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There are actually many steps. In this case:

1. The finance ministers reach an agreement. This is what has happened.

2. A treaty is written and signed, normally by the head of state, but sometimes by the head of government (for the US in both cases the President). At this point the treaty in not yet legally binding, although according to international law the signatory country has an obligation "to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty."[1]

3. The parliament (for the US the Senate) ratifies the treaty, making it binding.

4. The parliament (House and Senate in the US) creates the necessary national legislation to implement the provisions of the treaty.

5. The government creates the secondary legislation for the application of the national legislation created at 4.

Usually after 2. the other steps follow more or less smoothly, but there are some high profile cases where the ratification never happened (e.g. the Kyoto protocol).

[0] https://treaties.un.org/pages/overview.aspx?path=overview/gl...




> 3. The parliament (for the US the Senate) ratifies the treaty, making it binding.

Under international law, ratification happens when a state’s international representatives (head of state, ministers, ambassadors) formally lodge instruments of ratification with the depositary. (See Article 2(1)(b), Vienna Convention on the Law of Treaties.) When the US Senate "ratifies" a treaty, that is not ratification under international law, that is a domestic legislative procedure which confusingly happens to have the same name.

Under international law, legislatures are not involved in ratification, only the state's international representatives are (which almost universally belong to its executive). Domestic law may require those representatives to consult or seek approval from the legislature, but international law mostly (but not entirely) doesn't care about those requirements.


I would quibble that the name collision of the US Senate's "ratification" power is intentional and not confusing. When the Senate votes to "ratify" a treaty, it is authorizing the US government to perform the international act of ratification.

i.e. US domestic law governs the procedures by which the state can perform the internationally-recognized act of treaty ratification.


To be strict about it, the Senate never votes to ratify a treaty. It votes to give its "advice and consent to the ratification". The actual ratification is done by the Executive not by the Senate. But the Senate's advice and consent is popularly called "ratification" even though it isn't.

And the Senate's consent is not required to ratify a treaty. Ultimately the Executive decides whether to classify something as a "treaty" or an "international agreement". By classifying a treaty as an "international agreement", the Executive is allowed to ratify it without the Senate's consent. Such a ratification without the Senate's consent counts as "ratification" under international law but not under US domestic law. And that's why it is confusing, the meaning of the term "ratification" under US domestic law is a subset of its meaning under international law.


The Senate's consent is required to ratify certain treaties.

It all depends on what the treaty's terms require the government to do. If the terms can be fulfilled by executive power, the executive can sign and ratify on its own (executive agreement). If the terms need the force of congressional legislation to implement, it can be ratified on a regular legislative vote of both houses of congress (executive-legislative agreement).

The ones that require a Senate supermajority are the ones that "legislate" in areas outside of Congress's normal jurisdiction. e.g. the US Congress probably can't pass a law prohibiting states from using the death penalty, but with a 2/3 Senate vote it could sign a treaty banning it.

(Another advantage of going "up" a level is that repealing or withdrawing from a treaty is more difficult the higher you go, generally requiring a similar authority to withdraw as was used to ratify.)


> The ones that require a Senate supermajority are the ones that "legislate" in areas outside of Congress's normal jurisdiction. e.g. the US Congress probably can't pass a law prohibiting states from using the death penalty, but with a 2/3 Senate vote it could sign a treaty banning it.

It isn't clear that is actually true. Yes, the 1920 case of Missouri v. Holland appears to say that treaties ratified by the Senate can bind the states in ways that Acts of Congress cannot, but a number of legal scholars think there is a decent chance that SCOTUS would overturn that precedent if the issue came before it – see for example https://doi.org/10.2307%2F1123464

Suppose that, somehow, Democrats manage to gain control of both the Presidency and a two-thirds majority in the Senate. They then use that majority to ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, and then argue that the ratification outlawed the death penalty nationwide. A retentionist state goes to SCOTUS to challenge the treaty. If we assume the current conservative SCOTUS, I think a majority would likely overturn Missouri v. Holland and rule that the treaty is unenforceable as beyond the federal government's power. However, I doubt they'd rule that the legislative act of the Senate giving advice and consent, or the executive act of depositing instruments of ratification, was unconstitutional, merely that the treaty was not legally enforceable against the states. It is worth noting such a decision would not invalidate the ratification of the protocol under international law, and the US would still have an international legal obligation to obey it (unless and until they denounced it), even though the federal government would be legally powerless (under US constitutional law) to fulfil that obligation. (See also Medellin v. Texas.)

> The Senate's consent is required to ratify certain treaties.

In legal systems which adopt the dualist approach to international law, the international act of submitting the instruments of ratification of a treaty, and the domestic legislative acts necessary to enforce it, are two different things. Although the second act normally precedes the first, there is no requirement for such an ordering under international law. And I think it is very likely that SCOTUS would consider the executive act of submitting the instruments of ratification for a treaty to be beyond its power to judicially review; SCOTUS will confine its role to deciding what the legal consequences of that act are under domestic law. It may in some cases rule the executive act legally ineffective in creating domestic legal obligations, but in doing so it is not passing judgement on the constitutionality of the executive act itself. Suppose some President decided to ratify a treaty first, and hope to get legislation implementing it through Congress second. A risky move, in that if the legislation cannot be passed, the US could be left with international legal obligations which are impossible under domestic law to fulfil. But I don't see any evidence such a risky act would be either unconstitutional under domestic law or invalid under international law.

> (Another advantage of going "up" a level is that repealing or withdrawing from a treaty is more difficult the higher you go, generally requiring a similar authority to withdraw as was used to ratify.)

The President has unilateral discretion to withdraw from any treaty, irrespective of whether it is a treaty to which the Senate gave advice and consent, a congressional-executive agreement, or a sole executive agreement. So which type is used makes no difference to the President's power to withdraw. That was the effective holding of SCOTUS in the 1979 case of Goldwater v. Carter.

Now, the President does not have unilateral discretion to repeal a congressional-executive agreement insofar as it forms part of domestic US law, and the same may be true of a treaty to which the Senate gives advice and consent. But the President's inability to repeal the domestic legal effects of the treaty doesn't make any difference to the international legal effects of withdrawal – once the withdrawal is completed, it is no longer binding on the US under international law, even if some of its provisions continue to be binding under domestic US law.


International law is very much a gentlemen's agreement, though. It's not like domestic law. Domestic law always wins.


I don't agree that domestic law always wins. It all depends on the situation.

If a country's domestic law violates international law, the extent to which that country gets away with it depends a lot on how powerful that country is. Great powers have much more ability to violate international law with impunity than small countries do.

And in this particular case, it is not that US law and international law are actually in conflict. It is just they assign different meanings to the same words. Even the US government generally accepts the internationally standard meanings in international fora.


Nations are sovereign they can do what they want. Short of going to war its hard to force a country todo something it does not want too. Although if you pull out of agreement don't expect the other country to continue following it.

Also there are other countries not part of this talk nothings stops a company from setting up there and doing the same tax games. So i dont see how this idea does anything


> Nations are sovereign they can do what they want. Short of going to war its hard to force a country todo something it does not want too

In today's world economic pressure is a much bigger factor than war. If you upset enough countries, they can all start imposing trade and financial sanctions on you, which then ruins your economy. International law is a useful (even though of course not always perfect) guide in answering the question "is doing X going to upset a large number of countries?"

> Also there are other countries not part of this talk nothings stops a company from setting up there and doing the same tax games.

Most of these companies are actually headquartered in major economies – US, the EU, etc. What they've been doing is exploiting complex loophole interactions between the tax laws of those major economies and the tax laws of small countries with favourable tax regimes. If the major economies close those loopholes, they can stop most of this. The small countries only get away with it because the major economy tax law loopholes let them. Most of the time, companies don't want to move their actual headquarters to these small countries due to the negative consequences


The major economies are also large sources of these loopholes.


Until 2020, Russian constitution had a provision that international treaties have a priority vs domestic law.


Which is how it should work in principle. Why would parties to an agreement care about each other's internal matters?

Without such a provision you open up to scenarios where a parliament sabotages international treaties by making laws that are in conflict with them.

That's worse than actual official termination of the agreement because the threshold is much lower.


In international law, this is known as monism vs dualism.

Monism says that international law and domestic law form a single cohesive whole. International law automatically applies domestically, and domestic law which contradicts international law is automatically invalid.

Dualism says that international law and domestic law are two independent systems. International law only applies domestically if domestic legislation is passed or amended to make it applicable. Domestic law and international law can contradict each other, and in cases of contradiction the domestic courts will follow the domestic law and ignore international law.

Some legal systems have adopted monism and others dualism. And yet others, like the US, are actually a hybrid – US law is mostly dualist but with a few monist elements.


Yes, I gave a quick overview of the main steps, with minor inaccuracies to keep it simple.

Ratification itself is not required unless the treaty itself requires it. Countries do form agreements with “signed” but not “ratified” treaties. Sometimes even “exchanges of notes” can be binding.


> At this point the treaty in not yet legally binding, although according to international law the signatory country has an obligation "to refrain, in good faith, from acts that would defeat the object and the purpose of the treaty."

International "law" is always entertaining like this: Who enforces this "obligation"?




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