The dataset consists of all agreements notified in the Intermediate Treaty States (TIF) that were 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. The TIF uses a sophisticated, but partly inconsistent, system to categorize chords by theme. Footnote 69 In total, there are 197 different subjects in the data set, many with single-digit observations. This article reduces the size of these themes to thirty-eight coherent thematic categories in the online appendix. The first opportunity to opt out is the fact that non-autonomous contracts follow a two-step process to become applicable under U.S. law.
Footnote 39 After ratification, non-autonomous treaties require additional implementation through legislation that requires a simple majority in both the House of Representatives and the Senate. Compare this with the executive agreement, for which the terms of application can and will be adopted at the same pace as ratification. Hathaway argues that the two-step treaty process allows the president to break his promise after ratification, either intentionally or because the domestic policy costs for implementing enforcement laws are too high. Footnote 40 Contrary to the assumptions raised in the previous subsection, several reports indicate that contract commitments differ qualitatively from those made as agreements between Congress and the executive branch. These reports are based on the idea that the treaty, while politically more costly, can also bring some benefits to the parties, which may ultimately lead to a firmer commitment. In the case of interactions where benefits outweigh costs, the contract would then be the preferred instrument, while an executive agreement of Congress would be preferred in others. 25 treaties and other international agreements: The role of the United States Senate, 106 Comm. Print 5 (2001) (detail, which the Presidents claimed as the foundation of the executive branch in Article II, Section 1 of the Constitution; its power as Commander-in-Chief in Article II, Section 2, Clause 1; its power to negotiate under Article II, Section 2 Clause 2; its power to receive ambassadors in Article II , Section 3; and its duty to the faithful application of the laws of Article II , Section 3).
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”). In essence, the President may enter into an executive agreement without the “approval and consultation” of two-thirds of the Senate, if a previous treaty or previous legislation gives him the power to do so, or if he does so in accordance with another constitutional obligation. 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.
