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.
Oona A. Hathaway
Our recent article, War Manifestos, was the first work of legal scholarship to examine the documents that set out the legal reasons sovereigns provided for going to war from the late fifteenth century until the mid-twentieth century.
We thank Drew Adan, Alison Burke, Ann-Marie Cooper, Clément Dupuy, Jason Eiseman, Sarah Kraus, Evelyn Ma, John Nann, Michael VanderHeijden, and especially Ryan Harrington, who hunted down, translated, and analyzed manuscripts, manifestos, archival materials, and rare books from libraries and collections all around the world, and Theresa Cullen for her leadership of the Yale Law School Library, without which this project would not have been possible. We are grateful to Stuart Shirrell for his assistance with the data analysis. We are indebted to our research assistants, who brought to the project outstanding legal research skills, analytical expertise, and extraordinary language skills, including Classical Chinese, Latin, French, German, Portuguese, Dutch, Italian, and Ottoman Turkish: Nico Banac, Jacob Bennett, Perot Bissell, Johannes Buchheim, Varun Char, Idriss Fofana, Jade Ford, Ole Hinz, Michelle Huang, Sameer Jaywant, Aubrey Jones, Tobias Kuehne, Ling-wei Kung, Steve Lance, Ji Ma, Gregor Novak, Pedro Ramirez, Britta Redwood, Bonnie Robinson, Elisa Ronzheimer, James Rumsey-Merlan, Daniel Schwennicke, Ingmar Samyn, Mary Ella Simmons, David Stanton, Evan Welber, and Thorsten Wilhelm. We also thank participants in the Vanderbilt Law School works-in-progress workshop and Yale Law School faculty workshop for their immensely helpful feedback.
The UN Charter provides that states are prohibited from the “threat or use of force” against other sovereign states.
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