The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis

76 Pages Posted: 9 Feb 2022 Last revised: 2 Jan 2023

See all articles by Curtis Bradley

Curtis Bradley

University of Chicago Law School

Jack Landman Goldsmith

Harvard Law School

Oona A. Hathaway

Yale University - Law School

Date Written: February 1, 2022

Abstract

The Article II treaty process has been dying a slow death for decades, replaced by various forms of “executive agreements.” What is only beginning to be appreciated is the extent to which both treaties and executive agreements are increasingly being overshadowed by another form of international cooperation: nonbinding international agreements. Not only have nonbinding agreements become more prevalent, but many of the most consequential (and often controversial) U.S. international agreements in recent years have been concluded in whole or in significant part as nonbinding agreements. Despite their prevalence and importance, nonbinding agreements have not traditionally been subject to any of the domestic statutory or regulatory requirements that apply to binding agreements. As a result, they have not been centrally monitored or collected within the executive branch, and they have not been systematically reported to Congress or disclosed to the public. Recent legislation addresses this transparency gap to a degree, but substantial gaps remain.

This Article focuses on the two most important types of nonbinding international agreements concluded by the United States: (1) joint statements and communiques; and (2) formal nonbinding agreements concluded by departments and agencies. After describing these categories and the history of nonbinding agreements and their domestic legal basis, the Article presents the first empirical study of U.S. nonbinding agreements, drawing on two new databases that together include more than 3000 nonbinding agreements. Based on this study, and on a comparative assessment of the practices and reform discussions taking place in other countries, the Article considers the case for additional legal reforms.

Keywords: international law, foreign relations law, nonbinding international agreements

JEL Classification: K33

Suggested Citation

Bradley, Curtis and Goldsmith, Jack Landman and Hathaway, Oona A., The Rise of Nonbinding International Agreements: An Empirical, Comparative, and Normative Analysis (February 1, 2022). University of Chicago Law Review, Vol. 90, 2023, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=4023641 or http://dx.doi.org/10.2139/ssrn.4023641

Curtis Bradley

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Jack Landman Goldsmith

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States

Oona A. Hathaway (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4992 (Phone)
203-432-1107 (Fax)

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