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With respect to the identity of the parties, the agreements were concluded in the data set between the United States and one or more of 215 countries or governmental organizations and fifty-two international organizations. Table 3 shows the 20 countries with the highest number of agreements in the data set. A full list of agreements by partner countries is included in the online schedule. The three most common contractors are all Western European countries, namely France, Italy and Germany. In multilateral agreements, 20% is concluded in the form of a treaty, which far exceeds the share of all bilateral relations. In total, the data set contains 7,966 agreements. Each agreement is monitored once a year once a year, as long as it is in force, and once it ends, resulting in a total of 129,518 observations per year and by agreement. 29 Bradley, supra note 9, with 90 (“Most scholars … believes that the presidential power to enter into exclusive executive agreements is much narrower than the presidential power to enter into contracts pursuant to Article II.” Louis Henkin, Foreign Affairs and the United States Constitution (1996) (describes the view that the President will seek Senate approval only for “cautious” reasons, as “unacceptable”). What is the difference between a contract and an executive agreement? Contrary to the assumptions raised in the previous subsection, several reports indicate that the commitments made in the form of a contract differ qualitatively from those made 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). 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. The terminology surrounding the different types of executive agreements has sometimes caused confusion. Political scientists rarely distinguish between different types of executive agreements. When it appears in political literature, the unchanged term “executive convention” often refers to the collective of executive agreements and congresses. On the other hand, international jurists, when using the term “executive convention,” generally refer to exclusive executive agreements, while the collective of executive agreements as a single and congress is not bound to a particular term.
In order to preserve flexibility and precision in the language, this article uses modifiers when referring to a certain type of executive agreement. The unchanged concept of “executive agreement” refers to the collective of executive agreements and congresses. While some doctrinal criticism persists about the widespread application of the congressional executive agreement in place of the treaty, footnote 34 is now the prevailing view that treaties and executive agreements in Congress legally replace the vast majority of agreements under national law. Footnote 35 This view is also reflected in Restatement (Third) of the Foreign Relations Law of the United States. Footnote 36 The American Law Institute notes that a report attributing political benefits to the treaty is illustrated by the work of John SetearFootnote 49 and Lisa Martin. Footnote 50 Your argument focuses on the heavy legislative barriers to the treaty consultation and approval process.