Thousands of non-binding agreements are shrouded in secrecy. A handful of publicly debated agreements – the Paris Climate Accords, the Iran Nuclear Deal or the Global Tax treaty – were made non-binding precisely to avoid a vote in Congress. Chicago Professor Curt Bradley, Harvard Professor Jack Goldsmith and Yale Professor Oona Hathaway sued the departments of State, Defense, and Homeland Security to find out what else the executive branch, and its many agencies, have negotiated. In comprehensive empirical work, they explain why greater transparency and accountability is needed not only for binding executive agreements, but also for non-bindings. For example, Congress does not know what exactly the Trump administration agreed with the governments of Guatemala, Honduras, and El Salvador in agreements that likely dump responsibility for refugees on weak states.
Non-binding agreements are on the rise globally, and greatly influence how states act. We should reorient international law scholarship and teaching to pay greater attention to this under-explored tool.
Borderlines from Berkeley Law is a podcast about global problems in a world fragmented by national borders. Our host is Katerina Linos, Tragen Professor of International Law and co-director of the Miller Institute for Global Challenges and the Law. In each episode of Borderlines, Professor Linos invites three experts to discuss cutting edge issues in international law.
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Episode Transcript
Katerina Linos:
The United States Constitution specifies one process for entering into international agreements, the Article Two process, that requires the advice and consent of the Senate. However, an increasing number of consequential international agreements skirt this requirement. The Paris climate change accords, the Iran nuclear deal, the global agreement to end tax havens, to name but a few, are not even legally binding. My guests today are the first to take a deep empirical look at this practice and report that thousands of agreements operate in a law-free zone with no international or domestic rules governing them. I’m Katerina Linos, Tragen Professor of International and Comparative Law at UC Berkeley and co-director of the Miller Center for Global Challenges and the Law.
Katerina Linos:
I host Borderlines, and with me today are three experts to discuss a big shift in international law, away from binding treaties and towards non-binding agreements. With me today are: Curt Bradley, Professor of Law at Chicago Law School and co-Editor in Chief of the American Journal of International Law; Jack Goldsmith, the Learned Hand Professor of Law at Harvard University; and Oona Hathaway, the Gerard and Bernice Latrobe Smith Professor of International Law and Counselor to the Dean at Yale Law School. Let me start with you, Oona. In your research, you report that most U.S. international agreements are made outside the only process that Constitution specifies, the Article Two process requiring the advice and consent of two-thirds of the Senate. What are the main pathways for concluding international agreements outside of Article Two? Why has the executive across administrations skirted Article Two processes so frequently? And why has Congress allowed this to happen?
Oona Hathaway:
Well, let’s start with the Article Two process, just to put things into perspective. So for a long time, when we taught international law, we mostly focused on Article Two treaties. As you said, this is the only process that is outlined in the Constitution, that’s specified as the way in which the U.S. enters into its international agreements. And what we find is that this way of making international law has fallen significantly over time. So just to take a look at the number on average that were concluded under the Clinton Administration was about 23 Article Two treaties a year. Under the Bush Administration that followed, it was around 12 per year. Under the Obama Administration, it was about five per year. And in the entire Trump Administration, there were only five Article Two treaties submitted. So we’ve been seeing a steady decline in the use of Article Two treaties.
Oona Hathaway:
Meanwhile, what was less well-understood until the last several years, there was a separate process for making binding international agreements, which are sometimes referred to as executive agreements or sometimes as the congressional executive agreements. And these are agreements that the president can make either under his own constitutional authority or under authority that’s granted to him by Congress in advance. And the advantage of this process for the president is that he can make these agreements using this authority without having to get separate consent from Congress. So under the Article Two process, the president has to get consent of two-thirds of the Senate, which turns out to be really difficult.
Oona Hathaway:
So executive agreements are easier to make and presidents have been making them at a rate of several hundred a year in some cases. These too have also been falling off, but there’s still been a pretty good number of them. And so this is the second way in which presidents have been making binding international agreements, is through this executive agreement process. And then there’s this new process which we’re now writing about, which is non-binding agreements. And this is a kind of third track that’s emerged.
Katerina Linos:
So Oona, tell me, what is a non-binding agreement and how is it different from a treaty?
Oona Hathaway:
So a non-binding agreement looks a lot like a treaty. When you read it, when you look at it–its parties, usually representatives of a sovereign state, are signing it. Sometimes the text looks a lot like an Article Two treaty or an executive agreement/binding executive agreement. Often has sections. . . the language looks very similar, but what is distinctive about it is that it does not create any international legal duty to comply. And sometimes the agreement explicitly says that it’s not creating any internationally binding obligations for the parties. Sometimes they do this just by avoiding language that might create a binding obligation. So instead of saying “shall” or “will,” they say “intend to.” And these agreements, while they look very much like binding international agreements, are not agreements that create legally enforceable international obligations.
Katerina Linos:
Let me turn to you, Curt. You emphasize in your writing that transparency and accountability requirements that apply to binding agreements don’t apply to non-binding agreements. Could you tell us a little about the current statutory and regulatory regime for executive agreements and why this doesn’t apply to non-binding agreements?
Curt Bradley:
Sure. As Oona mentioned, it is long been the case that a lot of the international agreements the United States makes don’t get submitted to the Senate for the two-thirds advice and consent. In fact, the large majority have not been submitted to the Senate really for many decades. And Congress, of course, is quite aware of this development over time. And in fact, it’s a party to the development because in many instances it has itself authorized these executive agreements that don’t go to the Senate. And instead of trying to stop the executive, at least for the most part, from concluding these executive agreements, instead, Congress has tried to insist on transparency. And really, this was a big push starting in the 1970s.
Curt Bradley:
Congress enacted something called the Case Act, or Case Zablocki Act, in 1972. And that statute has been amended a number of times since then. But what it does is it requires the executive, when it concludes all of these non-treaty agreements, to send them all to Congress pretty soon after they’re concluded, so the Congress at least is aware of the commitments the executive’s making on behalf of the United States, and in theory could learn about agreements it might not agree with and perhaps push back against the executive, but in any event, monitor what’s going on with respect to these non-treaty agreements. And thousands of agreements have in fact been reported since the seventies, under that process.
Curt Bradley:
It’s not a perfect process. Jack and Oona and I have written about that in a prior article. There are actually some inadequacies in the reporting, but a lot get reported. And the other major thing Congress has insisted on, is that at least a lot of the agreements, it wants to be publicized for the general public to know about. Not all of them. It’s allowed the executive to avoid publication in some instances, but it does require a fair amount of publication in a related statute. And when we studied this a few years ago, we found that wasn’t working that well either. The executive had really not been publishing as much as it could and should publish. But both of those requirements, that is, reporting to Congress and publication, apply to these non-treaty executive agreements.
Curt Bradley:
But those statutory requirements have been interpreted by the executive branch as being completely inapplicable if an agreement is non-binding, in the way that Oona had described it. Even if the agreement otherwise looks exactly like a binding executive agreement, even if it functions exactly the same way, if the intent is not to create a binding obligation, the executive view is that none of the transparency requirements are applicable, so they don’t have to tell Congress about them and they don’t have to publish them for the rest of us to know about.
Katerina Linos:
Thank you, Curt. Jack, let me pick up on a point that Curt and Oona made, that non-binding agreements are often drafted to look almost identical to treaties. They detail how they will be implemented, how they will be amended, how they might be terminated, how disputes will be resolved. Why do parties negotiate all of this if at the end of the day the agreement is not supposed to be legally binding?
Jack Goldsmith:
Well, the aim of negotiating these agreements is not to make them legally binding. That’s not the end. The end is to foster international cooperation. And what one learns when one focuses on non-binding agreements, is that a great deal, in fact almost certainly more, of international cooperation is governed by these non-binding agreements than binding agreements. So the question, why are they written to look like binding agreements? There’s no clear answer to that, but basically the terms of these agreements are designed to help the parties reach the mutually beneficial outcomes they want to have. And sometimes they have all of the formality of, as you say, a treaty under international law, including dispute resolution mechanisms, termination provisions, and the like.
Jack Goldsmith:
And all of these things contribute to these agreements, helping to achieve the cooperative aims of the parties. Now, the interesting question is, if you can achieve this forms of cooperation with non-binding agreements, with agreements that aren’t governed by the rule of pacta sunt servanda under international law, that don’t implicate the remedies of international law, why do you need international law at all? Why not just use non-bindings? We don’t really get into that in our paper; that may be a subject for future work. As you know, Katerina, why nations comply with international agreements and the role that international law plays in inducing compliance is a contested theoretical and empirical question.
Jack Goldsmith:
But one interesting thing that focusing on non-bindings brings to the fore is, it really raises the question, why do you need legality? What does legality add? Because we don’t show this in our data, but it’s almost certainly the case that non-binding agreements are used more often than binding ones. In fact, that has to be the case because it’s such a broad category. So basically you have these specific terms because those terms help to induce compliance, and then the question is, what does law add? And that’s a hard question, but the reason this is important for international law scholarship is, of course, international law scholarship and international law casebooks, foreign relations law casebooks–they tend to focus on international law and not on these non-bindings.
Jack Goldsmith:
But this is where a lot of the action is, and it’s basically to use Ellickson’s phrase, “cooperation without law.” And so it’s intensely fascinating to try to figure out how and why these things work. In this paper, we’re mostly trying to get our hands around what it is, what do they look like, how do they operate in the U.S. system and the like.
Katerina Linos:
Thank you, Jack. Yes, in my own work as well, I found that precision really matters even in non-binding agreements, that if you draft something with very precise language, you might get a little bit more compliance. But as you said, some of these are a really big deal. I wanted to turn us to some non-binding agreements that have gained extensive publicity, the Paris Agreement to combat climate change, the U.S. agreement with the Taliban to withdraw from Afghanistan, the new global agreement establishing the minimum tax rate for huge multinationals. Could you discuss these or other very public non-bindings? Do you expect that states comply with them just as much as if they were legally binding? Does it make any difference for these really big ones that they are non-binding?
Jack Goldsmith:
It’s very hard to know. And so I’m going to answer this on several levels. It’s very hard to know whether there’s more compliance or less compliance with non-binding. There are so many different variables. And these agreements do so many different things. The first point I would make is the point that’s often made justifying the role of international law. Nations invest enormous resources in negotiating these things, getting the terms right. I mean, think of the Iran deal. That was a gigantically, hugely complicated agreement that checked Iran’s nuclear weapons program in exchange for reduction of sanctions. It fostered important cooperation, and then it stopped on the United States side when Trump decided to withdraw from the agreement. Now, some people might take that as evidence, that well, if that had been a binding international agreement, maybe there would have been more cooperation.
Jack Goldsmith:
That just pushes the puzzle back a little bit more because if it had been a treaty, for example, the president has very broad authority to unilaterally–and at least for most treaties with termination clauses, this is pretty clear–has unilateral authority to terminate those treaties. So again, it’s not clear whether Trump would have been hindered in any way from pulling out of the Iran deal if it had been a treaty rather than a non-binding agreement. And before he did pull out, it did foster important cooperation. The Taliban withdrawal, President Biden said at the very end, there was a due day, I think it was August 31st, for U.S. troops to get out. And U.S. troops were protected until that deadline, and President Biden said, “We have to get out by the 31st because that’s the deal we have, and that’s the way to get our troops safely out.”
Jack Goldsmith:
Both sides were taking that non-binding agreement hugely seriously. And so again, it’s very hard to say whether one form or another induces more compliance, but the thing that we do know is that these non-binding agreements–we just used some examples; another example is the core provision of the Paris Agreement; this big multi-lateral minimum tax provision was just negotiated as a non-binding, there’s still more work to be done on that one before it becomes implemented–the key point is that nations are increasingly using non-binding instruments in increasingly important ways to foster deep and important cooperation and other forms of fruitful international relations. And I’ll just say one more thing.
Jack Goldsmith:
So getting back to what we said earlier, the question here is, the president can make a non-binding agreement on any topic. And so if non-binding agreements can be made by the president on any topic, and if these things are increasingly used in more and more complicated and important ways to foster fruitful international relations, it seems like it portends a shift of yet a greater shift. This is a trend we’ve been seeing. We’ve all written about this trend we’ve been seeing for a long time, of international agreements making power to the president. So this is just another part of that more general trend.
Curt Bradley:
Let me add one thing to what Jack was just talking about. When we think about these high profile agreements–like the Iran nuclear deal, like the Paris Agreement–when we think about the domestic controversy, at least for some of them, it’s not really about transparency. We do focus on that issue for a lot of other sorts of agreements, but a lot of the domestic legality concerns for some of those high profile agreements, which might be well-known even to the public as well as Congress, is based on the fact that at least most experts think the executive does not have unlimited authority to bind the United States to commitments without any congressional approval or consent. We started with the Constitution’s Treaty Clause, which obviously requires a super majority consent, and over time we’ve shifted away from that.
Curt Bradley:
But it’s still the case that most people think that a large range of binding commitments need to involve Congress in some capacity, at least in some kind of pre-authorization way. And Congress has authorized a lot of things in advance. And the Iran nuclear deal and the Paris Agreement were controversial in part because they looked like significant commitments that if they were binding would probably require congressional approval and it looked like it wasn’t clear that Congress would approve those agreements at the time. It was substantial opposition, for better or for worse, in Congress, to both agreements. And if there hadn’t been opposition, there was probably a good chance that they would have been made binding by the administration and then submitted and approved by Congress.
Curt Bradley:
But because of the opposition in Congress, or at least in part because of that, it looked like the executive used this binding/non-binding distinction really as a way of avoiding having to see whether Congress would approve those significant commitments. Whatever you may think about the merits of those agreements, it still raises questions about whether significant commitments on behalf of the United States should be made by just one branch of government. And those aren’t really transparency questions, those are really legality questions. A lot of the other non-binding agreements probably don’t raise those to that extent and instead raised really just questions about reporting and publication and that sort of thing.
Katerina Linos:
Let me follow up on that, Curt. So you said it’s a real problem if the administration, the executive branch, can enter into these commitments on behalf of the United States. Is it fair to say that the next executive can end those commitments, so the temporary nature of non-binding solves the problem?
Curt Bradley:
Yeah, it’s a good question, but as Jack noted, for most at least modern treaties today, the practice is that the executive can end binding ones as well. In fact, Trump withdrew from a number of binding Article Two treaties, as well as binding executive agreements. And earlier presidents have done this as well. And whether it’s politically possible to withdraw, whether there would problematic repercussions for the United States, if a president withdraws, probably don’t turn at least clearly based on whether the agreement is binding or not binding under international law. It may be the United States suffered exactly the same consequences, reputationally, for example, from pulling out of the Iran deal as if it had been a binding agreement.
Curt Bradley:
That’s a difficult question, but it’s certainly possible. And if that’s true–they’re about as sticky or not sticky in many instances as a binding agreement–then I don’t think the temporary versus permanent idea really distinguishes those categories.
Katerina Linos:
You know too, international lawyers–what you and Jack just said, that we don’t know if there’s a difference between these two types of treaties, we might suffer the same reputational consequences for withdrawing or failing to comply–that’s a big shift in how we understand the binary of, some things are law, some things are not law and everything should hinge on that binary. That statement is a big one. Before I move to the many agreements you want covered for the first time, can I ask, does Oona or Jack or you Curt want to add anything on the high profile non-bindings? Anything that really surprised you in your research or in the responses or the huge shifts between administrations that we’ve seen recently?
Oona Hathaway:
Well, I’ll just say that while many of us find really appealing, I think that, at least I struggle with–some of these seem really appealing. It’s a great thing that the president entered the Paris Agreement. So I’m a big believer in trying to address climate change. And if it was the only way to do it, one might say, “Well, maybe the president should be able to do that.” And I would say the same thing for the JCPOA, the Iran nuclear deal. But the problem is that this is a tool that the president can use for any number of purposes. And President Trump, in fact, use this technique for immigration deals with South American countries, that still haven’t been disclosed. And so we don’t know exactly what’s in them, but they have a much darker side to it.
Oona Hathaway:
So I think that the challenge is that when you’re looking at this technique, you have to abstract away from the particulars of the agreement whether you love that agreement or not, and think about, is this a tool that the president should have? If we think that, if the president should generally be able to enter into agreements, but only with the consent of Congress, or at least with some input from Congress, or at least visibility from Congress. So bear in mind that some of these non-bindings, the rules, even with regard to reporting to Congress, don’t apply. So presidents can enter into non-binding agreements and never even tell Congress. So we don’t even know what we don’t know.
Oona Hathaway:
And so for me, part of the process of uncovering these agreements and getting to understand what non-bindings are being used for is understanding not just some of these high profile ones that I at least find very appealing, but thinking about whether this is a tool that really should be in the unilateral hands of the president. And while there are these high profile ones that we know about, there are thousands we don’t know about. And so you might cheer the Paris Agreement and cheer the Iran nuclear deal, but who knows how this technique is being used in any number of other contexts? And so that I think is what for me has been an important part of wrapping my own mind around this process.
Jack Goldsmith:
Can I just add one thing? Just the flip-point that we’ve been making, just picking up on something that both Curt and Oona said. So, first of all, we don’t claim, and I don’t think we believe, I don’t, and I’m pretty sure Curt and Oona don’t believe, that there’s any legal problem with the president making non-binding agreements. I mean, a non-binding agreement, basically, it can be seen as a function of the president’s diplomatic power. The president has diplomatic conversation and sometimes writes it down at the time. And what we’re talking about with these high level non-binding agreements, and they’re not a new thing–the Helsinki Accords as an example, and there were earlier examples like the Atlantic Charter. . .
Jack Goldsmith:
But what’s happening is that presidents are using these and more in more complicated ways. We don’t think it’s unlawful, and it’s important to just do the flip side of what Curt said. It’s almost certainly the case. If you think climate change is important, and if you think the Iran deal is important, this couldn’t have happened if it had to go through Congress. It just wouldn’t have happened if they almost certainly didn’t have the votes. That’s precisely why the Obama Administration wanted to craft these things as non-bindings, so it could do it on its own authority. So there are policy reasons and then certainly it’s consistent with the law for the president to be able to do this. One big question is, what is the role for Congress?
Jack Goldsmith:
Should there be more accountability for this? The high level ones are all, as Oona said, they’re exposed, they’re out there and Congress can act if it wants. But there’s a huge array of these things that never see the light of day. And so we don’t even know what they look like, we don’t know what these agreements are about. And so the high level ones though raised difficult policy questions, but I just wanted to emphasize that we don’t think that they’re unlawful under domestic law.
Katerina Linos:
Oona, I was impressed by your methodology. Most empiricists do not go all the way to file Freedom of Information requests and then they don’t go and sue the Departments of State, Defense and Homeland Security and fight over facts that have not been disclosed with them. Could you describe what you did? Could you describe how cooperative or uncooperative these agencies were and what surprised you most?
Oona Hathaway:
Yeah, so when we decided we wanted to do this, I think we all agreed that what’s been difficult about studying this area for a long time, is that there’s just very little information out there about the non-binding agreements that the U.S. is party to because there’s no legal obligation to report, publish, and so it’s kind of scattershot information. We hear about individual agreements, but there’s very little comprehensive or consistent information provided about these agreements. So we knew that if we were going to try to do a project like this, we were going to have to do something pretty extraordinary, and that is really try to collect not only everything that’s publicly available, but get as much non-public information as we could about these non-binding agreements. And so we did several things. The first thing we did is we just scoured the internet for every non-binding agreement we could find.
Oona Hathaway:
And there were actually more of those than I realized. They’re hidden in various places. A few agencies have collections that they put online, voluntarily. Some agencies or departments, if you search for certain terms on their websites, you can pull up agreements. So we got several hundred of them that way. And then based in part on that and our sense of which agencies were using non-binding agreements, we compiled a list of who we thought might be good targets for FOIA. And then we FOIAed more than 20 agencies that we had reason to believe were concluding non-binding agreements, but where there wasn’t comprehensive information; the Department of Energy has a very comprehensive website, so it just wasn’t worth the trouble to FOIA them, frankly.
Oona Hathaway:
But there are others where we found two or three, which was indicative that they did these, but there was no comprehensive information available. So we filed FOIA requests with the help of the clinic at Yale Law School with more than 20 agencies. The agencies have been different in terms of their responsiveness. So some got back to us pretty quickly said, “Here’s what our records show and here’s what we can produce.” Others sent pro forma acknowledgements and said, “It’s going to take us a long time. You’re number 456 in a line of other FOIA requesters.” So this process is so far-yielded, pretty good information from about 10 of the agencies that we FOIAed. And several of them were very open to continuing conversations with the people who actually conclude these agreements.
Oona Hathaway:
And that’s where some of the interviews came from. I’m in back and forth–I have now pen pals at all of these agencies, we write back and forth on a regular basis with the FOIA officers and the folks in these various agencies who, let’s say that they’re undertaking a search. And so we think they’re in the process of undertaking a good-faith effort. In some cases, it has been quite a while. We filed these originally close to a year ago now. So it has been slow. And then some agencies just were totally non-responsive. And so that was the DHS, Department of Defense and the Department of State. And because they were just not responding, they weren’t willing to have any conversation, they weren’t even acknowledging the FOIA requests.
Oona Hathaway:
We decided that it was worthwhile to sue them. And also because we knew that they had large repositories of these. We know that DOD does a lot of these, we know DHS does these immigration agreements that you mentioned earlier. And we know that State is consulted by a lot of agencies on these, so they have a big repository of them as well. And they have been predictably dragging their feet, all of them. DOD has at least said that they have 6,000 responsive documents, but haven’t really made clear whether they’re willing to produce them; if not, what the FOIA exemption is. So we’re still back and forth with them. DHS just said, “It’s FOIA exempt,” it didn’t even cite an exemption, didn’t say how many documents they have, didn’t provide us any more information than that.
Oona Hathaway:
And the Department of State says it has over 10,000 responsive pages and it will produce them over the course of two years. And so we’re in the course of trying to get a judge to order them to produce them at a quicker rate. And we’ve tried to engage them more informally and they’ve so far refused to do that. So it has been quite a project. And the thing is that we’re curious to see, so we have hundreds of these now that we’ve produced through this process, and part of what we’re interested in seeing as we now get deeper into this process of FOIAing and suing agencies and departments, one thing we haven’t yet gotten a sense of is whether the agencies that have gotten more responsive and that have public information, have less to hide than those that are really dragging their feet.
Oona Hathaway:
And so this is part of why we’re so interested in DOD and DHS. What is it that they’re so resistant to providing us and what is behind that black screen? And we’re very interested in seeing the results of that.
Katerina Linos:
Can I also ask about your interviews? It seems that at least the people you interviewed suggest that they have nothing to hide. Did anything surprising come out of those interviews?
Oona Hathaway:
I really enjoyed those interviews, I will say. And of course it was the agencies that are most open about the process who are willing to talk to me. So we want to be careful to be aware that the information that we have is information people are willing to provide. I guess what I found as I spoke with a lot of these folks at the agencies is, the day-to-day use of these non-bindings is actually wonderful. You know what I mean? They’re fantastic tools for engaging in international cooperation and doing really great things around the world. So for many of these, they’re the sorts of things no one would object to. And we have cooperative arrangements with Canada to engage in joint research on deicing technology. That’s great. We all want better deicing technology and why not save money by cooperating on that?
Oona Hathaway:
And FAA does agreements all around the world to try and improve aviation safety. These are great things. The EPA has a series of arrangements to both transfer technologies and techniques around the world for improving environmental conditions. So there are lots of great things that these non-bindings are doing. And so that’s part of the process of discovering these non-bindings, discovering a wide array of purposes to which they’re being put. And they really are everything. They just really run the gamut. And they’re very. . . just like the executive agreements, we studied in our last project, they’re . . .it’s everything. It’s all the international cooperation the U.S. does. There’s probably a non-binding in there, somewhere. That’s part of what’s structuring that process.
Oona Hathaway:
And so digging into these agreements really gives you a sense of what the day-to-day bread and butter of U.S. international cooperation is, around the world. And a lot of it is really quite wonderful.
Curt Bradley:
One thing to add on what Oona just said, that did come out in some of the interviews that I think was new information to us at least and we’ve given some thought to, is that when we asked about, “Why are you doing it sometimes as a non-binding/as a binding?” One of the reasons that was given was that sometimes the U.S. agency might’ve been inclined to just do it as a binding executive agreement. They might just have preexisting statutory authority to make a lot of these in the area, and it would be pretty easy for them to do it. And they said that their counterparts at some of the agencies and other countries did not have as easy a legal regime to allow them to make agreements directly at the agency level and it’d be a much more cumbersome process to make a binding agreement.
Curt Bradley:
And for those foreign counterpart agencies, it was easier for them if it could just be treated as a non-binding. And in those instances, it wasn’t the U.S. actually pushing that classification, it was an agreement that could easily have been binding, but for foreign counterpart preferences, it was made non-binding. Now that raises interesting questions. For example, how much should U.S. agencies be facilitating what might be an evasion in some countries of their requirements for additional review or approval of agreements. But it’s something I think we would not have intuited without hearing it from those interviews.
Katerina Linos:
Thank you, Curt. That allows me to transition smoothly into my next question about how different countries treat non-binding agreements. It seems in your paper that these are on the rise globally, not just in the U.S.. And it wasn’t as obvious to me until you made this point, why that would be the case. In particular, the rationale you mentioned earlier that Congress just wasn’t going to support the Paris Accords, this tension between the executive and Congress doesn’t seem to be as big a problem in parliamentary democracies or in authoritarian states. So what explains the preference and the rise of non-bindings globally, and how do different countries vary in their practices?
Curt Bradley:
Yeah, and I’m not sure in this paper we’ll fully answer the big international questions, that may be the next project we look to. It does seem clear based on some research we’ve done that this is not just a U.S. phenomenon. Of course, these are agreements with other countries, and so it’s definitely not just a U.S. phenomenon. By the way, we haven’t mentioned a lot of this, they’re not all just bilateral agreements. A lot of the non-binding accords the U.S. is entering into are actually multilateral, sometimes with many parties.
Curt Bradley:
So a lot of nations are the participants in this development. What we did to try to get some sense of what’s going on is, among other things, we developed a survey and we sent it to some lawyers and some foreign ministries and some academic experts in something like 14 countries that are constitutional democracies, that we know have very active foreign relations practices and a mix of parliamentary and other type systems. And we gathered the survey results, and then we also actually had a conference recently where we had those survey respondents actually discuss those surveys among the group to get a better handle on how they perceive their practices.
Curt Bradley:
And almost all of them, including lawyers in the foreign ministries, did report they had been seeing a substantial increase in the usage of non-binding agreements. A vast majority of the participants reported that. When asked about why that’s happening, we had a variety of answers. Things like, the countries have learned that this is a more, a speedier, mechanism for making agreements. They reported that there’s simply more cooperation going on between agencies, units of executive branches. And this is an easy and convenient way to make that happen. For some of those countries, as I mentioned earlier, it’s also legally easier if it’s non-binding because they may not have an easy path for executive agreements at the agency level, unlike what is true in the United States.
Curt Bradley:
Some of them talked about confidentiality, that sometimes it’s easier to keep them secret if they’re non-binding and sometimes that’s deemed preferable. They mentioned that sometimes it allows more flexibility, that it might be just easier to continue to modify the terms over time, or to at least lower the expectations about whether there’ll be continuous cooperation along a certain dimension if it’s kept in this more informal regime. So a wide variety of answers, and again, it might be another project to get a better, more concrete sense of why there seems to be a growing international phenomenon. One thing we did learn is that at least a number of constitutional democracies perceive it as raising significant policy questions for them that they need to address. And in our paper, we talked about three kinds of types of concerns we had.
Curt Bradley:
One is about coordination. The more they have of these, this is true in the U.S. as well, the more they’re worried that they don’t have centralized knowledge of what their government is doing. They may make inconsistent commitments in these non-bindings if done by different departments or agencies. They often just don’t have a good awareness, even within the executive branch, of what they’re doing. And maybe not enough checking as to whether there was really non-binding if that was their intent, as opposed to binding. So a number of countries are working on coordination, and some of them are setting up centralized registries of these in their executive branches. Some are requiring more preapproval review in their foreign ministries by the different agencies and departments. So that’s one area where it seem like there was some movement recently and some countries were trying to improve centralized coordination.
Curt Bradley:
A second set of concerns really relate to what we’ve already talked about today in the United States, which is transparency. And a number of countries have run into questions about whether there should be more transparency of these agreements. Because most countries, even parliamentary countries, by the way, that might not require legislative approval for binding agreements, often have actual processes for at least notifying the legislature. This is true in the UK and a number of Commonwealth countries, laying proposed agreements before the legislature for notice. And then certainly, many countries have strong publication requirements for binding agreements after they’re made. But in almost all of those countries, like in the United States, all of those requirements disappear if these are non-binding, even if otherwise the agreements look the same.
Curt Bradley:
And we did hear from a number of countries that there had been growing concerns in their legislatures among other places about transparency. And nothing significant I think has happened on that, other than a lot of parliaments with committees that are now raising concerns, and there’s some informal arrangements being worked out. In Switzerland, there’s their efforts to promise, I think by the executive, give more notice to the legislature about important non-bindings out of some controversies that occurred there recently. So that’s clearly a hot topic of conversation in some democracies, just like it is I think in the U.S. And then finally, and we didn’t see much movement on the third topic, is the question whether some of these agreements should have to be approved by the legislative branch. At least in some countries that would be true of binding agreements, but we didn’t see a lot of movement on that for many reasons.
Curt Bradley:
One, it’d be very cumbersome, of course, for legislatures to have to approve what might be quite a large number of non-binding agreements. And some of the flexibility of these agreements might be great advantages of them, that would be lost if you converted them into something that looked exactly like a treaty process. So most of the reform efforts we were hearing about related to coordination and transparency and some about reporting to the legislature, but not as much about trying to require these agreements to go through the approval processes that we would have in some of these countries for binding agreements.
Katerina Linos:
So Curt, could I ask you a little bit more about Switzerland or about other transparency controversies? It was really telling to me when Oona said, “Look, the Senate wants to know what the Trump Administration concluded with Central American countries,” and just can’t find out. What was the controversy in Switzerland, or what are some other big transparency stories?
Curt Bradley:
Sure. Well, one non-binding agreement that raised big debates about this topic in the last few years, not just in Switzerland, but a number of countries we heard from, was not an example of a transparency problem, but really more a question of whether the executives should be doing this on their own. And it was the Global Migration Compact that a lot of countries have signed on to. And now obviously part of what’s going on there is migration itself is a controversial topic. And then you add in the fact that executives in these countries are not working through the legislatures in making promises about migration issues. And in a number of democracies, including Switzerland, that prompted significant debates and a renewed focus on this category.
Curt Bradley:
And that’s how it’s happened in the United States, interestingly. There’s this huge number of low-level non-binding agreements that weren’t particularly causing much controversy, partly because a lot of people don’t know a lot about them. And at some of these high profile ones, like the Iran nuclear deal, the Paris Agreement and the like, that all of a sudden got a lot of people focusing on whether there ought to be this category that doesn’t require any involvement of the legislature. And that’s exactly what’s apparently happened in some of these other . . . and now when they start taking a look, they start realizing there’s actually a lot of these, many of which are probably perfectly fine and not controversial, but that are falling below the radar. And so it’s these big-profile, high-profile controversies that are then causing legislatures to start looking more closely at what’s going on for the less controversial ones.
Katerina Linos:
Let me follow up, Curt, on a very controversial one that you just mentioned, the Iran nuclear deal, where the controversy is very much about the substance, but also about the form, whether this is a binding or a non-binding agreement. What happens when one party, like the U.S. says it’s non-binding and then Iran comes back and says it’s binding. Should the Obama Administration drafters have expected the policy to be reversed?
Curt Bradley:
One of the really interesting issues we’re starting to think about is, in general, we suspect that nations would like to be on the same page. If they’re going to make agreements, probably most of the time, it’d be good to have a common understanding of whether you’re triggering international law obligations or not. But there are some instances that we know about where it might be that the cooperation occurs in part by the parties purposefully not agreeing about whether the agreement is binding or not. It may be for domestic political reasons–Iran had to insist it was binding and maybe the Obama Administration had to insist the opposite. We give an example of a migration agreement, I think, between the United States and Mexico, where I think President Trump insisted it was binding and Mexico insisted it was not. And you could imagine domestic political reasons for both of those answers.
Curt Bradley:
What would happen when there are disagreements? This raises the puzzle we’ve talked about throughout this discussion, which is, in many instances, these might not differ that much, binding versus not binding, but there sometimes will be. So we all know there can be sometimes international arbitration or adjudication that would be triggered only if the agreement is binding. Another way in which it certainly matters in the United States is for certain domestic legal effects. And we haven’t talked a lot about that today. But in the U.S., some domestic legal effects do require a binding agreement. Actually, sometimes Congress even says in some of the statutes, that if you want to create certain kinds of immunity effects, or if you want to maybe protect property rights in certain ways, the United States may need or want a binding agreement to create certain domestic legal changes that would not happen if it were a non-binding.
Curt Bradley:
And so there are many instances where there may not be a lot of difference between a binding and a not binding, particularly on the international stage, but there are certainly some instances in which it would matter. And then there are harder questions about whether it matters in terms of reputation or compliance issues as we’ve talked about. And we may study that further even after this paper, I think.
Katerina Linos:
Thank you. Jack, let me turn to you for your policy proposal. You recommend that in order to address the limited accountability surrounding non-bindings, that there should be a publication requirement. Either Congress or the public, or both should be notified after the fact. Could you describe this and explain why you don’t go a step further to call for transparency even earlier?
Jack Goldsmith:
Sure. So our basic view is that these non-binding agreements look like binding agreements. Many of them, the bulk of them look like binding agreements, they act binding agreements, they’re increasingly substitutes for binding agreements. They do all the things that binding agreements do, and therefore the accountability and transparency regime that Curt mentioned earlier, that applies to binding agreements and especially executive agreements. And there’s basically a duty under that regime for the State Department to report a certain set of binding agreements to Congress and to publish another set of binding agreements, large subsets of all binding agreements. The reporting goes for all of them, the transparency to the public goes for a large subset.
Jack Goldsmith:
Basically, we think with a few little adjustments, that that regime should apply to non-bindings. And basically for the same policy reasons that Congress has given for bindings, we think should apply to non-bindings. There are more complicated arguments, but that’s it in a nutshell–that these things can be just as important and the public and Congress should about them so that there can be, at least, after-the-fact accountability, in the sense that Congress gets to examine them, Congress can maybe push back, the executive branch will know that these things are going to be reported to Congress and to the public, and they maybe will act more prudently in making them.
Jack Goldsmith:
So that much is basically an argument by analogy and we give more complicated arguments, but it’s basically that. Now you ask why not have Congress get involved earlier in these things? So they could get involved in two stages, there could be a transparency or reporting requirement at many stages. There could be a transparency and reporting requirement during negotiations. Or there could be a transparency and notice requirement after negotiation once there’s been an agreement. And there are many variations on this theme, but to answer your question, it’s possible that Congress in some instances would want there to be transparency.
Jack Goldsmith:
In the Iran Review Act, Congress required the president to . . . before the president implemented the Iran deal, required the president to send up a bunch of documents to Congress about what the deal was and supporting information and to provide information about it. So Congress might want to get involved in discreet agreements, especially hugely important ones like that, at least to generate transparency. But on the whole an across-the-board requirement would be more burdensome than happens with binding agreements. That’s the first point. The second point is, it might adversely affect the massive negotiations to have them be publicized, to have Congress get involved.
Jack Goldsmith:
And then the third point is, there’s a constitutional question about whether Congress could even have, at an early stage, required the president to disclose what’s being negotiated. And the reason is that this is in kind of a nebulous area of constitutional law, but the president has a very large authority over diplomacy, and probably large chunks of that can’t be regulated by Congress, or at least it’s highly uncertain. And these non-binding agreements are really forms of the president exercising diplomacy. So if Congress too early on required the president, in an area where he has full authority to make these agreements anyway, required him to disclose, there are constitutional–hard, hard constitutional–questions there. So basically, for policy reasons and constitutional reasons, at least in this paper, we don’t urge Congress to go that far.
Jack Goldsmith:
Congress, again, might want to do it on individualized basis like it did in the Iran Review Act. And let me make clear, the reason that Congress could do it in that context and might not be able to do it in others is because President Obama was relying on domestic authority that Congress had delegated to the president over sanctions for Iran. And that was the legal hook there. Since the president in making this non-binding agreement was actually implementing it through prior congressional authorizations, Congress had a congressional hook there, an Article One hook to leverage transparency, but that would not typically be the case for most non-binding agreements.
Oona Hathaway:
And I might add just very briefly, we really have struggled with this in all honesty. We spend a lot of time going back and forth about what is the right answer on the normative response to what we found, but if there is a transparency requirement that applies to non-bindings, then we’ll all have a better sense of how these are actually being used. And there’ll be much more visibility into this process. And then we’ll be in a much better position to decide, is there something more that would be appropriate, and in what context would that be true? I think also for me, part of it is, there’s such a huge volume of these agreements that to have Congress involved ex ante just is unrealistic, it doesn’t have the time to do that.
Oona Hathaway:
And so the beauty of a publication requirement/transparency requirement, is that people like us can do the job of slogging through all these materials and identifying anything that my might be problematic in bringing it to the attention of Congress. And generally speaking, it’s probably not a good idea to have these made publicly available while negotiations are ongoing. That just makes the jobs of negotiators impossible.
Curt Bradley:
Yeah, I’ll add a couple of more thoughts. In suggesting extending the transparency regime that applies to binding agreements to non-binding, it’s our sense based so far on the interviews we’ve done and the other information we have, that at least for the most part, the lack of transparency is not substantially because of an effort to hide a lot of information. It might be true in some instances, that’s going on, but our guess is a lot of the lack of transparency is because there’s no structure in place that would have bureaucrats report the agreements in a regular way, and have the personnel involved, who currently handle the binding ones also process the non-binding ones. And one of the virtues of making that a more regular process, we think is actually what in many ways help the executive branch, even though it imposes an additional duty on the executive.
Curt Bradley:
Our sense, particularly in such a large executive branch of a government like in the United States is they often don’t have as much coordination on these issues as they probably should have, and they don’t have a centralized collection of all of these, as far as we can tell, in the State Department. And one side benefit of having a more regular reporting obligation in publication is there would just be a mechanism and a structure for collecting all of these, even for the executive branch’s purposes so that agencies are not conflicting with each other. We also found in the agreements we coded so far, that the State Department has put out some guidance about how to draft and not draft on, and it’s not being followed very well.
Curt Bradley:
That message is just not getting through in such a large disaggregated executive branch. So one side benefit of a more transparent regime is also, we think, more coordination within the executive branch. And then one other thought about that, like I said, for the most part is probably not some kind of willful effort to keep these secret, that might be occasionally happening. But one of the frustrations that we’re hearing from of the staffers in Congress when we’ve talked to them is, even if you thought it made sense to completely divide up transparency between binding and non-binding agreements, which we don’t think it actually makes sense to make the dividing line–increasingly we think it makes no sense to do–even if that did make sense, how would you ever know whether the executive is actually following that line, if you can’t look to see what the other agreements are?
Curt Bradley:
So if we think there are at least sometimes efforts to fudge that line and select instances, and there are at least some of those in the paper, there’s no way for Congress to even know or police any of that if none of these non-bindings are being reported or made of public. So another virtue of extending the transparency regime is that Congress can actually see whether there’s shifting between these categories for some purposes, that aren’t as legitimate as the ones we’ve talked about.
Katerina Linos:
Thank you so much for that. I learned so much from your very rich paper, including which verbs to use in drafting a non-binding, and I learned even more from this conversation. I wanted to ask as a final question, what did I not ask? What was something really interesting you found out in your research project or in the news about non-bindings that’s worth articulating?
Jack Goldsmith:
I’ll just say something; I’ll just amplify something I said earlier. All four of us are scholars of international law and we teach this stuff. We’ve been doing this project for a year, and we did a little bit of this in the earlier paper. And once you are mired in this stuff, and especially given the sharp decline of treaties and also fairly sharp decline in the use of executive agreements, what we show and other countries acknowledges a rise in the reliance of non-bindings, once you see how much is done this way, it really starts for me, anyway, I think for all of us, we’ve talked about this, to rethink what is the nature of our subject. There’s so much focus on binding agreements, and this is not in any way to detract from their importance, and obviously historically they’ve been hugely important.
Jack Goldsmith:
But really the action in international relations is not proportionate to the focus in international law courses on legal agreements. And so for me, anyway, it just . . . I haven’t taught international law in a while, but if I were to teach it again, I would incorporate non-bindings and try to . . . and this may work for us in the future, try to figure out what is going on here really. But I guess, the point is, it really makes one think what is our field and why is there so much focus on legalized agreements when huge parts of international diplomacy and cooperation are done by these agreements that are in many respects, most of them exactly like binding agreements, except there’s a few little word changes.
Oona Hathaway:
I agree completely with Jack. For me, what has been so fascinating about this is just realizing, we all thought that this was all about Article Two treaties 20, 25 years ago, we were all focused on studying Article Two treaties, and were they enforced and were they not? And then we’re like, “Oh no, it’s all about executive agreements. That’s the game. We’ve been making the mistake of focusing on Article Two treaties, it’s really the story of international law is all about these executive agreements.” And now it turns out that the story is not about either of those, but really is about non-binding agreements. And that is really where the action is. And it’s not just in the United States, but it’s true around the world, that this is the new way in which international diplomacy is taking place. And it does force us to rethink our field.
Oona Hathaway:
We don’t do all that work in this paper. Yeah, I think what this paper tries to do is open our up those questions and make the case that what we need to do is rethink a lot of the things that we thought we knew about the field of international law. I am teaching international law in the spring and I’m already revising my syllabus because it doesn’t make a lot of sense to spend a huge amount of time on Article Two treaties when the action really is happening with non-binding agreements. So that’s part of the excitement of this project. We don’t know exactly where it’s going to lead. We hope others will also pick up the baton and run with it. But yeah, that’s I think the excitement about this, is discovering that what we thought we knew about our field was wrong and it looks very different once we realized non-binding agreements are playing this really significant role.
Curt Bradley:
Yeah. I agree, certainly with both Jack and Oona. For this project and the last one, we primarily came at the topics, I would say, from a kind of a U.S. foreign-relations law angle. All three of us have done a lot of work in the foreign-relations law area with a significant focus on U.S. law, history and practice. And as Oona said, part of that is seeing the shifts over time from Article Two treaties to executive agreements and now to a different category of non-biding agreements. And that itself has a huge impact on the field of foreign-relations law and how we think about that field. Partly, among other things, that makes it a much more administrative law, kind of oriented focus, because a lot of this is happening at the administrative agency level.
Curt Bradley:
But as Jack and Oona mentioned, it also, we’re now discovering, has potentially groundbreaking implications for how one thinks about the field of international law and the international legal system, as it was envisioned, particularly in the post-World War II era and whether some of those assumptions need to be rethought given what we’re learning about how nations are cooperating. And finally, and one thing I think we’re all excited about is, it’s still pretty early as a lot of scholars and lawyers are discovering this change. We’re seeing a global conversation developing around the issue of non-binding agreements. It may be one of the most significant international law topics, I think emerging right now.
Curt Bradley:
We certainly perceive that in the conferences we’ve been having. So it’s exciting for us to be not just focused on the U.S., but being able to hear from a lot of people in other countries about pretty similar issues. About, if international law is changing in this way, what do you do about separation of powers if that’s important in your system? What do you do about keeping the public informed in a democracy? And a lot of countries, including the U.S., are facing those difficult questions. So it’s exciting not just to be writing for U.S. scholars, but to be engaged with people in other countries that are talking about the same issues.
Katerina Linos:
Thank you for listening to this episode of Borderlines. I will hold on to the idea that thousands of non-binding agreements have been concluded both in public contexts and in private ones. The Iran nuclear deal, the U.S. withdrawal from Afghanistan and the Paris climate accords. And as my guests reveal, no one–not the public, not Congress, not researchers–knows exactly what’s being agreed to. The fact that researchers need to sue the Departments of State, Defense and Homeland Security to get answers persuasively makes the case that we need a stronger transparency regime. For more details, check out the Borderlines show notes. If you enjoyed this episode, tell a friend about Borderlines.
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