Executive Agreement And Treaty Difference

by admin on December 8, 2020

9 id. to 1312; See also Curtis A. Bradley, International Law in the U.S. Legal System 76 (2015) (considering that one of the reasons for the popularity of executive agreements is that it is “much easier to conclude the growing number of international agreements without submitting them to two-thirds of the Senate for approval”). 26 1 U.S.C 112b (a) (1979). It is important not to “fetishize” this triptych of treaties, congressional executive agreements and exclusive executive agreements. Indeed, the recent stock exchange has drawn attention to its inability to categorize two recent agreements, namely the Paris agreement on climate change and the Iran nuclear deal. See Galbraith, Jean, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev.

1675 (2017); Harold H. Koh: Triptyque`s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126 Yale L.J. F. 338 (2017). Given that this article looks at the substantive difference between executive agreements and treaties between 1982 and 2012 and does not address new forms of international agreements, there is little need to go beyond this traditional distinction. Table 2 presents a list of selected themes and the prevalence of contracts and executive agreements in each area. A full list of agreements by theme is included in the online appendix. The only subject on which treaties are more common than executive agreements is extradition, where 94% of agreements are concluded in the form of treaties. A likely explanation for this phenomenon is the uncertainty about the constitutionality of the use of executive agreements to give individuals to foreign nations.

Uncertainty stems from Valentine v. United States, footnote 94, where the Supreme Court held that extraditions should be authorized “by Congress or by the terms of a contract.” Valentine did not consider whether the extradition complied with the Constitution in accordance with the executive agreement of Congress. Instead, the court considered whether the United States could extradite citizens without agreement or legislative power. As such, the reference to the “Congress file” could have been “purely dictated.” Note 95 Today, commentators are divided on whether extraditions can be authorized by an agreement between Congress and the executive branch, with some pointing to a lack of congressional authority over extradition and others interpreting Valentine as an explicit acceptance of such authority by the Supreme Court. Footnote 97 This clause defines the procedure and authority of contracts, but not for other executive agreements.

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