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The term used by the United States for an international agreement which, because of its technical nature, lesser importance, and perhaps also because of a domestic political difficulty, is to enter into force upon or soon after signature – that is, without ratification. It is designated as an executive agreement rather than as a treaty because the United States’ constitution gives the Senate a key role in the ratification process – requiring that ‘treaties’ must be made with the Senate\'s ‘advice and consent’. However, an agreement may be insufficiently significant to take up the Senate\'s time. And sometimes there is an additional reason for the use of a term other than treaty. The separation of the executive and the legislature in the United States may result in the president being unable to ensure that the Senate will consent to an agreement which the executive is anxious to make, or to consent quickly to one which the executive deems to be urgent. If, therefore, the political content of such an agreement is not unduly high, it may be designated as an executive agreement rather than as a treaty. In international law, however, any such agreement enjoys the same status as any other formal undertaking made on behalf of the United States, as the actual term which is used to designate an international agreement is irrelevant. Thus an executive agreement is binding on the United States in the same way as a ‘treaty’ which has been approved by the Senate.
Nowadays it is not uncommon for states to make formal agreements which do not require ratification for them to become binding on the signatories. The content of such agreements may well be technical issues which do not need domestic legislation for their implementation. Legal instruments of this kind, like all legally binding agreements, may or may not be designated as ‘treaties’. |
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