An executive agreementis 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.
In the United States, executive agreements are made solely by the President of the United States. They are one of three mechanisms by which the United States enters into binding international obligations. Some authors consider executive agreements to be treaties under international law in that they bind both the United States and another sovereign state. However, under United States constitutional law, executive agreements are not considered treaties for the purpose of the Treaty Clause of the United States Constitution, which requires the advice and consent of two-thirds of the Senate to qualify as a treaty.
Some other nations have similar provisions with regard to the ratification of treaties.
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 is based on executive agreements.
In the United States, executive agreements are binding internationally if they are negotiated and entered into under the president's authority in foreign policy, as commander-in-chief of the armed forces, or from a prior act of Congress. For instance, as commander-in-chief 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. The president cannot, however, enter unilaterally into executive agreements on matters that are beyond his constitutional authority. In such instances, an agreement would need to be in the form of a congressional-executive agreement, or a treaty with Senate advice and consent.
The U.S. Supreme Court, in United States v. Pink (1942), held that international executive agreements validly made have the same legal status as treaties and did not require Senate approval. Also, in Reid v. Covert (1957), while reaffirming the president’s ability to enter into executive agreements, the court held that such agreements cannot contradict existing federal law or the Constitution.
The Case-Zablocki Act of 1972 requires the president to inform the Senate within 60 days of any executive agreement being made. No restriction was placed on presidential powers to make such agreements. The notification requirement enabled Congress to vote to cancel an executive agreement, or to refuse to fund its implementation.
A treaty is a formal and binding written agreement entered into by actors in international law, usually sovereign states and international organizations but can include individuals and other actors. A treaty may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. Regardless of terminology, only instruments that are binding upon the parties are considered treaties subject to international law. A treaty is binding under international law.
Article Two of the United States Constitution establishes the executive branch of the federal government, which carries out and enforces federal laws. Article Two vests the power of the executive branch in the office of the president of the United States, lays out the procedures for electing and removing the president, and establishes the president's powers and responsibilities.
The Treaty establishing a Constitution for Europe was an unratified international treaty intended to create a consolidated constitution for the European Union (EU). It would have replaced the existing European Union treaties with a single text, given legal force to the Charter of Fundamental Rights, and expanded Qualified Majority Voting into policy areas which had previously been decided by unanimity among member states.
Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.
Separation of powers is a political doctrine originating in the writings of Charles de Secondat, Baron de Montesquieu in The Spirit of the Laws, in which he argued for a constitutional government with three separate branches, each of which would have defined abilities to check the powers of the others. This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive, and Judicial branches of the United States government are kept distinct in order to prevent abuse of power. This United States form of separation of powers is associated with a system of checks and balances.
The powers of the president of the United States include those explicitly granted by Article II of the United States Constitution as well as those granted by Acts of Congress, implied powers, and also a great deal of soft power that is attached to the presidency.
The Logan Act is a United States federal law that criminalizes negotiation by unauthorized American citizens with foreign governments having a dispute with the United States. The intent behind the Act is to prevent unauthorized negotiations from undermining the government's position. The Act was passed following Senator George Logan's unauthorized negotiations with France in 1798, and was signed into law by President John Adams on January 30, 1799. The Act was amended in 1994, changing the penalty for violation from "fined $5,000" to "fined under this title"; this appears to be the only amendment to the Act. Violation of the Logan Act is a felony.
Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts. It describes either of two situations: where a weak executive branch of a government enacts something previously approved of by the legislative branch or where the legislative branch concurs and approves something previously enacted by a strong executive branch.
The Covenant of the League of Nations was the charter of the League of Nations. It was signed on 28 June 1919 as Part I of the Treaty of Versailles, and became effective together with the rest of the Treaty on 10 January 1920.
The Bricker Amendment is the collective name of a number of slightly different proposed amendments to the United States Constitution considered by the United States Senate in the 1950s. None of these amendments ever passed Congress. Each of them would require explicit congressional approval, especially for executive agreements that did not require the Senate's two thirds approval for treaty. They are named for their sponsor, conservative Republican Senator John W. Bricker of Ohio, who distrusted the exclusive powers of the president to involve America beyond the wishes of Congress.
The United States is not a State Party to the Rome Statute of the International Criminal Court, which founded the International Criminal Court (ICC) in 2002 as a permanent international criminal court to "bring to justice the perpetrators of the worst crimes known to humankind – war crimes, crimes against humanity, and genocide", when national courts are unable or unwilling to do so.
Crotty v. An Taoiseach was a landmark 1987 decision of the Irish Supreme Court which found that Ireland could not ratify the Single European Act unless the Irish Constitution was first changed to permit its ratification. The case taken by Raymond Crotty directly led to the Tenth Amendment of the Constitution of Ireland and established that significant changes to European Union treaties required an amendment to the Irish constitution before they could be ratified by Ireland. As a consequence, the Republic of Ireland, uniquely in the EU, requires a plebiscite for every new, or substantive change to a, European Union Treaty.
The fast track authority for brokering trade agreements is the authority of the President of the United States to negotiate international agreements that Congress can approve or deny but cannot amend or filibuster. Renamed the trade promotion authority (TPA) in 2002, fast track negotiating authority is an impermanent power granted by Congress to the President. Fast track authority remained in effect from 1975 to 1994, pursuant to the Trade Act of 1974, and from 2002 to 2007 by the Trade Act of 2002. Although it technically expired in July 2007, it remained in effect for agreements that were already under negotiation until their passage in 2011. The following year, the Obama administration sought renewal of TPA, and in June 2015, it passed Congress and was signed into law by the President. Known as the Trade Preferences Extension Act of 2015, the legislation conferred on the Obama administration "enhanced power to negotiate major trade agreements with Asia and Europe."
The Appointments Clause is part of Article II, Section 2, Clause 2 of the United States Constitution, which empowers the President of the United States to nominate and, with the advice and consent (confirmation) of the United States Senate, appoint public officials. Although the Senate must confirm certain principal officers, Congress may by law delegate the Senate's advice and consent role when it comes to "inferior" officers.
The Ponsonby Rule was a constitutional convention in United Kingdom constitutional law that dictated that most international treaties had to be laid before Parliament 21 days before ratification.
The Treaty Clause is part of Article II, Section 2, Clause 2 of the United States Constitution that empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority vote of the United States Senate, become binding with the force of federal law.
The Treaty of Lisbon is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Treaty of Lisbon was signed by the EU member states on 13 December 2007, and entered into force on 1 December 2009. It amends the Maastricht Treaty (1992), known in updated form as the Treaty on European Union (2007) or TEU, and the Treaty of Rome (1957), known in updated form as the Treaty on the Functioning of the European Union (2007) or TFEU. It also amends the attached treaty protocols as well as the Treaty establishing the European Atomic Energy Community (EURATOM).
The United States was among the nations that participated in the third United Nations Conference on the Law of the Sea, which took place from 1974 through 1982 and resulted in the international treaty known as the United Nations Convention on the Law of the Sea (UNCLOS). The United States also participated in the subsequent negotiations of modifications to the treaty from 1990 to 1994. The UNCLOS came into force in 1994. Although the United States now recognizes the UNCLOS as a codification of customary international law, it has not signed it.
The United States Senate is the upper chamber of the United States Congress, which, along with the United States House of Representatives—the lower chamber—constitutes the legislature of the United States. The Senate chamber is located in the north wing of the Capitol Building in Washington, D.C.
United States v. Belmont, 301 U.S. 324 (1937), was a dispute between the federal executive branch and the State of New York over property rights to a deposit from a former Russian corporation with August Belmont & Company, a private New York City banking firm. Belmont established executive predominance over state laws and constitutions in the sphere of foreign policy, and allocated the constitutional power for initiating executive agreements solely to the president of the United States.