What Is One Way That Executive Agreements Differ From Treaties

While some doctrinal criticism persists about the widespread application of the congressional executive agreement in place of the treaty, footnote 34 is now the prevailing view that treaties and executive agreements in Congress legally replace the vast majority of agreements under national law. Footnote 35 This view is also reflected in Restatement (Third) of the Foreign Relations Law of the United States. Footnote 36 The American Law Institute notes that a report attributing political benefits to the treaty is illustrated by the work of John SetearFootnote 49 and Lisa Martin. Footnote 50 Your argument focuses on the heavy legislative barriers to the treaty consultation and approval process. Since presidents generally do not lack sufficient support in the Senate to obtain a two-thirds majority, they often face a considerable political battle to convince senators to vote in favour of a proposed treaty. This political struggle requires not only time and resources, but sufficient support may also require the President to make substantial concessions in other areas. Footnote 51 Since the conclusion of a contract entails such a high political cost, SETEAR and Martin state that only the presidents particularly involved in the agreement would be willing to go through the consultation and approval process. If no high level of engagement is required, the president would opt instead for a single agreement or close to Congress, footnote 52, which, as the authors assert, comes at a lower cost. Other countries are aware of this signal dynamic.

If they enter into contracts with the United States, they would therefore abide by the proposed form of an agreement and, in some high-deployment scenarios, they may refuse to agree unless the president is prepared to commit to a treaty. While language implies that Congress approves the globe agreement, it is difficult to read an explicit authorization in the statute. In addition, the reproduced part of the act is the only time globe is mentioned and contains a total of 97 words. However, the entire legislation is more than 10,000 words long and was passed by a single roll-call vote in the House of Representatives and the Senate. Footnote 111 Even if it were read as an ex-post authorization from GLOBE, the authorisation text would represent less than 1% of the total text of the law. Outside of trade, provisions like this, in which ex-post-congress executive agreements are supposed to be approved as a small part of a broader legislative package, are the rule, not the exception. Footnote 112 The result is an authorisation procedure that is remarkably different from the contract consultation and approval procedure.