Executive International Agreements

Executive Agreements by Authorization of Congress

Congress early authorized officers of the executive branch to enter into negotiations and to conclude agreements with foreign governments, authorizing the borrowing of money from foreign countries 1 and appropriating money to pay off the government of Algiers to prevent pirate attacks on United States shipping.2 Perhaps the first formal authorization in advance of an executive agreement was enactment of a statute that permitted the Postmaster General to “make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.” 3 Congress has also approved, usually by resolution, other executive agreements, such as the annexing of Texas and Hawaii and the acquisition of Samoa.4 A prolific source of executive agreements has been the authorization of reciprocal arrangements between the United States and other countries for the securing of protection for patents, copyrights, and trademarks.5

Resources

References

This text about Executive International Agreements is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 1] 1 Stat. 138 (1790). See E. Byrd, supra at 53 n.146.

[Footnote 2] W. MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS 41 (1941).

[Footnote 3] Id. at 38-40. The statute was 1 Stat. 232, 239, 26 (1792).

[Footnote 4] McClure at 62-70.

[Footnote 5] Id. at 78-81; S. Crandall, supra at 127-31; see CRS Study, supra at 52-55.

Executive Agreements on the Sole Constitutional Authority of the President

Many types of executive agreements comprise the ordinary daily grist of the diplomatic mill. Among these are such as apply to minor territorial adjustments, boundary rectifications, the policing of boundaries, the regulation of fishing rights, private pecuniary claims against another government or its nationals, in Story's words, “the mere private rights of sovereignty.” 6 Crandall lists scores of such agreements entered into with other governments by the authorization of the President.7 Such agreements were ordinarily directed to particular and comparatively trivial disputes and by the settlement they effect of these cease ipso facto to be operative. Also, there are such time-honored diplomatic devices as the “protocol” which marks a stage in the negotiation of a treaty, and the modus vivendi, which is designed to serve as a temporary substitute for one. Executive agreements become of constitutional significance when they constitute a determinative factor of future foreign policy and hence of the country's destiny. In consequence particularly of our participation in World War II and our immersion in the conditions of international tension which prevailed both before and after the war, Presidents have entered into agreements with other governments some of which have approximated temporary alliances. It cannot be justly said, however, that in so doing they have acted without considerable support from precedent.

More about Executive International Agreements

An early instance of executive treaty-making was the agreement by which President Monroe in 1817 defined the limits of armaments on the Great Lakes. The arrangement was effected by an exchange of notes, which nearly a year later were laid before the Senate with a query as to whether it was within the President's power, or whether advice and consent of the Senate was required. The Senate approved the agreement by the required two-thirds vote, and it was forthwith proclaimed by the President without there having been a formal exchange of ratifications.8 Of a kindred type, and owing much to the President's capacity as Commander in Chief, was a series of agreements entered into with Mexico between 1882 and 1896 according each country the right to pursue marauding Indians across the common border.9 Commenting on such an agreement, the Court remarked, a bit uncertainly: “While no act of Congress authorizes the executive department to permit the introduction of foreign troops, the power to give such permission without legislative assent was probably assumed to exist from the authority of the President as commander in chief of the military and naval forces of the United States. It may be doubted, however, whether such power could be extended to the apprehension of deserters [from foreign vessels] in the absence of positive legislation to that effect.” 10 Justice Gray and three other Justices believed that such action by the President must rest upon express treaty or statute.11

Executive International Agreements: Developments

Notable expansion of presidential power in this field first became manifest in the administration of President McKinley. At the outset of war with Spain, the President proclaimed that the United States would consider itself bound for the duration by the last three principles of the Declaration of Paris, a course which, as Professor Wright observes, “would doubtless go far toward establishing these three principles as international law obligatory upon the United States in future wars.” 12 Hostilities with Spain were brought to an end in August, 1898, by an armistice the conditions of which largely determined the succeeding treaty of peace,13 just as did the Armistice of November 11, 1918, determine in great measure the conditions of the final peace with Germany in 1918. It was also President McKinley who in 1900, relying on his own sole authority as Commander in Chief, contributed a land force of 5,000 men and a naval force to cooperate with similar contingents from other Powers to rescue the legations in Peking from the Boxers; a year later, again without consulting either Congress or the Senate, he accepted for the United States the Boxer Indemnity Protocol between China and the intervening Powers.14 Commenting on the Peking protocol, Willoughby quotes with approval the following remark: “This case is interesting, because it shows how the force of circumstances compelled us to adopt the European practice with reference to an international agreement, which, aside from the indemnity question, was almost entirely political in character . . . purely political treaties are, under constitutional practice in Europe, usually made by the executive alone. The situation in China, however, abundantly justified President McKinley in not submitting the protocol to the Senate. The remoteness of Peking, the jealousies between the allies, and the shifting evasive tactics of the Chinese Government, would have made impossible anything but an agreement on the spot.” 15

Other Aspects

It was also during this period that John Hay, as McKinley's Secretary of State, initiated his “Open Door” policy, by notes to Great Britain, Germany, and Russia, which were soon followed by similar notes to France, Italy and Japan. These in substance asked the recipients to declare formally that they would not seek to enlarge their respective interests in China at the expense of any of the others; and all responded favorably.16 Then, in 1905, the first Roosevelt, seeking to arrive at a diplomatic understanding with Japan, instigated an exchange of opinions between Secretary of War Taft, then in the Far East, and Count Katsura, amounting to a secret treaty, by which the Roosevelt administration assented to the establishment by Japan of a military protectorate in Korea.17 Three years later, Secretary of State Root and the Japanese ambassador at Washington entered into the Root-Takahira Agreement to uphold the status quo in the Pacific and maintain the principle of equal opportunity for commerce and industry in China.18 Meantime, in 1907, by a “Gentleman's Agreement,” the Mikado's government had agreed to curb the emigration of Japanese subjects to the United States, thereby relieving the Washington government from the necessity of taking action that would have cost Japan loss of face. The final result of this series of executive agreements touching American relations in and with the Far East was the product of President Wilson's diplomacy. This was the Lansing-Ishii Agreement, embodied in an exchange of letters dated November 2, 1917, by which the United States recognized Japan's “special interests” in China, and Japan assented to the principle of the Open Door in that country. 19

Resources

References

This text about Executive International Agreements is based on “The Constitution of the United States of America: Analysis and Interpretation”, published by the U.S. Government Printing Office.

Notes

[Footnote 6] 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1397 (1833).

[Footnote 7] S. Crandall, supra, ch. 8; see also W. McClure, supra, chs. 1, 2.

[Footnote 8] Id. at 49-50.

[Footnote 9] Id. at 81-82.

[Footnote 10] Tucker v. Alexandroff, 183 U.S. 424, 435 (1902).

[Footnote 11] Id. at 467. The first of these conventions, signed July 29, 1882, had asserted its constitutionality in very positive terms. Q. Wright, supra at 239 (quoting Watts v. United States, 1 Wash. Terr. 288, 294 (1870)).

[Footnote 12] Id. at 245.

[Footnote 13] S. Crandall, supra at 103-04.

[Footnote 14] Id. at 104.

[Footnote 15] 1 W. Willoughby, supra at 539.

[Footnote 16] W. McClure, supra at 98.

[Footnote 17] Id. at 96-97.

[Footnote 18] Id. at 98-99.

[Footnote 19] Id. at 99-100.