Use and Abuse of Non-Binding International Agreements

Session 29 of the Congressional Study Group

FILE PHOTO: The U.S. Capitol during a morning rainstorm on Capitol Hill in Washington, U.S., March 25, 2020. REUTERS/Tom Brenner/File Photo
FILE PHOTO: The U.S. Capitol during a morning rainstorm on Capitol Hill in Washington, U.S., March 25, 2020. REUTERS/Tom Brenner/File Photo
Editor's note:

The following is a summary of the 29th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.

On October 6, 2023, the Congressional Study Group on Foreign Relations and National Security convened over Zoom to discuss the use and abuse of non-binding international agreements. From the Iran nuclear deal to arrangements on migrant flows with Mexico, recent presidential administrations have increasingly turned to non-binding arrangements in lieu of treaties and other types of formal international agreements to memorialize international consensus and advance their foreign policy objectives. But these non-binding arrangements fall outside the scope of existing statutes and processes that normally require the executive branch to share international agreements with Congress and the public. As a result, relatively little is known about how and why they are used. 

The study group was joined by two outside experts who led the discussion: 

  • Professor Curt Bradley of the University of Chicago Law School, who previously served as Counselor on International Law at the U.S. Department of State;and  
  • Professor Oona Hathaway of Yale Law School, who is also a non-resident scholar at the Carnegie Endowment for International Peace and previously served as Special Counsel at the U.S. Department of Defense. 

Prior to the discussion, participants were provided with a groundbreaking study on executive agreements written by Bradley, Hathaway, and Professor Jack Goldsmith of Harvard Law School and a pending article on the use of non-binding international agreements, as well as recent Department of State regulations related to this topic. (The latter article was later published in The University of Chicago Law Review as “The Rise of Nonbinding International Agreements: an Empirical, Comparative, and Normative Analysis.”) 

The presenters discussed the various ways of making international law, and the challenges of categorizing instruments as non-binding agreements. Various factors matter for that categorization, the presenters said, including the intent of parties, either express or inferred. Other objective factors such as subject matter, text, and context can provide clues regarding the authors’ intentions, they said. 

Generally, the presenters said, non-binding agreements fall into two categories: joint statements or communiques, and formal nonbinding agreements. They described several examples, including the JCPOA; Paris Agreement on Climate Change (in part); 2021 Glasgow climate pact; OECD/G20 agreement on global tax reform; and the New Atlantic Charter btween US and UK. The presenters observed that most recently, binding agreements are declining in quantity, while nonbinding agreements increase in quantity. 

In spite of that increase, the presenters said, there is no systematic internal executive branch collection or review of non-binding agreements because the State Department has not previously applied the same reporting procedures used for other types of international agreements to non-binding ones. However, they said, the 2023 National Defense Authorization Act (NDAA) requires more timely and comprehensive reporting of some non-binding executive agreements. That NDAA provision, the presenters said, is the most important transparency reform for international agreements in the past fifty years. They expect these new legal requirements to permit some congressional and public review of the use of nonbinding agreements, as well as improved coordination across the executive branch. 

A robust question-and-answer session followed the presentation. Topics discussed included opportunities for continued congressional engagement on this issue, availability of agreements used for the presenters’ study of this topic, and the challenges of defining a nonbinding international agreement. 

Visit the Congressional Study Group on Foreign Relations and National Security landing page to access notes and information on other sessions.