- This article is about executive agreements between nations in general. For information on executive agreements in US foreign policy, see Foreign policy of the United States#Law.
An executive agreement 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.
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. One should note that in contrast with many other nations (particularly in Europe), the United States does not consider international agreements to take precedence over domestic law.
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.
- Green, William, Morehead University|http://people2.morehead-st.edu/fs/w.green/files/Articles/Executive%20Agreements%20-%20William%20Green.pdf
- US State Department FAQ|http://www.state.gov/s/l/treaty/faqs/70133.htm