83 See McLaughlin, C.H., The Scope of the Treaty Power in the States II, 43 Minn. L. Rev. 651, 721 (1958) (calculates that 5.9% of the agreements were concluded between 1883 and 1957 as exclusive executive agreements or "presidential agreements"); see also International Agreements: An Analysis of Executive Regulations and Practices, at 22, Senate Committee on Foreign Relations, 95th Congress, 1st Sess. (1977) (calculation that 5.5% of the agreements from 1946 to 1972 were exclusively based on executive power). A second hypothesis that relates to some of these restrictions is that the treaty`s high legislative barriers contribute to resolving the commitment problems arising from executive rotation. They argue that strong legislative support, implicit in the treaty mechanism, reassures negotiating partners that the United States will likely work together in the long term, even if administrations change. Footnote 55 This rationale is based on the assumption that senators` preferences are more stable than the preferences of the Speaker, for example because the Senate represents a broader consensus among the voting population, less sensitive to political shocks, footnote 56 or because senators serve longer terms and avoid changing positions to avoid being considered fluctuating. Footnote 57 This would allow other countries to rely more on a treaty promise. 34 Some discussions are still ongoing on whether agreements between Congress and executive agreements can be used in the rare cases where the agreement is not within the jurisdiction of Congress under Article I of the Constitution.
See z.B. Hathaway, supra note 1, 1339. However, it is important to recognize the limitations of this study, which indicate that the results mentioned above should not be seen as an end point, but as an important step in understanding the relevance of the choice between international instruments. 11 Hathaway, above 1, circa 1285 (on the grounds that historical conventions explain the application of the treaty). Bradley, Curtis A. & Morrison, Trevor W., Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 474 (2012) (arguing that the implementation of the treaty can be explained, at least in part, by selective Senate attention, which is devoted to "big" agreements).
38 See McClure, supra 3, 363 (reducing the relevance of contracts for a small set of non-controversial issues); see also Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 60 (1990) (finding that the executive agreement is the most democratic instrument); See also Ackerman – Golove, supra note 30, at 916 (concluding that the rise of the congressional executive agreement favors "[e]fficacy, democracy [and] legitimacy"). For Hathaway, the treaty is a less reliable instrument and should be abandoned in favor of the executive agreement of Congress. Their assertion has sparked heated discussion among scholars of international law. For example, the American Journal of International Law`s online companion published in 2014 under the title The End of Treaty?, the online companion of the American Journal of International Law, several essays by eminent scholars and State Department officials who discussed whether the treaty would have a place in the future of U.S. foreign policy. Footnote 44 The dataset consists of all agreements included in the Interim Series "Contracts in Force" (TIF) signed and ratified between 1982 and 2012. Footnote 67 TIF is the official collection of international agreements maintained by the U.S. State Department. It contains information on the date of signing, the parties and the purpose of the agreement, as well as the entry into force of the agreement. TIF agreements are included in the Kavass Treaty Guide in the Force (Guide).
Footnote 68 The guide is an annual accompanying TIF publication, first published in 1982, which contains additional useful information such as the purpose of the contract, a brief description and the contracting parties.