Indeed, the momentum around the ex-post executive agreement of Congress is often described as if the executive branch had presented a specific agreement to Congress and that Congress considered this agreement in isolation. It is certainly a clear description of legislation on the implementation of important trade agreements. However, outside the commercial domain, the authorisation process is often very different. In this case, the revision of the known authorisation rules suggests that (1) the language is often vague and that it is not certain that it approves, among other things, a specific agreement; and (2) Authorization is, as a general rule, only a minor aspect of a legal act dealing with a much broader set of substantive issues. As an illustration, you should consider the following language in the Balanced Budget Downpayment Act of 1996, which is likely to approve the Global Learning and Observance to Benefit the Environment (GLOBE) agreement:Footnote 109 24 Hathaway, supra note 1, at 1256 (search for executive agreements of the Congress approved ex post and find only a “small number” of such agreements). Many scientists are skeptical of the usefulness of two apparently similar political instruments for concluding international agreements, most of which are critical of the treaty because of its alleged inflexibility and insignificance. Of course, criticism of the treaty is not new and dates back at least to the 1940s. Footnote 3 During this period, the debate focused on whether the two instruments could be used interchangeably, with a particular emphasis on the constitutional limits of concluding the executive agreements of Congress through treaties. Over time, however, it became clear that neither the courts nor the Department of Foreign Affairs were very concerned about the delineation of the constitutional limits on the interchangeability of the two engagement mechanisms.
Footnote 4 Take, for example, the former U.S. State Department legal adviser, Harold Koh, who suggests that there are only two reasons why the State Department uses treaties, namely the link to Congress and the “powerful political message” conveyed to the world through the treaty ratification process. With regard to the interchangeability of the instruments, Mr. Koh believes that the “long-term” view is that it is constitutionally permissible to use the executive agreements of Congress instead of the treaty. Footnote 5 The use of shelf life as a substitute for force of use is justified for three reasons.