Executive Agreement Vs Formal Treaty

A treaty is an international agreement concluded in writing between two or more sovereign States and subject to international law, whether enshrined in a single legal act or in two or more related instruments. Treaties have many names: conventions, agreements, alliances, pacts, charters and statutes, among others. The choice of name has no legal significance. Contracts generally fall into one of two broad categories: bilateral (between two countries) and multilateral (between three or more countries). Many scientists are skeptical about the usefulness of two seemingly similar policy instruments for concluding international agreements, with most criticism of the treaty due to its alleged inflexibility and lack of importance. It is true that criticism of the treaty is not new and dates back at least to the 1940s. During this period, the discussion focused on whether it was possible to use the two instruments interchangeably, with particular emphasis on the constitutional limits for the replacement of agreements between Congress and the executive by treaties. However, over time, it has become clear that neither the courts nor the Ministry of Foreign Affairs have shown great concern about the delineation of constitutional limits for the interchangeability of the two engagement arrangements. Note 4 For example, take former U.S. State Department legal counsel Harold Koh, who suggests that there are only two reasons why the State Department uses contracts: community vis-à-vis Congress and the “powerful political message” sent to the world through the treaty ratification process. With regard to the interchangeability of instruments, Koh believes that it is constitutionally permissible to use agreements between Congress and the executive instead of the treaty.

Footnote 5 The argument focuses on how easily a president can break an agreement once it has been reached. In particular, Hathaway proposes that the form of the treaty hinders presidents` ability to credentially shackle their hands, because even after ratification, the treaty offers two additional opportunities to break a promise that the congress-executive agreement would not offer. This, in turn, makes it more difficult for other countries to rely on commitments in the form of the treaty. If you need help with contract research, visit the Georgetown University Law Library`s Research Help site on the Georgetown University Law Library website. Or contact the International and Foreign Law Department of the Legal Library by phone (202-662-4195) or by e-mail (lawintlref@georgetown.edu). Georgetown Law Center students can arrange an individual consultation with a librarian. 62 For discussion of the importance and difficulty of measuring compliance with international conventions, see Downs, George W., Rocke, David M. &Barsoom, Peter N., Is the Good News About Compliance Good News About Cooperation?, 50 Int`l Org. 379 (1996). . . .

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