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15
Apr

What Is An Executive Agreement And How Does It Differ From A Treaty

The table shows the coefficient on the contract indicator for different model specifications. “Ex Post” compares contracts to ex-post congressional executive agreements. “Other” compares contracts with other executive agreements. There are also other difficulties, perhaps deeper, with the descriptive results. Hathaway`s main empirical guide is the comparison of contracts by theme. It notes that there are 27 trade agreements and only 8 environmental contracts, indicating that contracts are more important in trade than in the area of environmental protection. Footnote 61 Such a comparison of absolute numbers may be misleading, however, as it does not take into account the total number of agreements concluded in an area of expertise. If, for example, this study indicates that the absolute number of commercial contracts is greater than that of environmental contracts, there are also more trade executive agreements than environmental executive agreements. In fact, 20 out of 216 environmental agreements are concluded in the form of contracts, or 9%. However, only 35 of the 783 trade agreements are treaties, representing a smaller share of 4%. Therefore, contracts can indeed be a more important instrument of engagement for environmental agreements than for trade, even if the absolute figures suggest otherwise. On the other hand, opponents of substitutability point to the lack of clear textual support. In search of a strict conception of the Constitution, the treaty clause is clear when it comes to making the deliberation and approval of the Senate the exclusive method of approving international agreements.

Footnote 32 An alternative view resulting from a more flexible interpretation of the Constitution indicates that both the treaties and executive agreements of Congress have their respective areas of application. The argument is based on the idea that the U.S. Constitution has given limited powers to Congress and the President and that executive agreements can only be used to a limited extent. Treaties as a standard instrument for foreign affairs are not limited in the same way. Therefore, where a foreign policy issue is outside the powers assigned to Congress, the treaty is seen as the exclusive instrument for making legally binding commitments. Footnote 33 9 id. to 1312; See also Curtis A. Bradley, International Law in the U.S. Legal System 76 (2015) (considering that one of the reasons for the popularity of executive agreements is that it is “much easier to conclude the growing number of international agreements without submitting them to two-thirds of the Senate for approval”). To this day, the debate over the continued relevance of contracts is still pending in a context where agreements between Congress and the executive branch are so readily available and widely spread. The purpose of this article is to determine whether the treaty is a qualitatively different form of engagement than the agreement between Congress and the executive branch.

It uses the most comprehensive dataset on international agreements available in the United States – the 7,966 agreements reported in the Force Series treaties from 1982 to 2012. Unlike previous analyses, this article is the first to directly contrast the consequences of behaviour on contracts and executive agreements. Based on the survival time analysis, the article shows that an executive agreement reached in 1982 had an average probability of 50 per cent to break by 2012, while a similar promise made under contract failed with only a 15 per cent probability. Footnote 18 This result also applies after the review to a number of observable features, such as the composition of the House of Representatives and the Senate, the theme of the agreement and the partner country. The results also show that the difference between instruments is most marked when comparing contracts with the ex ante executive agreements of Congress.


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