Taking Stock

In Annex C of its Policy on Tabling of Treaties in Parliament, the Canadi-an government states: “If a matter is of a routine or technical nature, or appears to fall entirely within the existing mandate and responsibility of a department or agency, and if it does not contain substantive matter which should be legally binding in public international law, it is often preferable to deal with the matter through the use of a non-legally binding instrument.

[…] Memoranda of Understanding and similar arrangements can be be-tween Canada and another sovereign state, but much more commonly are between a Canadian Government department, an agency, or a province, or other sub-national government, or para-statal organisation, and a similar body in another country.”³⁶

Are these statements indications that informal law has become more rel-evant relative to formal international law over time? Which actors use it most? Is it used more in structuring bilateral or multilateral relationships?

What are the main policy areas covered by informal law? These are some of the questions that will be answered in this section. Ideally, we would like to base our answers on the complete stock of informal law in the world today. Unfortunately, there is no central database that collects all such agreements. Often, informal law is not even systematically collected at the country level.³⁷ A systematic analysis of informal law runs into several other obstacles, too. Informal law might not be in writing and thus will not

34 See D. Kiwit and S. Voigt (1998).

35 See G. Schaffer and M. Pollack (2010).

36 See Canada Treaty Information (n. 4).

37 For example, the Foreign & Commonwealth Office (2004) stipulates that memoran-da of understanding are usually not published.

show up in any statistic. There is no established convention in terminolo-gy. Even countries using the same official language might use different words to describe it. For example, in English, informal law is variously known as a gentlemen’s agreement, an executive agreement, or a memo-randum of understanding, to name but a few of many descriptions. What is more, informal law does not occur only between nation-State governments, so even if all these governments had complete databases, we still could miss informal law produced by other actors, such as IOs or even non-governmental organisations (NGOs).

Given the numerous barriers to analyzing the stock of informal law across countries, we decided to conduct a detailed analysis of certain in-formal international lawmaking activities (as we re-defined above) of one single country. We chose the US for a number of reasons. The US passed the Case-Zablocki Act in 1972, which requires the Department of State to report international agreements to Congress no later than 60 days after they enter into force.³⁸ All agreements entered since 1981 are available online, making systematic analysis convenient. ³⁹ Additionally, our conjecture that young States that have recently undergone fundamental change and have not been able to build up a reputation as promise-keepers, are less likely to draw on informal international law makes the United States a good choice because it holds the record for the world’s longest established, uninterrupt-ed democracy, and it enjoys an excellent overall reputation. On the one hand, this might bias the results in favour of informal international law (redefined and narrowed down here to ‘international agreements’ as op-posed to ‘treaties’); on the other hand, this is likely to give us an unusually broad database for analysis.

There are some drawbacks, of course, to confining an analysis of infor-mal international lawmaking to a single country. The most serious of these is that conjectures as to certain country characteristics cannot be tested (e.g., the US is neither young nor has it undergone a substantial transition recently, so hypotheses as to those characteristics cannot be tested). Fur-ther, the Case-Zablocki Act explicitly exempts a number of agreements from publication. Among these are ‘specified military exercises’ and agreements ‘that have been given a national security classification’, as well as a number of coordination agreements (between postal administrations and aviation agencies), and agreements involving bilateral assistance for

38 The text of the Act is available online http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Title22/22cfr181_main_02.tpl accessed 19 October 2011.

39 The 2,289 items covering the period from 1981 until 2010 do not only include many kinds of agreements but also Memoranda of Understanding, agreements, Memoranda of Agreements, letters of agreement, arrangements, technical exchanges, protocols, and the like.

counter-narcotics and other anti-crime purposes.⁴⁰ Most importantly, it in-cludes only ‘international agreements’ that are legally binding under inter-national law, thereby excluding all informal interinter-national lawmaking that is not legally binding under international law (such as non-binding guide-lines or standards).

The first aspect analysed is the number of international agreements pro-duced annually over the last 30 years. The absolute numbers provide a first indication of whether informal lawmaking (in the sense of a shift from formal ‘treaties’ to less formal ‘international agreements’) has really so dramatically increased as sometimes insinuated. A dramatic increase in international agreements did occur following the first half of the 1990s. In 1995, six international agreements were reported. This number rose to 86 in 1999 and to 318 in 2006, but fell to only 113 agreements in 2010.⁴¹

This simple series allows us to answer a number of additional questions.

For example, are Republican administrations more (or less) likely to rely on informal law than Democratic-led ones? Since both the rise and fall in international agreements occurred during the presidency of George W.

Bush, no such preference seems identifiable: informal law dramatically increased during his first term; most of its decline took place during his second term. Between 2003 and 2006, the Republicans had a majority in both houses. During this time, passing formal law should have been rela-tively easy, implying that informal law should have been relarela-tively less attractive. But this is not what happened: during the period in which the Republicans enjoyed a majority in both houses, as well as there being a Republican president, they used more informal law than ever before. ⁴²

40 The last type of agreement could be motivated by a desire not to make the partner government unpopular domestically; hence, its revelation would be a credible threat in the hands of the US government.

41 Frequently, agreements are not posted within the mandated 60-day period. At times, the delay can be months or even years. This implies that numbers for the last couple of years might need a minor upward adjustment; however, this is unlikely to lead to any changes in the trends observed here.

The absolute numbers might be misleading: if other kinds of international agreements have increased at an even faster rate, the relative importance of informal law would act u-ally have decreased. But comparing the number of informal international agreements reported under Case-Zablocki to the number of formal treaties ratified by the US might result in a skewed picture as the number of newly-ratified treaties is very low (it ranges between two in both 2007 and 2008 and six in both 2004 and 2005). This is also true for the number of IOs to which the US belonged in the respective year. Moreover, the IO membership data reports a net effect (entry minus exit), whereas our data on informal describe raw events. (Data on both treaties and IO membership are taken from A. Dreher, (2006).)

42 Eyal Benvenisti who commented upon this chapter at a workshop suspects that the US National Security Strategy of 2006 is the reason for the turning point. In its report on strategy, the US government explains that it seeks partnerships with countries in Latin America and the former Soviet Union but also with non-State actors. To be convincing,

Figure 2: Publicly documented ‘international agreements’ by the US between 1981 and 2010

Source: Own calculations based on U.S. Department of State (2011).

If governments attempt to use international agreements as a means of bind-ing successor governments and formal lawmakbind-ing is better suited to achieve this purpose than informal international law (as hypothesised above), informal international law should be relatively less frequent in the years immediately preceding elections than in other years.⁴³ The Republi-cans lost both houses in 2007, so we should have observed relatively less informal international law in 2006. Again, this conjecture finds no support in the data and Hypothesis 7 is refuted with regard to the US.

Informal international law could be especially appealing to the admin-istration during periods when the legislative majority and the president belong to different parties. Ratification of formal treaties will be particu-larly difficult for the administration and it thus might resort to informal

the composition of countries entering into agreements before 2006 should be markedly different from that after 2006. This is, however, not the case.

43 Given the highly debatable assumption that politicians have perfect foresight and know who will win future elections.

international law. Again, however, the data show no support for this con-jecture.

International agreements might be used by the administration not only as a tool to circumvent the legislature; it might also be employed to change the balance of power within the administration itself. Enactment of formal law requires the explicit consent of the minister of foreign affairs; in the US, this is the Secretary of State. No such consent is needed in the case of informal law. Thus, it is of interest to ascertain what percentage of infor-mal law is concluded by actors other than the state department. These need not be other government departments; they could be independent agencies.

Our results show that more than 40% of all international agreements are signed by an actor other than the traditional ones (namely, the head of gov-ernment and/or the department of state). In the US, about half of these agreements are signed by other departments, another half by others such as independent agencies. In other countries, this share is less than one-seventh of all agreements (13.9%), a difference possibly due to the rela-tively large number of independent agencies in the US, or because other countries have mechanisms making it more difficult for independent agen-cies to conclude informal law on their own.

Table 1: Identity of actors signing informal law⁴⁴

Informal law signed by US Partner

Head of Executive 38.1% 40.8%

Department of State/Embassy 19.9% 15.4%

Other Ministries 21.7% 29.9%

Others 20.3% 13.9%

Source: Own calculations based on U.S. Department of State (2011).

Evaluating these numbers is subject to ambivalence: delegation of compe-tence is always subject to drift.⁴⁵ The longer the relevant principal-agent chain, the more severe the drift. If independent agencies enter into agree-ments with their foreign counterparts, they have an interest in the terms of the agreement being kept, and drift could thus be expected to be low. On the other hand, agreements entered into by independent agencies are far from the supreme democratic principals – the citizen-voters.

44 In the event the agreement involved more than one partner, the first partner was coded (less than 3% of all international agreements are concluded between mo re than two parties).

45 See e.g., D.R. Kiewiet and M. McCubbins, (1991).

Above, it was argued that informal international law is expected to be pri-marily bilateral, not multilateral. The Case-Zablocki data allow us to test this hypothesis on the basis of the agreements entered into by the US. Fig-ure 3 shows that the overwhelming number of international agreements is concluded with just one other party.⁴⁶

We are also interested in the geographic distribution of the US partners in international agreements. In the theoretical section, it is argued that fre-quent interactions are likely to be highly correlated with informal law.

There are many interactions with one’s direct neighbours. There will be many issues concerning border-crossing externalities. Therefore, it would be less than surprising to find that geographic proximity is correlated with a high number of international agreements.

Figure 3: Number of countries involved in US ‘international agreements’ (including the US)

Source: Own calculations based on U.S. Department of State (2011).

Based on a delineation that distinguishes between ten geographic regions, the region that the US has the most agreements with is composed of West-ern Europe and North America (including Australia and New Zealand), namely, 20.5%. Latin America (including Cuba, Haiti, and the Dominican Republic) is a close runner-up with 20.4%, followed by Eastern Europe and the post-Soviet Union countries (including Central Asia) with 17.1%.

46 Simple comparisons between the number of bilateral and multilateral agreements might lead to a bias picture as a single multilateral agreement could weigh as little as two bilateral agreements (if an agreement is concluded between the US and two other cou n-tries) or as much as 200 bilateral agreements (if the agreement is concluded amongst 201 countries). Weighing multilateral agreements with the number of participants, however, does not lead to dramatic changes in the results: the non-weighted percentage of multilat-eral agreements is 3.15%, whereas the weighted one amounts to 12.68%.

One of the hypotheses developed in Section C is that frequent interactions will increase the propensity to resort to informal international law. Interac-tions should be most frequent with those countries that share a border with the United States: Canada and Mexico. In our dataset, we identified 93 such agreements with Canada (i.e., 3.7% of the entire sample) and 43 with Mexico (1.7% of the whole sample). If we compare these numbers with the number of agreements between the United States and two of its major trad-ing partners – China and Japan – our conjecture seems to find at least some support: there are only 35 recorded agreements with China (i.e., 1.4% of the entire sample) and 63 with Japan (2.5%).

Table 2

Region Share in%

Western Europe and North America (including Australia and New Zealand)

20.5 Latin America (including Cuba, Haiti, and the Dominican

Republic) 20.4

Eastern Europe and post Soviet Union (including Central

Asia) 17.1

Sub-Saharan Africa 10.6

North Africa & the Middle East (including Israel, Turkey,

and Cyprus) 8.2

East Asia (including Japan and Mongolia) 7.3

South Asia 6.5

Southeast Asia 5.7

The Pacific (excluding Australia and New Zealand) 1.9 The Caribbean (including Belize, Guyana, and Suriname, but excluding Cuba, Haiti, and the Dominican Republic)

1.8

Source: Own calculations based on U.S. Department of State (2011).

It is also interesting to see in which policy areas most informal internation-al law finternation-alls. Interestingly, Brummer compares the propensity to enter into soft law regarding trade issues with that involving finance and develops the following claims. (1) Trade liberalisation is fragile; to safeguard it, hard law is needed. (2) Financial markets evolve very quickly. Adequate regulation of these markets thus also needs to be able to adapt quickly, implying that international law on financial issues ought to be soft rather than hard. (3) Finance markets are often regulated by independent bodies

such as central banks and supervisory authorities; however, these bodies can only create soft law.⁴⁷

Table 3

Policy Area Share in %

Military 30.5

Science and technology 19.9

Aid 14.7

Crime prevention and anti-terrorism 7.2

Economic (goods and services) 6.1

Foreign relations 5.3

Transportation 5.3

Agriculture and environment 3.8

Culture and education 3.2

Economic (financial capital) 2.3

Other 1.9

Source: Own calculations based on U.S. Department of State (2011).

With regard to the US, we find that almost two-thirds of all international agreements falls into three policy areas: military agreements (30.5%), agreements regarding science and technology (19.9%), and agreements on aid (14.7%). To get a more concrete picture of whether the US uses inter-national agreements based on a more formal framework (such as NATO) or on a more ad hoc basis, comparing the agreements concluded with NATO members and non-member countries might be illuminating: only 8.3% of all military agreements have been concluded with NATO partners.

If informal lawmaking by U.S. authorities is taken as the basis, then Brummer’s conjecture is not confirmed by the data⁴⁸: according to our count, 6.1% of all agreements deal with goods and services; only 2.3%

involve financial capital.⁴⁹

A number of papers show that temporary membership on the UN Secu-rity Council can be very valuable because the US is willing to support a

47 See C. Brummer (2010).

48 Ibid.

49 On the other hand, these are absolute numbers and to really test the Brummer h y-pothesis, we would need to analyse the ratio between soft and hard law in both policy areas.

member country in exchange for voting in line with it on Security Council matters.⁵⁰ Given that informal agreements are rather opaque, we propose to discover whether countries receiving any kind of support from the US be-longed to the Security Council at the time the informal agreements were concluded.⁵¹

Im Dokument Economic Analysis of International Law (Seite 61-69)