An executive agreement is an agreement between the

heads of government The head of government is the highest or the second-highest official in the executive branch of a sovereign state, a federated state, or a self-governing colony, autonomous region, or other government who often presides over a cabinet, a ...

of two or more nations that has not been ratified by the

legislature A legislature is an assembly with the authority to make law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...

treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...

are ratified. Executive agreements are considered ''politically binding'' to distinguish them from

which are ''legally binding''. In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...

, executive agreements are made solely by the

President of the United States The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United Stat ...

. They are one of three mechanisms by which the United States enters into binding international obligations. Some authors consider executive agreements to be

under

international law International law (also known as public international law and the law of nations) is the set of rules, norms, and standards generally recognized as binding between states. It establishes normative guidelines and a common conceptual framework for ...

in that they bind both the United States and another

sovereign state A sovereign state or sovereign country, is a polity, political entity represented by one central government that has supreme legitimate authority over territory. International law defines sovereign states as having a permanent population, defin ...

. However, under United States constitutional law, executive agreements are not considered treaties for the purpose of the

Treaty Clause The Treaty Clause of the United States Constitution (Article II, Section 2, Clause 2) establishes the procedure for ratifying international agreements. It empowers the President as the primary negotiator of agreements between the United States a ...

of the

United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven ar ...

, which requires the advice and consent of two-thirds of the

Senate A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...

to qualify as a treaty. Some other nations have similar provisions with regard to the ratification of treaties.

In general

Executive agreements are often used in order to bypass the requirements of national

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed. When ...

s for ratification of

. Many nations that are

republic A republic () is a "state in which power rests with the people or their representatives; specifically a state without a monarchy" and also a "government, or system of government, of such a state." Previously, especially in the 17th and 18th c ...

s with written constitutions have constitutional rules about the ratification of treaties. The

Organization for Security and Co-operation in Europe The Organization for Security and Co-operation in Europe (OSCE) is the world's largest regional security-oriented intergovernmental organization with observer status at the United Nations. Its mandate includes issues such as arms control, prom ...

is based on executive agreements.

In the United States

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 agreement A status of forces agreement (SOFA) is an agreement between a host country and a foreign nation stationing military forces in that country. SOFAs are often included, along with other types of military agreements, as part of a comprehensive security ...

s (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 their constitutional authority. In such instances, an agreement would need to be in the form of a

congressional-executive agreement The officially stated goals of the foreign policy of the United States of America, including all the bureaus and offices in the United States Department of State, as mentioned in the ''Foreign Policy Agenda'' of the Department of State, are ...

, or a

treaty A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations An international organization or international o ...

with Senate advice and consent. The U.S. Supreme Court, in ''

United States v. Pink ''United States v. Pink'', 315 U.S. 203 (1942), was a United States Supreme Court decision related to the Litvinov Assignment, wherein the US government recognised Soviet Russia as the successor of the previous Russian government. The United Sta ...

'' (1942), held that international executive agreements validly made have the same legal status as treaties and did not require Senate approval. In '' Reid v. Covert'' (1957), while reaffirming the president’s ability to enter into executive agreements, the court also held that such agreements cannot contradict existing

federal law Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join in a federation, delegating their individual sovereignty and many po ...

or the Constitution. The

Case-Zablocki Act {{Short description, 1972 American law The Case-Zablocki Act of 1972 is an American law, still in effect, designed to ensure that Congress would be informed about the international commitments made by executive agreements. The law was named after D ...

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.Ellen C. Collier, "Foreign Policy by Reporting Requirement." ''The Washington Quarterly'' 11.1 (1988): 75-84.

References

{{reflist International law Diplomatic documents

In general

In the United States

See also

References