# How a Treaty Is Made and Ratified The Article II machinery for binding the United States to another country — negotiation, signature, transmittal to the Senate, the Foreign Relations Committee, the ⅔ floor vote, and the President's own act of ratification — plus the two things that matter more than the machinery itself: the **bypasses** that carry most of the traffic, and the **exit** the Constitution never wrote down. Three corrections up front, because the vocabulary is wrong in ordinary usage. **The Senate does not ratify treaties.** It votes on a *resolution of ratification*, which gives advice and consent; the President then decides whether to ratify, and may decline. **The threshold is not 67 votes.** It is two-thirds of senators *present and voting* — with fifty senators on the floor it is thirty-four. And **the House of Representatives has no role at all** in an Article II treaty, which is exactly why nearly every significant modern international commitment has been routed around Article II. Sibling maps: [[How a Bill Becomes Law]] shows the statutory track that the bypasses use instead; [[Confirmation Pipeline]] shows the Senate's other advice-and-consent function, where the bar was lowered to a majority and here was not. > [!note] How to read this chart > `──▶` = the main path · `└─▶` = a branch or bypass · `◇` = a decision point · `★` = a legally operative act · `✕` = the path dies here. No officeholders are named — this is the evergreen process layer, and it does not change with who holds the offices. Bracketed items are dated notes verified at build time. ``` HOW A TREATY IS MADE AND RATIFIED │ Legend: ──▶ main path └─▶ branch/bypass ◇ decision ★ legally operative ✕ dies here │ Time-slice: process is evergreen · current-events notes verified 2026-08-14 │ ■ 0. THE TEXT │ Art. II, § 2, cl. 2 — 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." │ ├─ "PRESENT" — the denominator is the senators on the floor, not 100. With a │ │ bare quorum of 51 present, 34 votes carry a treaty. │ ├─ The HOUSE is not mentioned. It has no vote. (It reappears in step 7.) │ └─ The Constitution says how to ENTER. It says NOTHING about how to LEAVE. │ That silence is step 9 and the most consequential thing on this page. │ ├─◆ 1. NEGOTIATION — executive branch only │ ├─ President · Secretary of State · designated negotiators carrying "full powers" │ ├─ Congress has NO formal seat. Informal practice: senators travel as observers or │ │ delegates so the eventual ⅔ is pre-negotiated — the "advice" half of the clause, │ │ which in modern practice happens here or not at all. │ └─ ◇ Will the Senate ever accept this? ─── if the answer is no, the deal is usually │ restructured as an executive agreement BEFORE it is signed (see step 8). │ ├─◆ 2. SIGNATURE │ ├─ Signing does NOT bind the United States. │ ├─ Under VCLT Art. 18 it creates an interim duty not to defeat the treaty's object │ │ and purpose pending a ratification decision. │ ├─ ✕ The President may sign and simply never transmit — the treaty sits forever. │ └─ ✕ Or may "unsign": withdraw the signature and the Art. 18 obligation with it. │ [The Rome Statute, signed Dec 2000, unsigned May 2002, is the standing example.] │ ├─◆ 3. TRANSMITTAL TO THE SENATE ──▶ ★ the first real gate │ ├─ President transmits the text with a letter of transmittal and a State Department │ │ report ──▶ printed as a numbered TREATY DOCUMENT (e.g. Treaty Doc. 102-38) │ ├─ AUTOMATIC referral — no motion required — to the COMMITTEE ON FOREIGN RELATIONS │ └─ ✕ THE DECISION NOT TO TRANSMIT IS THE BIGGEST KILL SWITCH IN THE SYSTEM, and it │ belongs entirely to the President. Signed-but-never-transmitted, and │ transmitted-but-never-voted, is where most American treaty commitments live. │ [The Vienna Convention on the Law of Treaties — signed 1970, never voted.] │ ├─◆ 4. COMMITTEE STAGE — SENATE FOREIGN RELATIONS │ ├─ hearings ──▶ business meeting ──▶ the committee may report FAVORABLY, │ │ UNFAVORABLY, WITHOUT RECOMMENDATION — or do nothing at all │ ├─ ✕ THE CHAIR'S POCKET KILL: no discharge petition exists for treaties. A treaty │ │ the chair declines to schedule is simply never heard from. │ │ │ ├─ ★ TREATIES DO NOT DIE AT THE END OF A CONGRESS. Unlike bills, a pending treaty │ │ is re-referred and CARRIES OVER INDEFINITELY until the Senate acts or the │ │ document is formally returned to the President on request. Treaties from │ │ prior decades remain live on the committee calendar. │ │ │ └─◆ THE COMMITTEE REWRITES THE DEAL — "RUDs" attached to the resolution: │ ├─ RESERVATION ...... changes the US legal obligation; other parties must │ │ accept it or the treaty does not enter into force │ │ between them │ ├─ UNDERSTANDING .... an interpretation the US declares it is signing up to │ ├─ DECLARATION ...... a statement of policy or of constitutional position │ │ ★ including the NON-SELF-EXECUTING declaration, now │ │ routine — see step 7, where it does its damage │ └─ PROVISO .......... a condition binding on the executive branch only; │ not communicated to the other parties │ ├─◆ 5. THE FLOOR — EXECUTIVE SESSION │ ├─ placed on the EXECUTIVE CALENDAR (separate from the legislative calendar); │ │ the Senate resolves into executive session to consider it │ ├─ debate is on the RESOLUTION OF RATIFICATION, not on the treaty text │ ├─ amendments to the RESOLUTION (i.e. the RUDs) ...... SIMPLE MAJORITY │ ├─ amendments to the TREATY TEXT itself ............. force RENEGOTIATION with │ │ every other party — which in practice kills the treaty │ ├─ cloture is available (Rule XXII, 60 votes) but is nearly pointless: the final │ │ bar is higher than the cloture bar, so the filibuster is not the obstacle here │ │ │ └─▶ ◇ ★ THE VOTE — TWO-THIRDS OF SENATORS PRESENT AND VOTING │ ├─ ✕ FAILS ──▶ the treaty is NOT dead — it returns to the calendar and may │ │ be taken up again. [Versailles, 1919–20, was voted down twice.] │ └─ ──▶ PASSES ──▶ ★ ADVICE AND CONSENT GIVEN ──▶ step 6 │ ├─◆ 6. RATIFICATION — back to the President, and it is HIS act │ ├─ Senate consent AUTHORIZES ratification. It does not require it. │ ├─ ✕ The President may decline to ratify after winning the vote, or hold the │ │ instrument indefinitely, or ratify only if the other parties accept the RUDs. │ ├─ ──▶ President signs the INSTRUMENT OF RATIFICATION ──▶ ★ deposited with the │ │ designated depositary (or exchanged, for a bilateral treaty) │ └─ ──▶ ENTRY INTO FORCE on the treaty's own terms — often on a threshold of │ ratifications, not on the date of deposit │ ├─◆ 7. DOMESTIC EFFECT — ◇ IS IT SELF-EXECUTING? │ │ Art. VI: treaties are "the supreme Law of the Land." Heavily qualified: │ │ │ ├─ YES, SELF-EXECUTING ──▶ operative in US courts on its own force; preempts │ │ contrary STATE law │ │ │ └─ NO, NON-SELF-EXECUTING ──▶ binds the US internationally, creates NO enforceable │ domestic rights until Congress passes IMPLEMENTING LEGISLATION │ ├─ ★ AND HERE THE HOUSE RE-ENTERS — the chamber with no vote on the treaty │ │ now holds a veto over whether it means anything at home │ └─ Since the non-self-executing declaration became routine, this is the │ default branch for modern US treaty practice │ │ THE THREE LIMITS ON WHAT A RATIFIED TREATY CAN DO: │ ├─ vs. STATE law ......... treaty wins (Missouri v. Holland, 1920 — the treaty │ │ power reaches subjects otherwise reserved to states) │ ├─ vs. the CONSTITUTION .. Constitution wins (Reid v. Covert, 1957) │ └─ vs. a LATER STATUTE ... the LATER-IN-TIME rule — a subsequent act of Congress │ overrides the treaty domestically by simple majority, │ while leaving the US in breach internationally │ ╞═══════════════ 8. THE BYPASS TRACKS — WHERE THE TRAFFIC ACTUALLY GOES ═══════════════ │ The Article II treaty is now the exception. The great majority of binding US │ international commitments since 1945 have taken one of these forms instead: │ ├─◆ CONGRESSIONAL-EXECUTIVE AGREEMENT ──▶ simple majority of BOTH chambers │ ├─ 51 + 218 instead of ⅔ of the Senate — and it lets the House in, which is part │ │ of why the trade committees prefer it │ └─ the entire trade architecture rides on this: NAFTA · USMCA · the WTO agreements │ ├─◆ EXECUTIVE AGREEMENT PURSUANT TO A TREATY ──▶ authority delegated by an already- │ ratified treaty; no new vote of any kind │ ├─◆ SOLE EXECUTIVE AGREEMENT ──▶ the President alone, on claimed Art. II authority. │ └─ narrowest legal footing, most contested, and the least visible │ ├─◆ POLITICAL COMMITMENT / NON-BINDING INSTRUMENT ──▶ not binding under international │ │ law at all; structured precisely so that no Senate vote is required │ └─ ★ and therefore exitable by memorandum. [The Paris Agreement and the JCPOA │ were both built this way, and both were left this way.] │ └─◆ THE ONLY CHECK ON ANY OF IT — CASE-ZABLOCKI ACT (1 U.S.C. § 112b) ├─ requires the Secretary of State to TRANSMIT the text of non-treaty agreements │ to Congress. It is a REPORTING statute, not an approval statute. ├─ [2022 amendments, effective Sept 2023: monthly transmittal, a required │ statement of claimed legal authority, public publication, and — new — │ coverage of "qualifying non-binding instruments."] └─ ✕ Congress learns. Congress does not consent. ╞═══════════════════ 9. THE EXIT — THE HOLE IN THE WHOLE SYSTEM ═══════════════════════ │ The Constitution prescribes an elaborate ⅔ procedure for ENTERING a treaty and │ is entirely SILENT on LEAVING one. │ ├─◆ WHAT THE TREATY ITSELF SAYS ──▶ most contain a withdrawal clause with a notice │ period (commonly one year). A treaty with NO withdrawal clause generally may not │ be exited unilaterally under the default rules of the law of treaties. │ ├─◆ WHO DECIDES DOMESTICALLY ──▶ ◇ UNRESOLVED │ ├─ GOLDWATER v. CARTER (1979) — Carter terminated the Taiwan defense treaty │ │ without the Senate; 25 members of Congress sued. │ └─ ✕ NO MAJORITY OPINION. Four justices: political question. One: not ripe. │ The complaint was dismissed and the question has never been answered. │ ├─◆ THE PRACTICE THAT FILLED THE VACUUM ──▶ ABM Treaty (2002) · the JCPOA (2018) · │ the Paris Agreement · the INF and Open Skies exits — all unilateral, all unchallenged │ to judgment. │ ├─◆ [JAN 7, 2026 — THE MASS WITHDRAWAL.] A presidential action directed agencies to │ cease participation in and funding of 66 international bodies and instruments │ (31 UN entities, 35 non-UN). It did not itself withdraw the United States from │ anything — it started 66 separate exit procedures, each governed by its own │ instrument's terms. │ └─ ★ THE ESCALATION: the list reaches the UN FRAMEWORK CONVENTION ON CLIMATE │ CHANGE — a SENATE-RATIFIED ARTICLE II TREATY, consented to unanimously │ in October 1992. Prior unilateral exits were from executive agreements and │ political commitments. This one erases a ⅔ Senate vote, which is the fact │ pattern Goldwater v. Carter declined to decide. │ └─◆ WHAT CONGRESS CAN ACTUALLY DO ABOUT IT ├─ ✕ no privileged resolution, no vote of disapproval, no statutory clock ├─ repeal or amend the IMPLEMENTING legislation — reaches domestic effect only ├─ appropriations riders barring funds for the withdrawal — the tool with teeth └─ a ⅔ veto-proof statute — i.e. the same bar it took to enter, now needed to stay ``` ## Notes - **The asymmetry is the whole page.** Entry requires the President plus two-thirds of the Senate. Exit, in current practice, requires the President. Nothing in the constitutional text authorizes that asymmetry and nothing in the case law forbids it, because [[Goldwater v. Carter]] produced no holding. Every American treaty commitment therefore rests on a supermajority to create and a signature to destroy. - **January 7, 2026 crossed the line that had been held.** The [[2026 International Organizations Withdrawal Memorandum]] ordering withdrawal from 66 international organizations and instruments is not, by itself, a withdrawal — it directs agencies to begin 66 separate exit procedures. What makes it structurally new is that the list reaches the **UN Framework Convention on Climate Change**, which the Senate consented to unanimously in October 1992. Prior unilateral exits — the [[JCPOA]], the [[Paris Agreement]], the ABM and INF and Open Skies withdrawals — were from executive agreements, political commitments, or treaties with clean withdrawal clauses and no live domestic constituency. This is the first time a President has moved to erase a ⅔ Senate vote across the board, and it is the fact pattern that could finally force the question *Goldwater* dodged. Tracked on [[US Treaty and Organization Withdrawal Timeline]]. - **The non-self-executing declaration is the quiet revolution.** The Senate now routinely attaches a declaration stating that a treaty creates no privately enforceable domestic rights. [[Medellín v. Texas]] (2008) confirmed the consequence: the United States can be internationally bound and domestically inert at the same time. The practical effect is to hand the House of Representatives — which has no vote on ratification — a veto over whether a ratified treaty means anything in an American court. - **[[Bricker Amendment]] lost and won.** The 1950s campaign to constrain the treaty power failed by one vote in 1954. Everything it wanted arrived anyway through practice: routine non-self-executing declarations, the migration to executive agreements, and reservations that neutralize human-rights instruments domestically. - **Treaties are immortal on the calendar.** A bill dies at the end of a Congress; a treaty does not. Pending treaties are re-referred to [[Senate Foreign Relations Committee]] indefinitely until the Senate acts or the President asks for the document back. The [[Vienna Convention on the Law of Treaties]] — signed in 1970 — has been waiting fifty-six years. - **What "advice" became.** The clause says advice *and* consent. In modern practice the advice half happens, if at all, during negotiation, through senators seated as observers on delegations. There is no formal pre-negotiation Senate role, which is why an administration that declines to consult can present the Senate with a finished text and a take-it-or-leave-it ⅔ vote — and why administrations that expect to lose that vote restructure the deal as an executive agreement before signature. - **The 67-vote myth.** Two-thirds of senators *present and voting*, not of the whole body. Attendance is a variable a floor manager can work. - **Officeholders:** none are named, by design. This is a process flow and it is evergreen. Committee leadership lives on [[Senate Foreign Relations Committee]], where it turns over. - **What this map deliberately omits:** the substance of any particular treaty, the international-law rules on interpretation and breach (see [[Vienna Convention on the Law of Treaties]]), and the sanctions and tariff instruments that are statutory rather than treaty-based. ## See also - [[Foundations Hub]] — parent hub for the map series - [[How a Bill Becomes Law]] — the majoritarian track the bypasses in step 8 actually use - [[Confirmation Pipeline]] — the Senate's other advice-and-consent function, where the threshold was lowered - [[How an Executive Order Is Issued and Challenged]] — the instrument doing the withdrawing in step 9 - [[Executive Agreement]] · [[Case-Zablocki Act]] — the bypass tracks and their one reporting check - [[Goldwater v. Carter]] · [[Medellín v. Texas]] · [[Missouri v. Holland]] — the three cases the map turns on - [[Supremacy Clause]] — what "supreme Law of the Land" does and does not mean - [[Bricker Amendment]] — the campaign to close the treaty power, lost on paper and won in practice - [[Vienna Convention on the Law of Treaties]] — the treaty about treaties, signed and never ratified - [[Senate Foreign Relations Committee]] · [[United States Senate]] · [[Department of State]] — the institutions in the pipeline - [[US Treaty and Organization Withdrawal Timeline]] — the ledger of exits - [[2026 International Organizations Withdrawal Memorandum]] — the January 7, 2026 instrument that reached a ratified treaty - [[International Law Hub]] — the instruments themselves - [[NAFTA]] · [[USMCA]] · [[World Trade Organization]] — the congressional-executive agreement track - [[Paris Agreement]] · [[JCPOA]] · [[Rome Statute]] — signed, unsigned, or never transmitted - [[Congress Hub]] — the chamber's other process maps