How Are Treaties And Executive Agreements Different

Many scientists are skeptical of the usefulness of two apparently similar political instruments for concluding international agreements, most of which are critical of the treaty because of its alleged inflexibility and insignificance. Of course, criticism of the treaty is not new and dates back at least to the 1940s. Footnote 3 During this period, the debate focused on whether the two instruments could be used interchangeably, with a particular emphasis on the constitutional limits of concluding the executive agreements of Congress through treaties. Over time, however, it became clear that neither the courts nor the Department of Foreign Affairs were very concerned about the delineation of the constitutional limits on the interchangeability of the two engagement mechanisms. Footnote 4 Take, for example, the former U.S. State Department legal adviser, Harold Koh, who suggests that there are only two reasons why the State Department uses treaties, namely the link to Congress and the “powerful political message” conveyed to the world through the treaty ratification process. With regard to the interchangeability of the instruments, Mr. Koh believes that the “long-term” view is that it is constitutionally permissible to use the executive agreements of Congress instead of the treaty. Footnote 5 The United States has two different mechanisms for concluding binding international agreements.

Footnote 19 The first option is the traditional contract. The treaties follow the consultation and approval procedure under Article II of the Constitution, where a treaty, although negotiated by the executive, must nevertheless be approved by a two-thirds majority in the Senate to be ratified and binding. Footnote 20 The view that treaties and agreements between Congress and the executive branch can be considered definitive substitutes naturally raises the question of why the United States needs two legal instruments to regulate the same types of international relations. Indeed, some commentators have asked why the United States should not abandon the treaty in favour of the agreement between Congress and the executive branch. Footnote 38 97 See. Panayiota, Alexandropoulos, application of executive convention agreements in the Lieu of an Article II Treaty for Purposes of Extradition: Elizaphan Ntakirutimana v. Janet Reno, 45 Vill. Rev. 107, 113-14 (2000) (on the grounds that the Valentine Supreme Court has clearly established the legality of an extradition under an executive agreement); see also Klarevas, Louis, The Surrender of Alleged War Criminals to International Tribunal: Examining the Constitutionality of Extradition via Congressional-Executive Agreement, 8 UCLA J. Int`l. For. Aff.

77, 107 (2003) (other cases in support of Valentine`s interpretation that she authorized extradition on the basis of an executive agreement). It is possible to understand this ambiguity in the empirical results by observing that previous studies all follow a similar approach. The researcher analyzes the environment in which an international agreement has been reached and attempts to identify models that help predict the type of instrument used. If the model corresponds to a motivation that places different importance on the treaties and executive agreements of Congress, it is proof that these instruments differ in their quality. Thus, Martin concludes that contracts are used when the partner country has a high GDP per capita, that contracts are preferred when the stakes are high, and that they must therefore be more reliable engagement mechanisms than agreements between Congress and the executive branch. Similarly, Hathaway concludes that few commercial contracts are concluded, that the decision to use the treaty must be driven by historic conventions that have made the agreement between Congress and the executive attractive for trade negotiations. If the treaty does not retain a particular value as a political instrument, a promise that was made as an executive agreement of Congress is just as lasting as a promise made as a treaty.