Skip to main content Accessibility help
×
×
Home

Duration ≠ Seriousness of Commitment: An Empirical and Theoretical Critique of Nyarko's Treaties vs. Executive Agreements

  • Barbara Koremenos (a1)

Extract

In “Giving the Treaty a Purpose,” Julian Nyarko distinguishes between treaties and executive agreements and argues that treaties signal a higher level of commitment to our partners in cooperation than do executive agreements because treaties are more durable. Nyarko uses survival-time analysis to demonstrate that treaties last longer than executive agreements—that is, treaties are less likely to drop out of the Treaties in Force (TIF) series in any given year. The longer life of treaties is Nyarko's proxy for their greater durability. Nyarko argues that his result holds “even after controlling for a number of covariates that could influence the durability of the agreement,” like particular presidents, subject areas, and partner countries as well as the degree of divided government. Nonetheless, Nyarko's list omits the most important variable affecting durability as he defines it: intended duration. Sometimes the intended duration of a piece of formal international law is finite. Indeed, as I will explain in this response, under certain (and common) conditions, this choice of a finite duration is what makes the commitment credible (or, in Nyarko's language, reliable).

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Duration ≠ Seriousness of Commitment: An Empirical and Theoretical Critique of Nyarko's Treaties vs. Executive Agreements
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Duration ≠ Seriousness of Commitment: An Empirical and Theoretical Critique of Nyarko's Treaties vs. Executive Agreements
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Duration ≠ Seriousness of Commitment: An Empirical and Theoretical Critique of Nyarko's Treaties vs. Executive Agreements
      Available formats
      ×

Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

Hide All

2 Nyarko also uses the words “more serious.”

4 See, e.g., Agricultural Commodities Agreement Between the United States of America and the Government of the Republic of China Under Title I of the Agricultural Trade Development and Assistance Act (with Exchange of Notes), as Amended, Aug. 30, 1960, 388 UNTS 5579.

5 See Nyarko, supra note 1, at Table 2.

6 See, e.g., Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1616, 1644 (2018).

7 Agricultural Trade Development and Assistance Act of 1954, ch. 469, Pub. L. No. 480, 68 Stat. 454. Similarly, many of the security agreements in the COIL random sample (labeled as “defense” under TIF) implement the Mutual Security Act of 1951, Pub. L. No. 82-105, 65 Stat. 373.

8 H.R. Rep. No. 1776, as reprinted in 1954 U.S.C.C.A.N. 2509.

9 John R. Tarrant, Food Policies 237 (1980).

10 See Senate Comm. on Agriculture, Nutrition, and Forestry, 98th Cong., 2d Sess., Trade Policy Perspectives: Setting the Stage for 1985 Agricultural Legislation 280 (Comm. Print 1984).

11 See id. at 225.

12 James R. Walczak, New Directions in United States Food Aid: Human Rights and Economic Development, 8 Den. J. Int'l L. & Pol'y 543, 548 (1979).

13 Agricultural Commodities Agreement Under Title I of the Agricultural Trade Development and Assistance Act (with Exchange of Notes), Aug. 14, 1956, 281 UNTS 4083.

14 Agricultural Commodities Agreement Under Title I of the Agricultural Trade Development and Assistance Act, as amended (with Exchange of Notes), Aug. 30, 1960, UNTS 5579; Agricultural Commodities Agreement Under Title I of the Agricultural Trade Development and Assistance Act, as amended (with Exchange of Notes), June 3, 1964, UNTS 7610.

15 Agreement for Sales of Agricultural Commodities (with Annex), Dec. 12, 1967, UNTS 10061.

16 The United States can also leverage the promise of a continued relationship or the threat of a terminated one to achieve its foreign policy objectives in the country receiving the aid.

17 These changes were not trivial. For example, between the 1962 and 1983 agreements, Brazil's share of the total export quota fell from 39.2% to 30.8%. See Barbara Koremenos, Can Cooperation Survive Changes in Bargaining Power? The Case of Coffee, 31 J. Legal Stud. 259, 259–83 (2002).

18 See International Coffee Agreement: Hearing Before the H. Comm. on Ways and Means, 89th Cong. 5, 9 (1965).

19 In the case of coffee, the problems were solved over a twenty-five-year period by a series of agreements.

20 See Koremenos, supra note 3.

21 For this problem to meet the “high” threshold, coders had to argue that the environment was one in which changes or shocks could cause the distribution of gains from the agreement to vary substantially over time or in which great uncertainty existed about how the agreement would work in practice. This is elaborated in Barbara Koremenos, Contracting Around International Uncertainty, 99 Am. Pol. Sci. Rev. 549 (2005).

22 An example of an agreement that would be excluded from COIL on this basis is the Fourth Supplemental Agreement Regarding the Headquarters of the United Nations, with annex, June 18, 2009, TIAS 09-618.

23 Almost all of the major human rights and arms control agreements are in the COIL sample as are double-taxation agreements, bilateral investment treaties, major multilateral environmental agreements, and the Geneva Convention Relative to the Treatment of Prisoners of War.

24 COIL does not attempt to approach the population of UNTS agreements. Still, although more power (in the statistical sense) is always preferred to less, and the larger the sample size, the larger the power, power does not increase linearly with sample size. Marginal increases in sample size have a decreasing marginal effect on the variance of estimators. For COIL, the judgment was made to cover a large number of variables and invest heavily in both intercoder reliability and the separation of coders for independent and dependent variables, with the tradeoff of covering fewer agreements.

25 With respect to the “0” in the “Investment” row in Table 2, the Bilateral Investment Treaties in the COIL sample do not happen to include the United States. For a list of the COIL agreements with U.S. participation as well as robustness checks on the analyses in Tables 3 and 4, see the online appendix available from the author ().

26 Put simply, there is an association between the type of agreement and the duration. This result holds even when bootstrapping is performed and a 1% confidence interval is constructed.

28 In this example, both international agreements were concluded as treaties. But my point is that the finite coffee treaty (which dropped out of TIF) arguably represents a deeper commitment than the CERD (which remains in TIF).

29 According to the COIL sample, EAs are far more likely to be bilateral whereas treaties are far more likely to be multilateral. Bilateral agreements may be easier to replace than multilateral agreements given that transactions costs generally increase with the number of parties involved, other things equal.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed