International Law and Agreements: Their Effect upon U.S. Law
Congressional Research Service 13
issue largely because plaintiffs often cannot satisfy the threshold justiciability requirements that
would allow them to challenge the constitutionality of executive agreements in court.
In a
challenge to the President’s ability to join NAFTA outside the Article II treaty-making process,
for example, a U.S. court of appeals concluded that the question of what form an international
agreement should take was a nonjusticiable political question.
As a matter of historical practice, some types of international agreements have traditionally been
entered as treaties in all or many instances, including compacts concerning mutual defense,
extradition and mutual legal assistance,
arms control and reduction,
and the final resolution of boundary disputes.
In addition, the Senate has occasionally used its
See Made in the USA Found. v. United States, 242 F.3d 1300, 1319 (11th Cir. 2001), cert. denied, United
Steelworkers v. United States, 534 U.S. 1039 (2001); Greater Tampa Chamber of Commerce v. Goldschmidt, 627 F.2d
258, 265–66 (D.C. Cir. 1980).
See Made in the USA Found., 242 F.3d at 1312–19. For background on the political question doctrine, see Cong.
Research Serv., Overview of the Political Question Doctrine, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S2-C1-9-1/ALDE_00001283/ (last visited Jan. 25, 2023)
See, e.g., Inter-American Treaty of Reciprocal Assistance, Dec. 3, 1948, 62 Stat. 1681, 21 U.N.T.S. 77; North
Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243; Security Treaty, Austl.-N.Z.-U.S., Sept. 1, 1951,
3 U.S.T. 3420; Mutual Defense Treaty, Phil.-U.S., Aug. 30, 1951, 3 U.S.T. 3947; Mutual Defense Treaty, S. Kor.-U.S.,
Oct. 1, 1953, 5 U.S.T. 2368; Southeast Asia Collective Defense Treaty, Sept. 8, 1954, 6 U.S.T. 81; Treaty of Mutual
Cooperation and Security, Japan-U.S., Jan. 19, 1960, 11 U.S.T. 1632, (replacing Security Treaty, Japan-U.S., Sept. 8,
1951, 3 U.S.T. 3329).
See generally CRS Report 98-958, Extradition To and From the United States: Overview of the Law and
Contemporary Treaties, by Michael John Garcia and Charles Doyle, at App. A (listing bilateral extradition treaties to
which the United States is a party). Congress enacted statutes that permitted in certain circumstances the extradition of
non-citizens to foreign countries even in the absence of a treaty, Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. No. 104-132, § 443(a), 110 Stat. 1214, 1280, as well as the surrender of U.S. citizens to face prosecution
before the International Tribunals for Rwanda and Yugoslavia, National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, § 1342, 110 Stat. 186, 486. The U.S. Court of Appeals for the Fifth Circuit upheld the
legality of the latter statute and held that extradition may be effectuated pursuant to either a treaty or authorizing
statute. Ntakirutimana v. Reno, 184 F.3d 419, 425 (5th Cir. 1999).
See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, adopted Dec. 9, 1948,
78 U.N.T.S. 277 (Agreement was not ratified by Congress until Nov. 5, 1988); International Covenant on Civil and
Political Rights, adopted Dec. 19, 1966, S. EXEC. DOC. NO. E, 95-2, 999 U.N.T.S. 171 (Agreement was not ratified by
Congress until June 8, 1992); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, adopted Dec. 10, 1984, S. TREATY DOC. NO. 95-2, 1465 U.N.T.S. 85 (Agreement was not ratified by
Congress until Oct. 21, 1994).
See, e.g., Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483;
Treaty on the Limitation of Anti-Ballistic Missile Systems, U.S.-U.S.S.R., May 26, 1972, 23 U.S.T. 3435; Convention
on the Prohibition of Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction,
Jan. 13, 1993, S. TREATY DOC. NO. 103-21, 1975 U.N.T.S. 3. But see 22 U.S.C. § 2573 (provision of 1961 Arms
Control and Disarmament Act, as amended, generally barring acts that oblige the United States to limit forces or
armaments in a “military significant manner” unless done pursuant to a treaty or further affirmative legislation by
Congress); Interim Agreement on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, U.S.-
U.S.S.R., May 26, 1972, 23 U.S.T. 3462 (Strategic Arms Limitation Talks (SALT I) Interim Agreement, which was
entered as a congressional-executive agreement, see Pub. L. No. 92-448, 86 Stat. 746, and was intended as a stop-gap,
five-year measure while the parties negotiated a permanent agreement).
For a list of tax treaties to which the United States is a party, see United States Income Tax Treaties–A to Z,
INTERNAL REVENUE SERV. (Apr. 28, 2022), https://www.irs.gov/businesses/international-businesses/united-states-
income-tax-treaties-a-to-z.
See, e.g., Treaty Concerning the Canadian International Boundary, U.K.-U.S., Apr. 11, 1908, 35 Stat. 2003; Treaty to
Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International
Boundary, Mex.-U.S., Nov 23, 1970, 23 U.S.T. 371. The executive branch has regularly entered agreements to
“provisionally” set boundaries pending ratification of a treaty intended to permanently resolve a boundary dispute.
While some of these provisional agreements have been for a short duration, others have remained in effect for many
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