Which Statement Is True of an Executive Agreement

/Which Statement Is True of an Executive Agreement

Which Statement Is True of an Executive Agreement

A treaty is an international agreement concluded in writing between two or more sovereign States and subject to international law, whether contained in a single instrument 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. Treaties generally fall into one of two broad categories: bilateral (between two countries) and multilateral (between three or more countries). [Footnote 449] There were many variations in the language, but typical was section 3 of S.J. Res. 1, as of the Senate Judiciary Committee, 83rd Congress, 1st Sess. (1953) reported, which provided: “Congress has the power to regulate all executive and other agreements with a foreign power or international organization. All such agreements shall be subject to the restrictions imposed on the Treaties by this Article. The relevant restriction on this point was found in Article 2, which stated: “A treaty shall take effect as domestic law of the United States only by a law that would be valid without a treaty.

Many types of executive agreements include the ordinary daily water of the diplomatic mill. These include, for example, minor territorial adjustments, border corrections, border surveillance, the regulation of fishing rights, private monetary claims against another government or its nationals, in the words of Stories, “mere rights deprived of sovereignty”. 417 Crandall lists many such agreements with other governments with the permission of the President. 418 Such agreements generally covered certain relatively insignificant disputes and, as a result of the agreement they conclude, those agreements ipso facto lose their effectiveness. In addition, there are centuries-old diplomatic means such as the “protocol”, which marks a phase in the negotiation of a treaty, and the modus vivendi, which is intended to serve as a temporary replacement for a treaty. Executive agreements become of constitutional importance if they are a determining factor in future foreign policy and thus in the fate of the country. Especially because of our participation in World War II and our immersion in the conditions of international tensions that prevailed before and after the war, presidents reached agreements with other governments, some of which converged temporary alliances. However, it cannot rightly be said that they acted without the significant support of precedents. With the fall of France in June 1940, President Roosevelt concluded two executive agreements that summer, the overall effect of which was to transform the role of the United States from strict neutrality vis-à-vis the European war into a role of semi-war. The first agreement was with Canada and provided for the creation of a Standing Committee on Joint Defence which, “in a broader sense, would consider defending the northern half of the Western Hemisphere.” 432 Second, and more important than the first, there was the Hull-Lothian agreement of 2. September 1940, after which the United States, in exchange for leasing some sites for naval bases in the British West Atlantic, handed over to the British government fifty destroyers obsolete for ninety-nine years, which had been overhauled and recommissioned. 433 And on 9 April 1941, in view of the recently completed German occupation of Denmark, the Foreign Office concluded an executive agreement with the Danish Minister in Washington under which the United States acquired the right to occupy Greenland for defence purposes.

434 Most executive agreements were entered into by treaty or act of Congress. Sometimes, however, presidents have made executive arrangements to achieve goals that would not have the support of two-thirds of the Senate. For example, President Franklin D. Roosevelt after the outbreak of World War II, but before America entered the conflict, issued an executive agreement that gave the United Kingdom 50 obsolescence destroyers in exchange for 99-year leases for some British naval bases in the Atlantic. It was also at this time that John Hay, as McKinley`s secretary of state, launched his “open door” policy by addressing Britain, Germany, and Russia, which were quickly followed by similar notes to France, Italy, and Japan. They essentially required beneficiaries to formally declare that they would not seek to expand their respective interests in China at the expense of one of the others; and everyone reacted positively. 427 Then, in 1905, the first Roosevelt who wanted to reach a diplomatic agreement with Japan initiated an exchange of views between Secretary of War Taft, then in the Far East, and Count Katsura, which amounted to a secret treaty by which the Roosevelt administration agreed to Japan establish a military protectorate in Korea. 428 Three years later, Secretary of State Root and Japan`s ambassador to Washington concluded the Root-Takahira Agreement to maintain the status quo in the Pacific and uphold the principle of equal opportunity for trade and industry in China. 429 Meanwhile, in 1907, the Mikado government had agreed, by means of a “gentleman`s agreement,” to curb the emigration of Japanese subjects to the United States, thus freeing the Washington government from the need to take measures that would have cost Japan the loss of face. The end result of this series of executive agreements that affected U.S. relations in the Far East and with the Far East was the product of President Wilson`s diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan`s “special interests” in China and Japan accepted the open door principle in that country.

430 A remarkable expansion of the president`s power in this area first manifested itself in President McKinley`s administration. At the beginning of the war with Spain, the president proclaimed that the United States would be bound for the duration of the last three principles of the Paris Declaration, a course that, as Professor Wright notes, “would undoubtedly go a long way in establishing these three principles as international law incumbent on the United States in future wars.” 423 Hostilities with Spain ended in August 1898 with an armistice, the terms of which largely determined the subsequent peace treaty, 424 as well as the armistice of 11 November 1918 largely determined the conditions for the final peace with Germany in 1918. It was also President McKinley who, in 1900, relying solely on his authority as commander-in-chief, provided a land force of 5,000 men and a naval force to work with similar contingents of other powers to save the Beijing legations from the Boxers; A year later, still without consulting Congress or the Senate, he accepted for the United States the Boxer Compensation Protocol between China and the intervening powers. 425 As regards the Beijing Protocol, Willoughby agrees with the following remark: “This case is interesting because it shows how the harsh circumstances forced us to adopt a European practice with reference to an international agreement which, apart from the question of compensation, was almost exclusively political in nature. According to constitutional practice in Europe, purely political treaties are usually concluded solely by the executive. However, President McKinley strongly justified the situation in China by not submitting the minutes to the Senate. Beijing`s isolation, jealousies between allies, and the Chinese government`s shifting avoidance tactics have made anything but an agreement on the ground impossible. 426 In the United States, executive treaties are internationally binding when negotiated and concluded under the foreign policy authority of the President, as commander-in-chief of the armed forces, or on the basis of previous legislation of Congress. For example, the president negotiates as commander-in-chief and enters the status of Armed Forces Agreements (TAFAs), which govern the treatment and disposition of U.S. forces stationed in other countries.

However, the President may not unilaterally take executive action on matters that do not fall within his constitutional powers. In such cases, there should be an agreement in the form of an executive agreement of Congress or a treaty with the advice and approval of the Senate. [2] The U.S. Constitution provides that the President “shall have the power, through and with the counsel and consent of the Senate, to enter into treaties, provided that two-thirds of the Senators present agree” (Article II, Section 2). Treaties are binding agreements between nations and are part of international law. Treaties involving the United States also have the power of federal legislation and are part of what the Constitution calls “the highest law in the land.” In recent decades, presidents have often included the United States in international agreements without the advice and approval of the Senate. These are called “executive agreements”. Although they have not been submitted to the Senate for approval, executive agreements are still binding on the parties under international law. [Footnote 404] Art.-No., 694. See also Dames & Moore v. Regan, 453 U.S. 654 (1981), in which the Court supported a series of enforcement measures taken by the President under the Executive Agreement with Iran to resolve the hostage crisis […].

2022-04-19T03:35:13-04:00