There are also other difficulties, perhaps deeper, with descriptive results. Hathaway`s main empirical guide is a comparison of contracts in all areas. For example, it notes that there are twenty-seven trade treaties and only eight environmental treaties, suggesting that contracts are more important in trade than in the area of environmental protection. However, such a comparison of absolute figures can be misleading, as it does not take into account the total number of agreements in a thematic area. For example, although this study also finds that the absolute number of commercial contracts is higher than that of environmental contracts, there are also more commercial executive agreements than environmental executive agreements. Indeed, twenty of the 216 environmental agreements are concluded in the form of contracts, which corresponds to a share of 9%. However, only thirty-five of the 783 trade agreements are treaties, which corresponds to a lower share of 4%. Thus, contracts may indeed be a more important means of engagement for environmental agreements than for trade, even if the absolute figures suggest otherwise. The rest of the article proceeds as follows: Part II sets out the institutional basis of the various commitment appropriations and examines theories on how contracts may or may not deviate from executive agreements. Part III motivates the empirical investigation in the context of this theoretical debate, describes the data and methods used in this study, and presents summary statistics. Part IV presents the results of a formal review of the durability of the instruments, while Part V discusses their implications. A final section closes. In fact, the conclusion that treaties survive agreements between Congress and the executive branch could be interpreted as making treaties more difficult to terminate, if not in law, at least as a matter of political reality.

We currently lack a comprehensive theory of the political costs of terminating the treaty. Certainly, the writings of some commentators suggest that part of the difference in political cost between violating a treaty and violating an agreement between Congress and the executive branch lies in reputational sanctions. That is, the use of a treaty “would represent the capital`s complete promise of a nation`s reputation,” footnote 114 and the presidents who use it “somehow endanger everything in the diplomatic world.” Footnote 115 However, for this mechanism to explain why treaties are not terminated at the same rate as agreements between Congress and the executive branch, it would have to be assumed that the United States has a unique reputation that is independent of the government currently in power. .