Publication Date

2013

Publication Title

University of Pennsylvania Journal of International Law

Abstract

A prominent criticism of United States delegations to international institutions—or international delegations—focuses on agency costs. The criticism draws a stark contrast between international delegations and domestic delegations. For domestic delegations to agencies, U.S. congressional, executive, and judicial oversight mechanisms exist to try to ensure agency accountability. Since the agency is democratically accountable, agency costs are low. For international delegations of binding authority to international institutions, however, the conventional wisdom is that oversight mechanisms are absent and the United States cannot monitor the international institution to ensure it acts within its delegated authority. Therefore, in the international context, agency costs are high. The fear of high agency costs through the loss of democratic accountability, so the argument goes, justifies constitutionally inspired limits on international delegations. This Article challenges the conventional wisdom. It argues that the claim of high agency costs rests on weak foundations because agency costs will likely vary depending on the type, scope, and nature of the delegation; that the United States has actually implemented many of the domestic oversight tools in the international context, ensuring a surprisingly high level of accountability to American interests; and that the potential costs and benefits of international delegations may not be substantially different from those in domestic delegations. In other words, it is unlikely that there are dramatic differences between domestic and international delegations with respect to the efficacy of oversight mechanisms or the balance of costs and benefits. This Article concludes that constitutionally-inspired limits on binding international delegations are probably unnecessary because they will increase the costs for the United States to participate in potentially beneficial international cooperation.

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