Why Are Executive Agreements Different From Formal Treaties

Most executive agreements were concluded in accordance with a treaty or an act of Congress. However, presidents have sometimes reached executive agreements to achieve goals that would not find the support of two-thirds of the Senate. For example, after the outbreak of World War II, but before the Americans entered the conflict, President Franklin D. Roosevelt negotiated an executive agreement that gave the United Kingdom 50 obsolete destroyers in exchange for 99-year leases on some British naval bases in the Atlantic. 36 The approved Restoration (fourth) project is remarkably silent on the issue of interchangeability, but there is no evidence that this silence supports those who argue against interchangeability. The authors of the Restatement (fourth) make it clear that they focus only on The Article II treaties and that they are not recipients of other international agreements. See Restatement (Fourth) of the Foreign Relations Law of the United States, p. 113, note 8 of journalists (March 20, 2017). So far, there seems to be little sign of change in the scientific debate.

See z.B. Bradley, Curtis A., Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615 (2018) (contracts and executive agreements of Congress are considered largely interchangeable even after the adoption of the Restoration (fourth) project. To illustrate this, you should go back to the negotiations on SALT II and SORT, where Russia insisted on the implementation of a treaty of agreement between Congress and the Executive. Without the availability of the contractual instrument, it would be possible for the parties to have entered into agreements with different substantive conditions. Given that Russia would not have spent negotiating power on the type of treaty and could, on the contrary, have devoted itself entirely to the content of the agreements, it seems plausible to think that these alternative conditions could have been more favourable to Russia. Assuming that the counterparties` desire to have an instrument with the characteristics of the contract is strong enough, it may even be that, without the contract, some agreements would not have been concluded. This section presents the results of the analysis. First of all, I consider the differences between contracts and executive agreements in general, without distinguishing between different types of executive agreements.