Old and New Routes for Evading Parliamentary Approval of Defence and Security Agreements: Executive and Non-Binding Agreements in Recent Cases

This chapter examines, from a comparative perspective, recent developments in the longstanding tendency of executives to circumvent prior parliamentary authorisation for the conclusion of significant defence and security-related international agreements. While the constitutionalisation of foreign affairs has led to a greater legislative role in treaty-making, executives preserve substantial autonomy by pursuing two main routes: on the one hand, executive agreements, often justified through discretionary interpretations of legislative authorisation requirements; on the other, non-binding agreements, which offer even greater flexibility by circumventing legal constraints and parliamentary scrutiny. The analysis investigates the use of these instruments across various democratic legal systems. In Italy, executive and non-binding agreements have frequently been employed to bypass parliamentary approval in migration governance, as exemplified by the 2017 Memorandum of Understanding (MoU) with Libya and the 2023 MoU with Albania. Similarly, the UK–Rwanda MoU illustrates the strategic use of non-binding instruments in highly contested policy areas. In the realm of military defence cooperation, the AUKUS partnership was formalised through non-binding joint statements, while recent security agreements with Ukraine reflect the growing reliance on informal commitments as well. Collectively, these cases underscore a broader shift towards sole executive-led treaty-making, progressively undermining parliamentary scrutiny and its underlying principles of the separation of powers and democratic oversight.