A treaty is an international agreement concluded in writing between two or more sovereign States and subject to international law, whether contained in a single instrument or in two or more interconnected agreements. Treaties have many names: conventions, agreements, alliances, pacts, charters and statutes, among others. The choice of name has no legal significance. Treaties generally fall into one of two broad categories: bilateral (between two countries) and multilateral (between three or more countries). In United States v. Pink (1942), the U.S. Supreme Court ruled that valid international executive treaties have the same legal status as treaties and do not require Senate approval. Also in Reid v. While affirming the president`s ability to enter into executive agreements, Covert (1957) noted that such agreements cannot conflict with existing federal law or the Constitution.
Most executive agreements were entered into under a treaty or an act of Congress. Sometimes, however, presidents have entered into executive agreements to achieve goals that would not receive the support of two-thirds of the Senate. For example, after the outbreak of World War II, but before the United States entered the conflict, President Franklin D. Roosevelt negotiated an executive agreement that gave the United Kingdom 50 supership destroyers in exchange for 99-year leases at some British naval bases in the Atlantic. Executive agreements are often used to circumvent the requirements of national constitutions for treaty ratification. Many nations that are republics with written constitutions have constitutional rules on ratifying treaties. The Organization for Security and Cooperation in Europe is based on executive agreements. Executive Agreement, an agreement between the United States and a foreign government that is less formal than a treaty and is not subject to the constitutional requirement of ratification by two-thirds of the U.S.
Senate. In recent decades, presidents have often included the United States in international agreements without the advice and approval of the Senate. These are called “executive agreements”. Although not subject to Senate approval, executive agreements are still binding on the parties under international law. Bradley began with an overview of the various legal mechanisms used to enshrine the United States in international treaties, including: Article II treaties pursued with the approval of the Council and the Senate; executive agreements approved by other international agreements; agreements between Congress and the executive branch that are approved by ex ante or ex post law; and exclusive executive arrangements made by the President under his own constitutional authority. He then described the current state of the legal framework that Congress has created to promote transparency in the use of these agreements. A set of laws requires the online publication of all these international agreements within 180 days of their entry into force, but contains various fallout and does not require an explanation from the legal authority under which they were persecuted. Another requires that executive agreements be reported to Congress, but not necessarily to the public, within 60 days of their entry into force – including secret agreements communicated through a special process – along with an explanation of their legal basis, usually included in an associated cover letter. A crucial question is whether an executive agreement should have the same effect on national law as a treaty under Article II. Article VI of the Constitution states that treaties “shall be the supreme law of the land”. The Supreme Court has interpreted this provision to mean that a treaty replaces any conflicting state law or constitutional provision, as well as any inconsistent prior federal law. Some commentators have argued that an executive agreement can have the same effect as an Article II treaty to oust federal and state law.
In United States v. Belmont (1937) and United States v. Pink (1942), the Court applied a single executive agreement that governed the outstanding claims of American citizens against the Soviet Union as a condition for the resumption of diplomatic relations. In Dames & Moore v. Regan (1981), the Court upheld a unilaterally negotiated agreement by President Jimmy Carter with Iran to settle demands for the release of American hostages. The deal effectively overturned a default judgment obtained by Dames & Moore for Iran`s breach of contract. Other researchers dispute the implication that a president could enact a federal law without congressional approval simply by striking a deal with a foreign leader. The internal legal status of executive agreements remains questionable. A remarkable expansion of presidential power in this area first manifested itself in president McKinley`s administration. At the beginning of the war with Spain, the president proclaimed that the United States would remain committed to the last three principles of the Paris Declaration, a course that, as Professor Wright notes, “would undoubtedly go a long way in establishing these three principles as binding international law for the United States in future wars.” 473 Hostilities with Spain ended in August 1898 with an armistice, the terms of which largely determined the subsequent peace treaty474 and the armistice of 11 November 1918 largely determined the conditions for final peace with Germany in 1918. It was also President McKinley who, in 1900, relying solely on his authority as commander-in-chief, provided a land force of 5,000 men and a naval force to work with similar contingents of other powers to save the Beijing legations from the Boxers; a year later, still without consulting Congress or the Senate, he accepted for the United States the Protocol of compensation for boxers between China and the intervening powers. [475] Willoughby comments approvingly on the Beijing Protocol: “This case is interesting because it shows how the force of circumstances forced us to adopt European practice with reference to an international agreement that, apart from the issue of compensation, was almost exclusively political in nature.
According to constitutional practice in Europe, purely political treaties are usually concluded by the executive alone. However, the situation in China amply justified President McKinley`s failure to submit the minutes to the Senate. Beijing`s isolation, jealousy among allies, and the Chinese government`s shifting avoidance maneuvers would have made anything but an agreement on the ground impossible. 476 Partly because the enumerated powers of Congress and the President have been interpreted broadly, most of the agreements proposed as treaties could also have been proposed as executive arrangements of Congress ….
