Why Are Executive Agreements Important

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U.S. post-war diplomacy was strongly influenced by the executive agreements reached in Cairo, Tehran, Yalta, and Potsdam.18 FootnoteSee A Decade of American Foreign Policy, Background Papers 1941-1949, p. Doc. No. 123, 81st Congress, 1st Sess. (1950), part 1. For a time, the formal treaty – the signing of the UN Charter and adherence to multinational defense pacts such as NATO, SEATO, CENTRO and others – was reinstated, but soon the Executive Agreement, as a complement to the Treaty Agreement or solely at the initiative of the President, again became the main instrument of U.S. foreign policy. so that, in the 1960s, it turned out that the nation was somehow committed to helping more than half of the world`s countries protect themselves.19 For an attempt by Congress to assess the extent of such commitments, see U.S. Security Agreements and Commitments Abroad: hearings before a subcommittee of the Senate Foreign Relations Committee, 91st Congress, 1st Sess. (1969), 10 points; see also U.S. Commitments to Foreign Powers: Hearings on Senate Resolution 151 before the Senate Foreign Relations Committee, 90th Congress, 1st Sess.

(1967). The congressional turmoil resulted in nothing more substantial than the adoption of a resolution entitled “Sense of the Senate”,” which expressed the wish that “national commitments” be made more solemnly in the future than in the past.20 FootnoteThe “Resolution on National Commitments,” S. Res. 85, 91st Congress, 1st Sess., adopted by the Senate on June 25, 1969. See also S. Rep. No. 797, 90th Congress, 1st Sess. (1967). See the discussion of those years in the CRS study, above at 169-202.

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). Executive agreements are often used to circumvent the requirements of national constitutions for treaty ratification. Many nations that are republics with written constitutions have constitutional rules for ratifying treaties. The Organization for Security and Cooperation in Europe is based on executive agreements. The use of executive agreements increased considerably after 1939. By 1940, the U.S. Senate had ratified 800 treaties and presidents had concluded 1,200 executive agreements; From 1940 to 1989, during World War II and the Cold War, presidents signed nearly 800 treaties but negotiated more than 13,000 executive agreements. Congress has sought to limit the practice of entering into secret executive agreements.

A subcommittee of the Senate Foreign Affairs Committee learned in 1969 and 1970 that U.S. presidents had negotiated important secret agreements with South Korea, Laos, Thailand, Ethiopia and Spain, and other countries. In response, Congress passed the Case Act of 1972, which required the Secretary of State to submit to Congress within sixty days the text of “any international agreement, other than a treaty, to which the United States is a party. If the president decided that the publication would endanger national security, he could submit it to the Senate Foreign Relations Committee and the House Foreign Affairs Committee as part of a secrecy order that can only be lifted by the president. But presidents, from Nixon to Clinton, ignored or circumvented the law, and Congressional enforcement efforts were largely ineffective. The Case-Zablocki Act of 1972 requires the President to notify the Senate within 60 days of the conclusion of an executive agreement. The Powers of the President to conclude such agreements have not been limited. The notification requirement allowed Congress to vote on cancelling an executive agreement or refusing to fund its implementation.

[3] [4] Meanwhile, John Hay, as McKinley`s secretary of state, launched his “open door” policy with notes to Britain, Germany, and Russia, which were quickly followed by notes similar to those of the 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 all responded positively.10 footnoteW. McClure, up to 98. Then, in 1905, the first Roosevelt 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.11 FootnoteId. to 96-97. 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.12 FootnoteId. to 98-99. Meanwhile, in 1907, Mikado`s government had agreed through 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.

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