Jack Goldsmith

Lawfare: Congress Mandates Sweeping Transparency Reforms for International Agreements

December 23, 2022

Presidential Reform Project co-chair Jack Goldsmith published the following article in Lawfare. The piece was co-authored by University of Chicago Law School Professor at the and Gerard C. and Yale Law School Professor Oona Hathaway. An excerpt of the this can be found below:

In recent years, the executive branch has increasingly relied on yet another kind of instrument: nonbinding agreements. Nonbinding agreements vary greatly in form and can cover almost a limitless range of topics.  They often have all or most of the formal features of a binding agreement, yet they are understood not to create binding international obligations. Well-known examples include the Iran nuclear deal that was concluded by the Obama administration in 2015 and the Trump administration deal with the Taliban committing to the withdrawal of U.S. troops from Afghanistan. As we show in a forthcoming article, “The Rise of Nonbinding Agreements,” high-profile agreements like the Iran deal are simply the tip of the iceberg of a large and under-studied body of nonbinding agreements concluded by the executive branch. Many of these agreements are concluded at the administrative agency level and concern a vast array of subjects, from antitrust enforcement, to tax reform, to nuclear proliferation. Prior to the 2023 NDAA, however, the transparency requirements that applied to binding agreements did not apply to nonbinding agreements. As a result, many international agreements concluded by the United States have been shielded not only from public view but from Congress and sometimes even the State Department itself, which may not know of nonbinding agreements concluded by other agencies.

Keep reading at Lawfare.