The main difference between treaty and executive agreement is that treaty is a formally concluded, ratified and binding agreement between sovereign states and/or international organizations while an executive agreement is an agreement between the government heads of two or more nations.
Both treaty and executive agreement come under international law. Thus, treaty and executive agreements are two diplomatic agreements international actors (primarily states and international organizations) have for better diplomatic relations between them. However, there is a distinct difference between treaty and executive agreement based on their nature and the parties involved in them.
Diplomacy, Executive Agreement, International Relations, International law, Law, Treaty
Treaty is a formal, written agreement between two actors in international relations, basically sovereign states and international organizations. It is an agreement/ negotiation between these two specific parties under international law that expresses the binding of the parties involved in forming the agreement. The document that contains the details of this is a treaty.
Moreover, in general terms, this is similar to a contract between two international parties ensuring obligations among themselves; therefore, if any party fails or violates these obligations, that particular party is held liable under the international law. Hence, the key distinguishing feature of a treaty is its binding nature. Moreover, for a sovereign state to enter into a legal binding of a treaty, there should be a majority approval of the government senate. Therefore, only if the Senate ratifies a treaty by a two-thirds majority, the treaty can enter into force.
Figure 1: Jay Treaty (1795)
The concept of treaties has existed during the earliest periods of human civilizations. However, during the 20 th century, new rules and laws were recognized and formulated for treaties. The Vienna Convention on the Law of Treaties (1969) contains the rules concerning treaties between states, and the Vienna Convention on the Law of Treaties Between States and International Organizations or Between International Organizations (1986) contains the rules concerning the treaties between states and international organizations. Hence, these two documents are the fundamentals during the formulation of treaties in international law.
Figure 2: Treaty of Paris
Treaties are expected to be executed in good faith, keeping with the principle of pacta sunt servanda (agreements must be kept). Similarly, the subjects of treaties vary in all dimensions under international relations such as peace, trade, independence, reparations, territorial boundaries, human rights, immigration, and many others.
Treaty is also known by other terms such as international agreement, protocol, covenant, pact, charter, act, exchange of letter, etc. However, all these necessarily contain the same rules and regulations of a treaty.
An executive agreement is a political agreement between the heads of government of two or more nations/states. Hence, they are politically binding agreements between the heads of the two or more states/nations. An executive agreement does not need the approval of the Senate. In other words, an executive agreement is a treaty that has been concluded and ratified by the executive body (the Commander in chief or the President) without the formal approval by a legislative body (the Senate and the Congress).
Figure 3: President Franklin D. Roosevelt with Joseph Stalin and Sir Winston Churchill in 1945 at Yalta Conference for Yalta Agreement
Thus, the main two parties involved in an executive agreement are the two heads or the Commander in chief, i.e., the President of the states/nations. Moreover, executive agreements are only between states or nations. The president may do so on the basis of the power granted him to conduct diplomatic or foreign relations with other nations. However, an executive agreement displays the executive power of the President.
Figure 4: Barak Obama and Hamid Karzai on their executive agreement on 2012
Executive agreements are not ratified by the legislature and do need the majority of the Senate support as for treaties. Therefore, executive agreements are often used for the purpose of bypassing the requirements of national constitutions for ratification of treaties. Nevertheless, the President should inform the Senate within 60 days after an executive agreement is made. Moreover, many executive agreements have been made pursuant to a treaty or to an act of Congress.
A treaty is a formally concluded, ratified and binding agreement between sovereign states and/or international organizations while an executive agreement is an agreement between the government heads of two or more nations. Thus, this is the main difference between treaty and executive agreement.
Another major difference between treaty and executive agreement is that treaties are legally binding between two states while executive agreements are politically binding between the heads of two states. Moreover, treaties are ratified by legislature whereas executive agreements are not.
The purpose of a treaty varies in all dimensions under international relations such as peace, trade, independence, reparations, territorial boundaries, human rights, immigration, etc. between the parties concerned. On the other hand, the purpose of an executive agreement is for political negotiations with other nations, and most often heads of governments enter into executive agreements on trade, etc. Hence, this is one difference between treaty and executive agreement.
Treaties can be between two sovereign states (the governments) and between states and international organizations or between international organizations whereas executive agreements are only between the heads of governments of two or more states/nations. Hence, executive agreements do not require the majority of Senate support like treaties. On the other hand, for a treaty to enter into force, the Senate has to ratify it by two-thirds of its majority power. Hence, this is another important difference between treaty and executive agreement.
There is also a difference between treaty and executive agreement based on their structure. The structure of the modern treaties is consistent: the preamble followed by the start of the actual agreement is often by the words “have agreed as follows”, and the numbered articles (the substance of the parties agreement), eschatocol or the closing protocol followed by the signatures of the involved parties. The structure of an executive agreement is usually the agreements between the two heads of the governments. Hence, there is no specific structure mentioned as treaties.
There are mainly two types of treaties as bilateral treaties ( between two entities) and multilateral treaties (between several entities or countries, usually these are regional treaties). On the other hand, the types of executive agreements include those authorized by a previous formal treaty, those authorized by a previous law, those subsequently approved by law, and those relating to matters over which the executive branch has special or exclusive authority, either by constitutional delegation or by historical precedent. So, this is another difference between treaty and executive agreement.
Treaties are also known by other terms such as agreement, protocol, covenant, pact, charter, act, exchange of letter etc. while executive agreement is sometimes known as an international agreement.
Some examples of treaties are; treaty of Versailles, UN charter, Treaty of Paris, Treaty on the Non-Proliferation of Nuclear Weapons, Tokoyo Convention, North Atlantic Treaty, etc. Some examples of executive agreements are Yalta Agreement (the executive agreement of President Franklin D. Roosevelt with Joseph Stalin and Sir Winston Churchill in 1945), NAFTA (the North American Free Trade Agreement in 1994), and, G.H.W Bush’s trade agreement with Japan. These examples will help you to understand the difference between treaty and executive agreement better.
Treaty and executive agreement come under international law and diplomatic relations. Both are legal documents that explain the contents of an agreement/ contract between two actors in the international stage. However, treaties are between sovereign states and/or international organizations whereas executive agreements are between the heads of two or more nations/states. Similarly, treaties are legally binding whereas executive agreements are politically binding. This is the main difference between treaty and executive agreement.
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3. “Treaty.” Wikipedia, Wikimedia Foundation, 27 Jan. 2019, Available here.
4. “Executive Agreements.” Oxford Public International Law, 6 June 2017, Available here.
5. “Guides: Treaty Research: Treaty or Executive Agreement?” Nomination & Confirmation Process – Supreme Court Nominations Research Guide – Guides at Georgetown Law Library, Available here.
6. “Executive Agreement.” Wikipedia, Wikimedia Foundation, 17 Nov. 2018, Available here.
7. “Executive Agreement.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 4 June 2018, Available here.
1. “Jay’s-treaty” By Early America (Public Domain) via Commons Wikimedia
2. “Treaty of Paris 1783 – last page (hi-res)” By ourdocuments.gov (Public Domain) via Commons Wikimedia
3. “Churchill, Stalin, and Roosevelt at the Yalta Conference (103/117)” (Public Domain) via GoodFreePhotos
4. “Barack Obama and Hamid Karzai signing strategic partnership agreement May 1, 2012” By Pete Souza for The White House from Washington, DC – P050112PS-0241Uploaded by January (Public Domain) via Commons Wikimedia
Upen, BA (Honours) in Languages and Linguistics, has academic experiences and knowledge on international relations and politics. Her academic interests are English language, European and Oriental Languages, Internal Affairs and International Politics, and Psychology.
