This article is based on an analysis of the survival period and shows that contracts are more sustainable obligations than executive agreements. In particular, there was a 15% probability that a standard contract concluded in 1982 failed until 2012, compared to a 50% probability that it would fail as an executive contract. The results are consistent with the fact that treaties remain an important political instrument for the United States, as they are a qualitatively different promise from a promise made in the form of an ex ante agreement between Congress and the executive branch. The view that treaties and agreements between Congress and the executive branch can be considered legal substitutes, of course, raises the question of why the United States needs two legal instruments to regulate the same types of international relations. Indeed, some commentators have asked why the United States should not abandon the treaty in favour of the agreement between Congress and the executive branch. Footnote 38 To date, the analysis has not distinguished between different types of executive agreements. However, there are considerable differences between these instruments, although these differences have not been properly taken into account in previous empirical scholarships. Ex-Congress executive agreements must be approved by Congress for individual agreement. Martin`s theory implies that this requirement for individual authorization can reduce the difference in cost compared to a contract. Moreover, the only executive agreements are very different political instruments, which are entirely within the presidential power and do not require legislative participation.
It may therefore be reasonable to argue that only executive agreements should be omitted in the analysis. These two issues are dealt with one after the other. The prevailing view is that agreement between congressional executives can in any event be used as an alternative to the contractual method. The procedure to be followed is a political judgment that will be rendered in the first place by the President, subject to the possibility that the Senate will refuse to consider a joint resolution of Congress to approve an agreement and insists that the President present the agreement in the form of a treaty. Fn. 37 30 See McClure, p. 3, 4, 247 (noting that 1,200 out of 2,000 agreements have been concluded as executive agreements of Congress and that this serves as a basis for promoting a basis for legitimizing their use); see also Wright, Quincy, The United States and International Agreements, 38 AJIL 341, 354 n. 62 (1944) (reversal of previous opinions based on the „practice of Congress and the Executive“); Ackerman, Bruce Golove, David, IS NAFTA Constitutional?, 108 Harv. L. Rev. 799, 868 (1995) (shows how McClure`s account makes coherent practice a necessary and sufficient condition for interchangeability.
Even on Wright`s change of mind.). See generally McDougal, Myers S. – Lans, Asher, congressional contracts and executive agreements or presidential agreements: Interchangeable instruments of national policy: I, 54 Yale L.J. 181 (1945); McDougal, Myers S. – Lans, Asher, Treaties and Congressional-Executive Agreements or Presidential Agreements: Interchangeable Instruments of National Policy: II, 54 Yale L.J.