Contrary to the assumptions raised in the previous subsection, several reports indicate that the commitments made in the form of a contract differ qualitatively from those made between Congress and the executive branch. These reports are based on the idea that the treaty, while politically more costly, can also bring some benefits to the parties, which may ultimately lead to a firmer commitment. In the case of interactions where benefits outweigh costs, the contract would then be the preferred instrument, while an executive agreement of Congress would be preferred in others. 97 See Panayiota, Alexandropoulos, Enforceability of Executive Congressional Agreements in Lieu of an Article II Extradition Treaty: Elizaphan Ntakirutimana v. Janet Reno, 45 Vill. L. Rev. 107, 113-14 (2000) (on the grounds that the Valentine Supreme Court has clearly established the legality of an extradition under an executive agreement); see also Klarevas, Louis, The Surrender of Alleged War Criminals to International Tribunal: Examining the Constitutionality of Extradition via Congressional-Executive Agreement, 8 UCLA J. Int`l. For. Aff. 77, 107 (2003) (other cases in support of Valentine`s interpretation that she authorized extradition on the basis of an executive agreement).
29 Bradley, supra note 9, with 90 (“Most scholars … believes that the presidential power to enter into exclusive executive agreements is much narrower than the presidential power to enter into contracts pursuant to Article II.” Louis Henkin, Foreign Affairs and the United States Constitution (1996) (describes the view that the President will seek Senate approval only for “cautious” reasons, as “unacceptable”). 28 See Arthur W. Rovine, Digest of United States Practice in International Law 195 (Office of the Legal Adviser, Department of State 1974). For a general overview of the history of the U.S. agreements under the VCLT, see Frankowska, Maria, The Vienna Convention on the Law of Treaty s Course before United States Courts, 28 Va. J. Int`l L. 281 (1987). The argument relates to the ease with which a president can renounce an agreement after an agreement has been reached.
In particular, Hathaway proposes that the form of the treaty interfere with the ability of presidents to credibly tie their hands, because even after ratification, the treaty offers two additional opportunities to renounce a promise that the agreement between Congress and the executive branch would not offer. This, in turn, makes it difficult for other countries to rely on obligations in the form of the treaty. The empirical results of this study are ill-suited to assess the theoretical benefits of these assertions. Future research to understand not only the legal differences, but also the political implications of an exit from a treaty in relation to the agreement between Congress and the executive branch, could shed more information and shed light on whether the fate of international agreements such as the Paris Agreement or NAFTA would have been less controversial if they had been concluded in the form of treaties.