, the Louisiana Purchase, President Thomas Jefferson spent $15 million to buy 828,000 square miles of North American land from Napoleon Bonaparte, the French emperor. With the purchase, the United States doubled in size and extended its domain west to the Rocky Mountains, north to Canada, and south to the Gulf of Mexico. The deal was signed on 30 April 1803. President James Monroe's secretary of state, John Quincy Adams, subsequently obtained Florida from Spain in the Adams-Onis Treaty signed on 22 February 1819.

In 1844, President John Tyler signed a treaty with the leaders of the breakaway Republic of Texas to bring that former Mexican territory into the Union. As a result of anti-slavery opposition in the Senate, the treaty was rejected. However, Tyler was able to obtain Texas the following year when Congress approved the annexation through a joint resolution. Because Mexico did not accept the loss of Texas, war broke out between the neighboring countries. These hostilities were ended with the treaty of Guadalupe Hidalgo (2 February 1848), which not only secured the American claim to Texas but added California and New Mexico to the United States.

With the ratification of the Gadsen Purchase Treaty with Mexico in 1854, America gained the southernmost areas of Arizona and New Mexico. Secretary of State William Seward's Alaska Purchase Treaty with Russia in 1867 was the United States' last major land deal.

In the years preceding the CivilWar, the United States expanded its overseas trade via treaties with England, Russia, Siam, China, Hawaii, and Japan. To increase business in Latin America, U.S. leaders signed a series of accords establishing the right to trade across the strategic Isthmus of Panama and eventually build a canal in one of the Central American countries.

Overseas Expansion and International Agreements

At the end of the nineteenth century, the United States became one of the world's great powers by virtue of its growing overseas commerce. Having become a great power, the United States began acting more like one. The naval fleet was vastly enlarged, and efforts were taken to obtain territory abroad. Many of the treaties signed by the U.S. during this period resulted from this new imperialism. Some of these treaties were hotly debated in the Senate, reflecting the limits to popular support for the notion of American colonial expansion.

In the peace treaty signed by the United States and Spain after the 1898 war, the U.S. acquired the Philippines and Puerto Rico. The treaty was highly controversial. Although it received Senate approval, it barely earned the necessary two-thirds majority.

Prior to World War I, the United States was most assertive in its traditional sphere of influence in Central and South America. President Theodore Roosevelt sought to oust British influence from the region, and he boldly proclaimed the American right to intervene with military force to bring order to Latin America.

Under the Hay-Pauncefote Treaty (5 February 1900), the U.S. obtained from Britain exclusive rights to operate a future canal in Panama, then under the control of Colombia. After instigating a rebellion in Panama, leading to its independence from Colombia, the U.S. was able to sign the Hay-Bunau-Varilla Treaty (18 November 1903), establishing complete American sovereignty over the Canal Zone and opening the door to construction of the canal.

Also, at the end of the eighteenth century, the U.S. began involvement in international conferences producing multilateral treaties. For example, in 1890, the U.S. signed an international agreement calling for suppression of the slave trade in Africa, which the Senate ratified in 1892. After the First and Second International Peace Conferences at The Hague, the U.S signed an accord to participate in the Permanent Court of Arbitration. Still wary of involvement in Old World politics, the Senate approved The Hague treaty with the reservation that the U.S. would not officially depart from its non-interventionist policy toward Europe.

Versailles Treaty and the Return to Isolationism

The most fiercely debated treaty of the twentieth century was the Versailles Treaty, which settled the outstanding issues of World War I. President Wilson had raised the stakes for passage incredibly high. He desperately wanted to see creation of the world's first collective security organization, the League of Nations, which was the centerpiece of the treaty.

Wilson led the American team that traveled to France in January 1919 to negotiate the treaty. The president personally commanded the intense lobbying effort he hoped would ensure Senate passage of the accord. However, too many Republican Senators opposed the League on grounds that it posed a threat to American autonomy over foreign affairs. Wilson refused to compromise and the Senate rejected the treaty.

The demise of the League ushered in a return to isolationism in the United States. The treaties the U.S. entered into in the 1920s and 1930s reflected the nation's desire to retreat from Europe's troubles. Most notable was American participation in the Pact of Paris, also known as the Kellogg-Briand Pact (27 August 1928), which called on the United States and sixty-two other co-signing countries to renounce war as an "instrument of national policy."

Postwar Internationalism and Collective Security

After World War II, the United States spearheaded the drive to create a new collective security organization. In 1945, the U.S. became the first nation to sign the U.N. charter. Unlike consideration of the League of Nations, the Senate eagerly approved American participation. There were no longer any questions raised about the United States' ability to safeguard its own interests while participating in the world body. The U.S., as a permanent member of the U.N. Security Council, would have veto power over any decisions rendered by the organization.

Europe and vast parts of Asia were utterly devastated after the war, and the United States and the Soviet Union emerged as the two most powerful nations in the world. The rivalry between the superpowers prompted the United States to break with its 150-year-old tradition of avoiding "entangling" alliances. Due to fears about the spread of communism, for the first time in American history, the United States joined a series of peacetime military alliances. These alliances were arranged through multilateral treaties.

The 1949 ratification of the Atlantic Pact establishing the twelve-member North Atlantic Treaty Organization was considered a major turning point in American foreign policy. The treaty committed the United States to the permanent defense of Western Europe. During the next decade, the U.S. entered into numerous other security treaties around the globe. The U.S. signed the Pacific Security Pact with Australia, and New Zealand (1951); a Japanese security treaty (1951); the Southeast Asia Treaty Organization (1954) with the United Kingdom, France, Australia, New Zealand, the Philippines, Thailand, and Pakistan; and defense treaties with South Korea, Pakistan, and Taiwan.

The deep mistrust underlying the Soviet-American relationship made it difficult to establish peace treaties with the defeated Axis powers. The United States, for example, completed no peace treaty with Germany, even as it claimed a major role in rebuilding the devastated country. In 1954, however, the U.S. signed the Treaty of Paris, formally ending the allied occupation of West Germany. In addition, it took a decade of talks following the war to settle the status of Austria, strategically located on the border of the Iron Curtain. The delay worked to America's favor. By 1955, when the U.S. and Soviet Union signed the Austrian State Treaty establishing its neutrality, Austria had firmly committed itself to democratic government.

It should be noted that, after America's two major Asian wars in the latter half of the twentieth century, no treaties terminated the hostilities. After lengthy negotiations, the Korean War ended with a ceasefire and the signing of an armistice (1953) that reestablished the prior division of the country. Following the North Vietnamese-Vietcong Tet Offensive in 1968, the U.S. and Hanoi began peace talks that dragged on for five years. These talks resulted in a 1973 accord in the form of an executive agreement. The agreement permitted the U.S. to continue its support for South Vietnam, but by 1975, communist forces had ousted the remaining American presence and had taken Saigon, which they renamed Ho Chi Minh City.

Nuclear Arms Treaties

The most important treaties of the late twentieth century were designed to slow the pace of the nuclear arms race between the Americans and the Soviets. The terrifying Cuban Missile Crisis (1962) inspired the superpowers to sign the Nuclear Test Ban Treaty (1963), outlawing nuclear missile tests in the atmosphere, space, and underwater. A 1968 treaty signed by the United States sought to limit the proliferation of nuclear arms.

President Richard Nixon initiated the Strategic Arms Limitation Talks (SALT) with the Soviet Union, resulting in two treaties signed on 26 May 1972. The Anti-Ballistic Missile Treaty (ABM Treaty) prohibited the Superpowers from deploying nationwide ABM defenses. The SALT I Treaty banned the development, testing and deployment of space-based, sea-based, air-based, mobile, and land-based ballistic missiles.

SALT II (18 June 1979) initiated restraints on existing and future strategic nuclear arms systems. The 8 December 1987 Intermediate Nuclear Forces Treaty, signed by U.S. president Ronald Reagan and Soviet leader Mikhail Gorbachev, was considered the most stringent nuclear-control treaty until the collapse of the Soviet Union in 1989. The break-up of the Soviet empire led Russia and the United States to sign several groundbreaking accords calling for the destruction of thousands of nuclear bombers and warheads.

BIBLIOGRAPHY

Beisner, Robert L. From the Old Diplomacy to the New, 1865–1900. Arlington Heights, Ill.: Harlan Davidson, 1986.

Gaddis, John Lewis. Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy. New York: Oxford University Press, 1982.

Kissinger, Henry. Diplomacy. New York: Simon and Schuster, 1994.

Tucker, Robert W., and David C. Hendrickson. Empire of Liberty: The Statecraft of Thomas Jefferson. New York: Oxford University Press, 1990.

Ellen G.Rafshoon

See alsoForeign Policy ; Reciprocal Agreements ; Trade Agreements ; andindividual treaties.