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65 Va. J. Int'l L. Online 1 (2024)

handle is hein.journals/vajoillw65 and id is 1 raw text is: Delimiting Agreements for International Law DUNCAN B. HOLLIS* Agreements are central to many international law projects, including both treaty- making and the (rising) use of non-binding agreements. Yet, for all the attention states and scholars currently direct to difentiating between binding and non-binding agreements, there has been relatively !ittle discussion of the antecedent inquiry-what constitutes an agreement in the firstplace? This short Essay callsfor new efforts to define agreements forpurposes of international law and international relations, focusing on two criteria-mutuality and commitment. Agreements require two (or more)particdpants just as they must exhibit some shared expectations regarding those particdpants' future behavior. This definition provides important /imiting princdples by excluding certain binding instruments (e.g., unilateral declarations) as well as some non-binding ones (e.g., diplomatic deliverables that do not ref/ect shared commitments to future courses of conduct). Moreover, a focus on agreements foregrounds a salient category absent in most existing discourse-tacit agreements. Reflecting on why tacit agreements quakjfy as agreements can help high/ight diferent methods (e.g., content-driven criteria, presumptions and defaults) to supplement (or substitute for) existing subjective and objective efforts to identify whether an agreement is binding under international law. For those concerned with the transpareny of diplomatic deliverables, the eficacy of domestic approvalprocedures for international agreements, as well as the operation of both the law of treaties and the law of state responsibility, it will be necessary to develop a broader and deeper understanding of what agreements are alongside any efforts to identify and differentiate among their binding and non-binding forms. * Laura H. Carnell Professor of Law, Temple University Beasley School of Law; Non-Resident Scholar, Carnegie Endowment for International Peace. Professor Hollis is editor of THE OXFORD GUIDE TO TREATIES (2nd ed. 2020) and from 2016-2020 served as the Rapporteur on Binding and Non-Binding Agreements for the Organization of American States' Inter-American Juridical Committee.

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