NONLEGAL OBLIGATIONS IN FOREIGN POLICY

It would be impossible for governments to regulate all their actions and transac­tions through legal instruments such as treaties. As Raymond Cohen has pointed out, international politics are too fluid, complicated, and rapidly changing "to permit prior legislation on all possible contingencies and developments."¹⁸ The same is true in personal life: Rules and laws provide guidance for behavior, but it would be impossible to conduct our lives if every conceivable situation calling for action or decision were regulated. In fact, most of us conduct our relationships employing a variety of nonwritten agreements, understandings, and commitments.

Cohen has classified a number of these international "rules of the game" according to the degree of explicitness with which an agreement is communi­cated. At one end of the continuum are international treaties and covenants, explicit statements outlining behavioral obligations—the do's and don'ts of inter­national politics. Less formal are nonbinding written understandings. They do not have the status of treaties but can be just as important in policy making. Cohen provides the example of the 1972 Shanghai Communique between the United States and China. After almost twenty-five years of deep hostility between the two governments, the authorities of the two countries were able to hammer out a framework of rules that would guide the establishment of formal diplomatic relations, and a formula that would deal with the tricky problem of Taiwan's status. The communique outlined general principles but established no binding obligations; these were to be worked out in detail as the relationship developed. A less happy nonbinding agreement was former President Nixon's famous letter to President Thieu of South Vietnam to the effect that if the North Vietnamese violated the terms of the Paris Agreement (ending the Vietnamese war), the United States would take "swift and severe retaliatory action." In the midst of the Watergate scandal in 1975, the North Vietnamese attacked. Facing a hostile Congress, President Nixon was unable to meet the commitments he had made to Thieu.

Gentlemen's Agreements are also legally nonbinding; they differ from the previous category by not even being written; such agreements are only verbal exchanges of promises. That they are not engraved on paper does not necessarily reduce their effectiveness, however. As in private life, broken promises incur significant costs in a relationship. They are also useful in foreign policy because in some circumstances, particularly in a rapidly changing situation, formal treaties are inappropriate. Where leaders wish to avoid adverse publicity or to bind their successors, they may also rely on gentlemen's agreements.

Tacit Understandings are never written, are certainly not binding, and result from hints, signals, and past behavior rather than from formal communica-

¹⁸ "Rules of the Game in International Politics," International Studies Quarterly, 24 (March 1980), 129-50.

373 Law and World Opinion in Explanations of Foreign Policy

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tion. They develop because they provide some net gain to each of the parties, but for a variety of reasons, they cannot be explicitly stated or put into a docu­ment. There are, for example, a variety of conventions and understandings between the intelligence agencies of the major powers. While their agents might indulge in all sorts of skullduggery, deception, and assassination and even turn traitor, some things simply "are not done." Almost all countries expel appre­hended spies or hold them until they can obtain the release of their own agents. They do not, however, put them on trial. The few exceptions in the multitude of cases prove the rule. More generally, the Americans and Soviets have tacit understandings that they will not intervene militarily in each other's spheres of influence. This understanding arises more from necessity than choice, yet with the exception of Cuba—which gave rise to the most dangerous crisis in the postwar period—it has been observed. One of the problems of detente is to try to develop new tacit understandings regarding Soviet and American activi­ties in Africa, the Middle East, and South Asia.

These "rules of the game," while not resting on very secure foundations, are nevertheless important considerations in many decision-making situations. They provide flexibility; they can be denounced more easily than treaties; they have no legal status; governments can deny their existence (except the written ones). Despite their informalities, they may have as much importance in policy making as more formal instruments and, in some cases, even more. The impor­tant point is that they do guide behavior, and for much the same reasons as treaties: The costs of breaking or repudiating agreements are often very high. We turn, then, to a consideration of those costs, more commonly known as the sanctions of international law and "rules of the game."

LAW IN FOREIGN POLICY:

THE SANCTIONS

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