It is possible to understand this ambiguity in the empirical results by observing that previous studies all follow a similar approach. The researcher analyzes the environment in which an international agreement has been reached and attempts to identify models that help predict the type of instrument used. If the model corresponds to a motivation that places different importance on the treaties and executive agreements of Congress, it is proof that these instruments differ in their quality. Thus, Martin concludes that contracts are used when the partner country has a high GDP per capita, that contracts are preferred when the stakes are high, and that they must therefore be more reliable engagement mechanisms than agreements between Congress and the executive branch. Similarly, Hathaway concludes that few commercial contracts are concluded, that the decision to use the treaty must be driven by historic conventions that have made the agreement between Congress and the executive attractive for trade negotiations. If the treaty does not retain a particular value as a political instrument, a promise that was made as an executive agreement of Congress is just as lasting as a promise made as a treaty. On the other hand, if the contracts are different qualitative promises, the average contract should survive the average agreement between Congress and the executive branch. In this way, theoretical debate leads to observable and verifiable empirical assertions. 101 Note that the analysis only takes into account agreements reached between 1982 and 2000 to take into account the fact that ex post-congressional-executive agreements are not identified beyond that period. 6 This figure is based on a number of Library of Congress contract documents approved by the 111th, 112th, 113th or 114th U.S. Congress. See www.congress.gov.
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: 30 See McClure, supra note 3, 4, 247 (finding that 1,200 of 2,000 agreements have been concluded as executive agreements of Congress and that this serves as the basis for legitimization of 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.