International Executive Agreements: Democratic Procedure under the Constitution of the United States

IT IS appropriate that the executive agreement system should have been substantially inaugurated¹ with the armistice which brought to an end the war of the American Revolution. The date is, of course, prior to that of the Constitution, hence to the existence of either the Executive or the Senate. But the provisions of the Articles of Confederation and the procedure of the Congress in dealing with treaties furnish a clear analogy, including a two- thirds rule, to the treaty-making method of Article II, section 2, of the Constitution. A pre-Constitution international act not formally ratified may reasonably be regarded as an executive agreement.²

Three executive agreements were entered into in the critical days between Yorktown and the consummation of a national federal government at New York. The commercial accord with France, providing for unconditional most-favored-nation treatment, and a ship-signal arrangement with Morocco, as well as the armistice, deserve brief individual mention.

The Preliminary Articles of Peace³ between His Britannic Majesty and the United States, agreed upon at Paris, November 30, 1782, were in preparation for a Treaty of Peace which was not to be concluded "untill Terms of a Peace" should "be agreed

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