![handle is hein.crs/goveism0001 and id is 1 raw text is: Congressional Research Service
Informing the legislitive debate since 1914
September 7, 2022
Reservations, Understandings, Declarations, and Other
Conditions to Treaties
Article II, Section 2, clause 2, of the U.S. Constitution (the
Treaty Clause) permits the President by and with the
Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur[.] The
Senate, as part of its constitutional role in the treaty-making
process, may condition its advice and consent on
reservations, understandings, and declarations (RUDs).
These RUDs guide treaties' content, effect, interpretation,
and implementation.
Constitutional Roots of the Senate's
Condktional Consent Authorty
Historical practice suggests that, when drafting the Treaty
Clause, the Framers of the Constitution intended advice
and consent to be separate steps in the treaty-making
process. Under this interpretation, the President would
consult the Senate during treaty negotiations and seek its
advice before asking for its final consent when negotiations
ended. Since the early years of President George
Washington's Administration, however, Presidents have not
formally sought the Senate's advice during treaty
negotiations. Instead, the Senate has maintained an aspect
of its advice function by using RUDs to influence treaties'
terms and implementation.
The Senate first exercised its conditional advice and
consent authority in 1795 when it considered a commercial
treaty with Great Britain, known as the Jay Treaty. The
Senate provided advice and consent on condition that an
article in the treaty regulating trade duties be suspended to
the extent it concerned U.S. trade in the West Indies. At the
time, conditional consent was viewed as a peculiar feature
of the American constitutional system, but the practice has
since become a common aspect of treaty-making
worldwide.
Choosing Among RUDs
The label applied to a RUD or other condition varies
depending on its function and legal effect.
Reservations change the United States' legal obligations
under a treaty without changing the treaty's text. For
example, in giving advice and consent to a treaty restricting
use of incendiary weapons, the Senate provided that the
United States reserves the right to use those weapons in
circumstances that would minimize civilian casualties and
collateral damage. A common reservation is to provide that
the United States is not bound by a treaty's articles that
require international tribunals to resolve disputes.
Understandings are interpretive statements that clarify or
elaborate on a treaty's terms without altering the treaty's
text or legal effect. Understandings often identify broad and
potentially capacious terms in a treaty and more precisely
lay out the United States' understanding of their meaning.
In one instance, the Senate added an understanding that the
term armed conflict in the International Convention for the
Suppression of Acts of Nuclear Terrorism does not include
internal disturbances, riots, and isolated acts of violence.
Declarations are statements that express the Senate's views
or opinion on matters a treaty raises, often describing the
Senate's position on policy issues. For example, in giving
advice and consent to protocols adding countries to the
North Atlantic Treaty Organization, the Senate has used
declarations to express its views about the organization's
importance to national security. Other declarations specify a
treaty's legal domestic status-most commonly by stating
whether a treaty is self-executing. For background on self-
execution and treaties' role in the U.S. legal system, see
CRS Report RL32528, International Law and Agreements:
Their Effect upon U.S. Law, by Stephen P. Mulligan.
Other conditions: The Senate may impose other
requirements under the label condition, proviso, or
statement. These conditions often set forth procedural
requirements for ratifying or implementing a treaty. For
instance, the Senate has conditioned consent on
requirements that the President make certifications to the
Senate, produce reports, or consult certain congressional
committees on issues the treaty raises.
Among RUDs and other conditions, reservations are unique
because they change a treaty's legal effect. Other than
reservations, which are defined in international law, the
label given to a condition generally derives from Senate
practice and usage rather than clearly delineated legal
frameworks or judicial decisions.
Domestic Law and RUDs
The Supreme Court has recognized the Senate's authority to
condition its consent to treaties, and lower courts have
generally given effect to RUDs. For example, when
considering the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment,
federal courts have held that the Senate's understanding of
the meaning of torture must apply, even if that
understanding does not align with the prevailing
interpretation in the international community.
RUDs must be consistent with the Constitution, and they
cannot infringe on individual rights or exercise a power the
Constitution assigns exclusively to another branch of
government. Many commentators accept the view that,
because the Senate's conditional consent authority stems](ViewImageLocal?handle=hein.crs/goveism0001&div=1&collection=&method=preview&ext=.png&size=3)
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