Executive Agreement Rather Than Negotiate A Formal Treaty

The second option is the executive agreement. Executive agreements can be divided into different types. Agreements between Congress and the executive require a simple majority in both the House of Representatives and the Senate.Footnote 21 They are used in areas where the executive does not have exclusive jurisdiction. Congressional approval can be obtained after the agreement has been negotiated, as was the case for NAFTA (North American Free Trade Agreement) at the bottom of page 22 or the Uruguay Round agreements of the General Agreement on Tariffs and Trade. Footnote 23 Footnote 23 It is much more common, however, for Congress to give broad authorization to the ex ante president in a statute. Footnote 24 6 This figure is based on a census of Library of Congress contract documents approved by the 111th, 112th, 113th or 114th Congresses of the United States. See www.congress.gov. The work of John SetearFootnote 49 and Lisa Martin illustrates a presentation that attributes political benefits to the treaty. Footnote 50 Your argument focuses on significant legislative obstacles to the treaty consultation and approval process. Since presidents generally do not have enough support in the Senate to obtain a two-thirds majority, they often face considerable political struggle to convince senators to vote in favor of a proposed treaty.

This political struggle not only requires time and resources, but ensuring sufficient support may also require significant concessions from the president in other areas. Footnote 51 Given that the conclusion of a contract entails such a high political price, Setear and Martin argue that only presidents who are particularly supportive of the agreement would be willing to go through the consultation and approval procedure. If there is no need for a high level of commitment, the president would instead opt for the exclusive or executive agreement of Congress, footnote 52, which the authors say is at a lower cost. Other countries are aware of this signal dynamic. Therefore, if they enter into agreements with the United States, they would respect the form of the proposed agreement and, in certain high-commitment scenarios, they may refuse to accept, unless the president is prepared to commit by treaty. 28 See Arthur W. Rovine, Digest of United States Practice in International Law 195 (Office of the Legal Adviser, Department of State 1974). Voir Frankowska, Maria, The Vienna Convention on the Law of Treaties Before United States Courts, 28 va. .

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