The United States has two separate mechanisms for concluding binding international agreements. Footnote 19 The first option is the traditional contract. The treaties follow the consultation and approval procedure under Article II of the Constitution, where a treaty, although negotiated by the executive, must nevertheless be approved by a two-thirds majority in the Senate to be ratified and binding. Footnote 20 Finally, some scientists have argued that a key difference between congressional contracts and executive agreements lies in the information produced in the process of obtaining legislative approval. Footnote 58 That is, in entering into a contract agreement, the executive must disclose important private information to be persuasive and to ensure the approval of a qualified majority in the Senate. This dynamic can be highlighted by the example of John Yoo, who considers a potential military conflict between the United States and China over territory and negotiations on the division of that territory. The domestic political struggle for treaty approval requires negotiators to communicate to the Senate the chances of a war against China. Yoo argues that observing this process would allow China to obtain more accurate information about the American faith than the congressional executive agreement provides. China can therefore insist that the agreement be concluded in the form of a treaty and, since the underlying information is more precise, it is encouraged to strengthen confidence in continued compliance with the agreement. 51 For a detailed discussion on the alleged difference in political costs, see Setear, note 15 above, for S14.
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 If the contracts and agreements between Congress and the leaders do not differ qualitatively, it seems difficult to rationalize the reasons why negotiators sometimes show such an interest in choosing the instrument.