In the United States, executive agreements are concluded exclusively by the President of the United States. They are one of three mechanisms through which the United States make binding international commitments. Some authors consider executive agreements to be treaties under international law, as they bind both the United States and another sovereign state. However, under U.S. constitutional law, executive agreements are not considered treaties within the meaning of the contractual clause of the U.S. Constitution, which requires the Council and the approval of two-thirds of the Senate to be considered a treaty. Second, while it is generally accepted that, pursuant to the “executive power” clause, the President has the power to enter into single executive agreements that are not inconsistent with legislation in areas where the primary responsibility rests with Congress, the question arises as to whether the President may enter into an agreement alone that is inconsistent with an act of Congress, or alternatively, whether a single executive agreement can replace previous inconsistent laws of Congress. The prevailing view, rooted in the belief that it would be ruthless to repeal an act of Congress for an act of a single person – the president – is that the only executive agreements in the United States are ineffective as law, insofar as they conflict with an earlier act of Congress in an area of competence in Congress. This is the position taken by a federal appeals court in the United States against Guy W. Capps, Inc. (4th Circuit, 1953) and by the American Law Institute. However, the Supreme Court has not yet made a final decision on this matter. The term “executive agreement,” which is not widely used outside the United States, but has its foreign equivalent, is understood by the State Department as generally referring to any international agreement that comes into force with respect to the United States without the Council and Senate approval, which are constitutionally necessary for treaties.
In particular, it concerns three types of agreements: those concluded on the basis of or in conformity with an existing contract; those that are subject to approval or implementation by Congress (“agreements between Congress and the Executive”); and those concluded within and in accordance with the constitutional powers of the President (“Single Executive Agreements”). None of these executive agreements is subject to the formal contractual process set out in Article II, Section 2, paragraph 2, of the Constitution. The ability of the United States to enter into agreements with other nations is not exhausted in the capacity for contracting. The Constitution recognizes a distinction between “treaties” and “agreements” or “pacts,” but does not specify what the difference is.438 Differences that were perhaps more evident in the past have seriously blurred in practice in recent decades. Once a step-child of the family, where treaties were the privileged descendants, the executive agreement surpassed in number and perhaps international influence the treaty, formally signed, submitted to the Senate for ratification and proclaimed upon ratification. . . .