26 1 U.S.C 112b (a) (1979). It is important not to “fetishize” this triptych of treaties, congress-executive agreements and single executive agreements. Indeed, recent research has drawn attention to its inability to classify two recent agreements, namely the Paris agreement on climate change and the nuclear agreement with Iran. See Galbraith, Jean, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 u. Chi. L. Rev. 1675 (2017); Koh, Harold H., Triptych`s End: A Better Framework to Evaluate 21st Century International Lawmaking, 126 Yale L.J. F. 338 (2017). Since this article addresses the substantive difference between executive agreements and treaties concluded between 1982 and 2012 and does not deal with new forms of international agreements, there is little need to go beyond this traditional distinction. 38 Cf. McClure, a.o.a.
Note 3, 363 (thus reducing the relevance of contracts to a small subset of non-controversial issues); see also Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 60 (1990) (1990) (notes that the executive agreement is the more democratic instrument); see also Ackerman & Golove, note 30 above, at 916 (concluding that the rise of the agreement between Congress and the executive favours “[e] fficacy, democracy [and] legitimacy”). The first restriction concerns the causal interpretation of the results. The choice between treaties and agreement between Congress and the executive is not fortuitous and there is no guarantee that the estimates derived from the analysis can be interpreted as cause-and-effect estimates, i.e., agreements concluded in the form of treaties take a long time because they were adopted as treaties and not as agreements between Congress and the executive. Footnote 103 While treaties and agreements between Congress and the executive do not differ qualitatively, it seems difficult to rationalize the reasons why negotiators sometimes show such interest in the choice of instrument. Therefore, some scholars seem to criticize the alleged lack of usefulness of treaties. Arguments come in different forms; Some suggest that a president`s use of the treaty would mean a particularly high degree of commitment,footnote 15 that the fight for senators` approval could lead the government to divulge valuable information,footnote 16 or that greater stability in Senate preferences helps ensure long-term compliance. Footnote 17 All of these reports have in common the assumption that treaties, while politically more costly than agreements between Congress and the executive, bring certain benefits to the parties, which in turn justifies their sustainability as a valuable policy instrument of the United States. If the executive has the authority to do politics without referring to Congress, the president can use single executive agreements.
These areas cover, inter alia, matters within the general executive power of the President or his role as Commander-in-Chief of the Armed Forces. Footnote 25 Single executive agreements do not require congressional approval, but must be notified to Congress in accordance with the Case Act, like agreements between Congress and the executive. Footnote 26 11 Hathaway, footnote 1 above, to 1285 (arguing that historical conventions explain the use 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 use of the contract can be declared “great”, at least in part, by selective Senatorial attention). The first opportunity to break is rooted in the fact that non-auto-executive treaties follow a two-step process to become applicable in the United States. The law. Footnote 39 After ratification, self-executive treaties do not require further implementation by a legislative act that requires a simple majority in both the House of Representatives and the Senate. .
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