Executive agreements in argentine law. An institutionalized practice

Abstract

Contextualization: Like what occurs in other states, executive agreements have historically been an integral part of the external actions of the Argentine State. However, the Argentine National Constitution does not contain provisions that expressly grant the President the power to enter into international treaties without the intervention of Congress.

Objectives: This article aims to characterize, within the framework of Argentine law, the main features of the trend of entering into simplified agreements as a practice not constitutionally provided for but established in the institutional sphere due to its repeated observance throughout the country's external history. Based on this, it also seeks to reflect on the constitutional implications of the customary consolidation of this practice.

Methodology: This article constitutes a qualitative and descriptive investigation that incorporates a critical reflection component and employs the exegetical method. The information gathering tasks included the interpretation of constitutional precepts and relevant legislation, a review of specific doctrinal contributions, and an examination of jurisprudence from the Supreme Court of Justice of the Nation.

Results: The practice of entering into executive agreements has become customary within the Argentine institutional framework. In response to this trend, jurisprudence has defined the constitutionally valid grounds for such agreements, recognizing two alternatives: i) executive agreements concerning technical or administrative matters within the purview of the executive authority, and ii) agreements concluded within the framework of prior legislative authorization. However, the body of jurisprudence remains open, with cases of agreements entered into by the national Executive without prior regulatory authorization remaining points of contention.

Conclusions: The practice of concluding executive agreements constitutes an institutionalized practice outside the bounds of constitutional provisions. Understanding this practice can be approached through the analytical tools provided by developments related to institutional customs and the theory of constitutional mutations. This practice has ultimately impacted the substantive dimension of the National Constitution, thus overlapping with the treaty-making procedure established in the formal Constitution.