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Unenforceable Agreements

At her June 17 press conference, Hillary Clinton was asked whether there were understandings or agreements between Israel and the Bush administration about settlement growth and whether she felt bound by them. Clinton responded as follows:

[I]n looking at the history of the Bush Administration, there were no informal or oral enforceable agreements. That has been verified by the official record of the Administration and by the personnel in the positions of responsibility. Our former ambassador Dan Kurtzer has written an op-ed that appeared in the last few days that lays out our position on that.

In his Wall Street Journal op-ed today, Elliott Abrams — who was in a position of direct responsibility at the time — noted the strange qualifier Clinton used:

Mrs. Clinton also said there were no “enforceable” agreements. This is a strange phrase. How exactly would Israel enforce any agreement against an American decision to renege on it? Take it to the International Court in The Hague?

In the op-ed to which Clinton referred, Daniel Kurtzer employed a similar linguistic evasion. Kurtzer argued there was no “formal” understanding.

Was there an informal understanding? Was there an oral agreement? Was there a tacit understanding or a tacit agreement? Were there notes, memoranda, and other documents reflecting what was communicated and understood? Was there a course of action indicating agreement? Was there detrimental reliance? As Jennifer noted, even a first-year law student knows the definition of a deal.

But this is not simply a question about the past, because it raises questions about the ability of other nations to rely on future commitments that may be made by the U.S. government — or at least this one.  How are other nations to determine whether the Obama administration’s commitments will be “enforceable?” How formal will be formal enough for the administration to enforce them against itself, much less a successor administration?

And when the U.S. government later reneges on its commitments, understandings, and agreements, where should the other governments go to get their concessions back?



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