Washington International Law Journal Washington International Law Journal
Volume 33 Number 1
2-6-2024
Executive Agreements in Japan and the United States: Their Executive Agreements in Japan and the United States: Their
Differences and Similarities Differences and Similarities
Yuhei Matsuyama
Fukuoka University
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Yuhei Matsuyama,
Executive Agreements in Japan and the United States: Their Differences and
Similarities
, 33 Wash. Int’l L.J. (2024).
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EXECUTIVE AGREEMENTS IN JAPAN AND THE
UNITED STATES: THEIR DIFFERENCES AND
SIMILARITIES
Yuhei Matsuyama
＊
Abstract: The national constitutions of Japan and the United States describe
which domestic branches conclude “treaties” and how they do it. In both countries, the
legislative branch plays a critical role in the treaty-making process, checking and
controlling the executive branch. However, both nations enter international
agreements without following the procedures explicitly provided in their national
constitutions. Such agreements are called “executive agreements.” In both Japan and
the United States, the practice of entering executive agreements has been recognized
since the adoption of the current constitutions, and the number of such agreements—in
lieu of treaties—is rising. Despite contrasting government and legal systems, the two
countries share similarities with regard to executive agreements and the domestic legal
force of international agreements. This Article compares the practices of entering
executive agreements and shows some differences and similarities by analyzing the
drafting history of the constitutions, the history of executive agreements, their types,
and their domestic legal force.
＊
Adjunct Lecturer of Law, Fukuoka University, Japan. Ph.D. (Law) from Fukuoka University in
2019. For their priceless guidance and advice, I am particularly grateful to Masakuni Hasegawa,
Yasuhiro Yamashita, Kazuki Hagiwara, David L. Sloss, and Ryan M. Scoville. And I wish to thank the
Suenobu Foundation for financial support. Finally, I would like to thank the members of the Editorial
Board of the Washington International Law Journal for their great support and helpful suggestions.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 45
TABLE OF CONTENTS
I. INTRODUCTION ............................................................................ 46
II. JAPAN ............................................................................................. 49
A. The Drafting History of the Constitution of Japan ..................50
1. The Meiji Constitution ..........................................................50
2. The Constitution of Japan ....................................................52
B. The History and Scope of Executive Agreements .....................61
1. Debates before the Ohira Three Principles .........................61
2. The Ohira Three Principles ..................................................67
3. The Domestic Legal Force of Executive Agreements ...........71
III. THE UNITED STATES ................................................................... 75
A. The Drafting History of Article II, Section 2 of the U.S.
Constitution ..........................................................................................75
B. The History of Executive Agreements ......................................82
C. The Various Types of Executive Agreements ...........................88
1. The Traditional Classification of Executive Agreements .....88
2. The Rising of New Classification of Executive Agreements .91
D. The Domestic Legal Force and Self-Execution of Executive
Agreements ...........................................................................................94
1. Domestic Legal Force ..........................................................94
E. Self-Execution ...........................................................................99
IV. COMPARING JAPANESE AND AMERICAN PRACTICES ...... 108
V. CONCLUSION .............................................................................. 114
46 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
I. INTRODUCTION
The national constitutions of Japan and the United States provide which
domestic branches conclude, and how those branches enter into, treaties.
Both constitutions require legislative or senatorial approval as a form of
checking and controlling the treaty-making power of the executive
branches. However, international agreements are sometimes entered into
without following the procedures explicitly stipulated in the national
constitutions.
Domestically, in both Japan and the United States, international
agreements that are made in accordance with the explicit provisions of the
national constitutions are referred to as “treaties,” and international
agreements that are entered into without following constitutional
provisions are “executive agreements.”
Notably, the number of executive agreements, in lieu of treaties, is
rising.
1
In short, international agreements outside the treaty-making
procedures stipulated in the constitution—procedures which check the
power of the executive branch—are increasing. This trend is seen in both
Japan and the United States.
However, those two countries are totally different and adopt quite
contrasting governmental and legal systems. Japan is a unitary state with
forty-seven prefectures and adopts the parliamentary cabinet system. In
Japan, the Cabinet, which is the Japanese executive department, has the
power to conclude and ratify treaties.
2
Article 73, Item 3 of the Japanese
constitution requires treaty approval by the Diet,
3
the Japanese legislative
department.
4
But the existence of executive agreements
5
has been
recognized since the adoption of the Constitution of Japan
6
and the Diet is
not involved in executive agreements.
7
While some Japanese scholars find that executive agreements in Japan
are increasing, they do not often discuss how they are made but debate
1
Yasuo Nakauchi, The Extent of “Treaties” Requiring the Diet Approval: A Consideration on
the Current System and Cases Debated in the Diet, 429 LEGIS. & RSCH. (House of Councillors) 17, 19
(2020) (Japan); Curtis A. Bradley & Jack L. Goldsmith, Presidential Control over International Law,
131 HARV. L. REV. 1201, 1210 (2018).
2
NIHONKOKU KENPŌ [KENPŌ][Constitution], art. 73 (Japan),
https://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.
3
Id. art. 73, item 3.
4
Id. art. 41 (“The Diet shall be the highest organ of state power, and shall be the sole law-
making organ of the State.”).
5
Executive agreements are called gyousei kyoutei or gyousei torikime in Japanese.
6
See infra Part I.B. One study even points out that the Japanese practice derived from the
American practice. See Hisakazu Fujita, Government and Congress in Foreign Policy Making: Japan-
U.S. Comparison of Executive Agreement, in PUBLIC POLICY IN CONTEMPORARY JAPAN (Economic &
Political Studies Series No. 66) 422, 423 (Public Policy Study Group ed., 1988) (Japan).
7
YUJI IWASAWA, INTERNATIONAL LAW, HUMAN RIGHTS, AND JAPANESE LAW: THE IMPACT OF
INTERNATIONAL LAW ON JAPANESE LAW 19 (1998) [hereinafter YUJI IWASAWA, INTERNATIONAL LAW,
HUMAN RIGHTS, AND JAPANESE LAW].
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 47
more on the subject matter such agreement. Whether an international
agreement concluded by the Japanese government is a treaty or executive
agreement depends on the grant of approval by the Diet.
8
Since the
Constitution does not deal with executive agreements, the Japanese
government made a statement on the distinction of treaties and executive
agreements, the “Ohira Three Principles.”
9
There are roughly two kinds
of executive agreements in Japan: (1) executive agreements based on
delegation or authorization of treaties concluded by the Cabinet according
to Article 73, Item 3 of the Constitution and (2) ones based on other
authority of the Cabinet granted according to Article 73, Item 2. Since
the Ohira Three Principles categorized agreements according to the subject
matter of the international agreement, Japanese scholars are more
interested in the scope of executive agreements than their kinds. In other
words, while Japanese scholars write extensively about what kinds of
subject matters executive agreements may cover in Japan and sometimes
discuss their proliferation,
10
they rarely focus on an agreement’s status as
an executive agreement, as opposed to a treaty.
The United States is a federal state with fifty states and adopts the
presidential system. In the United States, the Constitution requires
treaties concluded by the President to be approved by the Senate. These
international agreements are “Article II treaties” and require two-thirds
concurrence of the Senate.
11
However, other international agreements
made by the President do not require two-thirds approval of the senators;
they are called “executive agreements.”
12
There are three primary types of executive agreements in the United
States: executive agreements that derive from Article II treaties (executive
agreements pursuant to Article II treaty); congressional-executive
agreements made with the approval of Congress; and sole executive
agreements issued by the President on his or her own authority.
13
Since
the Obama Administration, the number of executive agreements has risen,
and Article II treaties are rare.
14
The practice of making executive
agreements began right after the ratification of the Constitution.
15
Further, the variety of executive agreements has increased, and researchers
8
Tadaatsu Mori, The Current Practice of Making and Applying International Agreements in
Japan, in THE OXFORD HANDBOOK OF COMPARATIVE FOREIGN RELATIONS LAW 191, 195 (Curtis A.
Bradley ed., 2019).
9
See infra Part I.B.2.
10
See infra Part I.B.
11
U.S. CONST. art. II, § 2, cl. 2.
12
CURTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM 79 (3d ed. 2020).
13
Bradley & Goldsmith, supra note 1, at 1208.
14
Id. at 1210–11.
15
See infra Part III.B.
48 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
have discussed the authority to create even more types of executive
agreements.
16
Thus, Japan and the United States are different in terms of their
legal and government systems. These differences manifest in the way
each country’s political departments exercise power. However, there are
some similarities regarding the practices of executive agreements in both
countries. They approach executive agreements in similar ways,
specifically with regard to the development of the practice and domestic
legal force of international agreements.
17
This Article describes differences and similarities in executive
agreements in Japan and the United States by considering the history,
types, and domestic legal force of executive agreements and comparing
Japanese and American practices. The Article proceeds as follows. Part
II covers executive agreements in Japan. Section A reveals the history of
the adoption of the current Japanese constitution and also shows the extent
to which treaties need the approval of the Diet. Sections B provides a
discussion of what kinds of international agreements require the approval
of the Diet. Soon after the adoption of the Constitution, international
agreements made by the Cabinet without the approval of the Diet were
debated in the Diet and the Cabinet has explained the scope of treaties and
executive agreements according to the Ohira Three Principles.
Moreover, Section C analyzes the domestic legal force of executive
agreements in Japan. It makes clear how they acquire such force and how
they are related with other domestic legal norms.
Part III considers the American approach to executive agreements.
Section A analyzes the drafting process of Article II of the U.S.
Constitution and provides insight as to why the power to make treaties is
given to the President and the Senate. Section B clarifies how executive
agreements have been used since the adoption of the U.S. Constitution, and
Section C discusses the traditional, and emerging, forms executive
agreements take. Finally, Section D analyzes the domestic legal force and
self-execution of each type of executive agreement.
Part IV compares executive agreements in both legal systems.
There are some differences in terms of legislative branch involvements in
the making of executive agreements and judicial concerns about such
agreements because of the differences in their government systems, the
structure of the nations, and their legal systems. However, Part IV also
identifies interesting similarities, such as the pervasiveness of their use and
the constitutional mechanisms which give international agreements
domestic legal force.
16
See infra Part III.C.
17
See infra Part IV.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 49
II. JAPAN
The Constitution of Japan is a compilation of treaties in four
articles. The Cabinet has the power to make treaties and conduct foreign
relations.
18
Treaties must be approved by the Diet
19
and then
promulgated by the Emperor.
20
Moreover, treaties may have domestic
legal force by promulgation without special legislation. This is based on
Article 98, Paragraph 2, which provides that “[t]he treaties concluded by
Japan and established laws of nations shall be faithfully observed.”
21
This
provision is understood to permit treaties to acquire domestic legal force
without implementing legislation.
22
Article 73 provides as follows: “The Cabinet, in addition to other general
administrative functions, shall perform the following functions: . . .
[m]anage foreign affairs [and] . . . [c]onclude treaties. However, it shall
obtain prior or, depending on circumstances, subsequent approval of the
Diet.”
23
This provision gives the nation’s treaty-making power to the
Cabinet. But its literal interpretation also requires that the Diet approve
all international agreements.
24
However, soon after the adoption of the
Constitution, politicians began to discuss the possibility of international
agreements entered into without the approval. Thus, such agreements
were recognized even at the time of the drafting. This part first analyzes
the history of the Constitution, which reveals the history of the making of
the Constitution and the rise of executive agreements in Japan.
18
KENPŌ art.73 (Japan).
19
Id. arts. 73, 61. Article 61 provides as follows: “The second paragraph of the preceding article
applies also to the Diet approval required for the conclusion of treaties.” And Article 60, Paragraph 2
reads “Upon consideration of the budget, when the House of Councillors makes a decision different from
that of the House of Representatives, and when no agreement can be reached even through a joint
committee of both Houses, provided for by law, or in the case of failure by the House of Councillors to
take final action within thirty days, the period of recess excluded, after the receipt of the budget passed
by the House of Representatives, the decision of the House of Representatives shall be the decision of
the Diet.”
20
Id. art. 7.
21
Id. art. 98, para. 2.
22
YUJI IWASAWA, INTERNATIONAL LAW, HUMAN RIGHTS, AND JAPANESE LAW, supra note 7, at
29; Shin Hae Bong, Japan, in INTERNATIONAL LAW AND DOMESTIC LEGAL SYSTEMS: INCORPORATION,
TRANSFORMATION, AND PERSUASION 360, 365 (Dinah Shelton ed., 2011).
23
KENPŌ art. 73, items 2 and 3 (Japan).
24
YUJI IWASAWA, INTERNATIONAL LAW, HUMAN RIGHTS, AND JAPANESE LAW, supra note 7, at
19 (pointing out that not all international commitments require the Diet approval notwithstanding “the
clear mandate of Article 73 (3)” [sic]).
50 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
A. The Drafting History of the Constitution of Japan
1. The Meiji Constitution
The current constitution of Japan was promulgated on November 3,
1946, and came into effect on May 3, 1947. This constitution was
procedurally the result of the revision of the Constitution of the Empire of
Japan (the Meiji Constitution), which was the immutable law promulgated
in 1889.
25
According to that constitution, the Emperor “reigned over and
governed” the Empire of Japan,
26
and he was “sacred and inviolable.”
27
In contrast, the current constitution adopts a system where “sovereign
power resides with the people”
28
and the Emperor is “the symbol of the
State and of the unity of the people, deriving his position from the will of
the people with whom resides sovereign power.”
29
Under the Meiji Constitution, which facially adopted a
constitutional monarchy, the treaty-making power vested in the Emperor
by Article 13.
30
According to a handbook written by the U.S.
government:
[t]he Legislative power regarding treaties normally is one for a
parliamentary body. In Japan, under Article XIII [of the 1889
Constitution of Japan] . . . the Ministry of Foreign Affairs
negotiates [treaties] and the Privy Council deliberates and
advises the Emperor who concludes them. The Diet was not
meant to have a part in the foreign relations. Yet the Diet through
its own means . . . attempts to exercise some control.
31
In addition, according to Hirobumi Ito, the most important framer of the
Meiji Constitution and the first Prime Minister of Japan, “the Emperor shall
25
The imperial edict by the Showa Emperor attached to the Constitution of Japan read “I rejoice
that the foundation for the construction of a new Japan has been laid according to the will of the Japanese
people, and hereby sanction and promulgate the amendments of the Imperial Japanese Constitution
effected following the consultation with the Privy Council and the decision of the Imperial Diet made in
accordance with Article 73 of the said Constitution.” Article 73 of the Constitution of the Empire of
Japan provided for amendments of the Constitution.
26
DAI-NIPPON TEIKOKU KENPŌ [MEIJI KENPŌ] [CONSTITUTION], art. 1 (Japan),
https://www.ndl.go.jp/constitution/e/etc/c02.html.
27
Id. art. 3. There was also a provision in the Meiji Constitution, which provided that “[t]he
Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them,
according to the provisions of the present Constitution.” Id. art. 4.
28
Id. pmbl.
29
Id. art. 1.
30
Id. art 13 (“The Emperor declares war, makes peace, and concludes treaties.”).
31
OFF. OF THE PROVOST MARSHALL GEN., U.S. ARMY SERVICE FORCES, M354-2, CIVIL AFFAIRS
HANDBOOK JAPAN SECTION 2: GOVERNMENT AND ADMINISTRATION 33 (1945).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 51
dispose of all matters relating to foreign intercourse, with the advice of His
Ministers, but allowing no interference by the Diet therein.”
32
However, when it came to treaty ratification, Article 56 provided
that “the Privy Councillors shall, in accordance with the provisions for the
organization of the Privy Council, deliberate upon important matters of
State when they have been consulted by the Emperor.”
33
Acting under
this Article, the Privy Councillors considered treaties. The Privy Council,
which does not exist under the current Japanese constitution, was an
advisory council to the Emperor consisting of a chairman, a vice chairman,
and councilors. “The Privy Councillors [were] to give their opinions on
important matters of State in response to the Emperor’s Call Thereof,”
34
and the Privy Council was “to hold deliberations only when its opinion had
been asked for by the Emperor.”
35
The Privy Council was both “an organ
of the state and an organ of the imperial house,”
36
was not responsible to
the Diet,
37
and “exert[ed] considerable influence on legislation.”
38
The
provisions for the organization of the Privy Council of 1888 referred to in
Article 56 of the Meiji Constitution provided that “the Privy Council shall
hold deliberations, and present its opinions to the Emperor” on “treaties
with foreign countries.”
39
However, since 1888, it had been understood
that not all treaties should have been deliberated by the Privy Council.
And even if treaties were deliberated, the Emperor did not have to follow
its opinions.
40
In reality, almost all treaties were submitted to the Privy
Council, and the Emperor respected its opinions.
41
According to the Meiji
Constitution, the Emperor provided “sanction to laws, and order[ed]
32
COUNT HIROBUMI ITO, COMMENTARIES ON THE CONSTITUTION OF THE EMPIRE OF JAPAN 28 (Miyoji
Ito trans., 1889). The Constitution required the consent of the Imperial Diet on laws and the expenditure
and revenue of the state (Articles 37 and 64) but not on treaty-making, so the Diet was not substantially
involved in that process. See Yasuo Nakauchi, Discussion in the National Diet on the System and
Operation of the Approval of Treaty, 330 LEGIS. & RSCH. (House of Councillors) 3, 3 n.2 (2012) (Japan).
For more details on the treaty-making process under the Meiji Constitution, see Kenneth W. Colegrove,
The Treaty-Making Power in Japan, 25 AM. J. INT’L L. 270, 275 (1931).
33
MEIJI KENPŌ art. 56 (Japan).
34
HIROBUMI ITO, supra note 32, at 84.
35
Id. at 99.
36
Kenneth Colegrove, The Japanese Privy Council, 25 AM. POL. SCI. REV. 589, 594 (1931).
37
Id. at 595.
38
Id. at 609. Moreover, the Privy Council sometimes came into conflict with the Cabinet.
Kenneth Colegrove, The Japanese Privy Council, 25 AM. POL. SCI. REV. 881, 881 (1931).
39
The Privy Council Created, 1888 (Japanese Government Documents), 42 TRANSACTIONS OF
THE ASIATIC SOCIETY OF JAPAN 127–28 (W.W. McLaren ed., 1914).
40
Tomonori Mizushima, A Note on ‘Executive Agreements’ in Japanese Law: A Modest
Contribution of an International Law Scholar to Public Law Studies, 277 NAGOYA UNIV. J. L. & POL. 3,
8–9 (2018) (Japan).
41
Colegrove, supra note 32, at 276–82. For further reading on the domestic legal force of treaties
under the Meiji Constitution, see id. at 282–86.
52 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
[treaties] to be promulgated and executed,”
42
and by promulgation, treaties
were given domestic legal force.
43
2. The Constitution of Japan
After the Japanese defeat in World War II, General Douglas MacArthur,
the Supreme Commander for the Allied Powers (SCAP) and GHQ, arrived
in Japan to democratize Japan by revising and abolishing domestic laws.
44
The Japanese government established the Constitution Investigation
Committee—also called the Matsumoto Committee—which was chaired
by Jōji Matsumoto, Minister without Portfolio.
45
Matsumoto worked on
the revision of the Constitution based on the “Matsumoto Four Principles,”
one of which was that the Emperor should have power to exercise his
prerogatives.
46
An early draft leaked by Mainichi Shinbun, one of the
most famous newspapers in Japan, on February 1, 1946,
47
was very
conservative, which astonished General MacArthur. In response,
MacArthur developed his “Three Principles.”
48
Following the principle,
the Government Section of GHQ/SCAP drafted his version of a
constitution, the MacArthur Constitution.
The Japanese government submitted Mastumoto’s Gist of the Revision
of the Constitution (Kenpō Kaisei Yōkō) to the GHQ on February 8.
According to it, Article 13 of the Meiji Constitution would be amended to
state the following: “The Emperor declares war, makes peace, or concludes
treaties concerning subject matters which are needed to be stipulated by
42
MEIJI KENPŌ art. 6 (Japan).
43
MAKOTO OISHI, CONSTITUTIONAL FRAMEWORK ON SYSTEM OF GOVERNMENT 181 (2016)
(Japan).
44
Proclamation Defining Terms for Japanese Surrender para. 7, July 26, 1945, 3 Bevans 1204
(showing Japan accepted as the terms of surrender, provided for the occupation of Japan as follows:
“Until such a new order is established and until there is convincing proof that Japan’s war-making power
is destroyed, points in Japanese territory to be designated by the Allies shall be occupied to secure the
achievement of the basic objectives we are here setting forth.”).
45
4 SHIN SHIMIZU, THE MINUTES OF THE DELIBERATION OF THE DRAFT CONSTITUTION OF
JAPAN 75 (1963) (Japan).
46
KOSEKI SHŌICHI, THE BIRTH OF JAPAN’S POSTWAR CONSTITUTION 56 (Ray A. Moore trans.,
1997).
47
Toshiyoshi Miyazawa (professor at Tokyo Imperial University, now, the University of Tokyo)
made an outline based on Matsumoto’s Draft of Tentative Revision of the Constitution Draft, being
created by reference to debates at the Matsumoto Committee. It was later referred to as the Tentative
Revision of the Constitution (A) and it would be submitted to the GHQ with the addition by Matsumoto,
which was the Gist of the Revision of the Constitution. On the draft prepared by Japan, see MASAAKI
SAITŌ, CONSTITUTION AND TREATIES IN DOMESTIC LAW 28–30 (2002) (Japan).
48
One of the three principles was that the “Emperor is at the head of state. . . . His duties and
powers will be exercised in accordance with the Constitution and responsive to the basis will of the
people as provided therein.” 1 THE MAKING OF THE CONSTITUTION OF JAPAN 98–99 (Kenzō Takayanagi,
Ichirō Ohtomo & Hideo Tanaka eds., 1972) [hereinafter 1 THE MAKING OF THE CONSTITUTION] (Japan).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 53
laws or impose serious obligations on the Empire of Japan, with the
consent of the Imperial Diet.”
49
Although this suggested article did not require the Diet’s consent for all
treaties, it did require the consent for certain kinds of treaties. However,
the GHQ rejected this draft and instead handed over the GHQ Draft (the
so-called “MacArthur Draft”) to the Japanese government on February 13.
Articles on the Executive were worked on by the Executive Committee
in the Government Section of GHQ, whose members were Cyrus H. Peake,
Jacob I. Miller, and Milton J. Esman.
50
But provisions on treaties were
handled by the Committee on the Emperor, Treaties, and Enabling
Provisions (the Committee on the Emperor and Miscellaneous Affairs)
whose members were George A. Nelson, Jr. and Richard A. Poole.
51
Although a provision on the treaty-making power was drafted by that
Committee,
52
the Steering Committee, which oversaw seven committees
and managed the organization, decided that “the Article on Treaty Making
Powers be incorporated in the Chapter on the Executive.”
53
But no agreement was reached as to whether all kinds of international
agreements would require the Diet’s approval.
54
For example, a
memorandum from the Chief of the Government Section’s office
expressed that “[t]he Cabinet shall be empowered to conclude treaties and
agreements and to enter into international conventions, provided that such
treaties, agreements and conventions shall be effective only if the consent
of the Diet be granted by prior authorization or subsequent ratification.”
55
Moreover, a report submitted by the Committee on the Executive said the
Cabinet would “[c]onclude such treaties, international conventions and
agreements with the consent of the Diet by prior authorization or
subsequent ratification as it deems in the public interest.”
56
And the
Steering Committee offered yet another opinion—that the treaty-making
power be granted to the Executive with the approval of the legislative
department,
57
which meant it considered the treaty-making power to be
shared by the political departments and controlled by the legislative
department. Based on these opinions, the GHQ submitted the following
draft Articles to the Japanese government:
49
Jōji Matsumoto, Gist of the Revision of the Constitution (Feb. 8, 1946) (available in the
National Diet Library repository), https://www.ndl.go.jp/constitution/e/shiryo/03/074a_e/074a_etx.html
50
1 THE MAKING OF THE CONSTITUTION, supra note 48, at 110–11.
51
Id. at 110–12. For more details of the drafting by Government Section of GHQ, see 2 THE
MAKING OF THE CONSTITUTION OF JAPAN, 41–54 (Kenzō Takayanagi, Ichirō Ohtomo & Hideo Tanaka
eds., 1972) [hereinafter 2 THE MAKING OF THE CONSTITUTION] (Japan).
52
See 2 THE MAKING OF THE CONSTITUTION, supra note 50, at 226–28.
53
1 THE MAKING OF THE CONSTITUTION, supra note 50, at 136.
54
Id.
55
Id. at 136–39, 146–48.
56
Id. at 180–81.
57
Id. at 136–39.
54 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Article VI. Acting only on the advice and with the consent of the
Cabinet, the Emperor, on behalf of the people, shall perform the
following state functions; Affix his official seal to and proclaim
all laws enacted by the Diet, all Cabinet orders, all amendments
to this Constitution, and all treaties and international
conventions; . . .
Article LXV. In addition to other executive responsibilities, the
Cabinet shall: . . . Conduct foreign relations; Conclude such
treaties, international conventions and agreements with the
Consent of the Diet by prior authorization or subsequent
ratification as it deems in the public interest; . . .
Article XC. This Constitution and the laws and treaties made in
pursuance hereof shall be the supreme law of the nation, and no
public law or ordinance and no imperial rescript or other
governmental act, or part thereof, contrary to the provisions
hereof shall have legal force or validity.
58
The GHQ explained that the objectives of the revision were to
“[c]entralize all executive power in the Cabinet and eliminate the Privy
Council and all other extraconstitutional executive bodies that formerly
struggled for power.”
59
However, the GHQ also sought to diffuse power
to the legislative branch. It did so by requiring the Cabinet to inform the
Diet about the status of foreign affairs.
60
Thus, the GHQ considered the
Diet to involve all international agreements.
In February, 1946, the Japanese government negotiated the terms of its
constitution with the Government Section of the GHQ.
61
The MacArthur
Draft was then translated into Japanese, and the Japanese government
made a draft following the MacArthur Draft (the March 2 Draft); the
Outline of a Draft for a Revised Constitution (Kenpō Kaisei Sōan Yōkō (the
March 6 Outline)) was then made public.
62
In this draft, the articles
regarding the treaty-making power were further clarified with the
following language:
58
Id. at 270, 290, 302.
59
Id. at 304–06.
60
Id. at 312.
61
See 2 THE MAKING OF THE CONSTITUTION, supra note 50, at 77–101.
62
Id. at 101–04.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 55
Article VII. The Emperor, with the advice and approval of the
Cabinet, shall perform the following functions of state on behalf
of the people: Promulgation of amendments of the constitution,
laws, cabinet orders and treaties. . . .
Article LVI. The second paragraph of the preceding article
applies also to the Diet Approval required for the conclusion of
treaties, and international conventions and agreements. . . .
Article LXIX.
The Cabinet, in addition to other general
administrative functions, shall: . . . conduct affairs of State;
Manage foreign affairs; [and] Conclude treaties, international
conventions and agreements. However, it shall obtain prior or,
depending on circumstances, subsequent approval of the
Diet. . . .
Article XCIII. This Constitution and the laws and treaties made
in pursuance hereof shall be the supreme law of the state and no
public law of ordinance and no imperial rescript or other act of
government, or part thereof, contrary to the provisions hereof,
shall have legal force or validity.
63
But this draft was totally different from the draft prepared by the
Constitutional Problem Investigation Committee of Japan and did not
consider what kinds of treaties would require the consent of the Diet in the
process of making them.
The Bureau of Legislation and Kades (BLK) immediately set about to
codify the March 6 Outline.
64
But because there were some issues in the
draft, such as terminology and interpretation, the BLK tried to codify while
still meeting with the Government Section of the GHQ.
65
Moreover, the
BLK solicited feedback from concerned government ministries
66
and held
a meeting with Jōji Matsumoto to discuss problematic portions of the
Outline.
67
The BLK argued that adding “international conventions . . . ”
63
Draft Constitution of Japan Accepted by the Cabinet on 6 March 1946 (available at the
National Diet Library Repository),
https://www.ndl.go.jp/constitution/e/shiryo/03/093a_e/093a_etx.html (last visited Nov. 4, 2023)
[hereinafter 1946 Draft Constitution] (emphasis added).
64
3 TATSUO SATŌ, HISTORY OF THE FORMULATION OF THE CONSTITUTION OF JAPAN 227–35
(Isao Satō ed., 1994) (Japan).
65
Id. at 286–325.
66
MAKOTO OISHI, supra note 43, at 183.
67
3 TATSUO SATŌ, supra note 64, at 235.
56 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
only to Article 69 was not uniform compared to some articles relating to
treaties.
68
It further pointed out that the use of “approval” in the context
of subsequent Diet approval was inappropriate.
69
In contrast, the Treaties Bureau of the Ministry of Foreign Affairs
(MOFA) had more specific and detailed opinions. In a detailed paper,
“Concerning the Treaty-Making System under the Revised Draft of the
Constitution,”
70
MOFA challenged the “Approval of the Diet related to
Treaty-Making.”
71
It opined that because the approval procedure in treaty
making was new to the Japanese legal system, it was appropriate to refer
to precedential practices in some other countries and to consider what kinds
of treaties would need the approval of the Diet .
72
Moreover, MOFA
made the following conclusion, which shows how the framers considered
the Diet approval to treaties and whether they acknowledged the existence
of executive agreements:
It may not be clear on the extent of treaties that requires the Diet
approval only from the article of the Draft, and, therefore, this
compels the government to wait for the compilation of the
legislations and the practice. Consequently, the Bureau suggests
having clear legislative measures to prevent problems or doubts.
This was in consideration of the conflicts between the
government and the Privy Council about what kinds of treaties
should have been submitted to the latter and in view of a
possibility that certain problems would happen under the system
adopting the Diet approval of treaties.
As a matter of law, the extent of the Diet’s approval of treaties
needs to be considered in terms of both (i) the significance of
approval by the Diet, which consists of the representatives of the
people and (ii) the convenience of the government, which is in
charge of diplomacy. In these respects, the government should
obtain the approval of the Diet when entering into the following
three kinds of treaties with reference to examples of democratic
countries:
68
Id. at 253.
69
Id.
70
Id. at 239.
71
Id. at 253.
72
MAKOTO OISHI, supra note 43, at 184.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 57
1. Treaties concerning the rights and duties of the people (treaties
involved in legislative matters)
2. Treaties that place a financial burden on the state or the people
3. Treaties that impose important duties on the state, such as
peace treaties, treaties involving territorial changes, and amity,
commerce, and navigation treaties.
It is appropriate that the Cabinet is allowed to enter into treaties
other than the above treaties based on the exclusive power of the
Cabinet, just as the President of the United States of America can
enter into executive agreements on his or her own power.
73
The Treaties Bureau of MOFA envisioned three kinds of treaties which
required the Diet’s approval. Because those treaties could have an impact
on Japanese nationals, the Bureau thought that the Diet’s approval should
be required, as will be discussed in the next section. Interestingly, the
above opinion referred to the American practice of executive agreements.
On April 9, two delegates from MOFA met with some members of the
Government Section of GHQ.
74
They suggested to the GHQ that the
extent of treaties requiring the Diet approval be narrowed. They did so
while referring to the American practice of executive agreements.
75
In
response, the GHQ told the MOFA delegates that it did not understand the
treaty provision to require approval, even for executive agreements, and
that MOFA was allowed to delete “agreements” in the case of a
terminological problem.
76
However, the delegates from MOFA told them
to leave in the term “agreements” since it was possible to interpret it that
way.
77
After the meeting, texts of the provisions were made in a colloquial style
with several changes and revisions.
78
In the text of Article 69, the term
“treaties, international conventions, and agreements” was changed to just
“treaties” (Kenpō Kaisei Sōan).
79
The Privy Council deliberated the draft,
73
See 3 TATSUO SATŌ, supra note 64, at 253–54. See also MAKOTO OISHI, supra note 43, at
184–85.
74
3 TATSUO SATŌ, supra note 64, at 309.
75
Yoshiyasu Ebihara, Reconsideration on the Prehistory of Drafting Process of Article 73 Item
(3) of the Constitution of Japan, 117 MEMOIRS INST. HUMANS., HUM. & SOC. SCIS., RITSUMEIKAN UNIV.
219, 236 (2019) (Japan).
76
3 TATSUO SATŌ, supra note 64, at 312.
77
MAKOTO OISHI, supra note 43, at 185; 3 TATSUO SATŌ, supra note 64, at 311–12.
78
3 TATSUO SATŌ, supra note 64, at 326.
79
Id. at 344.
58 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
and the majority of members voted to adopt it.
80
And pursuant to the
Meiji Constitution, the Revised Draft of the Constitution of the Empire of
Japan (Teikoku Kenpō Kaiseian) was submitted with imperial rescript to
the House of Representatives of the 90th Imperial Congress for the review
and amendment of the draft. The articles on the treaty-making power
were not amended there.
81
At that time, most of the Japanese framers strongly suggested to amend
the new Constitution’s Supremacy Clause. That article was a near replica
of the Supremacy Clause of the U.S. Constitution.
82
As such, it provided
for the supremacy of the federal constitution, federal law, and treaties over
state laws. But it was inappropriate to incorporate this American clause
into the new constitution of Japan, which was a unitary, not a federal,
state.
83
The revised draft included an amended Supremacy Clause. It was
suggested to amend Article 93 (later, Article 94) to provide that only the
constitution was the supreme law of the state due to criticism of the
federal–state style provision.
84
But MOFA felt that it was unfavorable
that Japan would not have a constitutional provision that indicated respect
for treaties and international law.
85
Accordingly, the Director of the
Treaties Bureau presented Tokujirō Kanamori, the Minister of States for
Constitution Revision, with a draft revision, adding as a second paragraph
of Article 94 that “[t]reaties concluded or entered into by Japan, decisions
of international organizations which Japan participates in, and established
law of nations shall be respected together with this Constitution.”
86
Ultimately, the House of the Representatives—the Imperial Diet’s lower
house—agreed to delete “laws and treaties” from Article 94 and to add the
second paragraph suggested by the Treaties Bureau. According to
Hitoshi Ashida, the chairman of the Committee on Bill for Revision of the
Imperial Constitution and Prime Minister in 1948, some believed that
granting supremacy to laws and treaties was unreasonable even though the
status of the constitution as the supreme law of the land was generally
80
Id. at 349.
81
However, the BLK prepared materials for answers to supposed questions and MOFA was also
prepared. See Yoshiyasu Ebihara, supra note 75, at 238–40; 3 TATSUO SATŌ, supra note 64, at 447–48.
82
U.S. CONST. art. VI, cl. 2. (“This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”)
83
MASAAKI SAITŌ, supra note 47, at 30.
84
Id. at 31.
85
4 TATSUO SATŌ, HISTORY OF THE FORMULATION OF THE CONSTITUTION OF JAPAN 746–47 n.
3 (Isao Satō ed., 1994) (Japan).
86
Id.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 59
acceptable.
87
The draft was amended as follows in the House and was
submitted to the House of Peers
88
—the upper house of the Imperial Diet:
This Constitution shall be the supreme law of the nation and no
law, ordinance, imperial rescript or other act of government, or
part thereof, contrary to the provisions hereof, shall have legal
force or validity.
The treaties concluded by Japan and established laws of nations
shall be faithfully observed.
89
The second paragraph received considerable attention, in light of
Japan’s not-so-distant past. During the Plenary Session of the House of
Peers on August 29, 1946, Minister Kanamori, in response to an opinion
that those two paragraphs were meaningless and should be deleted,
90
made
the following statement:
It is domestically very necessary to make clear the import of the
provision that Japan would never disrespect treaties. The current
status of Japan in international society is doubtful since it
disrespected treaties in the past, so I really believe that it is highly
reasonable to insert such a provision.
91
Furthermore, Minister Kanamori also said in the Special Committee of
the House of Peers that “it was substantially meaningful to establish a
provision of respect for treaties and the law of nations in terms of criticism
on actions by Japan from the past and distrust of foreign countries on
Japanese domestic law.”
92
Finally, the draft, with its suggested amendments, passed the Plenary
Session of the House of Peers on October 6, 1946. It was submitted to
the House of Representatives and passed the Plenary Session of the House,
which completed all of the procedural requirements of the Constitution of
the Empire of Japan.
93
After that vote, a plenary session of the Privy
87
4 SHIN SHIMIZU, supra note 45, at 477.
88
The House of Peers did not exist under the current Constitution of Japan. The National Diet
now consists of the House of Representatives and the House of Councillors. In contrast to the present
system, members of the House of Peers were not elected by the national election but were “composed of
the members of the Imperial Family, of the orders of nobility, and of those persons, who have been
nominated thereto by the Emperor.” MEIJI KENPŌ art. 34 (Japan).
89
4 SHIN SHIMIZU, supra note 45, at 466.
90
PROCEEDINGS OF THE REVISION OF THE IMPERIAL CONSTITUTION OF JAPAN: RENUNCIATION
OF WAR 303 (Secretariat of the House of Councillors ed., 1951) (Japan).
91
Id. at 307.
92
Id. at 472.
93
4 SHIN SHIMIZU, supra note 45, at 142.
60 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Council met and approved the draft, and it was officially ratified by the
Emperor. “The Constitution of Japan” was promulgated on November 3,
1946, and put into effect on May 5, 1947.
As mentioned above, procedurally, the current Constitution of Japan was
passed as a revision of the Constitution of the Empire of Japan, and it grants
the treaty-making power to the Cabinet with the Diet approval.
94
Moreover, it specifies that treaties ratified by Japan are to be “fully
observed.”
95
Two points stand out regarding the new Constitution’s adoption. First,
the words “treaties, international conventions, and agreements” in a
provision of the Cabinet powers was changed to just “treaties,” as
discussed above.
96
This revision was not questioned by the Imperial Diet,
and no groups of politicians submitted a revision of its content. Rather,
MOFA—part of the Cabinet—was responsible for changing a provision
related to the Cabinet power. MOFA felt that it was not appropriate to
stipulate the treaties that the Cabinet had the power to make without limits,
and MOFA opined that it was proper to enumerate treaties requiring the
Diet’s approval and that making international agreements without the
involvement of the Diet should be permitted.
97
Because the GHQ thought
that it was possible to include these agreements by interpretation without
changing the terms of the provision, the provision did not enumerate the
treaties that should be approved by the Diet.
98
It is apparent from the
process of making the Constitution that the framers had actually considered
the possibility of executive agreements.
Second, the framers agreed that the American Supremacy Clause was
not fit for the Japanese legal system. The Supremacy Clause in the U.S.
Constitution provided for the supremacy of the federal constitution, federal
law, and treaties over state laws, so it was not proper for a unitary state like
Japan.
99
As analyzed above, the framers deleted treaty supremacy from
the draft.
100
However, after reflecting on Japanese treaty violations of the
past, a new provision was added in order to make clear Japan’s attitude
94
KENPŌ art. 73, item 3 (Japan).
95
Id. art. 98, para. 2.
96
Compare 1 THE MAKING OF THE CONSTITUTION, supra note 48, at 290 (discussing Article
LXV of the GHQ draft), and 1946 Draft Constitution, supra note 63, at art. LXIX, with 3 TATSUO SATŌ,
supra note 64, at 344 (discussing the Kenpō Kaisei Sōan).
97
See supra notes 70–73 and accompanying texts.
98
See supra notes 74–77 and accompanying texts.
99
See Hajime Nishioka, Histories of the Formulation of Article 98, Paragraph 2 of
the Constitution of Japan (The “Established Laws of Nations” Clause) and Article 25 of the Bonn Basic
Law (The “General Rules of International law” Clause) (Part 2), 18 FUKUOKA UNIV. REV. LAW 1, 10
(1974) (Japan).
100
See supra notes 83–89 and accompanying texts. There was also suggestion by the Japanese
government that the deletion of the worde “the laws and treaties made in pursuance hereof” from Article
93 (later Article 94) of the Draft was allowed by members of the GHQ. 4 TATSUO SATŌ, supra note 85,
at 682, 688, 695.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 61
regarding its respect for treaties. Although some members of the House
of Peers found this addition to be unnecessary, it ultimately agreed that it
was important for the new constitution to have a provision for treaty
respect. Therefore, this fact reveals that the political meaning of Article
98, Paragraph 2 was a form of “national repentance”—a reflection on the
county’s historical disrespect toward and violations of treaties and the law
of nations; a commitment to restoring trust in joining the ranks of the
international community; and a way to pronounce the resurgence of
Japanese people for them to be loved by all the nations of the world.
101
B. The History and Scope of Executive Agreements
Problems arose for the first time since enacting the new Constitution
during discussions of the 1952 Japan–U.S. Administrative Agreement.
102
That agreement was concluded according to Article 3 of the Japan–U.S.
Security Treaty, signed in 1951,
103
but the Japanese government never
submitted the Administrative Agreement for approval or let the Diet
deliberate. After this Agreement was debated, in 1974, then-Foreign
Minister Masayoshi Ohira released a statement describing the scope of
treaties and Diet approval, known as the “Ohira Three Principles.”
104
However, due to MOFA’s concerns during the constitution’s drafting, the
issue on the scope of treaties for which the Diet approval was not required
had already been discussed.
105
And even before 1951 such agreements
had already existed in Japan.
1. Debates before the Ohira Three Principles
This subsection analyzes debates on executive agreements before the
publication of the Ohira Three Principles, which are the most authoritative
statements on executive agreements. And this subsection first describes
the views of MOFA during the making of the constitution. As will be
seen, Seiichi Nakahara, a public law scholar in Japan, pointed out that the
practice of executive agreements had already existed under the Meiji
Constitution and that there had been international agreements that did not
require the Privy Council’s deliberation.
106
However, such international
101
Hajime Nishioka, supra note 99, at 14.
102
Administrative Agreement Under Article III of the Security Treaty Between the United States
and Japan, Japan-U.S., Jan. 22, 1952, 3 U.S.T. 3341.
103
Japan Security Treaty, Japan-U.S., Sept. 8, 1951, 3 U.S.T. 3329.
104
See, e.g., H of Representatives, Comm. on Land, Infrastructure, Transport and Tourism No.
11, 208th Diet 14 (Apr. 22, 2022) (Tomohiro Mikanagi, Deputy Director-General, International Legal
Affairs Bureau, MOFA) (Japan),
https://kokkai.ndl.go.jp/#/detail?minId=120804319X01120220422&spkNum=105¤t=1.
105
See supra notes 70–78 and accompanying texts.
106
SEIICHI NAKAHARA, ISSUES ON INTERNATIONAL TREATY AND CONSTITUTION 125 (1969)
(Japan).
62 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
agreements were based on other treaties or the delegation of domestic laws.
Their purposes were either (1) to implement treaties themselves; (2) to
provide for the details of existing treaties;
107
or (3) to see to purely
administrative matters based on experience or legal interpretations.
108
Thus, during the era of the Constitution of the Empire of Japan, executive
agreements were allowed.
109
Moreover, consensus formed around
MOFA’s position, which was reflected by the Treaties Bureau,
110
concerning the scope of international agreements for which consent was
requested.
111
In addition to the Treaties Bureau opinion discussed in the previous
section, MOFA expressed its opinions on the scope of treaties and Diet
approval in two materials created in November 1945: “Overview on
International Treaty”
112
and “Concerning an Issue of the Revision of Art.
13 of the Constitution (Diplomatic Powers of the Emperor).”
113
The
former explained the necessity of the revision of the article and suggested
requesting the approval of the Diet on three kinds of treaties: (1) treaties
dealing with legislative matters (including the rights and duties of the
subjects of Japan and legislative changes); (2) treaties imposing financial
duties on Japan; and (3) commerce treaties.
114
In contrast, the MOFA’s
opinion “Concerning an Issue of the Revision of Art. 13 of the
Constitution” expressed by the First Division of Treaties Bureau, argued
against the revision. The First Division believed it was more appropriate
to revise Article 13 step by step, in light of Japanese people’s immature
107
Id. at 125–26.
108
Id. at 126. There were also international agreements that needed no deliberation of the Privy
Council, such as an agreement on unrestricted medical practice between Japan and Mexico (1917) and
Japan-China detailed agreements on the unsettled problem of Shantung (1922). Id. See also 1 ISAO SATŌ,
SOME ISSUES ON THE CONSTITUTIONAL INTERPRETATION, 217, 221–22 (1953) (referring to H. of
Councillors, Comm. on Foreign Affs. No. 11, 13th Diet 6 (Mar. 12, 1952) (statement of Hisao Yanai,
former Director-General of the Treaties Bureau),
https://kokkai.ndl.go.jp/#/detail?minId=101313968X01119520312¤t=1 (Japan)).
109
The article on international agreements that was to be deliberated by the Privy of Council in
the provisions for the organization of the Privy Council of 1888 was revised in 1890; the term “treaties”
was changed to “treaties and agreements.” Tomonori Mizushima, supra note 40 at 8. After that, the term
was revised into “international treaties” in 1938 due to secrecy about the title and the formality of
international agreements, which required deliberation. Id. However, the revision shows that international
agreements without deliberation did exist. Id. at 8–9.
110
See supra notes 70–73 and accompanying texts.
111
According to Yoshiyasu Ebihara, the view on the scope of treaties which required the consent
of the Imperial Diet had been established already on November, 14, 1945. Yoshiyasu Ebihara, supra note
75, at 228–30.
112
“An Overview on International Treaty,” MOFA Record B.0.0.0.1-1, 1945, in Sundries of
Treaties Matters, Concerning Japan, Vol. 2 (Japan) in possession of the Diplomatic Archives of the
Ministry of Foreign Affairs of Japan. It is not clear which division of MOFA made this and when.
Yoshiyasu Ebihara, supra note 75, at 244–45.
113
The First Division of the Treaties Bureau “Concerning an Issue of the Revision of Art. 13 of
the Constitution (Diplomatic Powers of the Emperor),” November 11, 1945, reprinted in 1 COMPLETE
COLLECTION OF MATERIALS OF THE MAKING THE CONSTITUTION OF JAPAN 253–57 (Nobuyoshi Ashibe
et al. eds., 1997) [hereinafter 1 MATERIALS OF THE MAKING OF THE CONSTITUTION] (Japan).
114
An Overview on International Treaty, supra note 112.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 63
understanding of international politics.
115
It suggested to adopt “a system
admitting consent only to treaties involving legislative matters and
financial impositions on the country.”
116
It is not clear why MOFA
submitted two different opinions on the scope of treaties. However, what
is clear is that MOFA had already recognized the existence and scope of
executive agreements before both the GHQ draft and the Outline of a Draft
for a Revised Constitution was made.
117
Moreover, a note used by the BKL in a meeting with MOFA showed
that it would be troublesome for all treaties to be submitted to the Diet for
approval.
118
Instead, it favored executive agreements not related to the
Diet to be reported ex post and for there to be room for secret treaties.
119
The BKL clearly had the intention of excluding executive agreements from
those international agreements that required the approval of the Diet.
120
But as this Article exposed in the previous section, the new constitution
did not state the scope of the treaties requiring the Diet approval. After
the constitution was made, Japan concluded a security treaty with the
United States at the same time as the signing of the San Francisco Peace
Treaty.
121
Article 3 of the Security Treaty provided for the following:
“The conditions which shall govern the disposition of armed forces of the
United States of America in and about Japan shall be determined by
administrative agreements between the two Governments.”
122
Japan and
the United States also made an administrative agreement to implement the
Security Treaty.
123
However, the Japanese government concluded the
agreement without submitting it to the Diet. This was the first time the
Cabinet’s request for the approval of a treaty under the new constitution
could be discussed.
124
The Japanese government offered a solution in 1951 to the perceived
unconstitutionality of the Japan–U.S. Administrative Agreement. Article 3
of the Security Treaty provided for agreements that implemented the
115
1 MATERIALS OF THE MAKING OF THE CONSTITUTION, supra note 113, at 257.
116
Id. at 257.
117
See supra notes 73, 75 and accompanying texts. For more details, see Yoshiyasu Ebihara,
supra note 75, at 222–26. The scope of treaties with the Diet approval was shown in drafts of the
Constitution Investigation Committee. See supra note 49 and accompanying text; MASAAKI SAITŌ, supra
note 47, at 28–31.
118
“Meetings with Governmental Ministries and Agencies,” in Materials related to Tatsuo Satō
50 (Collection of the National Diet Library).
119
Id.
120
Yoshiyasu Ebihara, supra note 75, at 234.
121
Multilateral Treaty of Peace with Japan, Sept. 8, 1951, 3 U.S.T. 3169.
122
Japan Security Treaty, supra note 103, at 3332.
123
Administrative Agreement, supra note 102, at 3341.
124
Before that, the government referred to executive agreements in the U.S. in answering a
question about treaty ratification in Japan and other countries. H. of Councillors, Comm. on Foreign Affs.
No. 14, 10th Diet 3 (June 1, 1951) (Kumao Nishimura, Director-General of the Treaties Bureau),
https://kokkai.ndl.go.jp/#/detail?minId=101013968X01419510601¤t=1 (Japan).
64 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
details of the treaty.
125
Thus, the approval of the Security Treaty by the
Diet beforehand indicated legislative approval of the Administrative
Agreement between the executive branches of the two nations.
Therefore, the Administrative Agreement did not need to be approved by
the Diet, except in the case that money or legislation was needed to
implement the agreement.
126
The Japanese government also offered another explanation for why the
Cabinet did not request for Diet approval to the Administrative Agreement.
It analogized to the distinction in the United States between “treaties” and
“executive agreements” and claimed that an “Administrative Agreement”
had the same nature as an executive agreement—which did not require
legislative approval in the U.S.
127
Under this reasoning, the Cabinet had authority, in the case of treaty
delegations, to enact international agreements without the Diet’s approval.
Although one member of the government claimed that Article 3 of the
Security Treaty granted the Cabinet the power to enter into some
agreements,
128
the Diet’s approval was still required for treaties
concerning the rights and duties of Japanese citizens.
129
And in cases
where the treaties were concerned with legislative matters, they would be
entered into the proceedings of the Diet.
130
125
Japan Security Treaty, supra note 103, at 3332.
126
H. of Councillors, Plenary Sess. No. 4, 12th Diet 6 (Oct. 15 1951) (statement of Takeo Ohashi,
Minster of Justice), https://kokkai.ndl.go.jp/#/detail?minId=101215254X00419511015¤t=1
(Japan). See also H. of Representatives, Spec. Comm. on the Peace Treaty and the Japan-U.S. Security
Treaty No. 3, 12th Diet 4 (Oct. 18, 1951) (statement of Takeo Ohashi, Minister of Justice),
https://kokkai.ndl.go.jp/#/detail?minId=101205185X00319511018¤t=6 (Japan).
127
H. of Representatives, Spec. Comm. on the Peace Treaty and the Japan-U.S. Security Treaty
No. 7, 12th Diet 28 (Oct. 23, 1951) (a response of Ryuen Kusaba, Parliamentary Vice-Minister for
Foreign Affairs to a member of House of Representatives),
https://kokkai.ndl.go.jp/#/detail?minId=101205185X00719511023¤t=6 (Japan).
128
H. of Representatives, Comm. on Rules and Admin. No. 12, 13th Diet 1 (Feb. 5, 1952)
(statement of Katsuo Okazaki, Minister of
States), https://kokkai.ndl.go.jp/#/detail?minId=101304024X01219520205¤t=5 (Japan). See also
H. of Councillors, Comm. on Foreign Affs. No. 2, 13th Diet 3 (Feb. 12, 1952) (statement of Katsuo
Okazaki, Minister of States),
https://kokkai.ndl.go.jp/#/detail?minId=101313968X00219520212¤t=10 (Japan).
129
H. of Representatives, Comm. on Foreign Affs. No. 3, 13th Diet 7 (Feb. 6, 1952) (statement of
Katsuo Okazaki, Minister of States),
https://kokkai.ndl.go.jp/#/detail?minId=101303968X00319520206¤t=3 (Japan)
130
H. of Representatives, Spec. Comm. on the Peace Treaty and the Jap.-U.S. Security Treaty No.
8, 12th Diet 11 (Oct. 24, 1951) (statement of Shigeru Yoshida, Prime Minister),
https://kokkai.ndl.go.jp/#/detail?minId=101205185X00819511024¤t=1 (Japan). See also H. of
Representatives, Spec. Comm. on the Peace Treaty and the Jap.-U.S. Security Treaty No. 9, 12th Diet 3
(Oct. 25, 1951) (statement of Shigeru Yoshida, Prime Minister),
https://kokkai.ndl.go.jp/#/detail?minId=101205185X00919511025¤t=1 (Japan); H. of
Councillors, Spec. Comm. On Peace Treaty and Jap.-U.S. Security Treaty No. 6, 12
th
Diet 14 (Oct. 30,
1951) (statement of Shigeru Yoshida, Prime Minister),
https://kokkai.ndl.go.jp/#/detail?minId=101215185X00619511030¤t=1 (Japan); H. of
Councillors, Spec. Comm. on the Peace Treaty and the Jap.-U.S. Security Treaty No. 18, 12th Diet 3
(Nov. 14, 1951) (statement of Shigeru Yoshida, Prime Minister),
https://kokkai.ndl.go.jp/#/detail?minId=101215185X01819511114¤t=1 (Japan).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 65
After these discussions in the Diet, the Supreme Court of Japan in 1959
noted that the Administrative Agreement was constitutional in obiter
dictum.
131
It said that although the Administrative Agreements was not
ratified by the Diet, it was constitutional based on a delegation of Article 3
of the Security Treaty.
132
Therefore, “the stationing of the Security
Forces based upon the Security Treaty and the Administrative Agreement
must also be admitted as being constitutional.”
133
Even though this
opinion was expressed in obiter dictum, the Supreme Court of Japan had
in mind that the Administrative Agreement which was made without the
Diet approval was constitutional.
After the Diet debated the Japan–U.S. Administrative Agreement, the
Japanese government released a statement—the Ohira Three Principles, an
important development for Japanese executive agreements. The Ohira
Principles are the most famous and authoritative statements on executive
agreements in Japan. The Principles describe the distinction between
treaties and executive agreements, but, as discussed above, MOFA, not the
Ohira Principles, was the first to describe executive agreements.
134
Since the debate on the Administrative Agreement, a protocol amending
the Japan–U.S. Agreement for Cooperation Concerning Civil Uses of
Atomic Energy
135
was on the proceedings of the Diet. A debate ensued
because the Diet and the Cabinet disagreed about the interpretation of
Article 9.A of the agreement,
136
based on which an exchange of
diplomatic notes
137
was made and never submitted and reported on to the
Diet.
138
As a result, the government made a promise to pronounce a
131
The Sunagawa Case, SAIKŌ-SAIBANSHO [Sup. Ct.] Dec. 16, 1959, Shō 34 (A) 710, 13 SAIKŌ
SAIBANSHO KEIJI HANREISHŪ [KEISHŪ] 3225, 3236,
https://www.courts.go.jp/app/hanrei_en/detail?id=13 (Japan).
132
Id.
133
Id.
134
See supra notes 112–20 and accompanying texts. Until the pronouncement of the Ohira
Principles, the Japanese government confirmed which treaties should be approved by the Diet. According
to the government’s view, executive agreements could only be made between the executive branches,
which meant there was no involvement by the legislative branch. H. of Councillors, Subcomm. on Budget
of Fiscal Year Shōwa 27 and the Constitution No. 2, 13th Diet 9 (Mar. 24, 1952) (statement of Katsuo
Okazaki, Minister of States),
https://kokkai.ndl.go.jp/#/detail?minId=101315264X00219520324¤t=1 [hereinafter Subcomm.
on Budget of Fiscal Year Shōwa 27 and the Constitution No. 2] (Japan).
135
Protocol Amending the Agreement for Cooperation Between the Government of the United
States of America and the Government of Japan Concerning Civil Uses of Atomic Energy, Mar. 28,
1973, 24 U.S.T. 2323.
136
Agreement for Cooperation between the Government of the United States of America and the
Government of Japan Concerning Civil Uses of Atomic Energy, February, 26, 1968, 19 U.S.T. 5214.
137
Agreement amending the agreement of February 26, 1968, February, 24, 1972, 23 U.S.T. 275.
138
For some discussions on the Agreement for Cooperation Concerning Peaceful Uses of Nuclear
Energy, see Isao Satō, The Treaty Approval by the Diet and Exchange of Notes, 19 SOPHIA L. REV. 135
(1976).
66 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
unified view on executive agreements,
139
which led to the famous
statement: the Ohira Three Principles.
From the Japanese perspective, whether an agreement requires the Diet
approval is primarily determined by the content of the agreement, not the
title (although executive agreements of Japan are made in the form of an
exchange of notes). For example, an agreement between the Minister of
Posts and Telecommunications and the Postmaster General does not need
to be approved by the Diet because a postal treaty provides for such an
agreement, and its content is not so significant as to have an impact on
Japanese nationals.
140
Masato Fujisaki, the then Director-General of the Treaties Bureau of
MOFA and later a justice of the Supreme Court, explained the need for
agreements to always be approved in the case that they are related to
legislative matters, financial matters, or politically important matters
although neither legislative nor financial.
141
Fujisaki also advocated for using the following criteria with regard to
the scope of treaties submitted to the Diet for approval.
142
First, treaties
involving legislative matters, such as commerce and navigation treaties
and tax treaties, needed to be approved by the Diet. Second, treaties
concerning financial imposition on the nation in excess of the budget also
required approval. For example, reparation treaties and treaties imposing
a duty of payment on financial contributions fell under this category.
Third, politically “important” treaties unrelated to legislative or financial
matters—such as friendship treaties and cultural agreements—also needed
to be approved by the Diet.
In the case of the Administrative Agreement, since Article 3 did not fall
under any of the three categories, the Cabinet entered into it without the
Diet’s approval because of the delegation of the Security Treaty.
However, in a new security treaty with the United States
143
and the Japan–
U.S. Status of Forces Agreement in 1960 under Article VI of the new
139
H. of Representatives, Comm. on Foreign Affs. No. 37, 71st Diet 2 (Sep. 25, 1973) (Kiyoshi
Mizuno, Parliamentary Vice-Minister for Foreign Affairs),
https://kokkai.ndl.go.jp/#/detail?minId=101013968X01419510601¤t=1 (Japan).
140
Subcomm. on Budget of Fiscal Year Shōwa 27 and the Constitution No. 2, supra note 134, at
9.
141
H. of Councillors, Spec. Comm. on the Jap.-Korea Treaty No. 3, 50th Diet 26 (Nov. 24, 1965)
(statement of Masato Fujisaki, Director-General of the Treaties Bureau),
https://kokkai.ndl.go.jp/#/detail?minId=105014958X00319651124¤t=1 (Japan).
142
H. of Representatives, Comm. on Foreign Affs. No. 11, 46th Diet 5 (Mar. 18, 1964) (statement
of Masato Fujisaki, Deputy Director-General, MOFA),
https://kokkai.ndl.go.jp/#/detail?minId=104603968X01119640318¤t=1 [hereinafter Comm. on
Foreign Affs. No. 11] (Japan).
143
Treaty of Mutual Cooperation and Security between the United States and Japan, Japan-U.S.,
June 23, 1960, 11 U.S.T. 1632.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 67
security treaty,
144
the government submitted the latter to the Diet for
approval. This was because its content was significant to the nation and
there was no delegation or authorization by the new security treaty, so the
government had to, and did, acquire the approval.
145
Unlike in the case of
the Administrative Agreement, the Japanese government considered it
necessary for the Japan–U.S. Status of Forces Agreement to be approved
by the Diet because it was not based on the delegation of the 1960 new
Japan–U.S. Security Treaty.
2. The Ohira Three Principles
It was after these discussions and explanations that the Japanese
government provided the criteria for treaties to be approved by the Diet.
Masayoshi Ohira, the then Foreign Minister, outlined in 1974 the Ohira
Three Principles, which remain authoritative to this day. Under Article 73,
Item 3 of the Constitution, which provides for the conclusion of treaties,
the government specified which international agreements were treaties that
should be presented to the Diet.
146
The first category of treaties is international commitments that involve
legislative matters. Article 41 of the Constitution provides for the Diet to
be the only legislative body in Japan,
147
so when international
commitments involve contents related to the legislative power of the Diet
under Article 41, they must be approved.
148
More specifically, in
concluding such international commitments, legislative measures are
necessary to maintain existing domestic laws, and the Diet should
deliberate and approve them.
149
For example, international commitments
on the transfer of territory or administrative rights have a direct impact on
the nation’s sovereignty, including legislative power.
150
On the first category, international agreements involving legislative
matters should require the approval by the Diet, so the Cabinet does not
have authority to conclude such agreements without the Diet approval.
144
Agreement under Article VI of the Treaty of Mutual Cooperation and Security: Facilities and
Areas and the Status of United States Armed Forces in Japan, Japan-U.S., June 23, 1960, 11 U.S.T. 1652.
145
Comm. on Foreign Affs. No. 11, supra note 142, at 5 (Mar. 18, 1964) (statement of Masato
Fujisaki, MOFA Officer). For a similar explanation, see H. of Representatives, Comm. On Foreign Affs.
No. 9, 63d Diet 3 (Apr. 17, 1970) (statement of Toshio Yamasaki, Deputy Director-General, Treaties
Bureau), https://kokkai.ndl.go.jp/#/detail?minId=106303968X00919700417¤t=1 (Japan).
146
H. of Representatives, Comm. on Foreign Affs. No. 5, 72d Diet 2 (Feb. 20, 1974) (statement
of Masayoshi Ohira, Foreign Minister),
https://kokkai.ndl.go.jp/#/detail?minId=107203968X00519740220¤t=1 [hereinafter Comm. on
Foreign Affs. No. 5] (Japan).
147
KENPŌ art. 41 (“The Diet shall be the highest organ of state power, and shall be the sole law-
making organ of the State.”) (Japan).
148
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
149
Id.
150
Id.
68 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
When the Cabinet enters into international agreements that require new
legislation or revision of existing laws to implement the agreement, it must
acquire the approval of the Diet. Thus, treaties sometimes involve
positive legislative matters, which require enactment of new laws or
revision of existing laws.
151
For example, in entering into the U.N.
Convention on the Law of the Sea, which was one of the treaties that
required the approval of the Diet, it was necessary to revise domestic laws
concerning territorial sea, exclusive economic zones, and the continental
shelf.
152
However, some treaties impose an obligation to keep existing laws and
orders while not requiring new legislative measures to carry them into
effect.
153
They include negative legislative matters in which there is an
obligation to keep laws and orders as they are.
154
For example, in 1969
“the Act on Special Provisions of the Income Tax Act, the Corporation Tax
Act, and the Local Tax Act Incidental to Enforcement of Tax Treaties”
(Act on Special Provisions) was passed. Usually, concluding bilateral tax
treaties does not require new legislative measures, but Japan had an
obligation to maintain the Act on Special Provisions as it was, so such
bilateral treaties required the approval of the Diet.
155
Investment
agreements and social security agreements similarly required approval.
156
In this regard, the Ohira Three Principles mentioned treaties transferring
territories and administrative rights as examples of treaties having a direct
impact on Japan, including the legislative power.
157
In addition to these
examples, there are the Treaty of Peace with Japan of 1951, which had
provisions for the alternation of territories and administrative rights, and
the Agreement between Japan and the United States of America
Concerning the Ryukyu Islands and the Daito Islands of 1971, which was
an agreement between Japan and the United States concerning transfer of
administrative rights to Okinawa.
158
The second category of treaties that require approval is international
agreements that include financial matters. Article 85 of the Constitution
provides for the following: “No money shall be expended, nor shall the
State obligate itself, except as authorized by the Diet.”
159
Because of this
151
Yasuo Nakauchi, supra note 1, at 21.
152
Id. at 21–22.
153
Id. at 22.
154
Makoto Matsuda, Treaty-Making Process in Practice, 10 HOKKAIDO J. NEW GLOB. L. &
POL’Y 301, 306 (2011) (Japan).
155
Yasuo Nakauchi, supra note 1, at 22 n. 28. See also Yoshihiro Masui, The Diet Involvement
in the Making of Tax Treaties 217, in A COMPREHENSIVE STUDY OF THE PRINCIPLE OF STATUTE-BASED
TAXATION IN JAPAN (Minoru Nakazato & Takeshi Fujitani eds., 2021) (Japan).
156
Yasuo Nakauchi, supra note 1, at 22.
157
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
158
Yasuo Nakauchi, supra note 1, at 23.
159
KENPŌ art. 85 (Japan).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 69
provision, when entering into international commitments imposing duties
on the nation that are beyond the extent of expenditure and laws already
passed, the Diet’s approval must be sought.
160
Some examples are reparation agreements with some countries as part
of a post-war process, including the Agreement Between Japan and the
Republic of Korea Concerning the Settlement of Problems in Regard to
Property and Claims and Economic Cooperation of 1965. Another
example is the Agreement between Japan and the United States of America
concerning New Special Measures relating to Article XXIV of the Japan–
U.S. Status of Forces Agreement of 1960, in which the Japanese
government agrees to pay the costs of electricity, water, and wages for
workers in American facilities in Japan.
161
However, as Ohira mentioned,
international commitments that involve spending within expenditures
already passed by the Diet do not require approval.
162
As an example of
such agreements, almost all exchanges of diplomatic notes concerning
Official Development Assistance (ODA) implementation are executive
agreements.
163
The third category of treaties that require approval is politically
important international commitments. These treaties are “important” in
that they legally provide for the general relationship between Japan and
foreign countries. Ratification is required for these treaties to come into
effect.
164
Examples of such agreements are a joint declaration signed by Japan and
the Soviet Union in 1956 for the restoration of diplomatic relations after
WWII; the Treaty on Basic Relations Between Japan and the Republic of
Korea of 1965, which was concluded by the two countries to establish
normal diplomatic relations between them; and the Treaty of Peace and
Friendship between Japan and the People’s Republic of China of 1978,
which created a basic diplomatic relationship between them.
165
Recently, however, most treaties submitted to the Diet for approval were
the first two kinds of treaties which involved legislative and financial
matters. The third category of treaties, politically important treaties, is
rare.
166
160
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
161
Yasuo Nakauchi, supra note 1, at 23.
162
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
163
Yasuo Nakauchi, supra note 1, at 23.
164
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
165
Yasuo Nakauchi, supra note 1, at 23–24; YUJI IWASAWA, INTERNATIONAL LAW 92 (2d ed.
2023) [hereinafter YUJI IWASAWA, INTERNATIONAL LAW] (Japan).
166
Yasuo Nakauchi, supra note 1, at 24.
70 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Furthermore, Ohira not only referred to treaties made by the authority of
Article 73, Item 3 of the Japanese Constitution, but also he explained that
certain “other international commitments” required the Cabinet to report
them to the Diet, which were executive agreements.
167
Among international agreements made by the Japanese government,
some international agreements are executive agreements—such as those
implemented within treaties already approved by the Diet or pursuant to
domestic laws or expenditure passed by the Diet. They are entered into
by the executive branch under provision of treaties and/or domestic laws
to “[m]anage foreign affairs”
168
under Article 73, Item 2.
169
In fact, most
executive agreements are a form of exchange of diplomatic notes, and it is
the content of international agreements, not the form, that makes them
executive agreements.
170
As seen above, the Ohira statement not only mentioned treaties but also
the scope of executive agreements. Almost all issues debated since the
making of the Constitution of Japan were related to executive agreements
made according to treaties approved by the Diet. According to Ohira,
those kinds of agreements were in the case of international commitments
that could be implemented within treaties approved by the Diet, meaning
that the commitments required the arrangement of details or delegation by
treaties.
171
This was the case for the Administrative Agreement that was
based on the older Security Treaty.
However, the Ohira statement named two other categories of executive
agreements: international commitments that can be implemented within
the existing domestic laws and ones that can be implemented within the
expenditure passed by the Diet.
172
Furthermore, as pointed out through debates in the Diet, there are
executive agreements concluded by the Cabinet on its own authority, just
as the U.S. President can make.
173
This authority derives from Article 73,
Item 2 of the Constitution (managing foreign affairs). Some scholars had
doubts about the constitutionality of such executive agreements. For
example, Isao Satō, one of the leading constitutional scholars in Japan,
167
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
168
KENPŌ art. 73, item 2 (Japan).
169
Comm. on Foreign Affs. No. 5, supra note 146, at 2 (statement of Masayoshi Ohira, Foreign
Minister).
170
Id.
171
Id.
172
Id. Exchanges of diplomatic notes about ODA is an example of the latter, and the Exchange
of Notes concerning the transfer of military technologies to the United States of America between Japan
and the U.S. is an example of the former. Yasuo Nakauchi, supra note 1, at 34.
173
Tomonori Mizushima, supra note 40, at 15. Furthermore, on the making of international
agreements to amend a part of international agreements, see Yukiko Uehara, National Implementation
of Treaties in Japan, the U.S. and the U.K.: The Role of Parliament and Treaties in the National Legal
Order, 840 THE REFERENCE 79, 84 n.27 (2021) (Japan).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 71
asserted that Japan cannot adopt the U.S. practice without any adjustments
because Japan is not a federal state.
174
Article 73 did not grant broad
authority to the Cabinet to make executive agreements, and the Cabinet
needed authorization from the Diet to do so.
175
However, executive
agreements concluded by the Emperor without any involvement from the
Privy Council have been recognized since the era of the Meiji
Constitution.
176
Technically, Article 73, Item 2 is understood to enable
the Cabinet to make such agreements. In addition, the scope of executive
agreements had been debated in the Diet and formed as a practice, and the
Ohira Three Principles established the practice and are the most famous
statements of treaties and executive agreements in Japan.
In sum, executive agreements are also international agreements in
international law. They establish the legal relationship between Japan and
other countries, but as a matter of domestic law, it matters whether the
approval of the Diet is required or not in entering into international
agreements.
177
The Japanese government has focused closely on and
explained the scope of treaties that needed the approval of the Diet.
178
The Cabinet has authority to conclude all other international agreements
and executive agreements. The Ohira Three Principles are the most
authoritative statements in Japan used to distinguish between treaties and
executive agreements, and they are relied on to determine which
agreements require the Diet’s approval.
3. The Domestic Legal Force of Executive Agreements
The constitutional provision concerning domestic legal force of
international law in Japan is Paragraph 2 of Article 98, which stipulates
that “[t]he treaties concluded by Japan and established laws of nations shall
be faithfully observed.”
179
This article enables international agreements
ratified by Japan to have domestic legal force in Japanese legal system
without special laws.
180
174
1 ISAO SATŌ, supra note 108, at 247.
175
Id. See also Takeo Matsuda, Democratic Control over the Conclusion of Treaties, 38
SHIZUOKA UNIV. J. L. & ECON. 169, 176–77, 184 (1989) (denying executive agreements without any
involvement of the Diet) (Japan).
176
Tomonori Mizushima, supra note 40, at 15–17.
177
Yasuo Nakauchi, supra note 1, at 19.
178
Takeo Matsuda, supra note 175, at 175. Takeo Matsuda also insists that the government
specify the specific reasons why treaties required the approval of the Diet. Id.
179
KENPŌ art. 98, para. 2 (Japan).
180
YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 524; Hiromichi Matsuda,
International Law in Japanese Courts, in THE OXFORD HANDBOOK OF COMPARATIVE FOREIGN
RELATIONS LAW, supra note 8, at 537, 537–38. However, some scholars criticize the theoretical result
derived from Article 98. MASAAKI SAITŌ, supra note 47, at 243–48; HIROMICHI MATSUDA,
INTERNATIONAL LAW AND CONSTITUTIONAL LEGAL SYSTEMS: THE COMPETENCE TO IMPLEMENT
72 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
The term “[t]he treaties concluded by Japan” in Article 98 refers to
international commitments between Japan and foreign countries made
through a series of necessary processes, and it is understood that the term
“treaties” in Article 98 should be interpreted more broadly than “treaties”
in Article 73.
181
Hence, the term “[t]he treaties” in Article 98 covers
international agreements between Japan and foreign countries, not just
treaties requiring the Diet’s approval, as required by Article 73.
Treaties that require the approval of the Diet are promulgated in the
Official Gazette (Kanpō). While executive agreements are made public
there, they appear in the Gaimushō Kokuji (“Public Notice of the Ministry
of Foreign Affairs”) section. But treaties appear in the Jōyaku no Kōfu
(“Promulgation of Treaties”) section.
182
Although the Japanese
government has explained that executive agreements are considered the
same as treaties approved by the Diet in determining whether legislation is
needed,
183
the government has never clarified the domestic legal force of
executive agreements or their relationship with other domestic laws.
184
It should be understood as follows. As mentioned above, executive
agreements are not promulgated differently than treaties although both are
published in the Official Gazette. As with treaties, executive agreements
are international agreements between sovereign states, so Japan must
comply with executive agreements. Since executive agreements are to
implement treaties already approved by the Diet or to manage foreign
affairs, it follows that executive agreements acquire domestic legal force.
185
They obtain such force by public notice.
186
Technically, executive
agreements are “treaties” under Paragraph 2 of Article 98, so they can be
interpreted to have domestic legal force similar to treaties approved by the
Diet.
187
INTERNATIONAL NORMS 163–68 (2020) [hereinafter HIROMICHI MATSUDA, INTERNATIONAL LAW AND
CONSTITUTIONAL LEGAL SYSTEMS] (Japan). See also YUJI IWASAWA, INTERNATIONAL LAW, HUMAN
RIGHTS, AND JAPANESE LAW, supra note 7, at 28–33.
181
2 YŌICHI HIGUCHI ET AL., THE ANNOTATED CONSTITUTION OF JAPAN 1493 (1988) (Japan); 5
DIGEST OF JAPANESE PRACTICE IN INTERNATIONAL LAW: LAW OF TREATIES 10–11 (Study Group of
Japanese International Law Practice ed., 2000) [hereinafter DIGEST OF JAPANESE PRACTICE] (Japan);
YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 524; ICHIRŌ KOMATSU, INTERNATIONAL LAW
IN PRACTICE 278–79 (3d ed. 2022) (Japan).
182
DIGEST OF JAPANESE PRACTICE, supra note 181, at 44–46.
183
H. of Councillors, Comm. on Rules and Admin. No. 25, 13th Diet 4, 6 (Mar. 12, 1952)
(statements of Katsuo Okazaki, Minister of States),
https://kokkai.ndl.go.jp/#/detail?minId=101314024X02519520312¤t=1 (Japan); H. of
Councillors, Comm. on Budget No. 7, 64th Diet 18 (Nov. 9, 1971) (statement of Masami Takatsuji,
Director-General of the Cabinet Legislation Bureau),
https://kokkai.ndl.go.jp/#/detail?minId=106715261X00719711109¤t=1 (Japan).
184
Shōtarō Taniuchi, Domestic Implementation of International Legal Norms, in INTERNATIONAL
LAW AND DOMESTIC LAW: DEVELOPMENT OF INTERNATIONAL PUBLIC INTERESTS 109, 113 (Kazuya
Hirobe & Tadashi Tanaka eds., 1991) (Japan); Yukiko Uehara, supra note 173, at 87.
185
Shōtarō Taniuchi, supra note 184, at 113.
186
Tomonori Mizushima, supra note 40, at 18.
187
See, e.g., YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 524.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 73
But a problem with executive agreements is the relationship with other
domestic laws, especially with statutes. While Shōtarō Taniuchi opines
that executive agreements naturally rank as inferior to treaties and
statutes,
188
it has been understood in Japan that Article 98 makes treaties
superior to statutes.
189
According to Yuji Iwasawa, a leading
international legal scholar and a judge of the International Court of Justice,
executive agreements can be interpreted as follows:
Most scholars consider that it is natural that executive
agreements also have the same rank as treaties approved by the
Diet, which means they are superior to domestic laws. It is
acceptable to think that executive agreements according to
authorization of treaties that require the approval of the Diet have
domestic legal force and are superior to domestic laws as treaties
that provide the basis for executive agreements. However,
executive agreements made by the government within current
laws and orders or made by the government within expenditure
should be understood to have the same rank as orders issued by
the government.
190
While scholars have discussed the domestic legal force of executive
agreements, there has not been much discussion on their rank in domestic
law, i.e. the relationship of executive agreements with other domestic legal
norms. As Iwasawa explains, executive agreements that do not require
the Diet approval have the status of treaties approved by the Diet, but their
rank should be considered in terms of types of executive agreements.
191
Iwasawa discusses two types of executive agreements: executive
agreements according to treaties with the Diet approval and executive
agreements concluded within domestic laws and/or orders and expenditure.
The former is for implementing treaties which authorize or delegate the
making of executive agreements. It can be followed that such executive
agreements acquire the same legal force as treaties which are the basis for
the making of executive agreements. Moreover, executive agreements
entered into within domestic laws and/or orders and expenditure does not
have the same legal force as treaties in the Japanese legal order. It is
because the bases of the conclusion of executive agreements are laws
188
Shōtarō Taniuchi, supra note 184, at 113.
189
See HIROMICHI MATSUDA, INTERNATIONAL LAW AND CONSTITUTIONAL LEGAL SYSTEMS,
supra note 178, at 163.
190
LECTURES ON INTERNATIONAL LAW 125 (Akira Kotera et al. eds., 2d ed. 2010) (Japan). See
also YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 524, 529.
191
See, e.g., TERUYA ABE, CONSTITUTIONAL LAW 279 (Rev. ed. 1991) (Japan).
74 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
and/or orders and expenditure, not treaties approved by the Diet. But
there are two options for the rank of such executive agreements: they are
superior or inferior to domestic laws. If they are superior to domestic
laws, then they can displace domestic laws and that allows the Cabinet to
have the legislative power through executive agreements.
192
Therefore,
executive agreements made within domestic laws or orders and
expenditure are to have the rank of orders, not of domestic laws.
In summary, executive agreements have domestic legal force in Japan.
They are international agreements which are concluded by the Japanese
government and “treaties” stipulated in Article 98, which “shall be
faithfully observed.”
193
Japan needs to comply with them. And it is
necessary to consider their rank depending on how they are made.
Executive agreements based on treaties approved by the Diet have the same
effect as the underlying treaties, which means they are superior to domestic
statutes. And executive agreements made within the current laws and
expenditure have the rank of domestic orders which are issued by the
administrative agencies, not by the Diet having the legislative power.
As mentioned in Section D of the next part, self-execution of executive
agreements has been discussed in the United States, but both Japanese
courts and scholars have rarely discussed it. Self-execution of treaties
matters in the Japanese legal system. Even if treaties have domestic legal
force, it does not follow that they are enforceable in Japanese domestic
courts.
194
Non-self-executing treaties need implementing legislation
and/or administrative measures in order for courts or the executive branch
to enforce treaties.
195
Theoretically, self-execution of executive
agreements could matter in Japan. But executive agreements are not such
international agreements as involving legislative or financial matters and
having impacts on rights and duties of individuals. Self-execution is
often discussed in courts when individuals invoke international agreements
and claim violation of their rights or noncompliance of duties of the
government.
196
Executive agreements do not cover rights and duties of
Japanese citizens. Of course, executive agreements are international
agreements which are concluded by the Japanese government and it shall
comply with those agreements as stipulated in Article 98 of the
192
See, e.g., Hajime Nishioka, Domestic Execution of International Treaties, Administrative
Agreements and International Organization Decisions in the Bonn Basic Law, 47 FUKUOKA UNIV. REV.
LAW 67, 100 (2002) (Japan).
193
KENPŌ art. 98, para. 2 (Japan).
194
YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 525. Iwasawa uses the term “direct
applicability” instead of “self-execution.” YUJI IWASAWA, DOMESTIC APPLICATION OF INTERNATIONAL
LAW: FOCUSING ON DIRECT APPLICABILITY 8 (2023).
195
YUJI IWASAWA, INTERNATIONAL LAW, supra note 165, at 510.
196
See HIROMICHI MATSUDA, INTERNATIONAL LAW AND CONSTITUTIONAL LEGAL SYSTEMS,
supra note 180, at 215–17.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 75
Constitution, but self-execution of executive agreements may not be an
issue in the Japanese legal system.
III. THE UNITED STATES
There also exists a distinction between treaties and executive agreements
in the United States. The former, an Article II treaty, is an international
agreement made through a defined Constitutional process. The second
paragraph of Article II, Section 2 provides that “[the President] shall have
Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur.”
197
Constitutionally, “treaties” refer to those made following the procedures of
Article II. However, the President may also make international
agreements without following this procedure. These agreements are
called “executive agreements.”
198
This part analyzes the history, types, and domestic legal force of
executive agreement in the United States. First, Section A describes the
drafting history of Article II of the U.S. Constitution and analyzes why the
President and the Senate were granted the power to make treaties.
Section B makes clear how executive agreements have been used since the
constitution’s adoption. Section C outlines the types of executive
agreements. Traditionally, scholars have discussed three types of
executive agreements: executive agreements according to Article II treaty;
congressional-executive agreements, which are approved by the whole of
Congress; and sole executive agreements made by the President based
solely on the position’s foreign affairs power. However, more recently,
it has been pointed out that some international agreements may not be
explained by any of these three types. Section D discusses the domestic
legal force of executive agreements in the United States.
A. The Drafting History of Article II, Section 2 of the U.S.
Constitution
The United States Declaration of Independence was adopted on July 4,
1776, and the United States, consisting of thirteen states, was born. The
thirteen states formed a confederation. Each had the perfect sovereignty,
and carrying out treaties was left to their legislatures.
199
Under the
Articles of Confederation and Perpetual Union, the Congress of the
197
U.S. CONST. art. II, § 2, cl. 2.
198
BRADLEY, supra note 12, at 79.
199
SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 153 (2d ed. 1916).
76 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Confederation, which was executive in nature,
200
had the power to make
treaties but did not have substantial authority to legislate.
201
The Articles of Confederation did not provide a framework for dealing
with treaty violations by states or for the domestic status of treaties. For
example, certain provisions in the Treaty of Paris of 1783 with Great
Britain were in conflict with existing legislation in some states,
202
which
triggered serious problems such as withdrawal of British armies from the
United States.
203
The Congress only encouraged states to follow treaties
through recommendations.
204
At the Constitutional Convention in
Philadelphia, it was agreed that the power of the national government
should be strengthened and the power to execute treaties should be granted
to the national government.
205
Although the Framers agreed that the
federal government, not state governments, should have the power to make
treaties,
206
they disputed which branch of government should have that
power. According to Arthur Bestor, a distinguished scholar of
constitutional history, there was no suggestion that decisions on diplomatic
policy be left exclusively to the executive until just before the
Constitutional Convention.
207
Previously, conducting diplomatic
relations was considered a shared power of the legislative and the executive
branches.
208
However, there was no specific discussion on which branch
had the power to make treaties.
It was only when drafts prepared in the Committee of Detail were being
discussed that the location of this power was debated for the first time,
although the delegates debated some drafts including the Virginia and New
Jersey Resolutions.
209
The Committee of Detail consisted of five
200
John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original
Understanding, 99 COLUM. L. REV. 1955, 2009 (1999).
201
DAVID L. SLOSS, THE DEATH OF TREATY SUPREMACY: AN INVISIBLE CONSTITUTIONAL
CHANGE 15, 17 (2016).
202
CRANDALL, supra note 199, at 36–37; FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL:
FOREIGN AFFAIRS AND THE MAKING OF THE CONSTITUTION 5-11 (1986).
203
Yoo, supra note 200, at 1980, 2005; CHRISTOPHER R. DRAHOZAL, THE SUPREMACY CLAUSE:
A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 8 (2004); SLOSS, supra note 201, at 17–19.
204
James Madison, Vices of the Political System of the United States, in 9 THE PAPERS OF JAMES
MADISON 348–58 (William T. Hutchinson et al. eds., 1975); 1 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787 18, 19 (Max Farrand ed., 1911) (statement of Edmund Randolph on defects of the
Confederation).
205
SLOSS, supra note 201, at 23.
206
See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 22, 28, 135 (Max Farrand ed.,
1911).
207
Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of
Treaties―The Original Intent of the Framers of the Constitution of the Historically Examined, 55 WASH.
L. REV. 1, 73 (1979).
208
Id. at 72–73.
209
A resolution suggested by Charles Pinckney on May 29 granted the treaty-making power to
the Senate. 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 595, 599 (Max Farrand ed., 1911).
See also 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 204, at 292 (the amendments
suggested by Alexander Hamilton to the Virginia Plan on June 18, which granted to the executive branch
the power to make treaties with the Senate).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 77
members: John Rutledge (the chairman), James Wilson, Edmund
Randolph, Oliver Ellsworth, and Nathaniel Gorham.
210
The Convention
started in May 1787 and was adjourned for ten days from July 27 in order
for the Committee to prepare for the drafts of the constitution.
211
The first draft was written by Randolph, with notes made by Rutledge.
212
It granted the power to make commerce, peace, and alliance treaties only
to the Senate.
213
Among the powers of the executive branch, the only one
related to foreign affairs was the power to receive and send ambassadors.
214
Randolph inserted the new idea to grant the power of important foreign
affairs to the Senate.
215
The reason why this power was not granted to the
executive branch was that many thought the Senate would be to function
as the executive, like it did under the Articles of Confederation.
216
On August 6, 1787, a draft of the article was reported by the Committee
of Detail to the Constitutional Convention and included the following
language
217
: “The Senate of the United States shall have power to make
treaties, and to appoint Ambassadors, and Judges of the Supreme Court.”
218
The delegates had “a tacit assumption” that the power to make treaties
would be granted to the Senate.
219
Granting that power exclusively to the
Senate meant that the delegates considered the Senate to have continuity
and enough experience with diplomacy from the long-standing and
national perspective.
220
The draft was debated in the Convention for one and a half months.
221
In the early stages, it was preferred for the Senate to have the power to
make treaties, but during a debate over the power of both legislative houses
to determine expenditures, an opinion was expressed that the executive
branch should have the treaty-making power.
222
210
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 97.
211
Id. at 85–87, 128; 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 204, at
xxii.
212
William Ewald, The Committee of Detail, 28 CONST. COMMENT 197, 220 (2012).
213
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 144–145.
214
Id. at 145–46.
215
Ewald, supra note 212, at 228. As mentioned in supra note 209, the draft made by Charles
Pinckney on May 29 already offered this idea but there was no discussion on it. 3 THE RECORDS OF THE
FEDERAL CONVENTION OF 1787, supra note 209, at 595.
216
Ewald, supra note 212, at 233–34.
217
Other drafts which seemed to be debated in the Committee of Detail also granted the treaty-
making power to the Senate. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at
155, 169. Additionally, the last draft included an article like the Supremacy Clause. Id. at 169.
218
Id. at 183.
219
Bestor, supra note 207, at 93.
220
Id. at 93–94 (citing and quoting 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra
note 204, at 426 (statement of James Wilson)).
221
See 1 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL
CONSTITUTION 121–22 (Jonathan Elliot ed., 2d ed. 1891).
222
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 297 (statement of
John Francis Mercer). It should be noted, however, that this opinion wasn’t adopted. George Mason
78 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
On August 23 the delegates debated directly on the treaty-making
power.
223
According to Randolph, “almost every Speaker had made
objections to the clause as it stood.”
224
Gouverneur Morris suggested
adding terms that “no Treaty shall be binding on the U.S. which is not
ratified by a law.”
225
James Wilson was concerned that only the Senate
had the treaty-making power and upheld Morris’s suggestion.
226
But in
the end, the amendment suggested by Morris was not passed.
227
James
Madison pointed out that the Senate was representative only of each state,
and the President—who represented all the states—should have the treaty-
making power.
228
After rejecting Morris’s suggestion, Madison
suggested that the treaty-making power should be changed to specify the
kinds of treaties that the House of Representatives should be involved in to
give the consent of the entire Congress.
229
The issue was not resolved that day, and the draft was supposed to be
discussed again at the Committee of Detail.
230
But it was actually
submitted to the Committee of Eleven, which considered issues set aside
or not worked on.
231
The Committee of Eleven submitted a second draft
to the Constitutional Convention on September 4 that provided: “[t]he
President by and with the advice and consent of the Senate, shall have
power to make treaties: . . . But no Treaty ⟨except Treaties of Peace⟩ shall
be made without the consent of two thirds of the Members present.”
232
The difference between this draft and the earlier draft was that the
President had the treaty-making power, but required “advice and consent”
of the Senate. The second draft made clear that the Senate’s consent
upheld the treaty-making power exclusively granted to the Senate, considering a balance with the power
of the House of Representatives to determine money bills. Bestor, supra note 207, at 103 (citing and
quoting 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 297–98 (statement
of George Mason)).
223
Bestor, supra note 207, at 101–02, 107.
224
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 393.
225
Id. at 392.
226
Id. at 393.
227
Id. at 393–94.
228
Id. at 392.
229
Id. at 394. This debate was on whether the House should have been involved in the treaty-
making process, not on whether treaties needed legislations to have domestic legal force in the U.S.
Many scholars agree that there was no disagreement with the idea that treaties have legal force in the
U.S. without implementing legislation. See John T. Parry, Congress, the Supremacy Clause, and the
Implementation of Treaties, 32 FORDHAM INT’L L. J. 1209, 1226 n.89 (2009); Martin S. Flaherty,
Historical Right?: Historical Scholarship, Original Understanding, and Treaties as ‘Supreme Law of
the Land’, 99 COLUM. L. REV. 2095, 2123–24 (1999); Vasan Kesavan, The Three Tiers of Federal Law,
100 NW. U. L. REV. 1479, 1533–34 (2006).
230
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 394.
231
Id. at 473. This committee consisted of members delegated from each state and is called “the
Committee on Postponed Parts,” “the Committee on Postponed Matters,” or “the Committee on
Remaining Matters.” RAY RAPHAEL, MR. PRESIDENT: HOW AND WHY THE FOUNDERS CREATED A CHIEF
EXECUTIVE 294 n.5 (2012).
232
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 495; see also id.
at 498–99.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 79
meant two-thirds of the Senators present. That said, the second draft did
not add any language regarding the role of the House of Representatives in
the treaty-making process.
233
The Committee of Eleven’s draft was debated on September 7.
234
With
regard to the provision that gave the President and the Senate power to
make treaties, Wilson suggested requiring the consent of the House.
235
He explained that since treaties “[were] to have the operation of laws, they
ought to have the sanction of laws also.”
236
But that suggestion was
rejected.
237
According to Roger Sherman, who was concerned about the
confidentiality of treaty-making, the consent of the Senate was
sufficient.
238
Moreover, Wilson argued against the provision requiring two-thirds of
the Senators to be present, pointing out that a minority of the Senate would
be able to control the intent of the majority.
239
Rufus King supported
Wilson, stating that it would give rise to a checks and balances system
which had not existed in the Confederated Congress.
240
However,
because there was no official challenge regarding that point, it was never
voted on.
241
Afterward, on September 8, the suggestion of an exception to peace
treaties was rejected at the Constitutional Convention,
242
and a draft was
suggested on the number of votes (two-thirds or the majority) but neither
of them was passed.
243
Eventually, the Committee of Style was created to revise the style of
articles and arrange them.
244
An article on the treaty-making power
submitted to the Committee by the Constitutional Convention was the
same as the one prepared by the Committee of Eleven.
245
However, the
article submitted on September 12 by the Committee of Style, which
consisted of Alexander Hamilton, William Johnson, King, Madison, and
Morris, was the same as the current constitution
246
and became final on
September 17 after signing.
247
233
Bestor, supra note 207, at 114.
234
Id. at 113.
235
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 538.
236
Id.
237
Id.
238
Id.
239
Id. at 540.
240
Id.
241
Id.
242
Id. at 544; see also id. at 540–41, 547–49.
243
Id. at 544–50.
244
Id. at 553.
245
Id. at 565, 574.
246
Id. at 590, 599.
247
Id. at 648–49.
80 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Thus, the provision of the Constitution for the treaty-making power was
made. As Bestor, who closely studied the treaty-making power clause,
pointed out, none of the delegates challenged the idea that the President
had that power, and there was not any opposition to the advice and consent
of the Senate.
248
All of the arguments focused instead on the two-thirds
rule and the involvement of the House of Representatives.
One reason why the House was excluded from the treaty-making process
was due to the confidentiality of treaty-making.
249
Moreover, some in the
ratification debates of the state conventions insisted on the equality in the
Senate.
250
According to Oona A. Hathaway, a renowned international
law scholar, there were two reasons why the power to make treaties was
granted to the President and the Senate. First, the Senate was supposed
to function as a “council of advisors” to the President by participating
directly in negotiating treaties.
251
Second, Senate participation was to
designed to prevent the federal government from abandoning the local
interest of the states.
252
In addition to functions of the Senate, another reason why the Framers
involved the Senate in the treaty-making process was that the legislative
branch should be involved in that process since the treaty-making power
had the legislative character rather than the executive character and treaties
had force as law.
253
According to the Framers, “[i]t must indeed be clear,
to a demonstration, that the joint possession of the [treaty-making power],
by the president and senate, would afford a greater prospect of security,
than the separate possession of it by either of them.”
254
And the House
was “very little fit for the proper discharge of the trust.”
255
248
Bestor, supra note 207, at 124.
249
2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 206, at 538 (statement of
Roger Sherman); THE FEDERALIST, No. 64 (John Jay). However, according to Oona A. Hathaway, this
view was not shared by all Framers. Gouverneur Morris, James Wilson, and James Madison were in
favor of the involvement of the House of Representatives in the treaty-making process. Oona A.
Hathaway, Treaties’ End: The Past, Present, and Future of International Law Making in the United
States, 117 YALE L.J. 1236, 1278 (2008) [hereinafter Hathaway, Treaties’ End]. For further background
on the role of the House of Representatives in treaties, such as its influence and implementation, see
ELBERT M. BYRD, JR., TREATIES AND EXECUTIVE AGREEMENTS IN THE UNITED STATES: THEIR
SEPARATE ROLES AND LIMITATIONS 30–35 (1960).
250
2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: RATIFICATION
OF THE CONSTITUTION BY THE STATES (PENNSYLVANIA) 563 (Merrill Jensen ed., 1976) (statement of
James Wilson); 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION:
RATIFICATION OF THE CONSTITUTION BY THE STATES (VIRGINIA, No. 3) 1241 (John P. Kaminski et al.
eds., 1993) (statement of James Madison); 4 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 119–20 (Jonathan Elliot ed., 2d ed. 1891) (statement of
William R. Davie).
251
Hathaway, Treaties’ End, supra note 249, at 1278.
252
Id. John Jay pointed out consideration of state interests. THE FEDERALIST, No. 64 (John Jay).
253
THE FEDERALIST, No. 75 (Alexander Hamilton).
254
Id. See also id. (“we shall not hesitate to infer, that the people of America would have greater
security against an improper use of the power of making treaties, under the new constitution, than they
now enjoy under the confederation.”).
255
Id.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 81
Finally, the Supremacy Clause provides that:
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any
state to the Contrary notwithstanding.
256
To ensure compliance with treaties by the constituent states, there were
some suggestions at the Constitutional Convention, including abrogation
of conflicting state law by the Congress.
257
But those suggestions were
not passed,
258
and Ruther Martin submitted a draft that was very similar to
the Supremacy Clause.
259
In the end, the Supremacy Clause was adopted
through the Committee of Details
260
and the Committee of Style.
261
At
the Constitutional Convention, there were no delegations who disagreed
about the status of treaties as the supreme law of the land.
262
The
Supremacy Clause was made to deal with treaty violations by states by
giving the status of “the supreme Law of the Land” to treaties made by the
President and the Senate.
263
Thus, the U.S. Constitution adopted at the Constitutional Convention
and ratified by states granted the power to make treaties to the federal
government and ensured treaty supremacy over state law—especially, for
those treaties approved by the President and the Senate. The Senate was
considered to be appropriate for its functions, confidentiality of the treaty-
making process, and checks over the President. However, almost
immediately after the adoption of the Constitution, the practice of entering
international agreements without following the constitution’s process
began to emerge.
256
U.S. CONST. art. VI, cl. 2.
257
1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 204, at 54. 2 THE
RECORDS OF THE FEDERAL CONVENTION, supra note 206, at 27–28 (July 17, 1787) (statement of James
Madison). See also DRAHOZAL, supra note 203, at 12–16, 19.
258
See 2 THE RECORDS OF THE FEDERAL CONVENTION, supra note 206, at 28.
259
Id. at 21–22, 28–29.
260
Id. at 176, 183, 389. For an early draft of the Supremacy Clause, see id. at 144; DRAHOZAL,
supra note 203, at 21–23.
261
2 THE RECORDS OF THE FEDERAL CONVENTION, supra note 206, at 48–49. For more detailed
discussion on the making of the Supremacy Clause, see SLOSS, supra note 201, at 23–46; Parry, supra
note 229, at 1222–73.
262
See Parry, supra note 229, at 1227. See also JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS
AND IDEAS IN THE MAKING OF THE CONSTITUTION 264 (1996) (pointing out that the Framers had in mind
that the clause would give treaties the force of law).
263
See SLOSS, supra note 201, at 23–25; Parry, supra note 229, at 1227. See also Carlos M.
Vázquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, 1160 (1992)
(underscoring the importance of the courts in treaty interpretation and enforcement).
82 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
B. The History of Executive Agreements
Although Article II requires the President and the Senate to make
treaties, executive agreements made without following Article II’s
procedure were concluded right after the adoption of the Constitution.
Research from the Congressional Research Service makes clear that sixty
treaties and twenty-seven executive agreements were made from 1789 to
1839.
264
Over the next fifty years, executive agreements exceeded Article
II treaties.
265
Since the 1940s, over ninety percent of international
agreements in the United States have been executive agreements.
266
Glen S. Krutz and Jeffrey S. Peake argue that there were two ideas on
treaty-making during the making of the Constitution. One was that treaty
negotiation was an exclusive area of the executive branch, and the Senate
merely approved the already negotiated and signed treaties.
267
The
second idea was that the Senate was already involved in treaties at the stage
of negotiation.
268
However, George Washington, the first President of the United States,
did not consider the treaty-making process to be the exclusive field of the
executive branch; he treated the Senate as “an executive council.”
269
Nonetheless, by the end of the second term of his administration, he had
not consulted with the Senate before the negotiation of any treaties.
270
President Washington’s approach would find a home in present practice,
where the “advice and consent”
271
of the Senate means consent alone.
264
CONG. RSCH. SERV., S. REP. NO. 106-71, TREATIES AND OTHER INTERNATIONAL
AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 39 (2001) [hereinafter CONG. RSCH. SERV.,
TREATIES AND OTHER INTERNATIONAL AGREEMENTS].
265
Id.
266
Bradley & Goldsmith, supra note 1, at 1210.
267
GLEN S. KRUTZ & JEFFREY S. PEAKE, TREATY POLITICS AND THE RISE OF EXECUTIVE
AGREEMENTS: INTERNATIONAL COMMITMENTS IN A SYSTEM OF SHARED POWERS 27 (2011).
268
Id. According to Louis Fisher, the Framers’ intent was that the Senate be directly involved in
treaty-making. Louis Fisher, Congressional Participation in the Treaty Process, 137 U. PA. L. REV.
1511, 1512–14 (1989).
269
Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential
Agreements: Interchangeable Instruments of National Policy: II, 54 YALE L.J. 534, 546 (1945). See also
Evan Todd Bloom, The Executive Claims Settlement Power: Constitutional Authority and Foreign
Affairs Applications, 85 COLUM. L. REV. 155, 170 n.79 (1985); Fisher, supra note 268, at 1512–13;
Hathaway, Treaties’ End, supra note 249, at 1280; KRUTZ & PEAKE, supra note 267, at 31–32.
270
Myres S. McDougal & Asher Lans, Treaties and Congressional-Executive or Presidential
Agreements: Interchangeable Instruments of National Policy: I, 54 YALE L.J. 181, 207 (1945);
Hathaway, Treaties’ End, supra note 249, at 1280, 1308; Michael D. Ramsey, The Treaty and Its Rivals:
Making International Agreements in U.S. Law and Practice, in SUPREME LAW OF THE LAND? DEBATING
THE CONTEMPORARY EFFECTS OF TREATIES WITHIN THE UNITED STATES LEGAL SYSTEM 282, 291
(Gregory H. Fox et al. eds., 2017) [hereinafter Ramsey, The Treaty and Its Rivals].
271
U.S. CONST. art. II, § 2, cl. 2.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 83
Scholars also point out that executive agreements were used early on,
immediately after the Constitution’s adoption.
272
One of the important
practices President Washington established was negotiating and enacting
executive agreements.
273
For example, the first executive agreement
under the Washington Administration was one according to a statute of
1792.
274
And another congressional-executive agreement was between
the United States and Mexico under the administration of John Tyler: the
annexation of Texas. That was passed on a joint resolution on March 1,
1845.
275
Furthermore, Hawaii was annexed by a joint resolution in
1898.
276
272
See, e.g., Peter John Lesser, Superseding Statutory Law By Sole Executive Agreement: An
Analysis of the American Law Institute’s Shift in Position, 23 VA. J. INT’L L. 671, 672–73 (1983); LOUIS
HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 173 (2d ed. 1996).
273
Bruce Stein, Note, Presidential Foreign Policy Powers: The Framers’ Intent and the Early
Years of the Republic, 11 HOFSTRA L. REV. 413, 463 (1982). On the Framers’ assumption of executive
agreements, see Wienczyslaw J. Wagner, Treaties and Executive Agreements: Historical Development
and Constitutional Interpretation, 4 CATH. U. L. REV. 95, 100 (1954); Arthur W. Rovine, Separation of
Powers and International Executive Agreements, 52 IND. L.J. 397, 409–11 (1977); Michael D. Ramsey,
Executive Agreements and the (Non) Treaty Power, 77 N.C. L. REV. 133, 133 (1998) [hereinafter
Ramsey, Executive Agreements]; Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA.
L. REV. 1573, 1581–1607 (2007).
274
Based on Section 26 of An Act to Establish the Post-Office and Post Roads within the United
States of 1792 (Postal Service Act of 1792, ch. 7 § 26, 1 Stat. 232, 239), Timothy Pickering, then
Postmaster, made an agreement with Canada, which was the first congressional-executive agreement
made by the U.S. WALLACE MCCLURE, INTERNATIONAL EXECUTIVE AGREEMENTS: DEMOCRATIC
PROCEDURE UNDER THE CONSTITUTION OF THE UNITED STATES 38 (1941); McDougal & Lans, supra
note 270, at 239–40; BYRD, supra note 249, at 150; Deborah Godich Hardwick, Comments: The Iranian
Hostage Agreement Cases: The Evolving Presidential Claims Settlement Power, 35 SW. L.J. 1055, 1060
(1982); Bloom, supra note 269, at 173; Ingrid Brunk Wuerth, The Dangers of Deference: International
Claim Settlement by the President, 44 HARV. INT’L L.J. 1, 21 n.154 (2003). However, there is a view
which considers the Texas annexation as the first congressional-executive agreement. Vasan Kesavan &
Michael Stokes Paulsen, Let’s Mess With Texas, 82 TEX. L. REV. 1587, 1593 (2004).
Scholars disagree about the first executive agreement in the U.S., and it depends on how they are
classified. KRUTZ & PEAKE, supra note 267, at 207 n.19. Before 1792, making international agreements
was not explicitly authorized, but section 2 of 1790 authorized the president to borrow money from
foreign countries on behalf of the nation. An Act making provision for the [payment of the] Debt of the
United States, 1 Stat. 138, 139 (1790). See also BYRD, supra note 249, at 150, 53 n.146; Sharon G.
Hyman, Executive Agreements: Beyond Constitutional Limits?, 11 HOFSTRA L. REV. 805, 805 n.5
(1983); S. DOC. NO. 112-9, at 549 (2017).
275
4 Miller 689 (Hunter Miller ed., 1934). One scholar understood the Louisiana Purchase of
1803 under the Jefferson Administration to be an executive agreement. See LAWRENCE MARGOLIS,
EXECUTIVE AGREEMENTS AND PRESIDENTIAL POWER IN FOREIGN POLICY 6–7 (1986). However, it was
in fact an Article II treaty. RUFUS BLANCHARD, DOCUMENTARY HISTORY OF THE CESSION OF LOUISIANA
TO THE UNITED STATES TILL IT BECAME AN AMERICAN PROVINCE WITH AN APPENDIX 30 (1903); John
C. Yoo, Laws as Treaties: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L.
REV. 757, 766 (2000).
276
For a critique of the annexations of Texas and Hawaii as congressional-executive agreements,
see Edwin Borchard, Treaties and Executive Agreements―A Reply, 54 YALE L.J. 616, 650 n.135 (1945).
In addition to such agreements, Hathaway enumerates the agreements with island nations surrounding
the U.S. Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119
YALE L.J. 140, 172 (2009) [hereinafter Hathaway, Presidential Power over International Law].
84 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
As mentioned earlier in this section, Article II treaties were the primary
U.S. international agreements for 100 years after independence.
277
Nevertheless, after that, executive agreements were made more often. That
was triggered by the McKinley Act of 1890, a customs law.
278
Section 3
of the Act authorized the President to suspend the free trade of sugar,
coffee, and other goods if he or she determined customs imposed by
countries importing merchandise to the United States to be “reciprocally
unequal and unreasonable.”
279
This allowed the President to negotiate
agreements with foreign countries on customs for establishing mutual
trade. Based on that legislation, President Benjamin Harrison entered
into commerce agreements with over ten countries including the United
Kingdom and Germany.
280
Additionally, in 1934, the U.S. Congress passed the Reciprocal Tariff
Act, which expanded the use of executive agreements to decrease customs
on more merchandise than was covered under the McKinley Act.
281
The
Supreme Court upheld the authorization to the President in the McKinley
Act, and later decisions upheld similar acts, which led to the establishment
of the practice of congressional-executive agreements.
282
Although the
McKinley Act did not delegate the legislative power to the President, the
Supreme Court acknowledged that the McKinley Act empowered the
President to carry out congressional policy by entering into reciprocal
agreements.
283
In other words, the Supreme Court found congressional-
executive agreements to be constitutional,
284
which led to the proliferation
of those types of agreements.
The first executive agreement based on the President’s own power
alone—a sole executive agreement—was an international agreement in
1799.
285
President John Quincy Adams entered into an agreement with
the Netherlands for the settlement of U.S. citizen claims for lost cargo in
the American schooner Wilmington Packet,
286
which was seized by a
Dutch privateer. This agreement was the first executive agreement on
277
CONG. RSCH. SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 264, at
39.
278
Hathaway, Presidential Power Over International Law, supra note 276, at 173.
279
Tariff Act of 1890, ch. 1244, § 3, 26 Stat. 567, 612 (1890).
280
See 5 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 303–05 (1906); John Bassett
Moore, Treaties and Executive Agreements, 20 POL. SCI. Q. 385, 394 (1905).
281
Reciprocal Trade Agreements Act, ch. 474, 48 Stat. 943 (1934).
282
Hathaway, Treaties’ End, supra note 249, at 1297–98, nn.167–68; Field v. Clark, 143 U.S.
649, 651, 692–94 (1892).
283
Field v. Clark, 143 U.S. at 692–93.
284
QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 106 (1922); Hathaway,
Treaties’ End, supra note 249, at 1295–97.
285
MCCLURE, supra note 274, at 43–44; Wuerth, supra note 274, at 21; Ryan M. Scoville, Ad
Hoc Diplomats, 68 DUKE L.J. 907, 968–69 n.327 (2019).
286
Settlement of the Case of the Schooner “Wilmington Packet,” Neth.-U.S., Dec. 12, 1799,
reprinted in 5 Miller 1075–80.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 85
settlement of claims,
287
and it is established now that such agreements are
made on the President’s power alone.
288
Another major sole executive
agreement was the Rush-Bagot Agreement of 1817 with Great Britain
289
under the Monroe Administration (although President Monroe sought
Senate approval afterward).
290
Moreover, sole executive agreements in the nineteenth century were also
made to fulfill provisional or temporary international obligations.
291
For
example, the Cartel for the Exchange of Prisoners of War with Great
Britain was signed in 1813.
292
But this agreement was superseded by the
Treaty of Ghent of 1814,
293
so the Cartel was classified as a provisional,
sole executive agreement.
These early sole executive agreements generally fell within the domain
of the executive branch and were limited in their use. As a result, they
287
American Insurance Ass’n v. Garamendi, 539 U.S. 396, 415 (2003); Roman Pipko & Jonathan
S. Sack, Rediscovering Executive Authority: Claims Settlement and Foreign Sovereign Immunity, 10
YALE J. INT’L L. 295, 320 (1985); Daniel Bodansky & Peter Spiro, Executive Agreements+, 49 VAND. J.
TRANSNAT’L L. 885, 903 (2016). See also Dames & Moore v. Regan, 453 U.S. 654, 679–80 (1981).
288
Executive agreements made on claims settlements were for cases in which the U.S. or one of
its citizens was the recipient of foreign funds. Hathaway, Presidential Power over International Law,
supra note 276, at 171 n.90; Hathaway, Treaties’ End, supra note 249, at 1290.
While many scholars understand the international agreement on the Wilmington Packet to be the
first sole executive agreement, Robert J. Reinstein points out that two secret sole executive agreements
between the U.S. and Great Britain on St. Domingue took place under the Adams Administration. Robert
J. Reinstein, Slavery, Executive Power and International Law: The Haitian Revolution and American
Constitutionalism, 53 AM. J. LEGAL HIST. 141, 165 (2013). The first one provided for the framework for
a tripartite convention between the two countries and Toussaint Louverture, and the second one had to
do with commerce, diplomacy, and the military. Reinstein, id. at 165–72.
289
Rush-Bagot Agreement, Gr. Brit.-U.S., Apr. 28, 1818, 8 Stat. 231.
290
The Rush-Bagot Agreement was signed between Acting Secretary of State Richard Rush and
Charles Bagot, who was British Ambassador to the U.S. It limited the naval forces on the Great Lakes
after the War of 1812.
The Rush-Bagot Agreement was a sole executive agreement since it was made
through an exchange of notes to limit the naval forces on the Great Lakes and the President did not
acquire the congressional and senatorial approval for that. On the interaction of Congress and the
President on the Rush-Bagot Agreement, see Hathaway, Presidential Power Over International Law,
supra note 276, at 170–71.
Kevin C. Kennedy considers the Rush-Bagot Agreement to be the first sole executive agreement,
while Louis Henkin considered it a congressional-executive agreement. Kevin C. Kennedy,
Congressional-Executive Tensions in Managing the Arms Control Agenda―Who’s in Charge?, 16 N.C.
J. INT’L L. & COM. REG. 15, 23, n.47 (1991). Cf. HENKIN, supra note 272, at 219, 498 n.166.
Some understand the Rush-Bagot Agreement to be an Article II treaty. Michael D. Ramsey insists
that this agreement and the annexation of Texas should be understood to confirm the superiority of
Article II treaties and the role of the Senate. Ramsey, The Treaty and Its Rivals, supra note 270, at 294–
95. See also Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 817
n.57 (1995) (arguing that how the form of the agreement should be evaluated is “the subject of countless
debates”); Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements,
86 CAL. L. REV. 671, 738–39 (1998) (explaining the reasons for the debate about the Rush-Bagot
Agreement); Clark, supra note 273, at 1583–84 (enumerating the Rush-Bagot Agreement as an example
of limited use of earlier executive agreements).
291
Hathaway, Presidential Power Over International Law, supra note 276, at 171 n.90.
292
Cartel for the Exchange of Prisoners of War between Great Britain and the United States of
America, Gr. Brit.-U.S., May 12, 1813, in 2 Miller 557.
293
Treaty of Ghent, Gr. Brit.-U.S., Dec. 24, 1814, 2 Miller 574.
86 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
rarely provoked constitutional controversy.
294
They are based on the
presidential powers, such as the Chief Executive
295
and the Commander-
in-Chief of the army and navy.
296
Furthermore, there were a few
executive agreements concluded under Article II treaties.
297
Until the nineteenth century, international agreements were rarely
approved by Congress after their negotiation. However, in the New Deal
era, President Franklin D. Roosevelt made a habit of negotiating
agreements by himself and only then seeking the approval of Congress.
298
There were some difficulties in making Article II treaties. For example, the
Senate rejected the Treaty of Versailles in 1919.
299
This was a trigger for
the development of ex post congressional-executive agreements. During
the interwar period, this type of executive agreement came to be made in
lieu of Article II treaties. One example was an agreement for the United
States to join the International Labour Organization.
300
In the late twentieth century, the North American Free Trade Agreement
and the Agreement Establishing the World Trade Organization were
entered into as executive agreements. These were based on the Trade Act
of 1974
301
and the Omnibus Trade and Competitiveness Act of 1988,
302
which granted trade promotion authority—or fast-track negotiation
authority—to the President.
303
Since Congress had the constitutional
power to regulate commerce, it granted the President the authority to
294
Clark, supra note 273, at 1584. For more earlier executive agreements, see also Ramsey,
Executive Agreements, supra note 273, at 173–83.
295
U.S. Const. art. II, § 1, cl. 1.
296
Id. art. II, § 2, cl. 1.
297
See Hathaway, Presidential Power Over International Law, supra note 276, at 171 n.91; see
also Hathaway’s list of such agreements. Id. Examples of the limited amounts of agreements that were
made by the early 1900s include the Declaration of the Commissioners on Delimitation of the St. Croix
River under Article 5 of the Jay Treaty (Declaration of the Commissioners under Article 5 of the Jay
Treaty, Gr. Brit.-U.S., Oct. 25, 1798, 2 Miller 430), the Declaration of the Commissioners under Article
4 of the Treaty of Ghent (Declaration of the Commissioners under Article 4 of the Treaty of Ghent, Gr.
Brit.-U.S., Nov. 24, 1817, 2 Miller 655), and the Declaration of Accession to the Stipulations Contained
the Convention of 1854 with Russia.
Declaration of Accession to the Stipulations Contained the
Convention with Russia of July 22, 1854, June 9, 1855, in 7 Miller 139. See also CRANDALL, supra note
199, at 117–19.
298
Hathaway, Treaties’ End, supra note 249, at 1289–99. See also Ackerman & Golove, supra
note 290, at 813–15, 860–61.
299
Edwin Borchard, Shall the Executive Agreement Replace the Treaty?, 53 YALE L.J. 664, 664–
65 (1944); McDougal & Lans, supra note 269, at 558–59; Hathaway, Treaties’ End, supra note 249, at
1301–02.
300
48 Stat. 1182 (1934); 22 U.S.C. § 271 (1934). There was also a debate that the Statute of the
Permanent International Court of Justice should be made as an executive agreement. Hathaway, Treaties’
End, supra note 249, at 1299–1300.
301
Section 1103 of the Omnibus Trade and Competitiveness Act of 1988, 102 Stat. 1107, 1128.
302
Section 151 of An Act to promote the development of an open, nondiscriminatory, and fair
world economic system, to stimulate fair and free competition between the United States and foreign
nations, to foster the economic growth of, and full employment in, the United States, and for other
purposes, 88 Stat. 1978, 2001.
303
JANE M. SMITH ET AL., CONG. RSCH. SERV., RL97896, WHY CERTAIN TRADE AGREEMENTS
ARE APPROVED AS CONGRESSIONAL-EXECUTIVE AGREEMENTS RATHER THAN TREATIES 1 (2013).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 87
negotiate trade agreements for the removal of non-tariff barriers and trade
conflicts. At present, trade agreements are made as executive agreements
following those expedited procedures (trade promotion authority).
304
Prior to the twentieth century, authority to make sole executive
agreements was related to presidential constitutional powers as seen
above.
305
But sole executive agreements were broadened to cover
agreements on the settlement of claims which triggered a constitutional
question regarding their authority and scope. During the twentieth
century, sole executive agreements were used more frequently, and their
scope began to broaden. International agreements altering the preexisting
legal rights of U.S. citizens, such as claims—which would have previously
been made as Article II treaties—came to be made as sole executive
agreements.
306
Examples include the Algiers Accords of 1981 with Iran
providing for the release of hostages, the transfer of frozen Iranian assets,
and the establishment of the Iran–U.S. Claims Tribunal
307
and the
Agreement Concerning the Foundation Remembrance, Responsibility and
the Future with Germany for resolving some issues during the German
Nazi era.
308
More than 90 percent of international agreements that are made by the
United States are now executive agreements.
309
The U.S. Constitution
requires both the President and the Senate to be involved in the treaty-
making process, but soon after the adoption of the Constitution, many
international agreements were made without following the Article II
procedure. Already during the Washington Administration, executive
agreements were concluded based on federal statutes. After that, other
congressional-executive agreements were made, such as the Texas
annexation. In the late nineteenth century, some tariff acts triggered the
increase of congressional-executive agreements, in particular the
304
IAN F. FERGUSSON & CHRISTOPHER M. DAVIS, CONG. RSCH. SERV., R43491, TRADE
PROMOTION AUTHORITY (TPA): FREQUENTLY ASKED QUESTIONS 1–3 (2019); Kathleen Claussen &
Timothy Meyer, The President’s (and USTR’s) Trade Agreement Authority: From Fisheries to IPEF,
LAWFARE (July 18, 2022, 9:01 AM), https://www.lawfaremedia.org/article/presidents-and-ustrs-trade-
agreement-authority-fisheries-ipef; CONG. RSCH. SERV., IF10038, TRADE PROMOTION AUTHORITY
(TPA) (2022), https://crsreports.congress.gov/product/pdf/IF/IF10038; 19 U.S.C. § 4202.
305
See Clark, supra note 273, at 1631–32. Moreover, the distinction between sole executive
agreements and treaties on the settlement of claims used to be clear. Ramsey, Executive Agreements,
supra note 273, at 201–02. Bradford R. Clark points out that the scope of sole executive agreements on
the settlement of claims was related to the enactment of the Foreign Sovereign Immunities Act of 1976,
P.L. 94-583, 90 Stat. 2891, which abrogated absolute immunity of foreign states from suit on. In sum,
before 1976 there was no other way other than sole executive agreements made by the President for U.S.
nationals to receive compensation from foreign countries. Clark, supra note 273, at 1576.
306
Clark, supra note 273, at 1584.
307
On the relevant agreements which collectively make up the Algiers Accords, see 20 I.L.M.
223–40 (1981); see also 1 Iran-U.S. Cl. Trib. Rep. 3–25 (1983).
308
Agreement Concerning the Foundation “Remembrance, Responsibility And the Future,” Ger.-
U.S., July 17, 2000, 39 I.L.M. 1298 (2000).
309
Bradley & Goldsmith, supra note 1, at 1210.
88 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
reciprocity agreements. And there were some sole executive agreements
made by the President based on his own authorities, including as the
Commander-in-Chief. Executive agreements pursuant to Article II treaty
were also entered into by the President. In the twentieth century, ex post
congressional-executive agreements emerged in the field of international
organizations and trade and commerce. Finally, the scope of sole
executive agreements widened enough to cover many topics which were
not dealt with in sole executive agreements until the twentieth century.
While one scholar points out that Article II, Section 2, Clause 2 has never
functioned as the Framers expected,
310
the fact remains that executive
agreements have been utilized very often, and such agreements are very
important to American diplomatic relations.
C. The Various Types of Executive Agreements
As outlined in the previous section, in the United States, executive
agreements have been used since the writing of the Constitution. This
section analyzes classifications of executive agreements in the United
States Traditionally, American executive agreements have been classified
into three types of executive agreements. However, some scholars
recently claim other types of executive agreements.
1. The Traditional Classification of Executive
Agreements
At present, there are three types of executive agreements:
311
executive
agreements according to Article II treaties, congressional-executive
agreements ex ante or ex post approved by Congress, and sole executive
agreements made by the President on his or her own authority. This
classification, which is according to the involvement of Congress, is
typical and traditional.
312
First, the President can make executive agreements pursuant to treaty
313
because some treaties explicitly or implicitly authorize or provide for the
310
Nigel Purvis, Paving the Way for U.S. Climate Leadership: The Case for Executive
Agreements and Climate Protection Authority 10–11 (Apr. 15, 2008) (Discussion Paper RF DP 08-09,
Research for the Future), https://media.rff.org/documents/RFF-DP-08-09.pdf.
311
On the classification of executive agreements, see KRUTZ & PEAKE, supra note 267, at 42–43.
312
Jean Galbraith, International Agreements and U.S. Foreign Relations Law: Complexity in
Action, in THE OXFORD HANDBOOK OF COMPARATIVE FOREIGN RELATIONS LAW, supra note 8, at 157,
160 [hereinafter Galbraith, International Agreements].
313
On the terminology for such executive agreements, treaty-executive agreements, treaty-based
executive agreements, treaty-authorized executive agreements, treaty-related agreements, and executive
agreements under the authority of a treaty provision, see, e.g., Purvis, supra note 310 at 14 (treaty-
executive agreements); Joseph M. Isanga, The U.S. Withdraws: Impact on the U.S. and International
Rule of Law, 32 FLA. J. INT’L L. 215, 265 n.244 (2020) (treaty-based executive agreements); Kenneth C.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 89
making of such agreements.
314
For example, the Convention on
International Civil Aviation (the Chicago Convention) signed in 1944 is an
Article II treaty, but the Interim Agreement that provided for the
establishment of a Provisional International Civil Aviation Organization
was signed in 1945 as an executive agreement.
315
And the Status of
Forces Agreements, including the U.S.–Japan Status of Forces Agreement
of 1960, were also made as this type of executive agreement.
316
These
treaties authorize the President to make agreements that implement the
treaties.
Because this type of executive agreements is established pursuant
to explicit or implicit treaty authorization, the President does not have
authority to enter into executive agreements beyond the treaty’s
authorization.
317
Executive agreements pursuant to Article II treaties
depend on whether specific treaties actually authorize the President to
make executive agreements.
318
Next, executive agreements approved by Congress are classified into ex
ante congressional-executive agreements and ex post congressional-
executive agreements.
319
These types are not limited to agreements on
trade; there are many kinds of executive agreements that are approved by
Congress, and such agreements are made on subject matters other than ones
Randall, The Treaty Power, 51 OHIO ST. L.J. 1089, 1092 (1990) (treaty-authorized executive
agreements); Hyman, supra note 274, at 811 (treaty-related agreements); STEPHEN P. MULLIGAN, CONG.
RES. SERV., RL32528 INTERNATIONAL LAW AND AGREEMENTS: THEIR EFFECT UPON U.S. LAW 24 (2023)
(executive agreements under the authority of a treaty provision).
314
This type of executive agreement derives from the presidential authority to “take [c]are that
the [l]aws be faithfully executed.” U.S. CONST. art. II, § 3; Keith E. Fryer & J. Michael Levengood,
Recent Developments: Arms Control: SALT II
－
Executive Agreement or Treaty?, 9 GA. J. INT’L & COMP.
L. 123, 125 (1979); W. Fletcher Fairey, Comment, The Helms-Burton Act: The Effect of International
Law on Domestic Implementation, 46 AM. U. L. REV. 1289, 1300 n.51 (1997). See also Wilson v. Girard,
354 U.S. 524 (1957). In Wilson, the court upheld executive agreements pursuant to Article II treaty. 354
U.S. at 528–29.
315
Richard Kermit Waldo, Sequels to the Chicago Aviation Conference, 11 L. & CONTEMP.
PROBS. 609, 614 n.7 (1946); Erwin Seago & Victor E. Furman, Internal Consequences of International
Air Regulations, 12 U. CHI. L. REV. 333, 342 (1945); Hathaway, Treaties’ End, supra note 249, at 1262
n.57.
316
The NATO Status of Forces Agreement, however, was the only one of these agreements
concluded as an Article II treaty. R. CHUCK MASON, CONG. RES. SERV., RL34531, STATUS OF FORCES
AGREEMENT (SOFA): WHAT IS IT, AND HOW HAS IT BEEN UTILIZED? 1 n.6, 18 n.128 (2012). Sean D.
Murphy and Edward T. Swaine describe the bilateral status of forces agreements as “treaty-implementing
agreements.” SEAN D. MURPHY & EDWARD T. SWAINE, THE LAW OF U.S. FOREIGN RELATIONS 558
(2023). For more on the categorization of security agreements, see MICHAEL JOHN GARCIA & R. CHUCK
MASON, CONG. RES. SERV., R40614, CONGRESSIONAL OVERSIGHT AND RELATED ISSUES CONCERNING
INTERNATIONAL SECURITY AGREEMENTS CONCLUDED BY THE UNITED STATES 9–16 (2012).
It has also been pointed out that executive agreements pursuant to a treaty might be classified as
sole executive agreements. Chris Mullen, Pushing Back: Reasserting A Role for Congress in the
Withdrawal from International Agreements, 51 N.Y.U. J. INT’L L. & POL. 493, 508 (2019).
317
BRADLEY, supra note 12, at 82–84.
318
MULLIGAN, supra note 313, at 7.
319
Some scholars refer to these as statutory executive agreements. See JAMES M. MCCORMICK,
AMERICAN FOREIGN POLICY AND PROCESS 263 (5th ed. 2010).
90 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
the President has authority to make on his or her own power.
320
For
instance, as seen in the previous section, there are executive agreements
for annexing Texas and Hawaii
321
and joining the International Labour
Organization.
322
There are also international agreements on extradition of
suspects to the international criminal tribunals related to Rwanda and
Yugoslavia.
323
Thus, congressional-executive agreements are based on
either ex ante congressional authorization or ex post congressional
approval and may cover many topics, such as American territory, and
protection for patents, copyrights, and trademarks.
324
And finally, the third type of executive agreement is sole executive
agreements. As the Restatement (Third) of U.S. Foreign Relations Law
provides, “the President, on his own authority, may make an international
agreement dealing with any matter that falls within his independent powers
under the Constitution.”
325
The sources of the President’s constitutional
authority are found in Article II and include the following: “the Executive
Power,”
326
the power of “Commander in Chief of the Army and Navy,”
327
the authority to appoint and receive “Ambassadors and other public
Ministers,”
328
and the authority to “take Care that the Laws be faithfully
executed.”
329
Thus, because the President lacks an independent spending
power, for example, he cannot conclude sole international agreements
obligating the United States to spend money.
330
And although the
320
Julian Nyarko, Giving the Treaty Purpose: Comparing the Durability of Treaties and
Executive Agreements, 113 AM. J. INT’L L. 54, 57 (2019).
321
See supra notes 275–76 and accompanying texts.
322
See supra note 300 and accompanying text.
323
For more on congressional-executive agreements, see Hathaway, Treaties’ End, supra note
249, at 1261–70.
Scholars have discussed the interchangeability of such agreements with Article II treaties.
RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303 cmt. e (AM. L. INST. 1986);
McDougal & Lans, supra note 270, at 187; Hathaway, Treaties’ End, supra note 249, at 1252–71;
BRADLEY, supra note 12, at 88–91. For further readings on the objections to this interchangeability, see
Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in
Constitutional Interpretation, 108 HARV. L. REV. 1221, 1276 (1995); Yoo, supra note 275, at 758; Peter
J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV. 961, 993–1009
(2001).
324
CRANDALL, supra note 199, at 127–40.
325
RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303(4) (AM. L. INST. 1986).
326
U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the United
States of America.”).
327
Id. art. II, § 2, cl. 1 (“The President shall be Commander in Chief of the Army and Navy of
the United States, and of the Militia of the several States, when called into the actual Service of the
United States.”).
328
Id. art. II, § 2, cl. 2 (“[H]e shall receive Ambassadors and other public Ministers.”).
329
Id. art. II, § 3, cl. 3 (“[H]e shall take Care that the Laws be faithfully executed, and shall
Commission all the Officers of the United States.”); see also RESTATEMENT (THIRD) OF THE FOREIGN
RELS. L. OF THE U.S. § 303 cmt. g (AM. L. INST. 1986); Wuerth, supra note 274, at 12–13; Robert E.
Dalton, National Treaty Law and Practice: United States, in NATIONAL TREATY LAW AND PRACTICE:
DEDICATED TO THE MEMORY OF MONROE LEIGH 780 (Duncan B. Hollis et al. eds., 2005).
330
Hathaway, Presidential Power Over International Law, supra note 276, at 211–12.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 91
President may enter into executive agreements alone, he must report them
to Congress.
331
Among international agreements entered by the United States, over 80
percent of them are ex ante congressional-executive agreements.
332
Sole
executive agreements make up five to ten percent, and executive
agreements pursuant to Article II treaty make up one to three percent.
333
2. The Rising of New Classification of Executive
Agreements
In addition to the three types of executive agreements discussed above,
a new type of executive agreement has recently emerged: the executive
agreement plus (EA+).
334
According to Daniel Bodansky and Peter J.
Spiro, the above tripartite classification cannot explain all of executive
agreements in terms of both theory and practice.
335
As analyzed earlier,
bases for the traditionally classified executive agreements are one of
“Senate consent, congressional authorization, and independent presidential
power.”
336
But those are not the only bases
337
and American executive
agreements may also have their bases in legislation or treaties.
338
Such
agreements “are consistent with, and complement, related congressional
activity.”
339
Bodansky and Spiro suggest that some executive agreements
which have been considered as sole executive agreements are, in fact, EA+
and are supported by Congress.
340
331
1 U.S.C. § 112b(a) (2000). There is a debate over whether a sole executive agreement binds
only the President who concluded the agreement. Bodansky & Spiro, supra note 287, at 918 n.182;
Hathaway, Presidential Power Over International Law, supra note 276, at 175 n.107. For a discussion
on transparency of executive agreements, see Oona A. Hathaway, Curtis A. Bradley & Jack L.
Goldsmith, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative
Analysis, 134 HARV. L. REV. 629 (2020).
332
Bradley & Goldsmith, supra note 1, at 1214.
333
Id.
334
Bodansky & Spiro, supra note 287, at 885.
335
Id. at 893.
336
Id.
337
Id. For critiques of the traditional tripartite classification, see Harold Hongju Koh, Remarks,
Twenty-First-Century International Lawmaking, 101 GEO. L.J. 725 (2013) [hereinafter Koh, Remarks];
Harold Hongju Koh, Triptych’s End: A Better Framework to Evaluate 21st Century International
Lawmaking, 126 YALE L.J. F. 338 (2017) [hereinafter Koh, Triptych’s End]; Jean Galbraith, From
Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. CHI.
L. REV. 1675 (2017) [hereinafter Galbraith, From Treaties to International Commitments].
For problems on the discussions of Bodansky & Spiro and Koh, see Bradley & Goldsmith, supra
note 1, at 1257–70.
338
Bodansky & Spiro, supra note 287, at 893.
339
Id. at 887–88.
340
Id. at 915. Ultimately, EA+ are implicit ex ante congressional-executive agreements. Id. at
906.
92 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
The Obama Administration utilized EA+ consciously for the first
time.
341
The Administration did not explain some executive agreements in
terms of the presidential constitutional authority or sole executive
agreement, and it pointed out that these agreements were consistent with
and promoted congressional policies.
342
Bodansky and Spiro discussed
three agreements as examples of EA+ under the Obama Administration:
the Anti-Counterfeiting Trade Agreement, the Minamata Convention on
Mercury, and intergovernmental agreements implementing the Foreign
Account Tax Compliance Act of 2010.
343
Among these three, they
considered the Minamata Convention
344
to have the strongest precedential
value.
345
President Obama did not submit the Convention to either the
Senate or the House, and the Department of State did not provide any legal
basis for concluding it.
346
The State Department considered the
Convention to “complement[]” measures already taken in the United States
to reduce mercury pollution.
347
Furthermore, the Paris Agreement on climate change, which was
supported by the U.N. Framework Convention on Climate Change—a
Senate-approved Article II treaty—could be considered as EA+ because it
is consistent with existing legal and regulatory authorities and
complements existing law.
348
Bodansky and Spiro argue that some executive agreements which
scholars categorize as congressional-executive agreements with implicit
authorization or sole executive agreements according to the conventional
classification, are EA+.
349
They insist that EA+ cannot be classified using
the three conventional models. Although the view claimed by Bodansky
and Spiro has some unclear boundaries, the scope of EA+ is not unlimited.
EA+ has two limitations. First, EA+ should be implemented based on
341
Id. at 887.
342
Id. at 907.
343
Id. at 907–14
344
Minamata Convention on Mercury, Nov. 6, 2013, TIAS 17–816.
345
Bodansky & Spiro, supra note 287, at 910.
346
Duncan B. Hollis, Doesn’t the U.S. Senate Care About Mercury?, OPINIO JURIS (Nov. 12,
2013), http://opiniojuris.org/2013/11/12/doesnt-u-s-senate-care-mercury/; Ryan Harrington,
Understanding the “Other” International Agreements, 108 L. LIBR. J. 343, 344, 357 (2016); Galbraith,
From Treaties to International Commitments, supra note 337, at 1704; Bradley & Goldsmith, supra note
1, at 1267.
347
Press Release, U.S. Dept. of State, United States Joins Minamata Convention on Mercury
(Nov. 16, 2013), https://2009-2017.state.gov/r/pa/prs/ps/2013/11/217295.htm
348
Bodansky & Spiro, supra note 287, at 917–19. The Paris Agreement is regarded as an
executive agreement pursuant to treaty, ex ante congressional-executive agreement, or sole executive
agreement. Bradley & Goldsmith, supra note 1, at 1249. Jean Galbraith concludes that ex ante
congressional-executive agreements and sole executive agreements “can blur together.” Galbraith,
International Agreements, supra note 312, at 161. Cf. Jessica Durney, Defining the Paris Agreement: A
Study of Executive Power and Political Commitments, 2017 CARBON & CLIM. CHANGE L. REV. 234
(2017) (considering the Paris Agreements as a political commitment).
349
See, e.g., Sean Flynn, ACTA’s Constitutional Problem: The Treaty is Not A Treaty, 26 AM. U.
INT’L L. REV. 903, 903 (2011); Harrington, supra note 346, at 357.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 93
existing federal law.
350
The President should not make use of such
agreements to alter existing federal statutes or extend the domestic
authority of the executive branch.
351
Second, EA+ is only appropriate
when it complements other existing domestic measures.
352
Harold Honju Koh holds a similar opinion to Bodansky and Spiro. Koh
claims that the “triptych” of executive agreements (three types of executive
agreements as classified above) was “dying or dead” by the end of the
Obama Administration.
353
Koh also points out that the EA+ theory cannot
solve the problem of classifying executive agreements. He suggests
eliminating the triptych classification altogether.
354
In its place, executive
agreements should be classified depending on their subject matter and
framework.
355
Koh insists on three factors of the framework: (1) whether
the agreements provide for “new, legally binding obligations”; (2) “the
degree of congressional approval” for lawmaking by the executive branch;
and (3) “the constitutional allocation of institutional authority over the
subject matter at issue.”
356
Koh’s view does not offer new categories of classification
357
but instead
offers tools to evaluate whether international agreements are constitutional
or lawful. Koh offers a conceptual framework for international
agreements that may not be explained by the conventional classification in
circumstances that are “moving to a whole host of less crystalline, more
nuanced forms of international legal engagement and cooperation.”
358
As a result, executive agreements have been traditionally divided into
three types (executive agreements pursuant to Article II treaties,
congressional-executive agreements, and sole executive agreements).
Executive agreements in the United States, according to the conventional
classification, derive their bases from one of the senatorial consent, explicit
or implicit congressional authorization, and the President’s independent
authority. More recently, however, some international agreements
cannot be explained based on the conventional classification.
359
350
Bodansky & Spiro, supra note 287, at 915.
351
Id.
352
Id.
353
Koh, Triptych’s End, supra note 337, at 338. On Koh’s classification of the Paris Agreement,
see Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 YALE L.J. F.
432, 467, 472 (2018).
354
Koh, Triptych’s End, supra note 337, at 341–42.
355
Id. at 345.
356
Id.
357
For more details of his argument, see id. at 345–49.
358
Id. at 338 (quoting Koh, Remarks, supra note 337, at 726–27).
359
See Galbraith, From Treaties to International Commitments, supra note 337, at 1675. In
addition to the U.S. Constitution, certain factors in international law and administrative law also have
impacts on forms of international agreements. Id.
94 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
D. The Domestic Legal Force and Self-Execution of Executive
Agreements
1. Domestic Legal Force
The Supremacy Clause of the U.S. Constitution, which provides that all
treaties are the “supreme Law of the Land,” concerns the domestic legal
force of Article II treaties.”
360
This Clause makes clear that treaties are
“part of U.S. domestic law” and ensures “the capacity of treaty obligations
to supplant inconsistent State laws, particularly in State courts.”
361
In contrast, there is no explicit provision in the U.S. Constitution
dealing with the domestic legal force of executive agreements. U.S.
scholars have discussed this force by analyzing four Supreme Court
decisions: United States v. Belmont,
362
United States v. Pink,
363
Dames &
Moore v. Regan,
364
and American Insurance Association v. Garamendi.
365
In the Belmont case, which was decided in 1937, Petrograd Metal
Works, a Russian company during the Imperial Russia era, deposited
money to a private banker (August Belmont & Co.) in New York.
366
After
the revolution of 1918, the Metal Works’s property was nationalized by
decree of the Soviet government.
367
As a result, the company’s deposit in
Belmont came to belong to the Soviet government.
368
In 1933, the Soviet
government released and assigned claims to the United States by the
Litvinov Agreement, which was part of American policy to recognize the
Soviet government.
369
New York public policy was to refuse the
confiscation decree and the assignment.
370
At issue in the case was
whether the United States could claim the money deposited to Belmont.
After finding the international agreement at issue (an executive agreement
made by President Franklin D. Roosevelt) to be valid,
371
the Court held
that the executive agreement was supreme over state law.
372
In the
decision, Justice Sutherland stated the following:
360
U.S. CONST. art. VI, cl. 2.
361
RESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 310 cmt. a (AM. L. INST.
2018).
362
See generally United States v. Belmont, 301 U.S. 324 (1937).
363
See generally United States v. Pink, 315 U.S. 203 (1942).
364
See generally Dames & Moore v. Regan, 453 U.S. 654 (1981).
365
See generally American Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003).
366
Belmont, 301 U.S. at 325–26.
367
Id. at 326.
368
Id.
369
Id.
370
Id. at 327.
371
Id. at 330.
372
Id. at 331–32.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 95
Mr. Madison, in the Virginia Convention, said that, if a treaty
does not supersede existing state laws as far as they contravene
its operation, the treaty would be ineffective. . . . “To counteract
it by the supremacy of the state laws, would bring on the Union
the just charge of national perfidy, and involve us in
war.” . . . And while this rule in respect of treaties is established
by the express language of cl. 2, Art. VI, of the Constitution, the
same rule would result in the case of all international compacts
and agreements from the very fact that complete power over
international affairs is in the national government, and is not and
cannot be subject to any curtailment or interference on the part
of the several states. In respect of all international negotiations
and compacts, and in respect of our foreign relations generally,
state lines disappear. As to such purposes, the State of New York
does not exist.
373
The Supreme Court held executive agreements to have the same force
as treaties because of the “complete power” of the federal government over
“international affairs” despite the fact that executive agreements were not
treaties that were created with the advice and consent of the Senate and
there was no “express language” in the Supremacy Clause regarding such
agreements.
374
Moreover, the Pink case, decided in 1942, had similar facts to the
Belmont case. In the Pink case, the validity and domestic force of the
Litvinov Agreement was upheld as follows:
The powers of the President in the conduct of foreign relations
included the power, without consent of the Senate, to determine
the public policy of the United States with respect to the Russian
nationalization decrees. . . . It was the judgment of the political
department that full recognition of the Soviet Government
required the settlement of all outstanding problems, including the
claims of our nationals. Recognition and the Litvinov
Assignment were interdependent. . . .
375
373
Id. (citations and quotations omitted) (upholding the broad federal authority of foreign affairs
including ones not explicitly granted by the Constitution (citing United States v. Curtiss Wright Export
Corporation, 299 U.S. 304, 318 (1936)).
374
See also Wuerth, supra note 274, at 15.
375
United States v. Pink, 315 U.S. 203, 229–30 (1942).
96 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
Then, turning to the question of domestic validity and supremacy of the
Agreement, the Court relied first on the Federalist Papers, explaining:
All constitutional acts of power, whether in the executive or in
the judicial department, have as much legal validity and
obligation as if they proceeded from the legislature . . . . ” The
Federalist, No. 64. A treaty is a “Law of the Land” under the
supremacy clause (Art. VI, Cl. 2) of the Constitution. Such
international compacts and agreements as the Litvinov
Assignment have a similar dignity. . . . [S]tate law must yield
when it is inconsistent with, or impairs the policy or provisions
of, a treaty or of an international compact or agreement.
376
The Supreme Court again upheld the validity of executive agreement in
terms of the federal government authority over foreign affairs and the
domestic legal force and supremacy of the agreement over state law.
Dames & Moore raised the validity of executive orders and Treasury
Department regulations implementing the Algiers Accords. The
executive orders and regulations required the transfer of assets in Iran to
the Federal Reserve Bank of New York and the return of all Iranian assets
held in the United States by American banks.
377
The petitioner company,
Dames & Moore, had contracted with the Atomic Energy Organization of
Iran and claimed for payment for services performed under the contract.
378
The district court found in favor of the petitioner, but the court’s
enforcement order of the contract interfered with the Algiers Accords (the
executive agreements) and executive orders.
379
The Supreme Court upheld the President’s authority to invalidate the
attachment of Iranian assets and the validity of the executive agreement
that implement the claims settlement.
380
The Court first addressed the
President’s authority to suspend claims pending in court. The Supreme
Court confirmed that although such authority was not clearly granted by
relevant statutes, Congress had implicitly recognized the President’s
authority to settle claims through the use of executive agreements.
381
This
376
Id. at 229–31 (citations omitted). See also id. at 232 (“Here we are dealing with an exclusive
federal function. If state laws and policies did not yield before the exercise of the external powers of the
United States, then our foreign policy might be thwarted. These are delicate matters. If state action could
defeat or alter our foreign policy, serious consequences might ensue.”).
377
Dames & Moore v. Regan, 453 U.S. 654, 660, 663, 665–66 (1981).
378
Id. at 664.
379
Id. at 664–66.
380
Id. at 690.
381
Id. at 675–88.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 97
included the authority to suspend claims according to state law.
382
So in
that sense, this holding could be evaluated to uphold the supremacy of
executive agreement over state law.
383
The Supreme Court emphasized that its decision in Dames & Moore
applied only to the facts of that case.
384
But in 2003, the Court in
Garamendi substantially relied on the Dames & Moore decision.
385
Garamendi addressed whether the California’s Holocaust Victim
Insurance Relief Act of 1999 (HVIRA) interfered with the federal
government’s conduct of foreign relations.
386
HVIRA required any
insurer in California to disclose information about any policies sold in
Europe from 1920 to 1945 by the company itself or related companies
387
and the State of California issued “administrative subpoenas . . . against
several subsidiaries of European insurance companies participating in [the
International Commission on Holocaust Era Insurance Claims
(ICHEIC)].”
388
After that incident, the federal government entered into
executive agreements with Germany, Austria and France to “encourage
European insurers to work with the ICHEIC to develop acceptable claim
procedures, including procedures governing disclosure of policy
information,”
389
which was “the only effective means to process quickly
and completely unpaid Holocaust era insurance claims.”
390
The Supreme Court pointed out that “valid executive agreements are
[generally] fit to preempt state law, just as treaties are.”
391
However, the
executive agreements at issue in Garamendi did not contain express
preemption language.
392
As a result, there was a conflict between state
law and federal diplomatic policy.
393
According to the Court, the presidential valid policy clearly trumped
conflicting state law.
394
The Court also noted that in negotiations leading
up to the executive agreements, presidential policy had consistently
382
CHRISTOPHER N. MAY ET AL., CONSTITUTIONAL LAW: NATIONAL POWER AND FEDERALISM:
EXAMPLES AND EXPLANATIONS 377 (8th ed. 2019).
383
Id.
384
Dames & Moore, 453 U.S. at 688.
385
American Insurance Ass’n v. Garamendi, 539 U.S. 396, 415 (2003).
386
Id. at 412–13.
387
Id. at 401.
388
Id. at 411.
389
Id. at 421.
390
Id. at 397.
391
Id. at 416.
392
Id. at 416–17.
393
In Garamendi, the Court examined Zschernig v. Miller, 389 U.S. 429 (1968) relied upon by
petitioners. In that case, according to the Garamendi decision, it was held that “state action with more
than incidental effect on foreign affairs is preempted, even absent any affirmative federal activity in the
subject area of the state law, and hence without any showing of conflict,” and “the likelihood that state
legislation will produce something more than incidental effect in conflict with express foreign policy of
the National Government would require preemption of the state law.” Garamendi, 539 U.S. at 418, 420.
394
539 U.S. at 421.
98 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
preferred encouraging European governments to voluntarily provide
settlement funds, over litigation or sanction.
395
Specifically, the President
wanted insurance companies in Europe to cooperate with the ICHEIC to
develop their own claim procedures.
396
In contrast, California’s HVIRA
imposed regulatory sanctions designed to compel insurance companies to
disclose all of their policy information and payment.
397
Because the state law clearly conflicted with the policy of the President,
the state law was invalid.
398
Notably, the Garamendi Court held that state
law must yield, not only when it conflicted with an executive agreement
itself, but also when it conflicted with the federal policies reflected in the
executive agreement.
399
These four Supreme Court decisions are leading cases on the domestic
legal force of executive agreements in the United States.
400
However, all
four dealt with sole executive agreements. Curtis A. Bradley and Jack L.
Goldsmith, who are both eminent scholars on the U.S. foreign relations
law, account for this fact by describing the “direct domestic effect” of sole
executive agreements.
401
They further posit that the same is
“presumably” the case for ex ante congressional-executive agreements and
executive agreements pursuant to Article II treaties.
402
This is because
those kinds of executive agreements are made based on federal legislative
authorization or senatorial consent.
Congressional-executive agreements automatically have the legal force
of federal law,
403
which means they supersede conflicting state laws.
404
Since they have the same validity and force as acts of Congress,
405
they
acquire domestic legal force and are superior to state laws.
406
Similarly,
executive agreements that implement treaties have the same status as the
395
Id.
396
Id.
397
Id. at 409.
398
Id. at 425. The dissenting opinion insisted that foreign policy should not be invoked for
preemption of state law and express terms in an executive agreement or formal foreign policy statement
should be required. Id. at 430, 442 (Ginsburg, J., dissenting, joined by Stevens, Scalia, & Thomas, JJ.).
399
Id. at 417. For discussion on some problems of this holding, see Brannon P. Denning &
Michael D. Ramsey, American Insurance Association v. Garamendi and Executive Preemption in
Foreign Affairs, 46 WM. & MARY L. REV. 825, 829–32 (2004).
400
For additional judicial decisions on this subject, see B. Altman & Co. v. United States, 224
U.S. 583 (1912); Weinberger v. Rossi, 456 U.S. 25, 30 n.6 (1982). See also Medellín v. Texas, 552 U.S.
491, 565 (2008) (discussing the presidential authority to conclude executive agreements to preempt state
law) (opinion of court).
401
Bradley & Goldsmith, supra note 1, at 1255.
402
Id.
403
Hathaway, Treaties’ End, supra note 249, at 1255 n.47.
404
BRADLEY, supra note 12, at 87.
405
Jordan J. Paust, International Law as Law of the United States: Trends and Prospects, 1 CHIN.
J. INT’L L. 615, 625 (2002).
406
HENKIN, supra note 272, at 217.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 99
treaties they implement—the “supreme law of the land.”
407
Thus, they,
too, acquire direct domestic effect. Finally, the Supreme Court has
recognized the domestic legal force and supremacy of sole executive
agreements.
408
E. Self-Execution
Even if executive agreements have domestic legal force, that does not
mean they are always enforceable in U.S. domestic courts. This is an
issue of self-execution. If a treaty provision is not self-executing, it does
not “of its own force provide a rule of decision” for U.S. courts
409
and “will
not be given effect” by them unless the treaty provision is implemented by
Congress.
410
Courts have applied the same approach to executive
agreements and Article II treaties, on at least three occasions.
411
For example, in Islamic Republic of Iran v. Boeing Co., the Ninth Circuit
discussed the self-execution of the Algiers Accords, sole executive
agreements. The Accords stated that any questions relating to their
interpretation or application would be decided by the Iran–United States
Claims Tribunal.
412
The court was called upon to determine its own
jurisdiction in light of the Accords, but to do so, it first had to determine
whether the Accords were self-executing—that is, whether congressional
action was necessary to give the Accords effect.
413
The Ninth Circuit
determined the Accords were not self-executing after analyzing their
language and purpose.
414
In deciding that, the court relied on four factors
407
BRADLEY, supra note 12, at 83; see also RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF
THE U.S. § 303 cmt. f (AM. L. INST. 1986).
408
RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303, cmt. j (AM. L. INST.
1986).
Ramsey argues that sole executive agreements lack legal force in the domestic legal system.
Ramsey, Executive Agreements, supra note 273, at 133. Julian Ku and John Yoo have an opinion that
sole executive agreements generally do not have domestic effect without implementing legislation, but
such agreements replace state law in limited circumstances where the President unilaterally exercises the
executive authority, such as in claims settlements. JULIAN KU & JOHN YOO, TAMING GLOBALIZATION:
INTERNATIONAL LAW, THE U.S. CONSTITUTION AND THE NEW WORLD ORDER 12 (2012).
409
Michael D. Ramsey, A Textual Approach to Treaty Non-Self-Execution, 2015 BYU L. REV.
1639, 1640 (2015) [hereinafter Ramsey, A Textual Approach].
410
BRADLEY, supra note 12, at 43.
411
See KU & YOO, supra note 408, at 12; Canadian Lumber Trade All. v. United States, 425 F.
Supp.2d 1321, 1362–63 (Ct. Int’l Trade 2006). See also Bank Melli Iran v. Pahlavi, 58 F.3d 1406, 1408
(9th Cir. 1995) (referring to Air Canada v. U.S. Dep’t of Transp., 843 F.2d 1483, 1486 (D.C. Cir. 1988)
(pointing out that executive agreements “are interpreted in the same manner as treaties and reviewed by
the same standard.”).
412
Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985).
413
Id. at 1283–84.
414
Id. at 1283–84.
100 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
mentioned for finding self-execution in People of Saipan v. U.S. Dep’t. of
Interior.
415
In 2017, United States v. Sum of $70,990,605 involved the forfeiture of
assets deposited in U.S. banks by Afghan banks.
416
The Bilateral Security
Agreement with the Islamic Republic of Afghanistan provided (1) for
Afghanistan’s right to exercise jurisdiction over U.S. contractors and their
employees and (2) for the settlement of disputes by other organizations,
such as domestic courts, regarding the interpretation or application of the
Agreement.
417
According to the district court, executive agreements were
legally binding in the United States regardless of their self-execution.
418
But non-self-executing executive agreements were not a rule for the courts
to apply and did not, by themselves, create domestically enforceable
federal law.
419
In sum, executive agreements are to be complied with and
have domestic legal force irrespective of their self-execution, but in order
for the courts to enforce executive agreements they must be self-executing.
Moreover, the court recognized a presumption against creating private
rights, even if the executive agreement was self-executing.
420
The court did not find the agreement to be self-executing or judicially
enforceable.
421
The court considered the self-execution in terms of the
justiciability, concluding that the agreement provided for the settlement of
dispute through diplomatic channels.
422
Moreover, in Beeler v. Berryhill in 2019, the District Court for the
Southern District of Indiana considered self-execution of a social security
agreement with Canada authorized by Section 233 of the Social Security
Act.
423
The court considered the agreement to be self-executing, stating
that: “Executive agreements (such as totalization agreements . . . ) are
law—that is, part of our domestic or municipal law—if they are sufficiently
analogous to treaties as defined by the Constitution, art. II, § 2, cl. 2, and
415
Id. at 1283. In People of Saipan v. U.S. Dep’t of Interior, the Court of Appeals for the Ninth
Circuit enumerated four factors for finding “affirmative and judicially enforceable obligations without
implementing legislation,” stating, “[t]he extent to which an international agreement establishes
affirmative and judicially enforceable obligations without implementing legislation must be determined
in each case by reference to many contextual factors.” The factors are “the purposes of the treaty and the
objectives of its creators, the existence of domestic procedures and institutions appropriate for direct
implementation, the availability and feasibility of alternative enforcement methods, and the immediate
and long-range social consequences of self- or non-self-execution.” People of Saipan v. U.S. Dep’t of
Interior, 502 F.2d 90, 97 (9th Cir. 1974).
416
United States v. Sum of $70,990,605, 234 F. Supp. 3d 212, 216 (D.D.C. 2017).
417
Id. at 221–22.
418
Id. at 233 (quoting HENKIN, supra note 272, at 203).
419
Id. at 233–34.
420
Id. at 234.
421
Id.
422
Id. at 236–37.
423
Beeler v. Berryhill, 381 F. Supp. 3d 991, 997 (S.D. Ind. 2019).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 101
if they are self-executing—that is, effective without further congressional
action.”
424
Thus, the courts have applied the same test for self-execution to Article
II treaties and executive agreements. But if the courts consider self-
execution without distinction between Article II treaties and executive
agreements, there is two issues to be discussed: whether executive
agreements may override federal statutes and how the courts decide self-
execution.
Self-execution is an issue discussed on the relationship with federal
statutes while supremacy, analyzed in the previous subsection, is an issue
on the relationship between executive agreements and state laws. The
domestic legal force of treaties is related to the Supremacy Clause, and the
legal force issue has been discussed in the context of the relationship
between them and state laws. Treaty self-execution has mainly been
discussed in the context of its relationship with federal statutes.
425
And
the courts have generally applied four approaches to treaty self-execution:
the intent, congressional exclusive power, justiciability, and private right
of actions.
426
The rest of this subsection (1) analyzes the relationship
between executive agreements and federal statutes and (2) considers those
four approaches for executive agreements.
The relationship between executive agreements and federal statutes
depends on whether the last-in-time rule applies between those legal
norms. With the last-in-time rule, courts solve conflicts between treaties
and federal statutes.
427
According to that rule, “when a treaty and federal
statute conflict, whichever was enacted last in time controls.”
428
In
deciding whether to apply a federal statute and self-executing treaty, U.S.
courts generally “apply whichever is last in time.”
429
Non-self-executing
treaty provisions are not enforceable in courts, and thus the last-in-time
rule does not apply to such provisions.
430
First, agreements pursuant to treaties are considered to be self-executing
if the underlying treaties are self-executing. This is because those
424
Id. at 998 (citations omitted). For other decisions about direct application of executive
agreements, see United States v. Walczak, 783 F.2d 852, 856 (9th Cir. 1986). See also Dep’t of Def. v.
Fed. Lab. Rels. Auth., 685 F.2d 641, 648 (D.C. Cir. 1982).
425
SLOSS, supra note 201, at 85–95, 139–52, 208–18, 231–40; Yuhei Matsuyama, The
Significance of the Fujii Case to the Self-Executing Treaty Doctrine in the United States: Treaty
Supremacy and Self-Execution, 50 J. GRADUATE SCH. FUKUOKA UNIV. 49 (2018) [hereinafter
Matsuyama, The Significance of the Fuji Case] (Japan).
426
For the four approaches to treaty self-execution, see Carlos M. Vázquez, The Four Doctrines
of Self-Executing Treaties, 89 AM. J. INT’L L. 695 (1995) [hereinafter Vázquez, The Four Doctrines of
Self-Executing Treaties].
427
See, e.g., Whitney v. Robertson, 124 U.S. 190, 194–95 (1888).
428
Julian G. Ku, Treaties as Laws: A Defense of the Last-in-Time Rule for Treaties and Federal
Statutes, 80 IND. L.J. 319, 325 (2005).
429
BRADLEY, supra note 12, at 55.
430
MULLIGAN, supra note 313, at 22.
102 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
executive agreements are encompassed by, and share the same status as,
the underlying treaties. They can be supreme over conflicting treaties or
federal statutes which are valid before executive agreements go into
effect.
431
Second, according to Bradley, an internationally renowned scholar of
the U.S. foreign relations law, the framework for treaty self-execution
applies to sole executive agreements.
432
The Islamic Republic of Iran
decision mentioned above illustrates this approach.
433
But sole executive
agreements, unlike Article II treaties, cannot override earlier federal
statutes.
434
Although the courts’ views on the relationship between
Article II treaties and sole executive agreements are not clear,
435
it has
been pointed out that sole executive agreements do not supersede earlier
statutes.
436
This also means that it does not matter whether the last-in-
time rule applies to them or not, but the relationship of powers between
Congress and the President matters.
437
To elucidate this relationship of powers, Justice Jackson’s concurring
opinion in the Youngstown case is useful even now. The Youngstown
case is one of the leading cases on the relationship among political
departments.
438
It centered on the validity of Executive Order 10340,
which “direct[ed] the Secretary of Commerce to take possession of and
operate most of the Nation’s steel mills.”
439
That executive order was
issued by President Harry S. Truman to prevent a nationwide strike by steel
workers during the Korean War.
440
The Supreme Court held that the
431
BRADLEY, supra note 12, at 83. See also Bradley & Goldsmith, supra note 1, at 1255 (quoting
Whitney v. Robertson, 124 U.S. 190, 194 (1888)).
432
BRADLEY, supra note 12, at 100.
433
Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283–84 (9th Cir. 1985).
434
BRADLEY, supra note 12, at 100.
435
See United States v. Guy W. Capps, Inc., 204 F.2d 655, 659–60 (4th Cir. 1953); Swearingen
v. United States, 565 F. Supp. 1019, 1021 (D. Colo. 1983) (holding that executive agreements are not
supreme over congressional statutes); Owner-Operator Indep. Drivers Ass’n, Inc. v. U.S. Dep’t of
Transp., 724 F.3d 230, 234 (D.C. Cir. 2013) (applying the last-in-time rule as in the case of treaties).
436
Hannah Chang, International Executive Agreements on Climate Change, 35 COLUM. J. ENV’T
L. 337, 344 (2010) (referring to RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. § 303 cmt.
j (AM. L. INST. 1986); HENKIN, supra note 272, at 228; CONG. RSCH. SERV., TREATIES AND OTHER
INTERNATIONAL AGREEMENTS, supra note 264, at 93–95; Derek Jinks & Neal Kumar Katyal,
Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1244 (2007)).
According to the Restatement (Third), “[l]ike treaties and other international agreements, [sole
executive agreements] can be superseded as domestic law by later international agreements or by acts of
Congress within its constitutional authority. Their status in relation to earlier Congressional legislation
has not been authoritatively determined.” RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S.
§ 303 cmt. j (AM. L. INST. 1986). See also HENKIN, supra note 272, at 228.
437
Jordan J. Paust, U.N. Peace and Security Powers and Related Presidential Powers, 26 GA. J.
INT’L & COMP. L. 15, 25 n.37 (1996). See also Hathaway, Treaties’ End, supra note 249, at 1255 n.47;
RESTATEMENT (THIRD) OF THE FOREIGN RELS. L. OF THE U.S. §115 cmt. c, reporters’ note 5
(AM. L. INST. 1986).
438
See Patricia L. Bellia, Executive Power in Youngstown’s Shadows, 19 Const. COMMENT. 87
(2002); Bradley & Goldsmith, supra note 1, at 1257.
439
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952).
440
Id.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 103
executive order was unconstitutional because issuing such an order was not
within the proper presidential power and was related to the lawmaking
power of Congress.
441
Justice Jackson’s concurring opinion in Youngstown is often cited in
Supreme Court decisions.
442
He described a fluctuating Presidential
power that ebbed and flowed in strength depending on its alignment with
congressional intent.
443
Presidential authority could thus be described in
three tiers: First, presidential authority was at its maximum when the
President acted within the express or implicit authorization of Congress.
444
In those instances, the President acted not only with his own authority, but
also has the authority delegated by Congress.
445
Second, when Congress
neither prohibits nor authorizes the President to act, “there is a zone of
twilight” where the President’s power depends on “the imperatives of
events and contemporary imponderables.”
446
Third, the President’s
power is at its weakest when acting in a way “incompatible with the
expressed or implied will of Congress.”
447
Under those circumstances, the
presidential power is his or her own.
448
The validity of sole executive agreements ultimately relies on the
acquiescence of Congress,
449
so, under Justice Jackson’s framework, they
fall within the second tier,
450
the “zone of twilight.” This means that the
congressional authority prevails and that federal statutes take the place of
sole executive agreements.
451
Those agreements have legal force as long
441
Id. at 587–89 (opinion of court).
442
See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 375 (2000); American
Insurance Ass’n v. Garamendi, 539 U.S. 396, 414, 417 (2003); Hamdi v. Rumsfeld, 542 U.S. 507, 552
(2004); Hamdan v. Rumsfeld, 548 U.S. 557, 638 (2006); Medellín v. Texas, 552 U.S. 491, 524–25 (2008)
(opinion of court); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015).
443
Youngstown, 343 U.S. at 635 (Jackson, J., concurring).
444
Id.
445
Id. at 635–37.
446
Id. at 637.
447
Id.
448
Id. at 637–38. See Medellín, 552 U.S. at 524 (the presidential authority ‘‘must stem either
from an act of Congress or from the Constitution itself.’’) (quoting Youngstown, 343 U.S. at 585 and
Dames & Moore v. Regan, 453 U.S. 654, 668 (1981) (opinion of court)). For detailed analysis of the
Justice Jackson’s framework, see MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 8–18 (1990);
MURPHY & SWAINE, supra note 316, at 33–42.
449
See Medellín, 552 U.S. at 530–32.
450
Id. at 528. See also Clark, supra note 273, at 1631–32 (pointing out that sole executive
agreements for settling claims fall within the second or third category).
451
Robert J. Reinstein, Is the President’s Recognition Power Exclusive?, 86 TEMP. L. REV. 1,
53–54 (2013). Reinstein identifies Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221
(1986) as an example of a federal statute superseding a sole executive agreement. In Japan Whaling
Ass’n, it was held that the executive “may not act contrary to the will of Congress when exercised within
the bounds of the Constitution.” Reinstein, id. at 54 n.364 (quoting Japan Whaling Ass’n, 478 U.S. at
223). See also Medellín, 552 U.S. at 532 (holding that the President is not a lawmaker) (opinion of court).
According to Bradley and Goldsmith, a foundational principle of the separation of powers is that
the presidential measure must be involved by Congress, and sole executive agreements are “generally
considered to be a narrow exception to the usual constitutional requirement of joint collaboration in
lawmaking.” Bradley & Goldsmith, supra note 1, at 1257–59.
104 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
as they do not conflict with the express intent of Congress—as
demonstrated in federal statutes—because sole executive agreements are
made by the President alone.
452
The President cannot act beyond his or
her own independent powers without “genuine collaboration” with
Congress
453
and the Constitution itself “expressly forecloses unilateral
presidential conduct of foreign policy.”
454
The presidential powers are
limited by explicit or implicit grants of powers to Congress by the
Constitution,
455
and thus, the extent and constitutionality of the
presidential authority depend on his or her measures and the will of
Congress. Moreover, agreements that relate to the “exclusive” authority
of the President prevail over federal statutes.
456
The last-in-time rule does
not apply to sole executive agreements and federal statutes. Generally,
statutes are considered to displace such agreements.
457
Under the Justice Jackson’s framework, the first tier is related to
congressional-executive agreements. Some believe that self-execution
does not apply to congressional-executive agreements. According to
Louis Henkin, an influential foreign relations law scholar, congressional-
executive agreements “eliminate[]” self-execution issue, and thus,
inconsistency between those agreements and federal statutes.
458
In short,
the last-in-time rule does not apply there.
However, self-execution of congressional-executive agreements can be
an issue. Executive agreements that are created by laws are, themselves,
federal statutes. Statutes that create congressional-executive agreements
include not only terms for making such agreements, but also may have
necessary terms to implement them, and thus, generally, those agreements
are presumed to be self-executing.
459
Congress may “indicate directly”
that an agreement is not self-executing.
460
Moreover, even ex ante
executive agreements could be not self-executing and require
implementing legislation because they involve in subject matters of
congressional legislative power under the U.S. Constitution or the
obligation in the agreements is not justiciable.
461
In short, congressional-
executive agreements may trigger issues of self-execution and application
452
Hathaway, Treaties’ End, supra note 249, at 1255 n.47.
453
Hathaway, Presidential Power Over International Law, supra note 276, at 211.
454
LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 4–3, at 639 (3d ed. 2000).
455
HENKIN, supra note 272, at 62.
456
BRADLEY, supra note 12, at 100. See also MURPHY & SWAINE, supra note 316, at 578–80. For
a study on the exclusive executive power, see, e.g., LOUIS FISHER, THE POLITICS OF SHARED POWER:
CONGRESS AND THE EXECUTIVE 6–13 (4th ed. 1998).
457
In a case where the Algiers Accords were at issue, the court explained “[t]here is no doubt that
laws passed after the President enters into an executive agreement may abrogate the agreement” without
reference to self-execution. Roeder v. Islamic Republic of Iran, 333 F.3d 228, 235 (D.C. Cir. 2003).
458
HENKIN, supra note 272, at 217.
459
Hathaway, Treaties’ End, supra note 249, at 1321.
460
MURPHY & SWAINE, supra note 316, at 561.
461
Id. at 561–62. Cf. Hathaway, Treaties’ End, supra note 249, at 1321.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 105
of the last-in-time rule. Ex ante congressional-executive agreements,
which are presumably self-executing, prevail over prior inconsistent
federal statutes.
462
Courts have also considered the self-execution of congressional-
executive agreements. As mentioned above, the Beeler decision
discussed the self-execution of the U.S.–Canada social security agreement
authorized by the Social Security Act.
463
There, the Social Security
Administration insisted on self-execution of the agreement to prevent the
plaintiffs from having their pensions paid twice.
464
The court considered
the agreement was domestically enforceable by looking to the terms of the
agreement.
465
Finally, it is important to determine the basis for self-execution. At
present, self-execution is found in the context of the relationship between
treaties and federal statutes, and the courts use four approaches to discuss
self-execution: (1) the intent of treaty parties or U.S. treaty-makers, (2) the
exclusive legislative power of Congress, (3) justiciability, and (4) private
rights of action.
466
Non-self-executing treaty provision needs implementing legislation in
order for courts to directly enforce the provision.
467
The intent-based
approach for self-execution depends on intentions of treaty parties or the
U.S. treaty-makers (the President and the Senate).
468
According to the
constitutionality approach, when subject matters which treaty provisions
deal with are within the exclusive power of Congress, those provisions are
not self-executing.
469
And the justiciability approach relies on
“constitutional considerations about the appropriate role of the courts”
470
in the U.S. governmental system. Vague or precatory treaty provision
does not provide a rule of decision for courts to decide the cases
471
and
this approach is similar to the political question doctrine,
472
under which
“courts will decline to resolve certain issued deemed to be political in
462
See also Bradley & Goldsmith, supra note 1, at 1255.
463
Beeler v. Berryhill, 381 F. Supp. 3d 991, 997 (S.D. Ind. 2019).
464
Id.
465
Id. at 999. See also Defenders of Wildlife v. Hogarth, 330 F.3d 1358, 1367 (Fed. Cir. 2003)
(“[T]he Supremacy Clause mandates that a statute is supreme over an executive agreement.”).
466
Vázquez, The Four Doctrines of Self-Executing Treaties, supra note 426, at 695; Carlos M.
Vázquez, Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution, 2015 BYU
L. REV. 1747, 1750–51 (2016) [hereinafter Vázquez, Four Problems with the Draft Restatement’s
Treatment of Treaty Self-Execution]. Additionally, for a view further classifying these four approaches
further, see SLOSS, supra note 201, at 292–93; MURPHY & SWAINE, supra note 316, at 524–40.
467
See, e.g., BRADLEY, supra note 12, at 43.
468
Vázquez, The Four Doctrines of Self-Executing Treaties, supra note 426, at 700–10.
469
Id. at 718–19; BRADLEY, supra note 12, at 51–53.
470
Vázquez, Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution,
supra note 466, at 1757.
471
Ramsey, A Textual Approach, supra note 409, at 1640.
472
Carlos M. Vázquez, Laughing at Treaties, 99 COLUM. L. REV. 2154, 2180 (1999).
106 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
nature.”
473
At last, self-execution is determined in light of private right
of action. Under this approach, non-self-executing treaty provisions “do
not, of their own force, create a private right of action.”
474
When an
invoked treaty confers a private right of action, it enables private parties to
maintain an action in court.
475
The intent and justiciability approaches for self-execution are mentioned
in Islamic Republic of Iran v. Boeing Co.
476
and the Sum of $70,990,605
case.
477
The intent-based approach has been upheld by the courts,
478
and
presently, this approach tends to comprehend even the justiciability issue,
which is related to the separation of powers.
479
The intent-based approach
based on the treaty-makers intentions has been a general criterion for treaty
self-execution and is more often invoked, but in the case of executive
agreements it is necessary to consider in what circumstances these
approaches should be invoked.
480
Further, the constitutionality approach does not apply to executive
agreements. Congressional-executive agreements are likely inherently
self-executing in terms of the reason why such agreements are within the
congressional legislative power. If sole executive agreements were made
in relation to subject matters within legislative power, the issue is not self-
execution but the constitutionality, of executive agreements.
Next, there are some court decisions that found self-execution based on
private rights of action. For example, in Lakes Pilots Association, Inc. v.
U.S. Coast Guard, an executive agreement made with the authorization of
the Great Lakes Pilotage Act was debated. The U.S. District Court
473
BRADLEY, supra note 12, at 5.
474
Vázquez, Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution,
supra note 466, at 1759.
475
Vázquez, The Four Doctrines of Self-Executing Treaties, supra note 426, at 719. However,
recently, there are many arguments that self-execution and right of action are distinct issues. See, e.g.,
RESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 310 cmt. b, reporters’ notes 4, 9 (AM.
L. INST. 2018); BRADLEY, supra note 22, at 51. Cf. Vázquez, Four Problems with the Draft Restatement’s
Treatment of Treaty Self-Execution, supra note 466, at 1759–61.
476
Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283–84 (9th Cir. 1985).
477
United States v. Sum of $70,990,605, 234 F. Supp. 3d 212, 233–34 (D.D.C. 2017).
478
See, e.g., Medellín v. Texas, 552 U.S. 491, 506–09, 516, 519–23 (2008); Curtis A. Bradley,
Self-Execution and Treaty Duality, 2008 SUP. CT. REV. 131, 149–157, 176–80 (2008). See also
RESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 310(2) (AM. L. INST. 2018).
479
See Vázquez, Four Problems with the Draft Restatement’s Treatment of Treaty Self-
Execution, supra note 466, at 1755–59; Yuhei Matsuyama, The Restatement (Fourth) of U.S. Foreign
Relations Law: Self-Executing Treaty Issue, 51 J. GRADUATE SCH. FUKUOKA UNIV. 45, 51–55 (2019)
(Japan).
480
In Islamic Republic of Iran v. Boeing Co., court jurisdiction was an issue and the court
considered self-execution of the executive agreement. However, the issue was directed only to the court;
it had no impact on the authority of political departments, although there are very few cases of self-
execution of executive agreements where self-execution was discussed in terms of the intent and
justiciability.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 107
considered self-execution in terms of the granting of a private right of
action.
481
Finally, as mentioned earlier in this section, the courts basically apply
the same approach for Article II treaties, such as the four factors approach
spelled out in the People of Saipan case,
482
to executive agreements. But,
since the California Supreme Court’s decision in State of California v. Fujii
in 1952, treaty provisions that are not self-executing do not displace state
laws.
483
Thus, applying the same approach to executive agreements may
lead some to conclude that non-self-executing executive agreements are
not supreme over state law.
On the one hand, it is possible to conclude that non-self-executing
executive agreements do not supersede state laws. On the other hand,
there is a view that states do not exist in the field of foreign affairs. T he
Supreme Court has upheld the supremacy of executive agreements over
state laws on the basis of the federal government’s authority over foreign
affairs.
484
As held in the Garamendi case, such agreements are superior
to state powers even in the case of conflict between “federal policy”
485
and
state laws or state policies.
486
Therefore, even non-self-executing
executive agreements may displace inconsistent state laws.
It is likely that the self-execution of executive agreements may still be
discussed, but there are currently few judicial cases. On the relationship
with federal statutes, while the last-in-time rule applies to the self-
execution of Article II treaties, it seems that the rule is not totally applicable
to executive agreements. In determining the relationship of executive
agreements with federal statutes, the separation of powers consideration
also does matter, not just self-execution of executive agreements.
Moreover, in discussing self-execution of executive agreements, it is
necessary to further consider the circumstances under which the intent,
481
Lakes Pilots Ass’n, Inc. v. U.S. Coast Guard, 2013 WL 5435048, at *10–12 (E.D. Mich. 2013)
(citing and quoting Renkel v. United States, 456 F.3d 641, 643 (6th Cir. 2006)).
Another district court also considered in 2004 self-execution in terms of right of action and denied
self-executing status of an executive agreement at issue. De La Torre v. United States, 2004 WL
3710194, at *8–10 (N.D. Cal. 2004).
482
Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1283 (9th Cir. 1985).
483
SLOSS, supra note 201, at 213, 231; Matsuyama, The Significance of the Fuji Case, supra note
425, at 49.
Sum of $70,990,605 and Beeler seem to treat the Supreme Court decisions on the domestic legal
force of executive agreements as self-execution of executive agreements. United States v. Sum of
$70,990,605, 234 F. Supp. 3d 212, 233 (D.D.C. 2017); Beeler v. Berryhill, 381 F. Supp. 3d 991, 998
(S.D. Ind. 2019).
484
See, e.g., United States v. Belmont, 301 U.S. 324, 331–32 (1937); United States v. Pink, 315
U.S. 203, 230–31 (1942).
485
American Insurance Ass’n v. Garamendi, 539 U.S. 396, 425 (2003).
486
The Restatement (Third) states that since executive agreements are federal law, they
“supersede[] inconsistent State law or policy whether adopted earlier or later. Even a non-self-executing
agreement of the United States, not effective as law until implemented by legislative or executive action,
may sometimes be held to be federal policy superseding State law or policy.” RESTATEMENT (THIRD) OF
THE FOREIGN RELS. L. OF THE U.S. §115 cmt. e (AM. L. INST. 1986).
108 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
justiciability, or private rights of action should be invoked. But, as
discussed above, self-execution of executive agreements in terms of the
exclusive power of Congress may not be an issue because such agreements
are usually congressional-executive agreements.
In summary, this section analyzed the domestic legal force and self-
execution of executive agreements. Leading cases regarding the
domestic legal force of executive agreements—Belmont, Pink, Dames &
Moore, and Garamendi
487
—relate to the domestic legal force of sole
executive agreements. Executive agreements implementing treaties have
domestic legal force because the underlying treaties that authorize the
making of executive agreements are supreme. Congressional-executive
agreements also acquire domestic legal force and are supreme over state
law. While sole executive agreements have domestic legal force and are
superior to state law, the supremacy of sole executive agreements relates
to the presidential foreign affairs power which requires state law to yield
to sole executive agreements.
For self-execution of executive agreements, the U.S. courts apply the
same approach as treaty self-execution. Executive agreements pursuant to
Article II treaties are self-executing if the treaties they implement are self-
executing. Sole executive agreements may be self-executing, but self-
executing sole executive agreements do not displace federal statutes. Thus,
the last-in-time rule does not apply to sole executive agreements unless
such agreements are made based on the President’s exclusive authority.
In other words, the validity of sole executive agreements depends on
congressional measures and intent. Furthermore, congressional-
executive agreements may be self-executing as in the judicial case
mentioned above.
This part analyzed American executive agreements in terms of the
making history of the Constitution, the practical development of the
agreements, classification of the agreements, and domestic legal force and
self-execution of the agreements. In contrast to Japanese executive
agreements, there are many judicial decisions on executive agreements in
the United States. In the next Part, executive agreements in those two
legal systems are compared and examined.
IV. COMPARING JAPANESE AND AMERICAN PRACTICES
Previous two Parts analyzed the histories and practices of executive
agreements in Japan and the United States. Part I discussed the drafting
history of the Constitution of Japan and history of executive agreements in
Japan. In the Japanese Constitution, the Cabinet has authority to make
487
See also supra notes 362–99 and accompanying texts.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 109
treaties with the approval of the Diet.
488
However, during the debate of
the Constitution, the founders recognized that executive agreements would
exist, which meant that they anticipated a procedure to make international
agreements without following the explicit provisions in the constitutional
law.
489
In Japan, the Administrative Agreement between Japan and the United
States provoked a debate under the Constitution of Japan.
490
After the
debate, the Japanese government published the Ohira Three Principles,
authoritative statements pertaining to executive agreements, which
explained the distinction between treaties and other international
commitments. According to the Principles, treaties, which concluded
with the Diet approval in accordance with Article 73, Item 3 of the
Constitution, deal with legislative matters, financial matters or politically
important matters. And executive agreements entered into based on Article
73, Item 2 of the Constitution which grants authority to “[m]anage foreign
affairs” are made within the scope of already approved treaties, existing
domestic laws, or budget already passed by the Diet.
491
Part I also dealt with the domestic legal force of executive agreements
and explained that even international agreements made without the Diet’s
approval have domestic legal force in Japan. And also some scholars
debate the relationship of executive agreements with other domestic legal
norms, which is the issue of rank or hierarchy.
Part II discussed the American practice of executive agreements. During
constitutional debates, the American Framers agreed that treaty-making
authority would be granted to the federal government.
492
Hence, the
treaty-making power was bestowed on the President and the Senate,
493
and
treaties, as the supreme law of the land, were made superior to state law.
494
However, soon after the adoption of the U.S. Constitution, executive
agreements began to emerge.
495
Traditionally, scholars have
acknowledged three types of executive agreements.
The Supremacy Clause gives domestic legal force to treaties, while the
domestic legal force of executive agreements has been recognized in
Supreme Court decisions.
496
Self-execution of executive agreements also
is an issue as in the case of Article II treaties.
497
Each type of executive
agreements may be self-executing. Especially, some scholars
488
Kenpō art. 73 (Japan).
489
See supra notes 70–77 and accompanying texts.
490
See supra notes 121–30 and accompanying texts.
491
See supra notes 146–70 and accompanying texts.
492
SLOSS, supra note 201, at 23.
493
U.S. CONST. art. II, § 2, cl. 2.
494
Id. art. VI, cl. 2.
495
See supra Part III.A.
496
See supra Part III.D.1.
497
See supra Part III.D.2.
110 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
congressional-executive agreements do not trigger self-execution but the
Beeler case considered it. Sole executive agreements can be self-
executing but do not supersede federal statutes, which is not an issue of the
last-in-time rule but the separation of powers. At last, self-execution of
executive agreements are discussed in pursuant to the same approach for
treaty self-execution.
Finally, this part analyzes the differences and similarities of executive
agreements in the Japanese and the U.S. legal systems. While these
systems are quite different, they also have interesting points in common.
First, even though they both adopt the separation of powers system, the
two constitutional structures are completely different. Japan is a unitary
state with forty-seven administrative prefectures. The current Japanese
constitution adopts a parliamentary cabinet system, where the Cabinet
functions as the executive department
498
and the Diet, as the legislative
department.
499
Additionally, in the exercise of its power, the Cabinet is
responsible to the Diet.
500
Under the parliamentary cabinet system, the
relationship between the Cabinet and the Diet is very close. The Prime
Minister of Japan is “designated from among the members of the Diet by
a resolution of the Diet”
501
although members of the Diet are “elected
members, representative of all the people.”
502
In contrast, the United States is a federal state with fifty local
governments, which are the constituent states. The U.S. Constitution
provides for the presidential system, where the President is both the head
of the state and the government.
503
He or she is chosen based on the
popular vote of electors, who are chosen by the people.
504
The
Constitution adopts a strict separation of powers system.
505
Both countries’ legislative branches are involved in the making of some
types of executive agreements. In Japan, the Diet approves and
implements treaties. In the United States, the Senate gives its advice and
consent to treaties. So, there are executive agreements based on treaties
498
Kenpō art. 65 (“Executive power shall be vested in the Cabinet.”) (Japan).
499
Id. art. 41 (“The Diet shall be the highest organ of state power, and shall be the sole law-
making organ of the State.”).
500
Id. art. 66, para. 3 (“The Cabinet, in the exercise of executive power, shall be collectively
responsible to the Diet.”).
501
Id. art. 67, para. 1. See also id. art. 68, para. 1 (“The Prime Minister shall appoint the Ministers
of State. However, a majority of their number must be chosen from among the members of the Diet.”).
502
Id. art. 43, para. 1.
503
See U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected, as follows”).
504
See U.S. CONST. amend. XII, amend. VVIII.
505
See Springer v. Government of the Philippine Islands, 277 U.S. 189, 201 (1928) (opinion of
court); Nixon v. Administrator of General Services, 433 U.S. 425, 442–43 (1977); Immigr. and
Naturalization Serv. v. Chadha, 462 U.S. 919, 952 (1983); Morrison v. Olson, 487 U.S. 654, 694–95
(1988).
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 111
in both countries. But in terms of executive agreements concluded by the
executive branch alone, some differences emerge.
The U.S. President has greater authority than the Cabinet of Japan.
506
The President’s authority encompasses the executive power and the power
of Commander in Chief,
507
as well as the power to settle claims
508
and to
enter sole executive agreements.
509
However, although the Cabinet in
Japan has authority to make executive agreements, it derives this power
from its responsibility to “[m]anage foreign affairs.”
510
Thus, because
that responsibility is more closely circumscribed than the President’s
authority, the Prime Minister’s power is less.
511
Second, there are differences in how the political branches gets involved
in the making of executive agreements. Some types of executive
agreements in the United States require the involvement of the political
branches, but to be an executive agreement in Japan, there is, by definition,
no Diet approval. Traditionally, in the United States, there have been
three types of executive agreements: executive agreements pursuant to
Article II treaties, congressional-executive agreements, and sole executive
agreements. Moreover, each agreement differs in terms of which branch
has the ability or power to make the agreement.
512
So, both the subject
matters of the executive agreement and the relevant powers do matter.
However, in Japan, whether an international agreement is an executive
agreement depends on whether the Diet approval is required. And whether
the approval is required or not depends on what the agreement covers.
Constitutionally, the Cabinet has authority to enter into executive
agreements as a part of their foreign affairs function. But some treaties
delegate the power to make executive agreements to the Cabinet. Thus,
in Japan, the scope of executive agreements, rather than the types is more
often debated. The scope is related to the Ohira statement. Whether the
approval of the Diet is requested is decided according to the subject matters
of executive agreements.
Another difference concerns the domestic legal force of executive
agreements. While U.S. courts have discussed this issue and established
506
See U.S. CONST. art. II, § 1, cl. 1.
507
Id. art. II, § 2, cl. 1.
508
See supra notes 285–88 and accompanying texts.
509
See supra notes 285–93, 305–06 and accompanying texts.
510
KENPŌ art. 73, item 2 (Japan).
511
Hisakazu Fujita, supra note 6, at 447–48. Hisakazu Fujita analyzed differences between
practices of executive agreements in Japan and the U.S. in terms of the political systems, the scope of
the agreements, notice to the legislatures, and the issue of secret arrangements. Id. at 447–50. See also 1
ISAO SATŌ , supra note 108, at 244–47 (discussing some differences and pointing out the supermajority
on treaty-making and the strength of authority); See Yukio Tomii, Executive Agreements and the Treaty
Clause of U.S. Constitution (III), 129 HOGAKU SHIMPO [CHUO L. REV.] 171, 200 (2022) (pointing out
authority of the political branches is ambiguous in the Japanese Constitution because it does not clearly
provide for the inherent authority of the Cabinet or the extent of the Diet’s legislative power.).
512
See supra Part III.C.
112 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
precedents, Japanese courts have not dealt with it. The supremacy of
executive agreements over state law is established in the United States. In
contrast, the Japanese courts have not clearly decided on the domestic legal
force of executive agreements and Japanese scholars have discussed it and
the relationship of executive agreements with other domestic legal norms.
Furthermore, there are some judicial decisions on self-execution of
executive agreements in the United States.
513
One reason why Japanese
courts have not dealt with the issue of the domestic legal force of executive
agreements might be that these agreements usually do not affect the rights
and duties of individuals, which may lead to fewer lawsuits on executive
agreements. International agreements that affect individual rights are
more likely to be made as treaties requiring the approval of the Diet, as the
Ohira Three Principles refer to these types of agreements.
514
In contrast to what is mentioned above, there are also some similarities
between Japanese and American executive agreements. First and
foremost, executive agreements have been recognized in both countries for
a long time. Each nation’s constitutional law stipulates procedures for
making international agreements, which are referred to as treaties.
515
Nevertheless, early in each nation’s history—and in Japan’s case, before
its current constitution—international agreements were created according
to procedures not explicitly provided for in the constitutional laws. And
in both countries, international agreements made outside the constitutional
procedure are referred to as executive agreements.
Second, both countries have similar backgrounds regarding the domestic
legal force of international agreements or treaties. The Supremacy
Clause of the U.S. Constitution was adopted because the Framers were
concerned about state violations of international law under the Articles of
Confederation, especially violations of the 1783 Treaty of Paris.
516
Therefore, the Clause’s main purpose was to assure the supremacy of
treaties over state laws to prevent states from violating treaties.
517
Similarly, Article 98 of the Constitution of Japan aims to ensure respect for
international law and stipulates the automatic domestic legal force of
treaties.
518
Especially during World War II, Japan violated international
513
See Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279 (9th Cir. 1985); Lakes Pilots Ass’n,
Inc. v. U.S. Coast Guard, 2013 WL 5435048 (E.D. Mich. 2013); United States v. Sum of $70,990,605,
234 F. Supp. 3d 212 (D.D.C. 2017); Beeler v. Berryhill, 381 F. Supp. 3d 991 (S.D. Ind. 2019).
514
However, there are many judicial decisions on the domestic legal effect of treaties. YUJI
IWASAWA, INTERNATIONAL LAW, HUMAN RIGHTS, AND JAPANESE LAW, supra note 7, at 30, 44–76; Shin
Hae Bong, supra note 22, at 365–71; HIROMICHI MATSUDA, INTERNATIONAL LAW AND
CONSTITUTIONAL LEGAL SYSTEMS, supra note 180, at 539–47.
515
See Kenpō art. 73, item 3 (Japan); U.S. CONST. art. II, § 2, cl. 2.
516
See supra notes 202–06 and accompanying text.
517
RESTATEMENT (FOURTH) OF THE FOREIGN RELS. L. OF THE U.S. § 310 cmt. a (AM. L. INST.
2018).
518
See supra notes 89–92, 101, 180 and accompanying texts.
FALL 2024 EXECUTIVE AGREEMENTS IN JAPAN AND THE UNITED STATES 113
law, and other countries had an unfavorable impression of Japan.
519
Hence,
although the Committee on Bill for Revision of the Imperial Constitution
ultimately rejected a provision borrowed from the Supremacy Clause of
the American constitution—which was designed for a federal state—
members of the Diet, in considering the new constitution, suggested
inserting a similar term to show respect of international law.
520
Thus,
provisions on the domestic legal force of international agreements in both
countries have similarities—they assure other countries of their respect for
international law.
521
And executive agreements is also international
agreements both countries comply with, and they acquire domestic legal
force.
Third, the creation of international agreements through express
constitutional procedures has decreased in both countries. In America,
almost ninety-five percent of new international agreements are executive
agreements, and the ratio of Article II treaty is low.
522
Moreover, the
number of new Article II treaties since the Obama Administration has been
significantly reduced.
523
New Article II treaties make up only several
percent of international agreements in the United States. Some scholars
describe this decline as the “death” of the Article II treaty.
524
In Japan, of the roughly 300 international agreements concluded per
year, only 10 to 30 are treaties.
525
Therefore, most international
agreements made by Japan are executive agreements. Over 90 percent of
executive agreements are related to economic cooperation, such as ODA.
526
According to Yasuo Nakauchi from the Research Office of the Committee
on Foreign Affairs and Defense, the choice of whether an international
agreement is a treaty or executive agreement is a legal issue related to the
interpretation of Article 73, Item 3 of the Japanese Constitution.
527
However, in practice, the choice is also influenced by the policy
consideration of MOFA.
528
In other words, it is a legal issue whether an
international agreement includes subject matter that requires the approval
519
4 TATSUO SATŌ, supra note 85, at 747.
520
See supra Part I.A.
521
However, there are some critiques of the legal effect of Article 98, Paragraph 2 of the Japanese
Constitution, which calls for domestic legal force of international agreements in Japan. See MASAAKI
SAITŌ, supra note 47, at 243–48; HIROMICHI MATSUDA, INTERNATIONAL LAW AND CONSTITUTIONAL
LEGAL SYSTEMS, supra note 180, at 163–68.
522
Bradley & Goldsmith, supra note 1, at 1210.
523
Id. at 1210–11.
524
Curtis A. Bradley et al., The Death of Article II Treaties?, LAWFARE (Dec. 13, 2018),
https://www.lawfaremedia.org/article/death-article-ii-treaties
In contrast to this view, for a study on focusing on a meaningful perspective of Article II treaties,
see Nyarko, supra note 320, at 54.
525
Yasuo Nakauchi, supra note 1, at 19.
526
Id.
527
Id. at 34 (quoting Yoshiaki Yamamoto, Treaty and the Diet, 66 LEGIS. & RSCH. (House of
Councillors) 18, 24 (1975)).
528
Yasuo Nakauchi, supra note 1, at 35.
114 WASHINGTON INTERNATIONAL LAW JOURNAL VOL. 33 NO. 1
of the Diet, which is determined by the government with the review of the
Cabinet Legislation Bureau. But in some cases, treaty makers draft the
text so as to make executive agreements in the process of negotiating an
agreement.
529
As mentioned above, while legal systems and the practice of executive
agreements differ in both countries, their use and domestic legal force of
the agreements have some similarities. Each country adopts different
system of the government but the practice of creating executive agreements
has long been recognized.
V. CONCLUSION
This Article discusses executive agreements in Japan and the United
States. In both countries, these agreements have existed ever since the
adoption of their constitutions. Each country adopts a different
government and legal system. However, the practice of executive
agreements, which are made without following the procedure explicitly
provided in the constitution, has been recognized. In both countries,
executive agreements have increased in lieu of treaties. Furthermore,
constitutional provisions regarding the domestic legal force of
international agreements share similar purposes.
529
ICHIRŌ KOMATSU, supra note 181, at 282.
