The data also suggest that theories that explain the use of contracts by historical conventions leave many themes unexplained. Although some scientists, for example, have argued that dependence on pathways explains why treaties are particularly common in human rights and are lacking in trade, Table 2 shows that neither subject is a particularly striking outlier. While in the field of human rights treaties are somewhat widespread (17 per cent of all agreements), the choice of this instrument remains the exception and not the norm. Similarly, the application of contracts in sectors such as trade, trade and finance is close to the 5% average, raising the question of whether the scarcity of the instrument in these areas can best be explained by historical events or whether it reflects another aversion to the treaty, which also concerns other areas. In summary, it is difficult to explain the diversity of contract prevalence in the different disciplines of conventional theories. 38 See McClure, supra 3, 363 (reducing the relevance of contracts for a small set of non-controversial issues); see also Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 60 (1990) (finding that the executive agreement is the most democratic instrument); See also Ackerman – Golove, supra note 30, at 916 (concluding that the rise of the congressional executive agreement favors “[e]fficacy, democracy [and] legitimacy”). The first restriction relates to the causal interpretation of the findings. The choice between treaties and executive agreements in Congress is not fortuitous and there is no guarantee that estimates from the analysis can be interpreted as causal estimates, i.e. treaty agreements take a long time because they have been adopted as treaties and not as agreements between Congress and the executive branch. Footnote 103 Another report explaining the choice of presidents between the two instruments is the “bypass hypothesis.” Note 46 Particularly prevalent in the writings of political scientists, this reasoning indicates that the president`s primary motivation for electing one instrument over the other is the president`s support for the agreement in the Senate.If an agreement is easy to get through the Senate, according to the argument, the presidents will rely on the treaty. However, if a two-thirds majority proves difficult, the president can, according to this argument, pass the congressional executive agreement without significant consequences. Why, according to this argument, should presidents follow the slow and cumbersome consultation and approval process of the treaty, when their political objectives can be more easily achieved by the implementation of executive agreements of Congress that are not limited in a similar way? Footnote 9 Finally, the president`s approval can be given as a whole and ex ante by simple majority approval, allowing the president to conclude a large number of agreements that have been approved under a single law of Congress.
Footnote 10 When we see that treaties are being used today, this report proposes, it is for orthogonal reasons adapted to the quality of the instrument itself, such as historical conventions or selective Senate preferences. Footnote 11 Consider the first ex-post executive agreements of Congress. As mentioned above, ex-congress executive agreements are rare, with a share of less than 1 percent in 1980 and 2000. Table 6 contains results on the contract indicator coefficient when the model is executed separately on ex-post congressional executive agreements and all other international commitments. Footnote 101 While most model specifications suggest that there may be a permanence difference between ex post congress executive agreements and contracts, this difference is much smaller and statistically insignificant.