Shall the Executive Agreement Replace the Treaty

EDWIN M. BORCHARD, Yale Law School


In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the approval of two-thirds of the Senate, has become too cumbersome, inefficient, and “undemocratic." Because of well established “usage”, they claim, it has become valid and desirable to substitute for the treaty and executive agreement, preferably without congressional approval or, if necessary, with approval by a majority of Congress. Advocates of the change point out that some 1300 executive agreements have been concluded during our national history, as contrasted with some 900 treaties. It is not mentioned, however, that up to 1928 only 15 treaties had been rejected by the senate, usually for good reasons; that 47were not acted upon; and that while some 160 treaties have been amended by the Senate, in most cases the changes have benefited the nation.