73 See Hathaway, loc. cit. Note 1, note 49. It is possible that it misses some actions, since the process requires a manual search of the law as a whole; However, this is the most comprehensive list to date. With respect to the identity of the parties, the agreements in the dataset were concluded between the United States and one or more of the 215 countries or state entities and fifty-two international organizations. Table 3 shows the twenty countries with the most agreements in the dataset. A full list of agreements by partner country can be found in the online annex. The three most common contracting parties are all Western European countries, namely France, Italy and Germany. In multilateral agreements, 20% are concluded in the form of a treaty, which is much higher than the share in bilateral relations. The main difference between the treaty and the executive agreement is that the treaty is a formally concluded, ratified and binding agreement between sovereign states and/or international organizations, while an executive agreement is an agreement between the heads of government of two or more nations.
26 1 U.S.C. 112b(a) (1979). It is important not to « fetishize » this triptych of treaties, congressional executive agreements, and executive agreements alone. In fact, recent research has drawn attention to its inability to categorize two recent agreements, namely the Paris Climate Agreement 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 Assess 21st Century International Lawmaking, 126 Yale L.J.
F. 338 (2017). Since this article deals with the substantive difference between executive agreements and treaties concluded between 1982 and 2012 and does not deal with new forms of international agreements, it is not necessary to go beyond this traditional distinction. Although the wording implies that Congress approves the GLOBE agreement, it is difficult to read the explicit authorization in the statute. In addition, the reproduced part of the act is the only time the globe is mentioned and contains a total of ninety-seven words. However, the entire bill is over 10,000 words long and was approved in a single recorded vote in the House and Senate. Footnote 111 Even if read as an ex-post authorization of GLOBE, the authoritative text would yield less than 1% of the total text of the Statute. Outside of trade, provisions like this, where ex-post agreements between Congress and the executive branch are supposed to be approved as a small part of a larger legislative package, are the rule rather than the exception. Footnote 112 This leads to an authorization procedure that is strikingly different from the contract advice and approval procedure. The latter draws the attention of all senators to the approval of the agreement itself and does not directly link its success to other political implementations in the future. It is therefore unclear whether ex-post agreements between Congress and the executive branch could systematically offer the same benefits that the treaty grants.
As mentioned earlier, empirical analysis can only provide a meaningful answer to this question if the ex-post agreement between Congress and the executive branch is respected more frequently and in a wider variety of areas. 52 Martin considers that the difference in cost between executive agreements and exclusive contracts is the greatest, but it extends its argument to the difference between agreements between agreements and agreements and treaties of congress and the executive ….