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Max Planck Encyclopedia of Public International Law [MPEPIL]

Executive Agreements

Fred L Morrison

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 March 2019

State practice — Treaties, conclusion — Treaties, entry into force — Treaties, interpretation — Treaties, invalidity, termination, suspension, withdrawal — Vienna Convention on the Law of Treaties — Foreign relations law

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Concept

1.  Definition

An executive agreement is a treaty that has been concluded and ratified by the executive branch without formal approval by a legislative body, in a State in which treaties are usually ratified only with such approval (see also Treaties, Conclusion and Entry into Force).

The term executive agreement refers only to the status of the agreement within the domestic law of the State in question (see also International Law and Domestic [Municipal] Law). For international purposes, the instrument is simply a treaty or international agreement, eg an agreement with an international organization. The same instrument can be considered an executive agreement within the legal system of one State, while it is considered a formal treaty within another.

If the executive authorities of a State have full authority to enter into treaties without the approval of a legislative body, as is the case in the United Kingdom and a few other countries, all international agreements are considered treaties and the term executive agreement is not used. The constitutions of many States, however, call for ratification to take place only with the approval of treaties by a legislative body. Despite that requirement, some of these States may conclude some international agreements without submission to a legislative body.

2.  Types of Executive Agreements

Executive agreements are a common phenomenon in international State practice and are used in a variety of circumstances. Most executive agreements fall into one of four major categories: those authorized by a previous formal treaty (see para. 5 below); those authorized by a previous law (see para. 6 below); those subsequently approved by a law, rather than by a special ratification process (see para. 7 below); and those relating to matters over which the executive branch has special or exclusive authority, either by constitutional delegation or by historical precedent (see para. 8 below).

In some cases executive agreements are used to implement treaties that have already been concluded with formal legislative participation in the ratification process. For example, two States might have a treaty between them granting immunity from civil process for pieces of art shown in museums as part of an art exchange. For a particular exhibition, an executive agreement might then provide the specific details, enumerating the particular art works to be protected, the duration of the protection, and the like.

In other cases they are used when statutes have been enacted authorizing public officials to enter into specific international agreements. For example, the legislative body of a State might authorize its postal officials to enter into reciprocal arrangements for the delivery of mail to and from foreign countries. The particular agreements with foreign countries could then be implemented as executive agreements, without the need for approval of each individual agreement by the legislative body.

In some cases diplomatic negotiations may call for particular legislation to be enacted in each of the participating States. This is frequently the case in trade negotiations. After negotiations have been completed, the formal conclusion and signing of the international agreement may be postponed until after the necessary measures have been adopted through the regular legislative process. This process substitutes for the normal legislative approval process of the instrument. When the legislation has been enacted, the international agreement will be signed and implemented as an executive agreement.

In yet other cases executive agreements are used to conclude arrangements on matters that are believed to be constitutionally within the exclusive purview of the executive branch of government. For example, in the United States, the President alone has the authority to recognize foreign governments. Each recognition may, however, involve a number of details, such as specification of the location of an embassy, or a stipulation of the number of diplomatic personnel that will be exchanged. These details would be included in an executive agreement.

Executive agreements are also used to record agreements between States that are of minor or transitory importance.

B.  Executive Agreements in International Law

10  As a matter of international law, executive agreements are dealt with on the same basis as other treaties. They are subject to the same rules concerning their validity (Treaties, Validity), application, interpretation, and termination as other international treaties (Treaties, Termination).

11  One point, however, requires special attention. Under Art. 46 Vienna Convention on the Law of Treaties (1969) (‘VCLT’ [concluded 23 May 1969, entered into force 27 January 1980] 1155 UNTS 331), a State that has consented to be bound by a treaty, including an executive agreement, cannot later claim that its domestic constitutional requirements were not met unless ‘that violation was manifest and concerned a rule of its internal law of fundamental importance’ (Art. 46 VCLT). This sharply limits the circumstances in which a State may claim that its initial consent to an executive agreement was invalid, especially if it has a broad practice of entering into executive agreements. A State is usually entitled to rely on the representations in the ratification of another State that all internal steps necessary to its validity have been taken without itself undertaking an independent examination.

C.  Executive Agreements in the United States

12  Executive agreements have been particularly important in the law of the US. The US enters into far more executive agreements than formal treaties each year.

13  Art. II US Constitution allows the President to ratify treaties with the advice and consent of two-thirds of the US Senate (‘Senate’). This is an extremely cumbersome process. The Senate is able formally to consent to only a few dozen treaties each year. These include the most significant international obligations, as well as certain agreements that may have direct domestic effect. Many less significant international agreements are treated as executive agreements and put into force without formal Senate concurrence. The US Congress has tacitly acknowledged executive agreements by enacting the Case-Zablocki Act’ ([17 December 2004] [2000 Supp V: 2005] 1 USC para. 112b), which requires the executive branch periodically to report all such agreements to its committees. In addition, the Congress has specifically authorized the use of executive agreements in a range of circumstances, the most significant of which is the conclusion of trade agreements.

14  While executive agreements are not formally approved by the Senate, they are nevertheless considered treaties for the purpose of Art. VI US Constitution, which makes treaties part of the supreme law of the land. So executive agreements will prevail over contrary law of one of the states of the US.

15  Two major subject-matter areas merit special attention.

1.  Trade Agreements

16  Executive agreements are extensively used by the US to enter into international trade agreements. While Congress has the power to enact laws regulating international trade, it frequently delegates to the President the power to enter into international agreements that modify the application of those laws. It usually delegates this authority only for a limited period of time.

17  When authorizing such agreements, Congress normally also requires that the agreement be submitted to it for approval before it enters into effect. This variant on the ratification process makes it possible to obtain approval more readily because the necessary joint resolution of Congress only requires a simple majority in both houses. It is normally easier to obtain a simple majority in both houses than to achieve the two-thirds vote in the Senate.

18  The process is sometimes called the ‘fast track’ process, because the authorizing legislation commits Congress to making a final decision within a short period of time and without amendment of the text of the agreement negotiated by the executive branch. Once congressional approval has been obtained, the US formally enters into the international agreement in the form of an executive agreement.

19  This method has been used to implement many bilateral trade arrangements, including the North American Free Trade Agreement (1992), as well as the original General Agreement on Tariffs and Trade in 1947 (General Agreement on Tariffs and Trade [1947 and 1994]) and the instruments that implemented the World Trade Organization (WTO). (WTO) (see also Uruguay Round). It is also used to modify individual tariff rates as part of the periodic rounds of trade agreements.

2.  Claims Settlement Agreements

20  Executive agreements have also been used extensively to settle claims of US citizens against foreign governments (see also Claims, International), including claims of State responsibility for expropriation and for denial of justice.

21  In the Litvinov Agreements, in 1933, the US recognized the Soviet Union. As part of the arrangement, the outstanding claims of US citizens for property expropriated by the new Soviet government were exchanged for property of Russian entities in the US. Despite the claims of other individuals in the US to the property in question, the US Supreme Court upheld the validity of the executive agreement and its superiority over State law in United States v Pink. In the aftermath of World War II, many similar claims settlement agreements were entered into with various States (see also Reparations after World War II).

22  The Supreme Court revisited the issue in Dames & Moore v Regan. That case involved the constitutional validity of an international agreement between the US and Iran, concluded without the formal approval of the Senate, that brought about the release of American diplomats who were being held as hostages (see also United States Diplomatic and Consular Staff in Tehran Case [United States of America v Iran]). The agreement also required pending civil lawsuits against Iran to be removed from US courts and referred to international arbitration. Plaintiffs in Dames & Moore v Regan claimed that the agreement could not deprive them of access to domestic courts. The Supreme Court held that the executive agreement could be enforced in US law without explicit approval by the Senate, in part because Congress had acquiesced in presidential settlements of claims for more than a century.

D.  Executive Agreements in Other States

23  In many other States, constitutions frequently require legislative approval of treaties as part of the ratification process. In these States, there is often an explicit or implicit rule that permits some less important agreements to be ratified by the executive alone. The boundary between treaties that require legislative consent and executive agreements that can be concluded without that approval are different in every State. There is no general rule of international law. Rather, an examination of the constitutional law of the particular State is required. In addition to the rules in the US discussed above, two other examples will demonstrate the differences.

24  In Germany Art. 59 Basic Law for the Federal Republic of Germany and constitutional practice distinguish between ‘Staatsverträge’ (State treaties) and ‘Verwaltungsabkommen’ (administrative agreements). Formal treaties require approval by the legislative body, but administrative agreements do not. The distinction is drawn largely on the basis of whether the adoption of comparable domestic legislation would take place through the ordinary legislative process or would be based on an administrative power to adopt regulations.

25  French law makes a different distinction that commonly would lead to the same result. Under the French Constitution, the President of the Republic negotiates and ratifies treaties. But Art. 53 French Constitution provides that international treaties relating to any matters on a list of subjects must be approved by law before they can be ratified. These include peace treaties and treaties of commerce, those relating to international organizations, those which involve State finances, those which alter existing laws, those which involve personal status, and those that relate to the annexation or cession of territory. Other provisions of the French Constitution make special rules for human rights treaties and for the treaty establishing the International Criminal Court (ICC). The Constitutional Council of France may also determine that a proposed treaty would violate a constitutional provision. In that case, ratification cannot take place without a constitutional amendment.

E.  Assessment

26  At first, it would appear that the substantial use of executive agreements, which exclude formal legislative approval of international treaties, runs counter to the increasing role of legislative bodies in determining the direction of international affairs. This contradiction is, however, only superficial. In many cases, the legislative body has already established broad policy; the executive agreements are merely an implementation of that policy with respect to a particular foreign State. This is similar to the phenomenon in domestic law in which a legislative body adopts a broad piece of legislation, but allows the administrative agencies to provide implementing rules and regulations.

27  Trade agreements provide a good example of such delegation. A national legislature enacts laws permitting negotiation of such agreements, perhaps including guidelines or objectives. National trade negotiators must then deal with other countries to realize those objectives. The trade negotiators are in a position to assess the possibility of obtaining the desired benefits and avoiding undesired concessions, while trying to reach a conclusion. After an agreement has been reached, the legislative body of one nation cannot alter it without upsetting the entire deal. The legislative body can influence the outcome by shaping the terms of the delegation of authority, but it can only frustrate its purpose if it insists on its authority to change the agreement after it has been concluded.