74 For each statute, a manual search of all executive agreements between the United States and the party covered by the law is conducted within two years of the passage of the legislation. Not all acts actually authorize an executive agreement in the treaty. For example, the South African Democratic Transition Support Act of 1993 encourages investment and trade in South Africa. See South African Democratic Transition Support Act 1993, Pub. L. No. 103-149, 107 Stat. 1503 (1993). It can therefore reasonably be interpreted as the approval of previous investment and trade agreements between the United States and South Africa. However, there was no such agreement in the years prior to the act contained in the TIF. Indeed, the first investment contract was concluded shortly after the adoption of the statute. The empirical results of this study are ill-suited to assess the theoretical benefits of these assertions.
Future research to understand not only the legal differences, but also the political implications of an exit from a treaty in relation to the agreement between Congress and the executive branch, could shed more information and shed light on whether the fate of international agreements such as the Paris Agreement or NAFTA would have been less controversial if they had been concluded in the form of treaties. 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. In Table 5 of The Footnote 40, the same model specifications are executed with the competing complementary protocol protocol. Again, the results consistently show that treaty agreements are those that are concluded in the form of executive agreements. The results therefore do not depend on the specific characteristics of the Cox model, but are also robust for other model specifications. The table shows the coefficient on the contract indicator for different model specifications. “Ex Post” compares contracts to ex-post congressional executive agreements.
“Other” compares contracts with other executive agreements. 75 This decision is based on the rationale that the President-in-Office has the most influence on its content at the time the agreement was signed. However, the content of all results is the same when a categorical variable is used for the president under whom the agreement came into force. Relevant regressions are included in the online schedule. 36 The approved Restoration (fourth) project is remarkably silent on the issue of interchangeability, but there is no evidence that this silence supports those who argue against interchangeability. The authors of the Restatement (fourth) make it clear that they focus only on The Article II treaties and that they are not recipients of other international agreements. See Restatement (Fourth) of the Foreign Relations Law of the United States, p. 113, note 8 of journalists (March 20, 2017).
So far, there seems to be little sign of change in the scientific debate.