Executive Agreement

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Executive Agreement

A Brief Introduction About the Executive Agreement

What Is an Executive Agreement?

An agreement between the heads of the government of two or more nations is known as an executive agreement. These agreements are more constitutional rather than legal. It consists of matters relating to the country’s foreign policies and can be executed by the President through his discretionary powers. The resolutions covered in the agreement include administrative matters and do not affect the rights or obligations of the citizens.

This agreement is not to be confused with the executive employment agreement executed between a company and its employees at managerial positions to define their obligations and expectations from one another.

What Is the Difference Between a Treaty and an Executive Agreement

This agreement is almost the same as a treaty between two or more nations. However, it does not require the consent of the country’s legislature. Executive agreements are politically binding, and that distinguishes them from legally binding treaties. Further, in the case of treaties, a consensus of a two-thirds majority of the houses of the parliament is required. The agreement, on the other hand, can be passed with a simple majority of one-half of the members.

Who Takes the Executive Agreement – People Involved

An executive agreement is entered between the President of the United States and the head of government of other nations. These do not necessarily bind the succeeding Presidents of the nations.

Purpose of an Executive Agreement

The traditional process of executing treaties are quite cumbersome and not necessarily the best approach in times of urgent or secret matters. The main purpose of entering into the agreement is to save time in such matters. It mainly involves resolutions on administrative matters with other nations.

Key Terms of an Executive Agreement – Inclusions

The key terms to be included in any executive agreement are highlighted below:

  • The details of the parties involved
  • Scope of the agreement
  • Matters negotiated in the agreement
  • Consequences of any non-compliance

How to Draft the Executive Agreement – Points to Consider When Preparing the Agreement

At the time of drafting executive agreements, the following must be considered:

  • The forum of negotiation of the agreement.
  • Which nations form a party to the agreement and their respective foreign policies.
  • The scope of the agreement and the sources of power to enter into this agreement.

The source of the power of the agreement being entered into forms a vital part of drafting it. In the case of this agreement, it can be classified into the following types:

  • A Congressional-Executive Agreement requiring the approval from the congress
  • Agreements pursuant to a previous treaty.
  • A sole executive agreement that entirely relies on the presidential powers in foreign policies.

It can be noted that the sole agreements have rarely been executed and the congressional agreements have by far been the most common.

Negotiation Strategy

In the negotiation of political agreements, it is important to keep the following in mind:

  • Both parties must agree to an agreeable source of information to avoid conflicts on account of incomplete information.
  • To instill cooperation from both parties, any recurring interactions can be agreed upon for a long-term rather than multiple short-term agreements.
  • The consequences of non-compliance must be set out explicitly.

Benefits & Drawbacks of the Executive Agreement

This agreement  offers a lot of benefits which are::

  • It avoids the cumbersome process of entering into treaties.
  • In the case of pressing matters, a significant amount of time is saved.
  • A grade of privacy is maintained in the case of confidential matters.
  • It allows the members to focus on more significant diplomatic issues.

Despite these benefits, one of the major concerns of this power being granted is the assumption of it by the president to sidestep the legislature. There have been past cases wherein the agreements were entered into secretly, such as the Panama Agreement of May 18, 1942(1), which was not uncovered for months. However, there are informal barriers to constrain such behaviors.

Additionally, there is a risk of entering into this agreement since they :

  • Bind only the current president or/and is for uncertain durations(2)
  • If they are approved by the congress, they run a chance of being disapproved at any time.
  • It can be terminated at any time by any succeeding head of the government.

What Happens in Case of Violation?

Any of the forms of executive agreements are internationally binding. These agreements are political rather than legal. The president has the power to bind the state in certain matters and has the constitutional right to do so. However, matters agreed upon through the agreement cannot overrule anything contained in the constitution.

The result which inevitably follows this conclusion is that if any large part of the important international understandings comes to be embodied in executive agreements, from the standpoint of its general intent, be rendered largely nugatory by the constitution. Executive Agreement helps move out of the process of treaties; however, there are examples of both misuse and the right use of this agreement.