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the Senators present, may enter into an international agreement on any should be concluded as a treaty or as an international agreement other
subject genuinely of concern in foreign relations, so long as the agree- than a treaty, the matter is brought to the attention of the Legal Adviser
ment does not contravene the United States Constitution; and of the Department. If the Legal Adviser considers the question to be a
b. International Agreements Other Than Treaties serious one that may warrant congressional consultation, a memoran-
International agreements brought into force with respect to the dum will be transmitted to the Assistant Secretary for Congressional
United States on a constitutional basiis other than with the advice and Relations and other officers concerned. Upon receiving their views on
consent of the Senate are "international agreements other than the subject, the Legal Adviser shall, if the matter has not been resolved,
treaties." (The term "executive agreement" is appropriately reserved transmit a memorandum thereon to the Secretary for his decision. Ev-
for agreements made solely on the basiis of the constitutional authority ery practicable effort will be made to identify such questions at the
of the President.) There are three constitutional bases for international earliest possible date so that consultations may be completed in suffi-
agreements other than treaties as set forth below. An international cient time to avoid last-minute consideration.
agreement may be concluded pursuant to one or more of these constitu- c. Consultations on such questions will be held with congressional
tional bases: leaders and committees as may be appropriate. Arrangements for such
(1) Agreements Pursuant to Treaw consultations shall be made by the Assistant Secretary for Congressional
The Resident may conclude an international agreement pursuant Relations and shall be held with the assistance of the Office of the Legal
to a treaty brought into force with the advice and consent of the Adviser and such other offices as may be determined. Nothing in this
Senate, whose provisions constitute authorization for the agreement section shall be taken as derogating from the requirement of appropriate
by the Executive without subsequent action by the Congress; consultations with the Congress in accordance with section 723.1e in
(2) Agreements Pursuant to Legislation connection with the initiation of, and developments during, negotia-
The Resident may conclude an international agreement on the tions for international agreements, particularly where the agreements
basis of existing legislation or subject to legislation to be enacted by are of special interest to the Congress. **
the Congress; and '722 Action Required in Negotiation andfor Signature of Treaties and
(3) Agreements Pursuant to the Constitutional Authoriw of the Agreements
President 722.1 Authorization Required to Underlake Negotiations
The President may conclude an international agreement on any Negotiations of treaties, or other international agreements on matters
subject within his constitutional authority so long as the agreement is of substance, or for their extensions or revision are not to be under-
not inconsistent with legislation enacted by the Congress in the exer- taken, nor any exploratory discussions undertaken with representatives
cise of its constitutional authority. The constitutional sources of of another government, until authorized in writing by the Secretary or
authority for the President to conclude international agreements in- an officer smcally authorized by him for that purpose. Notiflation of
clude: termination of any treaty or other international agreement on matters of
(a) The Resident's authority as Chief Executive to represent substance requires similar authorization
the nation in foreign affairs; 722.2 Scow of /;uihorization
(b) The President's authority to receive ambassadors and other Approval of a request for authorization to negotiate a treaty or other
public ministers; intemational agreement does not constitute advance approval of the text
(c) The President's authority as "Commander-in-Chief ';and nor authorization to agree upon a date for signature or to sign the treaty
(d) The Resident's authority to "take care that the laws be or agreement. Authorization to agree upon a given date for, and to
faithfully executed." ,proceed with, signature must be specif~cally requested in writing as pro-
721.3 Considerations for Selecting Among Constitutionally Authorized vided in section 722.3. This applies to treaties and other agreements to
Procedures be signed abroad as well as those to be signed at Washington. Special in-
In determining a question as to the procedure which should be structions may be required, because of the special circumstances in-
followed for any particular international agreement, due consideration is volved, with the respect to multilateral conventions or agreements to be
given to the following factors along with those in section 721.2: signed at international conferences.
a. The extent to which the agreement involves commitments or risks .*722.3 Request for Authorization to Negotiate andlor Sign; Action
affecting the nation as a whole; ** Memorandum
**b. Whether the agreement is intended to affect State laws; a. A request for authorization to negotiate and/or sign a treaty or
c. Whether tK@agreement can be given effect without the enactment other international agreement takes the form of an action memorandum
of subsequent legislation by the Congress; addressed to the Secretary and cleared with the Office of the Legal Ad-
d. Past United States practice with respect to similar agreements; viser, the Office of the Assistant Secretary for Congressional Relations,
e. The preference of the Congresswith respect to a particular type of other appropriate bureaus, and any other agency (such as Defense,
agreement; Commerce, etc.) which has primary responsibility or a substantial in-
f. The degree of formality desired for an agreement; terest in the subject matter. It is submitted through the Executive Secre-
g. The proposed duration of the agreement, the need for prompt con- tariat.
clusion of an agreement, and the desirabity of concluding a routine or b. The action memorandum may request one of the following: (1)
short-term agreement; and authority to negotiate,(2) authority to sign, or (3) authority to negotiate
h. The general international practice with respect to similar agree- and sign. The request in each instance states that any substantive
ments. changes in the draR text will be cleared with the Office of the Legal Ad-
In determining whether any international agreement should be viser and other specifled regional andlor functional bureaus before
brought into force as a treaty or asan international agreement other than defhtive agreement is reached. Drafting ofices consult closely with the
a treaty, the utmost care is to be exercised to avoid any invasion or com- Office of the Legal Adviser to insure that all legal requirements are met.
promise of the constitutional powers of the Senate, the Congress as a c. The action memorandum indicates what arrangements are planned
whole, or the Resident. with respect to (1) congressional consultation, and (2) opportunity for
721.4 Questions as to 5pe of Agreement To Be Used; Consultation public comment on the treaty or agreement beinegotiated, signed, or
With Congress accedd to.
a. AU legal memorandums accompanying Circular 175 requests (see d. Where it appears that there may be obstacles to the immediate
section 722.3e) will discuss thoroughly the bases for the type of agree- public disclosure of the text upon its entry into force, the action
ment recommended. memorandum shall include an explanation thereof (see sections 723.2
b. When there is any question whether an international agreement and 723.3).