Curtis A. Bradley

Article

Volume 90.5

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

Curtis A. Bradley

Allen M. Singer Professor of Law, University of Chicago Law School.

Jack Goldsmith

Learned Hand Professor, Harvard Law School.

Oona A. Hathaway

Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School.

For excellent research assistance, we thank Josh Asabor, Sofiya Bidochko, Tilly Brooks, Patrick Byxbee, Yilin Chen, Ben Daus-Haberle, Eliane Holmlund, Nina Lin, Simon Jerome, Tori Keller, Ako Ndefo-Haven, Madison Phillips, Allison Rice, Annabel Remudo, Vinay Sriram, Nathan Stull, Danielle Tyukody, and Kaylee Walsh. We also thank Ayoub Ouederni and John Bowers for their outstanding assistance analyzing and presenting the data. We thank the many scholars, lawyers, and government officials from around the world who provided us with insights into the process for making nonbinding agreements. For assistance with the FOIA requests to more than twenty federal agencies and lawsuits against the Departments of State, Defense, and Homeland Security, we thank Arifa Ali, Daniel Betancourt, Charlotte Blatt, Connor Brashear, Jackson Busch, Charles Crain, Rachel Davidson, Kelsey Eberly, Roman Leal, Abby Lemert, Raquel Leslie, Alyssa Resar, Eli Scher-Zagier, David Schulz, Stephen Stich, Sruthi Venkatachalam, Kataeya Wooten, Brianna Yates, and especially Michael Linhorst of the Media Freedom and Information Access Clinic at Yale Law School. We are also grateful to the Yale Law Librarians, especially Lucie Olejnikova and Evelyn Ma. For helpful comments and suggestions, we thank Helmut Aust, Jean Galbraith, Duncan Hollis, Thomas Kleinlein, Tim Meyer, Kal Raustiala, Michael Reisman, Ryan Scoville, David Zaring, and participants in faculty workshops at the University of Chicago Law School, Georgetown University Law Center, Harvard Law School, University of Minnesota Law School, and Yale Law School.

The treaty process specified in Article II of the Constitution 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 significant forms of nonbinding agreements between U.S. government representatives and their foreign counterparts: (1) joint statements and communiques; and (2) formal nonbinding agreements. 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 three thousand of these 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.

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