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"Treaty" vs. "Executive Agreement"
"Treaty" vs. "Executive Agreement"
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What is the difference between a treaty and an executive agreement?
As explained in greater detail in 11 FAM 721.2, there are two procedures under domestic law through which the United States becomes a party to an international agreement. First, international agreements (regardless of their title, designation, or form) whose entry into force with respect to the United States takes place only after two thirds of the U.S. Senate has given its advice and consent under Article II, section 2, Clause 2 of the Constitution are "treaties." Second, international agreements brought into force with respect to the United States on a constitutional basis other than with the advice and consent of the Senate are "international agreements other than treaties" and are often referred to as "executive agreements." There are different types of executive agreements. (Source: U.S. Department of State)
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Executive Agreement
An executive agreement[1][2] is an agreement between the heads of government of two or more nations that has not been ratified by the legislature as treaties are ratified. Executive agreements are considered politically binding to distinguish them from treaties which are legally binding. An executive agreement is one of three mechanisms by which the United States enters into binding international agreements. They are considered treaties by some authors as the term is used under international law in that they bind both the United States and a foreign sovereign state. However, they are not considered treaties as the term is used under United States Constitutional law, because the United States Constitution's treaty procedure requires the advice and consent of two-thirds of the Senate, and these agreements are made solely by the President of the United States. Some other nations have similar provisions with regard to the ratification of treaties.
In General
Executive agreements are often used in order to bypass the requirements of national constitutions for ratification of treaties. Many nations that are republics with written constitutions have constitutional rules about the ratification of treaties. The Organization for Security and Co-Operation in Europe, the largest international organization in the world, is based on executive agreements.
In the United States
An executive agreement can only be negotiated and entered into through the president's authority (1) in foreign policy, (2) as commander-in-chief of the armed forces, or (3) from a prior act of Congress. For instance, it is as commander-in-chief that the President negotiates and enters into status of forces agreements (SOFAs), which govern the treatment and disposition of U.S. forces stationed in other nations. An executive agreement, however, cannot go beyond the President's constitutional powers. If an agreement was in the competence of the United States Congress, it would need to become a congressional-executive agreement or a treaty with Senate advice and consent. If an agreement was neither within the competence of Congress nor within the competence of the President (as for example an agreement which would affect powers reserved to the states), it could still be adopted by the President/Senate method but must not conflict with the United States Constitution.
The Case Act required the president to notify Congress within 60 days of any executive agreements that are formed; that figure has since been changed to 20 days. (
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