[Senate Hearing 115-630]
[From the U.S. Government Publishing Office]
S. Hrg. 115-630
THE PRESIDENT, CONGRESS, AND SHARED AUTHORITY OVER
INTERNATIONAL ACCORDS
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HEARING
BEFORE THE
COMMITTEE ON FOREIGN RELATIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
DECEMBER 5, 2017
__________
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COMMITTEE ON FOREIGN RELATIONS
BOB CORKER, Tennessee, Chairman
JAMES E. RISCH, Idaho BENJAMIN L. CARDIN, Maryland
MARCO RUBIO, Florida ROBERT MENENDEZ, New Jersey
RON JOHNSON, Wisconsin JEANNE SHAHEEN, New Hampshire
JEFF FLAKE, Arizona CHRISTOPHER A. COONS, Delaware
CORY GARDNER, Colorado TOM UDALL, New Mexico
TODD, YOUNG, Indiana CHRISTOPHER MURPHY, Connecticut
JOHN BARRASSO, Wyoming TIM KAINE, Virginia
JOHNNY ISAKSON, Georgia EDWARD J. MARKEY, Massachusetts
ROB PORTMAN, Ohio JEFF MERKLEY, Oregon
RAND PAUL, Kentucky CORY A. BOOKER, New Jersey
Todd Womack, Staff Director
Jessica Lewis, Democratic Staff Director
John Dutton, Chief Clerk
(ii)
C O N T E N T S
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Page
Corker, Hon. Bob, U.S. Senator from Tennessee.................... 1
Cardin, Hon. Benjamin L., U.S. Senator from Maryland............. 2
Menendez, Robert, U.S. Senator from New Jersey................... 3
Bradley, Curtis A., William Van Alstyne Professor, Duke
University School of Law, Durham, NC........................... 5
Prepared statement........................................... 6
Haines, Hon. Avril D., Former Principal Deputy National Security
Advisor, Senior Research Scholar, Columbia University, New
York, NY....................................................... 10
Prepared statement........................................... 13
Additional Material Submitted for the Record
Responses to additional questions for the record submitted to
Curtis A. Bradley by Senator Edward J. Markey.................. 34
New York Declaration for Refugees and Migrants, a resolution
adopted by the United Nations General Assembly on 19 September
2016........................................................... 35
(iii)
THE PRESIDENT, CONGRESS, AND SHARED AUTHORITY OVER INTERNATIONAL
ACCORDS
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TUESDAY, DECEMBER 5, 2017
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 3:20 p.m., in
Room SD-419, Dirksen Senate Office Building, Hon. Bob Corker,
chairman of the committee, presiding.
Present: Senators Corker [presiding], Gardner, Young,
Cardin, Menendez, Shaheen, Coons, Murphy, Kaine, Markey, and
Booker.
OPENING STATEMENT OF HON. BOB CORKER,
U.S. SENATOR FROM TENNESSEE
The Chairman. The Foreign Relations Committee will come to
order. We apologize to our witnesses. We had a photograph with
100 Senators. There are always three or four who do not show
until long after it is supposed to start. And then we had a
business meeting that went for a while. But thank you so much
for being here.
Today, we are going to continue a series of hearings to
examine the executive's authorities with respect to war-making,
the use of nuclear weapons, and, from a diplomatic perspective,
entering into and terminating agreements with other countries.
We are here today to discuss the shared authority over
international accords, an issue of fundamental importance to
our national interests and separation of powers.
Let me be clear. This is not about any effort to constrain
the inherent powers of the President with respect to diplomacy.
Our Nation must speak with one voice in diplomatic affairs. And
under our Constitution, the President determines U.S. foreign
policy. But Congress plays a vital role in providing advice and
consent on treaties and authorizing U.S. participation in
international agreements that shape our foreign policy.
Our Founders understood the danger of entrusting too much
of this power to the President alone, and the Constitution
clearly provides for a shared authority to enter into binding
international agreements.
The House and Senate play an indispensable role in enacting
legislation that provides the President with a domestic legal
basis for fulfilling our international commitments. And with
respect to agreements that rise to the level of a treaty, the
Senate has a unique constitutional role in approving treaties.
Therefore, we must be active participants in the process.
Through the years, Presidents from both parties have
increasingly abused their authority to enter into and terminate
binding international agreements with little input from
Congress. To avoid further ceding of our authority to the
executive branch, we must fulfill our constitutional role as
partners in this effort and be vigilant in our oversight
responsibilities.
This challenge is greater than ever before. As Professor
Bradley will note in his testimony, more than 90 percent of the
thousands of binding international agreements entered into by
the United States over the last 80 years have not been treaties
but various forms of executive agreements.
We are stronger internationally when the President and
Congress work together. Unilateral presidential action, without
a meaningful congressional partner, undermines our national
strength.
For that reason, I hope this committee will work in a
bipartisan way to ensure that the Senate will uphold its
constitutional role in the process of making international
agreements. We must work in partnership with the President when
we can. And we must be ready to defend the rights and the
obligations of the Senate when necessary.
And with that, I will turn to our distinguished ranking
member, Ben Cardin.
STATEMENT OF HON. BENJAMIN L. CARDIN,
U.S. SENATOR FROM MARYLAND
Senator Cardin. Thank you, Mr. Chairman.
As you know, we get opening statements that are sometimes
prepared by our staff, and I think this one is particularly
appropriate, so I am going to ask consent that my entire
opening statement be put in the record, because it gives, in
detail, some of my concerns.
And let me summarize very briefly, so we can get to the
witnesses.
We point out that the number of treaties that we have
entered into as a Nation, as a percentage of our national
agreements entered into by our country, between 1789 and 1939,
66 percent of all foreign agreements were treaties. Between
1980 and 2000, that dropped to 12 percent. That number is even
lower today.
So we have seen the disuse of treaties as a manner in which
to enter into international agreements, and that involves the
Congress. And I have been told that it was pretty common for
Members of the Senate to be part of the negotiating teams on
treaties, to assist in the relationship between the executive
branch and the Senate, which makes sense. And we are not doing
that today.
So when the President of the United States looks at
Congress and the consideration of treaties today, sees the Law
of the Sea that cannot be ratified by the United States Senate,
sees the Rights of Persons with Disabilities not being able to
be ratified by the United States Senate, which I to this day
cannot determine any controversy at all in regard to that
treaty, we can understand why the President would choose to use
a method other than a treaty in order to enter into
international agreements, which compromises the appropriate
role of the United States Senate, something that we should be
very concerned about.
So the President, when he wanted to enter into a climate
agreement, he chose an executive agreement rather than a
treaty. When he wanted to enter into an agreement with the
international community on Iran, he chose an executive
agreement rather than a treaty. Why? Because he couldn't get it
ratified in the U.S. Senate under any scenario.
It was not this agreement. It is anything. You cannot even
get tax treaties ratified by the Senate that are there to help
us. You talk about tax reform, we cannot get tax treaties
passed because one Member decides to hold up the process?
So we have problems. And now we have a President who wants
to withdraw from international agreements, whether they are
agreements like the JCPOA or they are trade agreements.
And I must tell you, quite frankly, I have been in the
Congress for a long time when we have gone over the
congressional role on trade agreements, and there is a formal
process under the Trade Promotion Authority. And, yes, we go
over the withdrawal procedures, but we never thought we would
run into a President who would be using the withdrawal as this
President has done, in a manner that is really contrary to us
being involved in the process.
Now, we have taken some action. INARA was an example where
Congress decided that it was going to do something about
executive agreements, and I think we did the right thing in
INARA, in regard to the JCPOA.
But I think this hearing is particularly important, so we
have a chance to talk about reestablishing the appropriate role
for the United States Senate as it relates to executive
agreements.
And I thank our two witnesses for being here. They both
have great expertise here.
I am interested in, Avril, how you were able to get so many
treaties ratified. I think you have a record in modern times,
so maybe you can give us an idea how that was done.
But I welcome both of our witnesses here today.
The Chairman. I will formally welcome them.
Senator Menendez. Mr. Chairman, at the appropriate point,
as I had asked you before we started, I would just like to make
a brief comment about the resolution that I was not able to get
to.
The Chairman. I think now would be a very appropriate time.
Senator Menendez. Thank you, Mr. Chairman.
The Chairman. Thank you for reminding me of that.
STATEMENT OF HON. BOB MENENDEZ,
U.S. SENATOR FROM NEW JERSEY
Senator Menendez. I appreciate it.
So I did not go. I had an amendment in Banking, and then I
was told that the chair's preference was to have remarks made
here, so I did not get over to the markup. So I appreciate the
moment.
And I feel really compelled about this. This is a
resolution that I used to carry before I became chairman of the
committee, and then Bob Casey did with others, and it is the
resolution on the protection of freedom of the press and
expression around the world, and reaffirming the freedom of the
press as a priority in the efforts of the United States
Government to promote democracy and good governance.
Normally, that was an expression of our commitment to that
fundamental, bedrock principle enshrined in the First Amendment
to the Constitution of the United States as a global effort.
But I have to be honest with you, I am really concerned--really
concerned--when I see that, last month, CNN reported on live
auctions of human beings, something that I know the chairman
cares passionately about, by his work on human trafficking, and
active slave trade in Libya, and the news network showed
footage of human beings being sold at auction, which is a stain
in our collective consciousness. But adding to this atrocity
last week, Libyan authorities questioned the veracity of the
reports, citing the President of the United States who calls
CNN fake news.
Now, listen, I have had my share over 43 years of public
service of not being enthralled by some press reports and how
they ultimately carried themselves, but I believe in the
fundamental, bedrock principle of a free press. And when we are
in the league of individuals like Maduro in Venezuela and Putin
in Russia, who constantly try to undermine the essence of a
free press in their countries in order to promote their
dictatorial, autocratic views, it really worries me.
It worries me that attacking the press is one of the most
frequently used instruments in a dictator's toolbox. The fourth
estate, in my mind, plays a crucial role in our democracy and
all over the world. So advocacy for it as independent and
critical is really important.
And finally, I am really shocked that, for the first time--
for the first time--the Committee to Protect Journalists, an
organization dedicated to protecting journalists doing
critically important work to hold public officials accountable
and uncover stories and expose the world to critical events,
has concerns about the United States. I never thought that I
would be in a moment in time in which the Committee to Protect
Journalists would cite the United States as a place that they
have concerns about.
So I appreciate that the chairman put this resolution on. I
know he is committed to it. I think it is important not only to
pass the resolution but to speak to these issues, because I do
not want to be in the company of Putin and Maduro. I do not
want the Committee to Protect Journalists to cite the United
States as a place they now have concern on.
And I think it is important, when we are facing human
trafficking in the world, when we are facing those who have
efforts to use nuclear weapons, that the credibility that we
have in having journalists question in those countries what is
happening in those countries not be undermined.
I appreciate the opportunity.
The Chairman. Thank you so much for those important
comments. I appreciate your work in this area.
Our first witness is Mr. Curtis Bradley, the William Van
Alstyne Professor of Law, and professor of public policy
studies at Duke University. Professor Bradley has written
extensively on the authorities of the Senate in making treaties
and the importance of cooperation between the branches. I want
to thank you not only for being here but your help in the past.
Our second witness is the Honorable Avril D. Haines, former
Deputy National Security Advisor to President Obama. Ms. Haines
has an extensive resume that includes serving as deputy chief
counsel for this committee. So thank you for being here.
If you would give your opening comments, you have done this
before, I know, in about 5 minutes. Any written materials will
be entered into the record, without objection. Then we will
proceed with questions.
In the order introduced, Mr. Bradley?
STATEMENT OF CURTIS A. BRADLEY, WILLIAM VAN ALSTYNE PROFESSOR,
DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH CAROLINA
Mr. Bradley. Thank you very much for inviting me to speak
today. My remarks are going to be focused on what I see as the
need for more oversight and involvement by both the Senate and
the full Congress in how this country makes and, to some
extent, at times withdraws from international commitments.
The only process that the Constitution specifies for making
international commitments is the one set forth in Article II,
pursuant to which Presidents are supposed to seek the advice
and consent of two-thirds of the Senate.
Part of the Founders' idea behind requiring legislative
involvement, in addition to the executive branch, was the
thought that international commitments can have important and
long-term consequences for the United States and, thus, should
be determined and considered by both political branches.
For a variety of reasons, and complicated reasons, and
historical reasons, the Article II process is not used for the
vast majority of international agreements today. As Senator
Corker noted at the outset, over 90 percent of binding
international agreements that the United States has made for
decades are made through other processes, what we call
executive agreements.
Some of these executive agreements are made with the full
participation of the Congress, the majority of the Congress,
congressional-executive agreements. And the ones that involve
Congress looking at an agreement after it has been negotiated,
revealing the content of the agreements, and deciding whether
it is in the national interest, do involve collaboration,
obviously, between the two branches of government. They are a
tiny fraction of the executive agreements that are made.
Many congressional-executive agreements, the vast majority,
in fact, are made by the President based on, often, old
statutes, statutory delegations that date back many decades
ago. And those agreements are not presented back to the
legislative branch.
Presidents also sometimes make agreements without any
legislative participation even at the front end, the so-called
sole executive agreements. Supposedly, Presidents should do
that only when these agreements relate to their own
independent, constitutional authority.
As I discuss in a forthcoming Law Review article,
increasingly, and I am not speaking about any particular
presidential administration, but Presidents, in general, have
concluded more agreements without any legislative involvement
and, at times, without any real claim that they have
independent constitutional authority in the area, whether it be
the environment or intellectual property or commerce.
Those are not independent presidential powers. Those are
powers very much part of legislative authority. And I think
this development, if left unchecked, is problematic, from the
separation of powers standpoint.
We also have seen a rise in so-called political
commitments. Presidents have long made diplomatic promises, and
often, I think, unproblematically. We have seen a greater use
of them in recent years, combined with the use of statutory
authority, to make agreements that I think in the past would
have been concluded with the participation of the Senate or the
Congress, and that are now being done more unilaterally.
The increased unilateralism also extends to the termination
or withdrawal from agreements as well. The Constitution does
not tell us exactly how this process of withdrawing from
agreements should occur, but in the 19th century, I looked at
the history, and Congress was a frequent partner in those
decisions. That has been much less the case since the 20th
century.
In my written testimony, I suggest some things that
Congress should at least consider to be a more collaborative
partner in the international lawmaking that the United States
engages in.
A first step, I think a very good step and one that
Congress has considered before and made some progress on
before, is simply more transparency, having more information
from the executive branch about what it is doing, so that
Congress can evaluate it and respond, if necessary.
The Case Act in 1972 was a major enactment in this area and
has led to more transparency with respect to agreements that do
not go through the Senate process. But there are many
deficiencies in the Case Act reporting that have still not been
remedied.
To take one example, there is no public reporting of the
executive branch's claims about why it is able to conclude some
of these agreements without going to the Senate.
Some of that information is provided to Congress, I think
often cryptically, without a lot of detail. But in any event,
if it were publicly provided, there would be more people
watching those claims. And I think Congress itself would get
better information from the executive branch, if we had public
disclosure, just like we do for lots of areas of domestic law.
And I give additional examples in my written testimony of
ways to increase transparency for political commitments and
treaty terminations, and also some actions that Congress could
take if it wanted to do more, such as by revisiting some of
these many open-ended delegations of authority that lead to a
lot of the agreements that never come back to the legislative
branch.
Thank you.
[Mr. Bradley's prepared statement follows:]
Prepared Statement of Curtis A. Bradley
My remarks will be focused on the need for more oversight and
involvement by the Senate, and the full Congress, in how the United
States makes and withdraws from international agreements. I want to
emphasize at the outset that my remarks are intended to be non-
partisan. My focus is on Congress's institutional role relating to
international agreements and how this role has diminished over time,
not on particular policy disputes.
The only process specified in the Constitution for making
international legal obligations for the United States is the one set
forth in Article II, pursuant to which presidents must obtain the
advice and consent of two-thirds of the Senate in order to make
treaties.\1\ Part of the idea behind requiring legislative involvement
in that process was that international commitments can have important
and long-term consequences for the United States and thus should not be
determined by the President alone.\2\ Instead, the Constitution
requires collaborative international lawmaking involving both the
executive and legislative branches.
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\1\ See U.S. Const. art. II, Sec. 72.
\2\ Alexander Hamilton emphasized this point in The Federalist
Papers, despite otherwise being a strong supporter of executive
authority. See The Federalist Papers, No. 70 (explaining that the
treaty power belongs ``neither to the legislative nor to the
executive'' and that whereas the Executive Branch ``is the most fit
agent'' for negotiation, ``the vast importance of the trust, and the
operation of treaties as laws, plead strongly for the participation of
the whole or a portion of the legislative body in the office of making
them''); No. 75 (explaining that it would be unwise ``to commit
interests of so delicate and momentous a kind, as those which concern
[this country's] intercourse with the rest of the world, to the sole
disposal of a magistrate created and circumstanced as would be a
President of the United States'').
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For a variety of reasons, the Article II process is no longer the
process used for the vast majority of international agreements entered
into by the United States. In fact, well over 90 percent of all binding
international agreements concluded by the United States since the 1930s
have been concluded without senatorial advice and consent. One reason
is practical: the number of international agreements rose dramatically
during the twentieth century, and more efficient processes for
concluding international agreements were needed.
International agreements made with the authorization or approval of
the full Congress rather than two-thirds of the Senate are referred to
as ``congressional-executive agreements.'' Some of these agreements
involve genuine collaboration between the legislative and executive
branches-in particular those agreements approved by Congress after they
are negotiated. This is the process, for example, typically used for
modern trade agreements. In those instances, Congress can review the
content of the agreement and decide whether it is genuinely in U.S.
interests. But such ``ex post'' agreements represent only a tiny
fraction of the congressional-executive agreements. Most congressional-
executive agreements involve merely an ``ex ante'' delegation of
authority from Congress that is then used by presidents to make
agreements that Congress does not review, often many years or even
decades after the authorization.\3\
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\3\ See Oona A. Hathaway, Presidential Power Over International
Law: Restoring the Balance, 119 Yale L.J. 140 (2009).
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It is also generally accepted that the President has some ability
to conclude ``sole executive agreements'' without congressional
authorization or approval.\4\ But this is supposed to be a narrow
authority, applicable when an agreement relates to an independent
constitutional power of the President. It has been thought, for
example, that the President's role as the principal organ of diplomatic
communications for the United States gives the President some authority
to conclude sole executive agreements that settle claims with foreign
nations.\5\
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\4\ See Restatement (Third) of the Foreign Relations Law of the
United States Sec. 303(4) (1987) (``The President, on his own
authority, may make an international agreement dealing with any matter
that falls within his independent powers under the Constitution.'').
\5\ See Medell!n v. Texas, 552 U.S. 491, 532 (2008); Dames & Moore
v. Regan, 453 U.S. 664, 681 (1981).
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As Professor Jack Goldsmith and I discuss in a forthcoming law
review article, presidents in recent years have sometimes been
concluding binding international agreements outside of their
independent constitutional authority, such as in the areas of
environmental law or intellectual property law, when they also lack
anything that could genuinely be called congressional authorization.\6\
They have done so based on the mere claim that the agreement will, in
their view, promote the policies in existing U.S. law. This theory of
presidential authority is highly problematic from the perspective of
the separation of powers. Among other things, such agreements
potentially restrict the options of Congress by forcing it to violate
an agreement if it wants to modify preexisting law.
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\6\ See Curtis A. Bradley & Jack L. Goldsmith, Presidential Control
Over International Law, 131 HARV. L. REV. (forthcoming 2018), available
at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3074833.
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Another development is that presidents increasingly have been
entering into so-called ``political commitments'' and combining them
with preexisting statutory authority to create arrangements that in the
past would have required either senatorial or congressional approval.
Recent examples include the Iran nuclear deal and portions of the Paris
agreement on climate change. Administrative agencies also often make
political commitments with their counterparts in other countries on a
range of issues. Even if these commitments are technically not binding
under international law-which in fact is often less clear than the
Executive Branch suggests-they can entail consequential promises by the
United States that can be difficult to undo later.
The increased Executive Branch unilateralism in the making of
agreements has been paralleled by Executive Branch unilateralism in the
termination of such agreements. Even though the Constitution does not
specifically identify how the United States is to terminate agreements,
it was generally assumed during the nineteenth century that presidents
needed to work with Congress when doing so.\7\ But that has generally
not been the practice since then. Instead, for almost all treaty
terminations since the 1930s, presidents have simply acted alone. The
State Department's current internal regulations relating to treaty
termination do not even require consultation with the Senate or
Congress, let alone approval.\8\
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\7\ See Curtis A. Bradley, Treaty Termination and Historical Gloss,
92 Tex. L. Rev. 773 (2014).
\8\ See U.S. Dep't of State, Foreign Affairs Manual, 11 Fam
Sec. 724.8 (requiring approval of the Secretary of State ``or an
officer specifically authorized by the Secretary for that purpose'' and
preparation of a Circular 175 memorandum ``that takes into account the
views of the relevant government agencies and interested bureaus within
the [State] Department''), at https://fam.state.gov/Fam/FAM.aspx.
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I worked in the Executive Branch, and I am sensitive to the
particular needs and responsibilities of that department of government
in the area of foreign affairs. But, in my view, there should at least
be more transparency in connection with the Executive Branch's
management of this country's international legal obligations. Only with
transparency can Congress and the public determine whether the
Executive Branch is acting lawfully and making good policy decisions.
More transparency would also help in evaluating whether additional
regulatory reforms should be adopted.
Congress has focused at times on the need for more transparency in
this area, most notably in the 1972 Case Act (also known as the ``Case-
Zablocki Act''), and in subsequent amendments to that Act.\9\ As the
Senate Report on the bill that became the Case Act stated, ``if
Congress is to meet its responsibilities in the formulation of foreign
policy, no information is more crucial than the fact and content of
agreements with foreign nations.'' \10\ But there are still significant
deficiencies in the transparency of Executive Branch actions relating
to international law, which could be remedied through congressional
action. These deficiencies include:
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\9\ See 1 U.S.C. Sec. 7112b. The Act was amended in 2004 in
response to serious deficiencies in reporting. See Intelligence Reform
and Terrorism Prevention Act of 2004, Pub. L. 108-458, Sec. 77121, 118
Stat. 3638 (2004); see also 150 Cong. Rec. H10994-04, H11026 (noting
that in 2004, ``the House Committee on International Relations learned
that, due to numerous management failures within the Department of
State, over 600 classified and unclassified international agreements
dating back to 1997, had not been transmitted to Congress, as required
by the Case-Zablocki Act'').
\10\ S. Rept. No. 92-591, Transmittal of Executive Agreements to
Congress, 92d Cong., 2d Sess. (Jan. 19, 1972).
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First, although the Executive Branch provides Congress in its Case
Act filings with a citation of its purported legal authority for
concluding the various agreements without the Senate's advice and
consent,\11\ it does not disclose these claims of legal authority to
the public.
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\11\ State Department regulations, in place since 1981, require the
Department to provide Congress with ``background information'' for each
agreement reported under the Case Act, including a ``precise citation
of legal authority.'' 22 C.F.R. Sec. 7181.7(c). The regulations
describe such background information as ``an integral part of the
reporting requirement.'' Id.
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In other words, the public has no ability to know about the
asserted legal authority for more than 90 percent of the binding
international agreements made by the United States.\12\ This lack of
public disclosure stands in sharp contrast to what is required for
Executive Branch actions relating to domestic law, where the legal
basis of rules, regulations, and other actions must be published in the
Federal Register. If the Executive Branch's claims of legal authority
for international agreements were disclosed to the public, interested
third parties could review them, and then alert Congress when the
claims seemed legally problematic.\13\
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\12\ This problem is compounded by the fact that the State
Department currently publishes international agreements on its website
without indicating whether they are Article II treaties or executive
agreements, and, if the latter, what type. See U.S. Dep't of State,
Texts of International Agreements to Which the US Is A Party (TIAS), at
https://www.state.gov/s/l/treaty/tias/.
\13\ See Ryan Harrington, Understanding the ``Other'' International
Agreements, 108 LAW LIB. J. 343, 352 (2016) (noting that ``it is nearly
impossible for the researcher to discover whether the Executive
exceeded his statutory authority for any given agreement,'' and adding
that, ``in fact, it can be a challenge to determine whether the
agreement had statutory authority at all'').
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Second, reporting under the Act to Congress is still often
incomplete or untimely. Part of the problem here is that departments of
the Executive Branch other than the State Department sometimes conclude
agreements, and the State Department is not always made aware of them
in a timely way. I understand that there is a provision in a current
Senate bill that would add an amendment to the Case Act to try to
increase agency accountability for reporting agreements to the State
Department,\14\ and I think that would be a good first step.
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\14\ See Department of State Authorities Act, Fiscal Year 2018, S.
1631, 115th Cong. Sec. 7802.
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Third, there is no systematic reporting to Congress or the public
of the many political commitments made by the Executive Branch, even
though some of them are very consequential. While it might not make
sense for Congress to require reporting on all of them, it might well
make sense for it to require reporting on some subset of the most
significant ones.
Fourth, there is currently no mandated reporting of presidential
decisions to suspend, terminate, or withdraw from treaties, and there
is no readily accessible catalogue of terminated agreements. The
Department voluntarily reports on some of these actions in its Digests
of United States Practice in International Law,\15\ but it is not
required to do so, and the Digests often are published long after the
events that they describe. In addition to mandating the reporting of
such actions, Congress could also consider requiring the Executive
Branch to articulate the reasons for its decisions to suspend,
terminate, or withdraw from treaties, which would allow for greater
oversight and accountability.\16\
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\15\ See U.S. Dep't of State, Digest of United States Practice in
International Law, at https://www.state.gov/s/l/c8183.htm.
\16\ The Executive Branch has sometimes voluntarily provided such
an explanation. See, e.g., White House, ABM Treaty Fact Sheet (Dec. 13,
2001) (explaining how ``the circumstances affecting U.S. national
security have changed fundamentally since the signing of the ABM Treaty
in 1972''), at https://georgewbushwhitehouse.archives.gov/news/
releases/2001/12/20011213-2.html.
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These transparency measures would require only fairly modest
changes in the law, and I do not think they would raise any serious
constitutional issues. If Congress wanted to go beyond enhancing
transparency and do more to limit presidential unilateralism concerning
international law, it very likely has the constitutional authority to
do so. Occasionally the Senate and Congress have in fact done more,
without constitutional controversy. For example, leadership of both
parties in the Senate have joined together on a number of occasions in
pushing back when presidents have suggested that they might bypass the
Article II process in concluding major arms control agreements.\17\ In
1999, Congress took a more assertive action and made clear in a binding
statute that, if the United States ever joins the International
Criminal Court treaty, it can only do so by going through the process
specified in Article II of the Constitution.\18\
---------------------------------------------------------------------------
\17\ See Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations
Law: Cases and Materials 395-96, 400-01 (6th ed. 2017).
\18\ See 22 U.S.C. Sec. 77401(a).
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In terms of additional actions to consider, Congress could, for
example, conduct a comprehensive review of the various ``ex ante''
grants of authority to make agreements that have accumulated over the
years, many of which are quite dated, and see how the Executive Branch
has been using those statutes. Such a study might suggest the need for
narrowing, updating, or repealing some of the statutes.
In addition, I believe that the Senate, when giving its advice and
consent to a treaty, could validly include a condition in its
resolution of advice and consent limiting the circumstances under which
a President could invoke the treaty's withdrawal clause, and I believe
that Congress could include a similar provision when authorizing or
approving a congressional-executive agreement.\19\ As a policy matter,
I am not sure that the Senate or Congress would want to include such
limitations across the board, because they might reduce U.S.
flexibility too much, but Congress might consider doing so for
particular agreements.
---------------------------------------------------------------------------
\19\ See Bradley, supra note 7, at 824-25. See also Restatement
(Fourth) of the Foreign Relations Law of the United States: Treaties,
Tentative Draft No. 2, Sec. 7113, reporters' note 6 (Mar. 20, 2017)
(``Although historical practice supports a unilateral presidential
power to suspend, terminate, or withdraw the United States from
treaties, it does not establish that this is an exclusive presidential
power.''); Cong. Res. Serv.,20th Cong., Treaties and Other
International Agreements: The Role of the United States Senate 208
(Comm. Print 2001) (``To the extent that the agreement in question is
authorized by statute or treaty, its mode of termination likely could
be regulated by appropriate language in the authorizing statute or
treaty.'').
---------------------------------------------------------------------------
As a final point, it is important to keep in mind that the
preservation of Congress's institutional authority ultimately depends
on congressional action. The courts do not typically play a significant
role in sorting out the distribution of authority between Congress and
the Executive Branch over issues like the ones I have discussed. As a
result, this distribution often must, as a practical matter, be worked
out over time through interactions between the governmental branches
themselves.\20\ This means that if Congress allows instances of
Executive Branch unilateralism to build up with respect to control over
international law, there is a danger that Congress may, in effect, be
ceding away some of its own institutional authority through inaction.
This is a reason for the Senate, and the full Congress, to be vigilant
about protecting its institutional prerogatives even in situations in
which it does not happen to disagree as a policy matter with what the
President is doing on a particular issue. As I noted at the outset of
my remarks, such vigilance does not need to be a partisan issue.
---------------------------------------------------------------------------
\20\ When courts do consider issues relating to the separation of
powers, they often give substantial weight to longstanding patterns of
governmental practice. See Zivotofsky v. Kerry, 135 S. Ct. 2076, 2091
(2015); NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014). See
generally Curtis A. Bradley & Trevor W. Morrison, Historical Gloss and
the Separation of Powers, 126 Harv. L. Rev. 411 (2012).
The Chairman. Thank you.
Ms. Haines?
STATEMENT OF HON. AVRIL D. HAINES, FORMER PRINCIPAL DEPUTY
NATIONAL SECURITY ADVISOR, SENIOR RESEARCH SCHOLAR, COLUMBIA
UNIVERSITY, NEW YORK, NEW YORK
Ms. Haines. Thanks for the opportunity to be here today
and, frankly, for convening a hearing on a subject that I
happen to believe is of critical importance to the foreign
policy and national security of the United States but is rarely
focused on in earnest.
I am particularly honored to be here for the reason that
you mentioned earlier, which is having served this committee
previously many years ago and having had the honor to brief
members on various treaties in advance of hearings in the past.
I felt lucky to have a chance to serve the committee then, and
I feel the same way today.
So although this will be obvious to all of you, I think it
bears repeating at the outset, that treaties, whether advice
and consent treaties or otherwise, are absolutely essential
enablers of U.S. foreign policy that have helped us meet the
challenges we face as a country and take advantage of the key
opportunities for our prosperity.
And I think it is worth repeating because though the
committee has a good appreciation of this act, I found that,
over the course of my career, the public conversation about
treaties has really changed. And I think that change is at
least partially responsible for the diminished role of Congress
in relation to international agreements and the challenges
associated with the United States joining advice and consent
treaties generally, particularly treaties that should be
routine, such as tax treaties.
And I also worry that the current administration's approach
to treaties and international law may serve to undermine the
international legal order we helped build on a bipartisan basis
over the history of our country, one that, in my view, is
critical to our security, our prosperity, and our values.
Treaties were, at one time, revered as instruments of
foreign policy to be used in service of our country's
interests. But instead, they are often perceived negatively
without respect to their content, perhaps most popularly as
illegitimate constraints on our sovereignty.
And I would never argue that all treaties are in the
interest of the United States to join. Treaties have to be
considered on a case-by-case basis. But the argument should be
focused on the content and not on treaties generally. For the
ability of the United States to negotiate and join treaties is
absolutely essential to our interests.
Far more than people realize, treaties have helped us
improve the lives of everyday citizens, and we need them now
more than ever in this increasingly complex, mobile world.
So when you want to call, or email, or even send a letter
to a friend living abroad, you are able to do so thanks to
rules established in treaties. And one of the reasons you can
feel reasonably safe when getting on commercial fights in
countries around the world is that ICAO, an organization
established by treaty, basically issues safety standards.
Treaties help improve the quality of our air and ensure the
food imported from abroad does not make us sick. Treaties help
American businesses operate and export their products to
foreign markets and protect the intellectual property of
American innovators. And bilateral tax treaties make it so that
U.S. companies with an overseas presence are not subject to
double taxation.
Yet despite what I view to be the growing importance of
treaties, as you mentioned at the outset of this hearing, the
Senate is finding it harder and harder to deliberate on and
approve treaties.
Since 1960, the U.S. Senate has approved ratification of
over 800 treaties, a rate of more than one treaty every month.
And between 1995 and 2000, when President Clinton was in office
and Jesse Helms chaired the Senate Foreign Relations Committee,
the Senate approved over 140 treaties, or an average of 23
treaties a year, including the Chemical Weapons Convention, the
START Treaty, treaties dealing with labor rights, law
enforcement cooperation, environmental protection, investment
protection. But since 2009, the Senate has provided advice and
consent to just 21 treaties, or roughly 2.3 treaties per year,
a fraction of the historical average.
And I know this committee has tried to reverse that trend,
but the structural and political challenges are really quite
formidable. And I would argue that the practical implications
of not being able to get even routine treaties approved by the
Senate are really very significant.
First of all, there is no question that, over time, the
degree of congressional involvement in treaties throughout
their life has been reduced. And this is not good for
democracy, our prosperity, our foreign affairs, our national
security. And although a number of international agreements
that are not advice and consent treaties are based on statutory
authorizations, the vast majority, as has been noted, of
international agreements are concluded without the involvement
of or even the barest consultation with Congress.
And to do otherwise may be impractical, given the number of
international agreements that are and should be concluded on an
annual basis, but I think it is fair to say that the balance is
not what it should be. And this is particularly true in today's
complex and internationally mobile world in which what we do on
the domestic plane and what we do internationally is
increasingly intertwined.
Specifically, congressional involvement, and particularly
the Senate's involvement, would likely enhance the legitimacy
of international agreements from a domestic perspective. It
would enhance the legitimacy and lasting nature of our
commitments to foreign governments. And congressional
involvement would allow for greater deliberation regarding the
interaction of international law and domestic law, hopefully
with the result of greater compatibility and mutual
reinforcement between the two. And congressional involvement
and more public debate would enhance the accountability of the
executive branch in treaty-making.
Second, if it remains as difficult as it is today to
provide the advice and consent of the Senate for routine
treaties, we may lose the ability to negotiate and enter into
certain critical international agreements that historically
have been understood to be agreements that require the advice
and consent of the Senate, such as extradition treaties,
boundary treaties, mutual legal assistance treaties, tax
treaties, all treaties that are viewed on a bipartisan basis as
critical to U.S. interests.
Third, at a time when multinational intergovernmental
organizations that serve our interests abroad and are at home
struggling, in need of reform, we have made it increasingly
difficult to negotiate changes to their underlying authorities,
because many of these are based on treaties that get the advice
and consent of the Senate.
And fourth, because Congress is less involved, we are
feeding the perception that international law is not critically
important to the United States, and the obligations we
undertake are ones that do not endure from administration to
administration.
So the hard question, of course, is, what do you do about
this? I provided in my submitted testimony some recommendations
on that, many of which overlap with what Mr. Bradley's
recommendations are, particularly on the transparency front.
And then additionally, I indicate that I think it might be
worth looking at the Senate rules and procedure for considering
treaties, to see if there is not a way to improve the ability,
essentially, of overcoming, essentially, when one or two
Senators have an issue, to at least get to a vote and a
consideration of the treaties.
And third, I would recommend establishing an annual report
and hearing from the legal adviser's office of the U.S.
Department of State regarding international agreements, their
development and interpretation. I think it could provide the
committee with an opportunity, among other things, to engage on
issues of particular interest, including trends in treaty-
making, while simultaneously raising the profile, frankly, of
these issues.
Thank you very much.
[Ms. Haines's prepared statement follows:]
Prepared Statement of Avril Haines
Mr. Chairman, Ranking Member Cardin, and members of the committee,
thank you for the opportunity to be here today--and for convening this
hearing on a subject I happen to believe is of critical importance to
the foreign policy and national security of the United States, yet is
rarely focused on in earnest. I am particularly honored to be here,
having served as deputy counsel to the Committee many years ago, and
having had the honor to brief Members on various treaties in advance of
treaty hearings for the committee during the 110th Congress. I felt
beyond lucky to have a chance to serve the Committee then and I feel
the same way now, particularly knowing how important the work of this
Committee is, and how seriously you take your responsibilities.
Although this will be obvious to all of you, I think it bears
repeating at the outset that treaties--whether advice and consent
treaties, or otherwise--are absolutely essential enablers of U.S.
foreign policy that have helped us meet the challenges we face as a
country and take advantage of opportunities key to our prosperity. I
say it is worth repeating because although the Committee has a good
appreciation of this fact, I have found that over the course of my
career, the public conversation about treaties has changed--and I think
that change is at least partially responsible for the diminished role
of the Congress in relation to international agreements, and the
challenges associated with the United States joining advice and consent
treaties generally, particularly treaties that should be routine, such
as tax treaties. I also worry that the current Administration's
approach to treaties and international law may serve to undermine the
international legal order we helped to build on a bi-partisan basis
over the history of our country--one that in my view is critical to our
security, prosperity, and values.
Treaties were at one time revered as instruments of foreign policy
to be used in service of our national security and foreign policy, but
instead they are now often perceived negatively without respect to
their content--perhaps most popularly as illegitimate constraints on
our sovereignty. I would never argue that all treaties are in the
interest of the United States to join. Treaties must be considered on a
case-by-case basis. Nevertheless, the argument should be focused on the
content and not on treaties generally, for the ability of the United
States to negotiate and join treaties is absolutely essential to our
interests. Far more than people realize, treaties have helped us
improve the lives of every day citizens and we need them now, more than
ever in this increasingly complex, mobile world.
When you want to call, email, or even send a letter to a friend
living abroad, you are able to do so thanks to rules established in
treaties. One of the reasons you can feel reasonably safe when getting
on commercial flights in countries around the world is that the
International Civil Aviation Organization or ``ICAO''--an organization
established by treaty--issues safety standards. Treaties help improve
the quality of our air and ensure that food imported from abroad
doesn't make us sick. Treaties help American businesses operate in and
export their products to foreign markets and protects the intellectual
property of American innovators. Bilateral tax treaties make it so that
U.S. companies with an overseas presence are not subject to double
taxation.
Moreover, multilateral frameworks--frequently established by advice
and consent treaties as an historical matter--substantially enhance our
ability to address challenges that cross borders, which happens more
frequently now than ever before, and to prevent and respond to
increasingly complex threats that demand coordinated action. For
example, when Ebola swept through West Africa, our response benefitted
greatly from the resources of the World Health Organization, which was
established by an international agreement. When the globe was gripped
by a worldwide financial crisis, the World Bank and the International
Monetary Fund, two institutions founded by treaties, allowed us to take
measures to respond and mitigate the recession. And when we needed a
force to maintain a fragile peace in South Sudan, Haiti, or Kashmir,
the Security Council, an organ of the United Nations established by
treaty, was able to react by sending in Blue Helmets. In other words,
treaties framing the international order allow us to mobilize
unprecedented collective action to address challenges central to global
prosperity and stability.
Far from tying our hands, treaty regimes serve as mechanisms
through which the United States exercises its power and advances its
interests and values. The Genocide Convention and other core human
rights treaties that promote our interests in preventing atrocities and
promoting universal rights and fundamental freedoms consistent with our
Constitution and the Declaration of Independence, are examples of U.S.
global leadership. Furthermore, when the United States negotiates
environmental treaties that obligate other countries to take measures
that we already take domestically, we are effectively shaping the
world's approach to dealing with environmental problems, raising
foreign standards to meet our own, leveling the playing field for our
industries, and helping to protect the health of our people. When we
negotiated the Law of the Sea Convention, we enshrined rules regarding
freedom of navigation and rights of coastal states that benefit the
United States more than any other state. Conversely, when we choose to
stay outside treaty regimes, such as the Law of the Sea Convention, we
allow others to shape the terms of international cooperation, in ways
that maximize their interests and advance their values rather than our
own. It means, for example, that our companies will have to operate
under others' rules in many of the places they do business around the
world--or else, in the absence of international legal frameworks,
operate in a less predictable and certain environment.
Yet, despite what I view to be the growing importance of treaties,
the Senate is finding it harder and harder to deliberate on, and
approve treaties. Since 1960, the U.S. Senate has provided advice and
consent to ratification of over 800 treaties, a rate of more than one
treaty every month. Between 1995 and 2000, when President Clinton was
in office and Jesse Helms chaired the Senate Foreign Relations
Committee, the Senate approved over 140 treaties or an average of over
23 treaties a year, including the Chemical Weapons Convention, the
START Treaty, treaties dealing with labor rights, law enforcement
cooperation, environmental protection and investment protection. But
since 2009, the Senate has provided advice and consent to just 21
treaties, or roughly 2.3 treaties per year--a fraction of the
historical average. And I know this Committee has tried to reverse that
trend, yet the structural and political challenges have become
formidable.
I suppose some might question whether this trend is so terrible.
Although the Constitution's only mention of treaties specifically
provides that the President make treaties by and with the advice and
consent of the Senate, the reality is that the Executive Branch has for
quite some time entered into numerous international agreements,
considered to be treaties from an international law perspective,
without the advice and consent of the Senate. In fact, today, the vast
majority of international agreements concluded by the United States are
what are often referred to as ``executive agreements'' or
``congressional-executive agreements.'' What, therefore, are the
practical implications of the fact that it is becoming increasingly
difficult to get treaties approved by the Senate?
I would argue that the practical implications are significant.
First of all, there is no question that over time, the degree of
congressional involvement in treaties, throughout their life, has been
reduced and this is not good for our democracy, our prosperity, our
foreign affairs, or our national security. Although a number of
international agreements that are not advice and consent treaties are
based on statutory authorizations, the vast majority of international
agreements are concluded without the involvement of, or even the barest
consultation with, the Congress. To do otherwise may be impractical
given the number of international agreements that are, and should be,
concluded on an annual basis but I think it is fair to say that the
balance is not what it should be, and this is particularly true in
today's complex and internationally mobile world, in which what we do
on the domestic plane and what we do internationally is increasingly
intertwined. Specifically:
Congressional involvement, and particularly the Senate's
involvement, would likely enhance the legitimacy of
international agreements from a domestic perspective, allowing
for greater deliberation regarding the interaction of
international law and domestic law, making it more likely that
our efforts in foreign policy are perceived as bi-partisan,
long-lasting, and well-considered.
Congressional involvement would enhance the legitimacy and the
lasting nature of our commitments to foreign governments, which
we must maintain if we are to rely on other countries to follow
through on their commitments to the United States. I know from
personal experience that foreign governments care whether a
treaty we conclude with them is an advice and consent treaty or
an executive agreement. They see the former as more
significant, more reliable, and potentially longer lasting. We
should not lose that option, when it is appropriate to pursue.
Congressional involvement would allow for greater deliberation
regarding the interaction of international law and domestic
law, hopefully with the result of greater compatibility and
mutual reinforcement between the two.
Congressional involvement, and more public debate, would enhance
the accountability of the Executive Branch in treaty-making.
Second, if it remains as difficult as it is today to obtain the
advice and consent of the Senate for even routine treaties, we may lose
the ability to negotiate and enter into certain critical international
agreements that historically have been understood to be agreements that
require the advice and consent of the Senate, such as extradition
treaties, boundary treaties, mutual legal assistance treaties, and tax
treaties--all treaties that are viewed on a bi-partisan basis as
critical to U.S. interests. Even if over time these treaties are done
as congressional-executive agreements, there will be lingering
questions regarding their validity in such a form.
Third, at a time when multinational intergovernmental organizations
that serve our interests abroad and at home are struggling and in need
of reform, we have made it increasingly difficult to negotiate changes
to their underlying authorities because many of the underlying
agreements establishing them were done by treaty with the advice and
consent of the Senate.
Fourth, because the Congress is less involved, we are feeding the
perception that international law is not critically important to the
United States and that the obligations we undertake are ones that do
not endure from Administration to Administration.
The harder question, of course, is what can be done about the fact
that it has become so difficult to obtain Senate consideration of
advice and consent treaties, and how can we move toward a more
meaningful and productive consultative process between the branches
regarding international agreements, grounded in a better informed
public debate on these questions?
I would suggest a few possible ways to approach this question, some
of which overlap with Mr. Bradley's recommendations.
First, I agree that there is a need for greater transparency in
this area, as it would help to further a more productive conversation
and at least allow the Congress and the public to respond to concerning
trends in international agreement making. Specifically:
I would promote making public the legal basis for concluding
international agreements;
I would support legislation requiring the Executive Branch to
report notifications regarding the withdrawal or termination of
international agreements to which the United States is a party;
I would support legislation requiring the reporting of significant
political commitments;
I would support a mechanism for establishing agency accountability
for reporting agreements to the State Department; and
Perhaps most importantly, in support of these additional
requirements, I would support increasing the resources provided
to the Legal Adviser's office for such purposes.
Second, I would recommend having a look at the Senate rules of
procedures for considering and disposing of treaties. There are a
variety of anachronisms associated with the rules of procedures
regarding treaties and through a streamlining process, it might be
possible to make it easier to deliberate on treaties, while at the same
time making it harder for one or two Senators to effectively block a
debate on treaties. Such changes might help this Committee pursue a
serious treaty agenda in future.
Third, I would recommend establishing an annual report and hearing
from the Legal Adviser's Office of the U.S. Department of State
regarding international agreements, their development and
interpretation. Such a hearing could provide the Committee with an
opportunity, among other things, to engage on issues of particular
interest, including trends in treaty-making, while simultaneously
raising the public awareness of their importance generally.
Let me just end by thanking you again for your work on these issues
and your efforts to advance the interests of Americans who rely on
treaties for their security and prosperity on a daily basis. I often
think the skepticism you hear about the importance or value of treaties
would have been surprising to our founders, who routinely relied on
treaties to build political and economic relationships, leading to
their prominent placement in our Constitution. Hearings like this help.
The Chairman. Thank you both very much.
Senator Cardin?
Senator Cardin. I thank both of you for your testimony. You
really raised the key issue. By definition, most treaties
involve some degree of giving up sovereignty, because it is an
effort to develop a more universal standard rather than a one-
country standard. Some treaties do not fall into that category,
but must do.
The second problem, where one Senator or a few Senators can
block the consideration, is not unique to treaties. It is most
of Senate work. But for treaties, you need a two-thirds vote,
so there is an argument made that we could look at a different
procedural process for treaties because of the higher
threshold.
So these are the challenges we have. But I am just not
optimistic.
I am curious as to how, Avril, you were able to overcome
some of the sovereign-adverse Members' views when taking up
treaties when you were successful in getting so many done,
whether you think there is anything we can learn from that in
today's political environment. Was there a particular argument
that could be used to advance some treaties that we are not
using today?
Ms. Haines. Honestly, I do not know that there is a
particular argument that you are not using that could be used.
I would say, though, that it has become increasingly hard to
have a public conversation about these issues that is honest
and nuanced.
So, for example, as you say, one of the issues is the
sovereignty question, right? And when we went through the 110th
Congress and we did so many treaties, that issue was raised in
the context of the Law of the Sea Convention. And one of the
principal concerns about the Law of the Sea Convention was the
dispute resolution mechanism, which was perceived as a
particular sovereignty concern, as opposed to general treaties
without, presumably, such dispute resolution mechanisms.
And yet, all of the tax treaties have dispute resolution
mechanisms in them that we passed during that same Congress,
and none of those issues were raised in relation to them. In
fact, the tax treaty mechanism is really unusual, insofar as
the dispute resolution mechanism is binding on both states when
you go to tax treaty dispute resolution, but the individual can
opt out of the decision. So it is even more, presumably,
concerning, from a sovereignty perspective, if that is the
issue.
My point being that it is not clear to me that sovereignty
really is the issue. It is a proxy for a concern that I think
it is harder to get to an honest conversation about.
And I do think you are right on the issue of the fact that
there is an argument to be made, given that two-thirds is
required, that the amount of debate for cloture could be
smaller.
It is just very tough. I recognize that it is a high bar to
clear to change the procedure on this.
Senator Cardin. As I understand, we really do still need a
cloture vote, even though the cloture vote is below the two-
thirds.
Mr. Bradley, let me ask you this. Is Congress at fault here
in some of the statutes we pass? When we passed the INARA
statute in regard to the Iran nuclear agreement, we looked at
our review statute from the point of view of an overzealous
President and a reluctant Congress. Boy, are we wrong about
that today. So things change.
Should Congress have been more astute in drafting that
statute, looking at future administrations?
When we drafted Trade Promotion Authority, I do not think
anyone--this is something the President was going to do, the
executive is going to enter into. So we looked at putting
restraints on the President entering into an agreement but
never thought about withdrawing from an agreement having a
congressional role.
Should we draft TPA authority differently, so that there is
a continuing role for Congress if a President decides he wants
to withdraw from a trade agreement?
Mr. Bradley. Thank you, Senator.
And just to say one word about the last dialogue that you
had. I, of course, also agree that treaties are often in the
U.S. national interests. We are a party to thousands of
treaties. We often benefit tremendously from treaties. And I
agree with the comment that the mere argument on sovereignty
should not itself really be a reason not to think about
creating agreements.
My last time I was before this committee I think was about
4 years ago, testifying about the disabilities convention,
which had some controversies associated with it. One of the
things I think we were trying to work out was whether the
Senate could craft some reservations and other qualifications
to address some issues. I thought that was a good conversation
to have at that particular time.
I would like to point out, sometimes, on the other side of
the debate, I hear people say we need to join a treaty because
all these other countries have joined the treaty, and I think
that is equally unpersuasive, just because other countries have
seen fit to sign on. Some of those countries do not have real
court systems, or they do not actually comply with the
treaties, or their values might be different from ours. And I
do not think that is enough of an argument for why the United
States should join, particularly some of the more sensitive
agreements.
And there are times when some of the committees under these
treaties have not helped to the case by asserting jurisdiction
that the United States certainly never thought it was signing
up for at the front end, and it has made it more difficult to
get some of the other agreements through. So it is a more
complicated story.
On the issue of Congress, I do think we should not simply
blame the executive for being the aggrandizing authority and
concluding things unilaterally. Congress is a major player in
this area, and it passed many statutes in the 1940s and 1950s
and 1960s in very different times, in very open-ended ways.
One of the suggestions in my testimony is it may be worth
doing a review of some of those statutes to see if they need to
be updated, made more specific. I am a fan myself of sunset
provisions, which are often not included. And I think those are
ways to get Congress back into looking at statutes that it
passes later in time.
I am a fan of the INARA statute. I do think that
intervention did allow Congress to have a closer, collaborative
look at the Iran deal. I would favor more actions like that.
As for termination of agreements, my own view, and
executive branch lawyers would probably disagree with me, is
that Congress certainly could certainly limit in its statutes,
in the trade statutes or otherwise, the executive use of the
withdrawal clauses in the trade agreements. Or, in my view,
Congress could do that for other agreements as well.
I think Congress should be cautious because it may be in
the U.S. interests to have flexibility. For example, if there
is a material breach of a treaty, I am not sure you want your
President hamstrung and the other party saying good luck
getting your Congress to agree to let you out of that
agreement. I think that might hurt American interests.
But there may be times when Congress will want to put some
conditions in, say in the trade promotion statutes. In my view,
those would be perfectly constitutional and would require the
President to follow whatever, whether it be procedural
requirements of reporting to Congress, or substantive
requirements of actually getting a new vote in Congress. I
think those would be perfectly valid measures.
Thank you.
The Chairman. Thank you so much.
Senator Shaheen?
Senator Shaheen. Thank you, Mr. Chairman.
Thank you both for being here.
I was recently in Halifax for the security forum. As you
might imagine, one of the things that I heard a lot of concern
about was the President's threat to withdraw from NAFTA and the
ongoing negotiations. I wonder if you could help us clarify,
given that NAFTA was ratified by the Senate and that there
would be profound implications for people, for millions of
Americans, not to mention the rest of North America.
Can you talk about what role Congress should have in any
decision, or what role it has in withdrawing from NAFTA? What
is the mechanism?
Ms. Haines. So NAFTA was not actually given the advice and
consent of the Senate. It was through a congressional process.
In point of fact, and I think as Mr. Bradley was
indicating, the statutory structure for trade agreements
currently does not provide for or does not indicate that it is
required that the President essentially come back to the
Congress to get agreement before he withdraws. So the process
would essentially be that the President would withdraw in
accordance with the termination clause or the withdrawal clause
within the treaty.
What I do think is possible, I agree with Mr. Bradley, that
I think it is possible that you could pass legislation, for
example, that would require some kind of consultation or do
some kind of notification requirement at the very least, things
along those lines, that would be part of it.
In the trade legislation more generally, there are clauses
that relate to termination or withdrawal. They tend to go to
things along the lines, as I understand it, of a sort of notice
requirement, but after the fact, and one that indicates that
the President has to tell you when it is that they think is the
right thing for the tariffs to be dealt with after the trade
agreement is ended. So one could imagine beefing that up, to
some extent.
But this is an area where, obviously, the Congress has an
enormous amount of power and is authorized to deal with foreign
commerce. It is also an area where, frankly, from a
congressional perspective, Congress has been more effective at
getting involved in the negotiations and using the leverage
that it has to bring the executive branch in more closely. I
think you could take advantage of that.
I do think, having been a former staffer of this committee,
it is true that one of the difficulties is that you are
responsible for foreign affairs in this committee, but you do
have a lot of other committees, when you are dealing with
congressional-executive, doing those things.
So I think that is also just a piece of this that pulls
these together.
Senator Shaheen. Do you have anything to add, Mr. Bradley,
to that?
Mr. Bradley. Thank you. I largely agree with Ms. Haines on
this issue. The issue, it has become controversial again, the
issue of President's potentially pulling the U.S. out of
agreements without going back to the legislature. It has been
controversial before, most famously with the debate over
President Carter's withdrawal from the Taiwan treaty in the
1970s, when he recognized Mainland China, and there were a
number of Senators quite concerned about it, and the litigation
that went all the way to the Supreme Court.
The courts have not resolved the question of whether
Presidents can act on their own, but it does highlight an issue
that I think should be of concern to both parties in the Senate
and to Congress.
I should point out, I worked in the executive branch. I am
quite sensitive to the concerns of the executive in foreign
affairs. I worked in the State Department. But it is a fact
that the more the executive acts in certain kinds of ways, they
set precedent that I think ends up mattering in terms of their
own claims of authority, and also, if it does get litigated,
the claims that they will be able to make in court. And that is
true in this area.
In the termination of treaties area, really all the way
back to Franklin Roosevelt, Presidents have asserted the
authority to act, to decide whether the United States withdraws
even from very significant commitments. And Congress, for the
most part, has not resisted these claims. The Taiwan event is
unusual in that regard. There have been several dozen treaty
terminations since then, all done, often not dramatically and
not necessarily high-profile events, but by the executive on
their own.
And I think this is something Congress should pay attention
to, because the more these events accrue, the harder it is, I
think, as a legal matter, to argue that the executive is
required to come back to Congress.
I do agree, though, if Congress writes that in
specifically, that it should be binding on the President.
Senator Shaheen. Ms. Haines, in your testimony, you talked
about being concerned that the current administration's
approach to treaties and international law may actually
undermine the legal order that we helped build.
Can you talk about what happens internationally if that, in
fact, is the result? What happens to all of those countries
that we might want to get to engage with us in the future?
Ms. Haines. Yes, maybe I could just make a few points.
Senator Shaheen. Just briefly.
Ms. Haines. Absolutely. So I think there are a number of
issues that are worth thinking about in this context.
One is, the international order, from my perspective, is
one that really serves the United States, as you indicated, and
one that helps us not sort of bring our thinking to the world
but also allows us to address threats and issues, such as
Ebola, for example. When it was on its way to the United
States, we relied on the World Health Organization to help us.
When we are talking about financial disasters in different
places, we rely on the IMF and the World Bank, all of which
have been done by treaty.
But if we start to pull back, and if we are, in fact, not
engaging on these issues, we cannot help those organizations
reform, and they do need to be reformed. And I think that is
something that there is bipartisan support for, in that sense.
Senator Shaheen. I agree.
Ms. Haines. But we cannot actually engage in reforming them
if we cannot actually change those agreements, if we do not
engage, if we do not bring them back, and we actually get them
approved.
So that is an example of the kind of thing that we might
perceive.
I think it is also true that, through these types of
mechanisms, we have managed to have an outsized influence on
issues where we have wanted to and needed to. And if we allow
other actors to dominate, such as China in a variety of
scenarios, we are going to lose some of our influence, and we
are going to be, again, on the retreat on issues.
Finally, I think another piece of this, I spent a lot of
time, obviously, on national security issues. One of the big
things that we look at are asymmetric threats that the United
States faces on a variety of fronts, whether it is cyber,
whether in space, or in the context of even migration or other
places. And one of the ways we have been able to address
asymmetric threats is through an international legal order.
A perfect example of this is the Law of the Sea where we
engaged, and we developed rules of the road for freedom of
navigation. That freedom of navigation is something we rely on
for our military, for our trade, across-the-board. We cannot
put a military ship in every strait, and we cannot enforce it
around the world. But instead, we developed an international
framework.
And even though we are not a party to it, Reagan made it
customary international law for us, and we led the charge in
developing it, and it is something that helps us essentially
protect freedom of navigation around the world.
I think that is a good example of the kind of thing that we
need to continue to be doing in asymmetric threat areas.
Senator Shaheen. Thank you for letting me go over, Mr.
Chairman.
The Chairman. Actually, the answers have been very
detailed. Thank you for those. They have been very good,
actually.
Senator Menendez, if you wish to go, or I can go to Senator
Kaine and let you get situated.
Senator Menendez. I am happy to let Senator Kaine go ahead.
The Chairman. Sure.
Senator Kaine. Thank you.
Thank you, Mr. Chair. And thanks for having this hearing.
It is very well-timed. And this question in matters of
diplomacy, what are the appropriate roles for Congress and the
President, is very vexing. I want to focus on a current
example, a very current example.
In September 2016, the United States joined with other
nations in passing a unanimous resolution at the United
Nations. The New York compact recognized the growing global
challenge of migrants and refugees, and it called on all the
nations of the world to develop best practices for dealing with
the challenge. The compact is being fleshed out at an
international meeting that is being held in Mexico this week.
Late last week, the Trump administration announced that the
U.S. was pulling out of the nonbinding compact and would not
participate in the Mexico dialogue to develop better policies
for addressing the crisis of refugees and migrants. The
asserted reason was that the discussion with other nations, a
discussion with other nations on a nonbinding compact, would
invade U.S. sovereignty.
I was stunned at this announcement. The migrant and refugee
problem in the world is massive and growing. The U.S. has been
a leader for decades in this area. There is no invasion of U.S.
sovereignty in sitting down and having a discussion about
solving a problem. And the Trump administration announcement
came during the Christmas season when people around the world
are hearing the story about a family turned away because there
was no room at the inn, so their child had to be born in the
stable, and their subsequent flight to another country to avoid
violence.
Why did the administration take this step? I want to tell
my colleagues what I have learned in the last 48 hours from
reporting and conversations from those involved in the
discussions.
A principals meeting was held in the last 10 days to
discuss U.S. participation in the compact and the Mexico
summit. The CIA director, the U.N. Ambassador, the Secretary of
Defense, and the State Department all initially argued that the
U.S. should stay in the compact and exercise leadership to
develop the best possible solutions to this current global
crisis. But the Attorney General, the chief of staff at the
White House, and White House adviser Stephen Miller argued that
the United States needed to pull out of the dialogue not
because of sovereignty concerns but because of a desire to
cease participating in an initiative that had commenced during
the Obama administration.
In the end, the Attorney General and the White House
officials prevailed over the wishes of our national security
professionals.
So I want to ask you this. When an administration takes a
unilateral action like this, squandering American leadership on
a critical humanitarian and national security question, because
of a petty political calculation, what should the role of the
United States Senate be?
Ms. Haines. Well, it will not surprise you, Senator, to
hear that I am very much in agreement that this is not the
right decision. In other words, I think it is important to
engage with your international partners on such a particularly
and credibly critical issue that we are facing.
And I also think it is fair to say that, given the crisis,
the migrant crisis that we face today with 65 million people
displaced, over 20 million refugees around the world, it is
very hard to imagine how on Earth we would actually address
this crisis on our own. We absolutely need to be engaged with
our partners, in order to figure this out and work through it.
It also is not true that the U.N. effort was something that
we started, by any stretch of the imagination. It is true that
the Obama administration joined in September, as you
identified, the declaration or the statement that was made, and
were intending during that administration at least to engage on
this issue.
And I think there is not much you can do, I suppose, from a
legislative perspective to force the executive branch to engage
on these issues, but it does seem to me it would be worth
making a statement to that effect and being as clear as
possible in public about the fact that this is not even a
substantive issue. It is just a question of not wanting to talk
to other nations about what is a critical issue that we cannot
solve alone.
Senator Kaine. Dr. Bradley?
Mr. Bradley. Thank you, Senator.
I do not want to speak to the specific policy issue of this
particular nonbinding compact, but I am in agreement with Ms.
Haines that, in general, I favor the U.S. staying engaged and
offering its very important voice on these sorts of topics.
This example is a very good reminder of how executive
unilateralism in international agreements and compacts really
generates more unilateralism.
So as we have seen before, whether it be the Paris or Iran
deals, which were also called nonbinding compacts, at least in
part, they also set up the possibility of pulling out
unilaterally by the executive branch. And we have seen that in
the migration compact--nonbinding at the front end, executive
participates on behalf of the United States.
In the last administration, nonbinding means the executive
allegedly can just pull us out of the talks now. And it is a
reason for Congress to be more involved in all steps, because
the argument would be much harder to make that the President
could then just unilaterally pull out of these sorts of
agreements.
Thank you.
Senator Kaine. Thank you, Mr. Chair.
Senator Cardin. [Presiding.] Senator Menendez?
Senator Menendez. Thank you.
Senator Kaine. Mr. Chair, can I introduce the U.N. compact
as an exhibit to the hearing?
Senator Cardin. Without objection.
[The information referred to above is located at the end of
this transcript on page 35.]
Senator Kaine. Thank you.
Senator Menendez. Thank you.
I think that providing advice and consent on international
treaties and accords is a critical function of this committee,
and for that fact, of the United States Senate. And holding a
hearing to explore the Senate's role in international accords
today, however, seems to be serving mostly as a reminder that
we have abrogated that duty at the behest of what I consider a
few misguided voices.
As a long-serving member of this committee and its former
chairman, I regret that some of my colleagues on the other side
of the aisle are driven by an antipathy to treaties and
international institutions that ultimately, in my view,
undermine American foreign policy. Their belief that
participating in rules-based international order, including
international treaties, joining our peers on the global stage
to set standards, establish mechanisms for security and
economic cooperation and vehicles for approaching common
threats from communicable diseases to nuclear weapons
undermines our sovereignty is bluntly wrong, and it is
misplaced.
International organizations and treaties are a critical
tool of the United States used to further our foreign policy
objectives. We utilize treaties and institutions to set the
standards by which we would like to see other countries and the
global community more broadly operate.
Believing we can operate alone in today's world is as
foolish as it is impractical. In essence, when the United
States unilaterally sets rules of engagement when the rest of
the world is working together on another set of rules, we are
not even playing the same game. If we are not at the table,
those who are will write the rules, and they do so at the
expense of Americans and American businesses.
When I was chairman of this committee, I shepherded through
the Convention on the Rights of Persons with Disabilities.
Driven by a small number of misguided voices from the right,
some of who bizarrely argued that ratifying this treaty would
somehow amount to an assault on families who want to homeschool
their children, this body failed to ratify that treaty.
The United States is the world's leader in protecting and
having the highest standards for those with disabilities
through our Federal and State laws, like the Americans with
Disabilities Act. Our opportunity to ratify that treaty would
take that global standard, be at the table, create that
standard globally so that an American living here could,
hopefully, at some point in time, travel anywhere in the world
and expect that they would, ultimately, have the same access as
they have in the United States.
To me, that was the motherhood and apple pie of treaties.
And yet, we could not do it.
Similarly, as we see increased piracy and threats to
American businesses that rely on international shipping lanes
and international waters to conduct their business, it
undermines our security and business interests not to
participate in the Convention on the Law of the Sea. Being a
party to the treaty would enable us to participate in a wide
range of interdiction operations, be involved in more port
security control, be able to work with our allies to confront
China's continuing expansion in the South China Sea, if we were
a party, among other places.
So now that I got that off my chest--[Laughter.]
Senator Menendez. Let me ask you, Ms. Haines--yes, it has
been frustrating--what countries would you say, I think you
alluded to China as one, but what countries are taking
advantage of the United States' refusal to fully ratify and
participate in treaties like the Convention on the Law of the
Sea, which you mentioned in your opening statement? And at what
expense? If the average American would be listening to this
hearing, at what expense does it mean to them? How do we make
it that it is not something that is just up here but actually
has a meaning to them?
And finally, what pending treaties do you believe would
best serve the interests of the United States citizens and
businesses?
Ms. Haines. I have spent a lot of time thinking about just
how can you change the conversation about treaties and really
help people to understand the value that they bring to them in
their everyday lives. When I think about the Law of the Sea
Convention, all of the things you mentioned, another thing I
would add would be, for example, we cannot actually make a
submission of our continental shelf, for example, to the
continental shelf commission because we are not a party, and
get the blessing, essentially, of the continental shelf, which,
again, hampers American businesses because there is not the
sort of predictability, there is not the international
recognition. We are not part of the organization that is making
the rules that effectively affect their interests around the
world.
And even though we are an observer, it makes a difference
being at the table as a party. And that is something that you
have to focus on.
And to your question about other countries that take
advantage of it, I think there have been discussions about
Russia, for example, taking advantage of that opportunity in
the context of I think largely pointing out the fact that we
are not a party, pointing out the fact that, therefore, our
voice should count for less in certain circumstances and so on.
And that is true around these issues altogether. And it is
hard to predict how other countries and which other countries
will take advantage of this in the future, but I think you will
see many of them. Particularly if we are not in the migrant
conversation, we cannot actually shape the way it turns out.
And that is where, I think, we really lose out, and people
should be able to understand that.
But I would say, trying to translate the value that we get
out of treaties so that people understand the everyday value is
a really worthwhile exercise. Maybe I will come back to you
with some additional examples.
Senator Menendez. I would love to hear them, because we are
going to have to get to a point where it is more than an
esoteric exercise for the average American, so that they can
understand what is at stake for them. For me, all the policy we
do here is always, how do I make it connected to the average
citizen I represent?
Thank you very much.
Ms. Haines. Thank you.
Senator Cardin. Senator Coons?
Senator Coons. Thank you, Ms. Haines, Mr. Bradley, for
being here. Great to see you again.
Ms. Haines, you mentioned in your written testimony that
certain Senate rules strike you as anachronisms that should be
reformed in order to limit obstruction and streamline treaty
consideration processes. Given the lengthy recitation we just
received, with which I agree, of the frustrating difficulties
in ratification--Law of the Sea Treaty, CRP, others--what would
you specifically suggest we do to change Senate rules in order
to address the concerns you raised?
Ms. Haines. Thank you. So in terms of the anachronisms, I
will just mention two that are sort of interesting.
One is that you see in the rules explicitly there is the
option for the Senate to actually amend the treaty, in addition
to amending the resolution of advice and consent. It sort of
never really makes any sense that you are going to amend the
treaty. Instead, you put into the resolution that such an
amendment is required before ratification would occur.
But there are a lot of things like that. It is a very old
rule, and it is not a very streamlined rule.
And the kind of things that I could imagine changing, but I
would sort of recommend, frankly, that brighter minds than I,
and people who really understand the procedure in a way that
would be helpful, would put their thoughts on this, but I could
imagine, for example, given that you have only one option for a
cloture vote--because cloture in treaties is both on the treaty
itself and on the resolution, and the motion to proceed to
executive session and on a particular treaty is nondebatable,
so you do not have the same thing that you have the legislation
where you could have two cloture issues. You only have one.
I have thought, if you could reduce the hours for cloture--
so in other words, you still get cloture, but you do not have
30 hours. You have significantly less hours. Would it then
change the calculus for the majority leader when deciding
whether or not to push through with essentially an objection
and get to a vote on the treaty? I do not know. And I realize
it will change over time.
But it strikes me that it is worth thinking about, because
one of the main issues is that, as noted, you have a two-thirds
vote. There has to be bipartisan support for the treaty for it
to provide advice and consent.
So perhaps a lower bar for the process would actually make
a difference in your being able to actually move on treaties,
because I do think this committee is committed to doing that. I
do think it is frustrating when you have the possibility that
one Senator can really hold it up in a significant way. And
that is largely because it is, it seems to me, relatively low
cost for the majority leader to not proceed, in some respects.
Senator Coons. Thank you.
Mr. Bradley, in your recent Lawfare article, you claim
presidential domination of America's shaping and termination of
international agreements has a significant effect on U.S.
States and private actors. Could you just briefly describe some
examples, perhaps, of the consequences for U.S. States or for
the private sector?
Mr. Bradley. Thank you, Senator. Yes, one of the things
that I think people do not appreciate is how much international
law and agreements today matter domestically, and not just for
the United States international commitments. Many agreements
are either directly or indirectly enforceable in litigation or
affect the ability of agencies to regulate, including in the
private sector. A lot of the agreements that are made under the
old statutes that might be repurposed sometimes by the
executive regulate sales agreements, transfer agreements, aid
agreements, and the like that often have large effects,
obviously, on government contracts and other private sector
actors. And a lot of that is managed by the executive branch,
based sometimes loosely on very old grants of authority.
At the State level, international law, of course, is
generally binding on the entire country and is, therefore,
presumptively binding at the State and local levels as well. It
is not all enforceable in court, but it often affects how
statutes are interpreted, even with respect to localities.
One of the reasons for the Senate to be involved, in
particular, by the way, for these agreements is the federalism
side of this. When I testified on the disabilities convention,
one of the biggest concerns was, how do we accommodate the
federalism and local and State interests for that convention? I
thought there were ways it could have been done, and there was
actually a lot of bipartisan discussion about how it could be
done successfully.
And when the President is doing these agreements without
going back to the legislature, the interests of States and
localities are not even considered, whereas States, of course,
are all represented in the Senate, and that was by design in
the founding.
Thank you.
Senator Coons. Thank you both. It is great to be with you.
I appreciate your input.
Senator Cardin. The chairman is going to be back in a
moment, I hope. We will see. There is a vote on. We will try to
keep the hearing going.
Okay, I want you to just put one thing into the record, and
that is, I never really fully understood what reservations
meant when Congress passed the reservations, or what conditions
mean, if we were to condition our approval. But I at least put
that out and appreciate your advice on that, if you could
explain that. Senator Corker will explain it to me later, as I
go to vote.
Senator Corker. [Presiding.] Actually, go ahead.
Mr. Bradley. I will go ahead. Thank you.
The Constitution, of course, talks about the advice and
consent of the Senate, advice and consent. And from the early
days, Presidents, for a variety of reasons, did not heavily
seek the actual advice of the Senate. They sought their consent
at the end. One of the things that the Senate did, actually
during the George Washington administration, was basically say,
if that is how it is going to work, we insist on being able to
condition our resolutions of advice and consent.
We have had over 200 years of the Senate having this
prerogative of being able to consent to a treaty on the
condition of removing clauses, amending clauses, having certain
interpretations that the executive has to accept, or other
declarations, such as not having direct enforcement of the
treaty in litigation.
So the President is usually the one who benefits from all
this historical practice. The Senate, in this instance, should
benefit from a long tradition of having the ability to limit
its consent.
And it is understood, if the President ratifies a treaty,
after that happens, the President has accepted the conditions
in the advice and consent resolution. And Presidents have
generally agreed to that, and the courts really uniformly have
given effect to the Senate's conditions.
So this is an opportunity for the Senate. If it has
concerns about what the President might do under a treaty, I
think it is fully within the prerogatives of the Senate to add
conditions to the resolution.
Thank you.
The Chairman. So I think both of you have spoken to,
really, the Senate, because of the way we are not functioning,
just in all honesty, for many, many years--we passed I guess
the START Treaty, when was that? In 2010? Was that part of your
work here?
Ms. Haines. No, sir. I had already left the committee at
that time.
The Chairman. So I actually was a part of that, helped
write the RUDs. To me, it was an important treaty to pass. I
think it has been good for our country. And it was very
controversial, but it happened.
We may have done a few things since then, but actually,
because of the Senate's nonfunction, Presidents have chosen
different routes. Part of it, too, though, in the case of Iran,
part of that was, too, that the President took actions, because
I do not think he believed could--there was not a majority of
the Senate that would support what he was doing. So there are
cases where the United States Senate is not functioning, and
Presidents do not want to come to it. They do not want to go
through the hassle. But there are also times when Presidents
act in that way because they do not believe the majority of the
Senate is with them.
Would you agree?
Ms. Haines. Yes.
The Chairman. So in both cases, the Senate does damage to
itself by not being willing to take up treaties. The tax treaty
is one that is prime. It should take no time on the floor. We
have one Member who opposes.
On the other hand, there are times when the President can
abuse his authority. I say that with a light term ``abuse.''
The President can abuse his authority by doing things that they
know are not majority approval.
Would you all like to speak to that, in any way?
Ms. Haines. I think it is absolutely true that there are
times when Presidents make a decision not to take the hard road
that is sort of the traditional route and instead take an
alternative option.
I think it carries costs with it, both in terms of the
relationship but also, frankly, in terms of what they can do in
that agreement or in that political commitment just by its very
nature. In other words, I think the flip side of what I was
saying earlier, which is to say that I believe there are real
costs if the Senate is unable to actually provide advice and
consent to treaties, because then it means there are a lot of
things that will not get done. The flip side of that is also
that when Presidents, basically, and the executive branch, take
another route, those routes do not have all of the bells and
whistles that an advice and consent treaty has.
So if you are doing it as a political commitment, it means
that there is not a legally binding obligation on the other
party either. And so to the extent that we want that in our
foreign policy, then we are not getting that. And if it is an
executive agreement and it is not an advice and consent treaty,
there may be some things that we cannot put into that executive
agreement because we know that there are things that warrant
advice and consent through the Senate.
So I agree with your general proposition, and I think that
there are costs for our foreign policy and national security as
a consequence of the fact that we are not actually able to work
together effectively.
The Chairman. So President Obama--I say none of this to be
pejorative. It is an observation. President Obama did what he
did on Iran. We were successful in passing INARA, which took
back some of those powers, caused it to be frozen for 90 days,
caused us to be able to examine it, and then caused us to be in
a position to stop it, if we had the votes to do so. But again,
it was a nonbinding political commitment.
The same thing happened on the Paris Accord. The Paris
Accord was put in place. The Paris Accord could not have, on a
treaty basis, pass through the United States Senate, and it was
undone.
And it is very possible that that Iran agreement may be
undone in the January time frame. We are working on ways to try
to strengthen it, from the standpoint of the President, from
his perspective. We are working on ways to change things in
such a manner that maybe that does not happen, at his request,
I might add.
But how does that affect, when other countries look on? I
would assume that, in most other countries, typically, we do
not have this back and forth. You might share with me whether
that is the case or not.
But when other countries then see a President entering into
a nonbinding political accord that has not gone through the
Senate, they see what happens as a result, where the other
party automatically begins railing against it, like well could
happen with tax reform here, right? It passes with only
Republican votes, a different issue.
But how will they begin to view, how are they viewing,
these nonbinding commitments as they see them beginning to be,
potentially, one undone and, potentially, another one?
Ms. Haines. Yes, we might split this, because I know Mr.
Bradley has done a lot of work on how other countries approach
treating-making, and that would be useful. I will just give
you, from my experience, a few things.
I think one is, particularly on the political commitment
piece that you just mentioned at the end of your question, I
think other countries are extraordinarily watchful of this. And
I think it will make it harder if we pull away from our
political commitment to Iran, with them not having violated the
political commitment to begin with. I think it will make it
harder, for example, when we are facing North Korea and other
countries when we are trying to enter into a similar political
commitment, potentially, or any kind of commitment, if they
perceive us as simply not living up to the terms of what we
have signed up to previously.
I have also found with other countries, repeatedly, they
will ask us, what is the process that you are engaging in
internally? So even though it does not matter from an
international perspective if we do an executive agreement or an
advice and consent treaty--in other words, both are legally
binding on the United States from an international legal
perspective--other countries want to know whether or not we are
sending our agreement to the Senate for advice and consent or
whether it is getting some kind of congressional approval. And
they see that as important because they believe that is going
to be a longer lasting agreement if, in fact, it sticks.
And then finally, I have also heard from other countries
that when they watch the sort of back and forth here, and they
see, for example, on the Law of the Sea Convention or other
things that we are not able to get through, after we
essentially initiated the idea to begin with and we also spent
an awful lot of time leading the drafting of it, they will
bring that up in further multilateral convention negotiations.
They will say why do we listen to you anyway, given that when
you bring it back, you do not actually get it through the
Senate?
Now, that is not always a good reason to join a treaty.
Obviously, you join a treaty because you think it is the right
thing for the United States, and the Senate has to deliberate
appropriately. But I think it does make it more difficult when
you have so much of the Congress agreeing with it and just a
few Members managing to pull it down.
Mr. Bradley. Thank you, Senator.
So I agree with Ms. Haines. One thing that I think we are
seeing with more unilateral executive agreement-making is just
less stable American foreign policy. That is, I believe, how it
is being perceived by the rest of the world.
But there is a more practical effect, in addition to the
loss of leadership, which is that I think the U.S. is having a
harder time persuading countries to give concessions in U.S.
interests if those countries believe that the stability is not
there for the commitments. That is one reason why they often do
at least desire the Senate to be involved, because they think
those would be, quite rightly, more lasting, stable
commitments.
Another problem, and this is not just true externally but
also inside the United States, I think there is just a lot of
confusion about the nature of these agreements. I remember,
just to use those examples of the Iran deal and the Paris
Accords, there was confusion in Congress and among scholars and
the rest of the world about what the nature of those agreements
were and confusing statements by the executive about whether
they were binding, binding in part. Some of the world had views
that they were binding, and the administration said they were
not.
I think that is a transparency problem, as I talked about
earlier.
As to what other countries are doing, we are not alone. The
United States is not the only constitutional democracy facing
questions about the role of its legislature in a world in which
a lot of agreements are being made. A number of countries, like
the U.K., are looking for ways to keep Parliament more involved
and to get it more involved and to be more active in the
deliberative process, because they realize these commitments
matter so much domestically. Of course, there is the famous
Brexit decision now by the U.K. Supreme Court that insisted
that the Parliament have a role in deciding on that momentous
decision by the U.K.
So we are at a time when other democracies are studying
this and actually trying to find ways to keep their
legislatures involved in the process.
The Chairman. Generally speaking, I know you are not going
to be able to remember what all of the countries did, but
generally speaking, in an accord like the Paris Accord or in
the Iran agreement, the other countries that were involved in
that, how did they interact with their own legislative bodies?
Or did they at all?
Ms. Haines. It really depended on the particular country
and their relationship with their legislative bodies, even
though, for example, with the Joint Comprehensive Plan of
Action, I am not aware of any country that put that through any
kind of legislative process, per se.
The Chairman. The Iran accord?
Ms. Haines. Right, exactly. So there was not that kind of
formal thing. But what my experience was, was that different
countries talked to people within their parliament, more or
less, particularly for the Europeans because they were dealing
with the sanctions regime just as we were here in the United
States. So that was an area where they needed to make sure that
everybody was at least aware of what was happening, in that
context.
The Paris climate, similarly, it is different for others.
In that case, I believe there were some. I just do not recall
right now directly which one put it to a formal vote, but I can
obviously bring that information back to you, if that is
useful.
Mr. Bradley. I could add one comment, Senator. I talked to
the negotiators, some of the negotiators on the Paris Accord.
What I was told was that, for all the countries that normally
require the legislature to participate in treaty-making, those
countries did have the legislature participate.
If one just looked at the U.S. Constitution, you would
think that the United States should also be in that category,
since the process specifies the legislature's involvement.
There are some countries that do not have the legislature
participate ordinarily, and those countries have a different
process. But for those that do, I think they treated the Paris
Agreement as they would any other important agreement and had
the legislature involved.
The Chairman. Part of the reason we are having this hearing
is because we look at what is happening right now with NAFTA. I
know a number of Senators met today with the President to talk
about NAFTA and where it is going. We have the South Korean
agreement, where I know the President has concerns about the
tariff on light-duty trucks and what that may, in fact, do to
our own country.
And I guess this will be more of a macro question, but a
part of our role in the world has been our leadership, if you
will, on international agreements and creating relationships.
The former President negotiated the TPP, and obviously, the
political climate led to a situation where both the leading
candidates on each side of the aisle condemned it. And
obviously, it ended up not being something that we are part of.
The answer is very obvious, but can you step back--there is
the world in turmoil. There are the kind moments, if you will,
that took place in our country in this last election that are
taking place, no doubt, in other countries. Can you talk just a
little bit about your perspective on international agreements
in general, the United States' role in those, and how you see
that affecting us over time as it relates to our U.S.
leadership?
Ms. Haines. Thank you, Senator.
When I first joined the State Department, my first job was
working in the treaty office as a young lawyer, and I remember
going to multilateral negotiations for treaties. One of the
things that was remarkable to me, although I suppose it
shouldn't have been, was just how much the international
community relied on the United States to draft the first draft
of proposals of treaties, of so much of what we would be doing.
And really, it is a point of pride in many respects, but it
is also something that sort of brings home the fact that we
have historically exercised enormous leadership in this area.
We have seen so much of our own law internationalized through
conventions, where we essentially negotiate things that are
consistent with what we do domestically, and we have seen the
value of it, and we show that to our partners, and we believe
that it is worthwhile on an international basis.
So in many ways, we have really just leveraged our own
success and prosperity to increase it through the international
sphere. And I think it is an extraordinary thing to look back
on how many treaties that are major multilateral treaties that
we were really the instigators behind, not the least of which
is the Law of the Sea Convention that we are not actually a
party to.
And I think now it is changing. I think the last decade or
so has seen a real shift in the conversation on treaties and on
international law. I think that the American public is not
often being reminded of the value that international law and
the treaties bring to them. And I think it has made it more
difficult for Members of Congress to take tough positions on
what are often very complex issues in the context of
international agreement-making.
As Mr. Bradley said, there is often a lot of confusion
about these issues, and they are very tough. And these
agreements are very long, and they are complicated. And it is a
space that I think is just becoming less sort of honest, and it
is less possible for us to have a real public dialogue that
actually gets to the real issues.
And I think the consequence of that are that now, when we
walk into the room, if we are even invited, that we are not
going to be looked upon to essentially draft the rules. I think
that will make a big difference to U.S. interests and our
ability to shape the conversation and ensure that what is
ultimately developed is in our interests.
The Chairman. Mr. Bradley?
Mr. Bradley. Thank you, Senator.
One of my experiences in this area came when I was working
in mid-2000s in the executive branch. And one of the things
that became obvious to me, and still is certainly the case, is
the U.S. exists in a very dangerous world environment with
security threats around the world, still an ongoing threat from
global terrorism. That was one of the major issues the
executive was focused on at that time, and still is. And it was
abundantly clear that the United States could not address these
dangers and threats by itself and relied on other countries for
intelligence, for law enforcement cooperation, for sanctions.
And that required working with partners, both allies and other
countries who might not always be allies, in hopefully
constructive ways.
And some of that involves reaching agreements that are in
the long-term interests of the United States, and also taking a
leadership position on articulating what the U.S. thought
should be the international norms.
I think that continues to be in the United States'
interests. The world environment is not any less dangerous than
it was when I had the privilege of working in the executive. So
I would hope that both the Congress and the executive branch
are focused on the many gains the United States obtains from
cooperation and engagement with other countries.
Thank you.
The Chairman. Listen, we thank you both for being here. I
know that we have relied upon both of you to help us through
issues here in the Senate in years past, and we thank you for
coming back here today.
I will say, just for my observation as a person who has
been here now almost 11 years, I really do not see anything
changing relative to the Senate's ability--we cannot even
confirm nominations right now. One Senator will have an issue
with a nominee. I was just asked, coming back from the Senate
floor, about a nominee. We have one Senator holding, can we
burn the floor time to actually have that person confirmed? And
the answer is no, we cannot.
So there is going to have to be a cooperative rule-changing
taking place on the Senate floor.
But even if that occurs, honestly, the ability to deal with
major treaties today is diminished. It is just where we are as
a Nation.
I think the executive branch still will be able to do
nonbinding agreements and to enter into agreements at the
United Nations, which I am sure will continue to happen, to a
degree. But I think what executives have to be careful of is
entering into an agreement that they know immediately becomes a
lightning rod for the other side of the aisle.
Actually, it shouldn't be a surprise that the next
President running against the policies of the President
before--that is typically what happens in elections--is going
to up end that when they have the executive pen and are able to
do so.
So I think part of going forward is going to mean that
Presidents are going to have to think through whether entering
into an accord that actually destabilizes over time, because it
is not agreed to by the general public here in our country, I
think they themselves are going to have to show some
moderation.
But our country is, in fact, I know that while we are
showing strong leadership in a number of areas--there is no
question, as a Nation, we are doing that today--we are doing
less of it relative to agreements like this. And I do think,
over time, while it may play well today, I think, over time, it
is going to hurt America. It is going to hurt our standard of
living. Certainly, it is going to hurt are standing in the
world.
We thank you both for being here today. People are going to
have questions through the close of business on Friday. I know
that both of you have other work that you are involved in, but
to the extent that you can answer them fairly promptly, we
appreciate it.
The Chairman. And with that, again, thank you.
The meeting is adjourned.
[Whereupon, at 4:25 p.m., the hearing was adjourned.]
----------
Additional Material Submitted for the Record
Responses to Additional Questions for the Record Submitted to
Curtis A. Bradley by Senator Edward J. Markey
Advice and Consent
In your testimony, you noted that over 90 percent of all
binding international agreements concluded by the United States
since the 1930s have been concluded without senatorial advice
and consent. While this may be expedient, the lack of
Congressional involvement undermines the legitimacy of these
agreements, especially when these agreements may be terminated
as quickly as they were agreed to.
Question 1. How do our negotiating partners perceive international
agreements that have been concluded without senatorial advice and
consent?
Answer. My understanding is that, when feasible, our negotiating
partners prefer to have agreements concluded with either the Senate's
advice and consent or the approval of a majority of the full Congress,
because they believe that agreements that have such legislative
approval reflect a more formal commitment by the United States and are
less likely to undone based on fluctuations in this country's domestic
politics.
Question 2. Do our current agreement frameworks adequately address
the evolving global challenges? And the ability of the United States to
continue playing a leadership role?
Answer. The established mechanisms under U.S. law and practice for
entering into international agreements, which include Article II
treaties and congressional-executive agreements, are adequate to
address global challenges. However, collaboration between the executive
and legislative branches in concluding international agreements has
been diminishing, and in my view this development undermines the
ability of the United States to play a leadership role in international
relations.
Precedent--Iran and Climate Change
The President's decision not to certify Iran's compliance with
the Joint Comprehensive Plan of Action (JCPOA) and his decision
to withdraw from the Paris Climate Agreement because the
President doesn't like the agreements undermines our diplomatic
efforts across the globe and sends a message that the United
States does not uphold its end of the bargain when the
political winds change. Undermining these agreements could do
untold damage to the National Security of the United States.
Question 3. What signal does withdrawing from these agreements
send to the broader international community? Should North Korea trust
that the United States will act on its international agreements?
Answer. Withdrawal from an international agreement pursuant to its
terms can be appropriate under some circumstances--for example, if
conditions have substantially changed such that the agreement is no
longer in U.S. interests or another party to the agreement is
materially breaching its obligations. But, in my view, the United
States should only rarely withdraw from international agreements, and
should never do so lightly. Among other things, if the United States
begins withdrawing from agreements without substantial justification,
it will likely undermine the stability of U.S. foreign policy and make
other nations less willing to make concessions to the United States
going forward. With respect to the question concerning North Korea: If
the United States were to withdraw from its agreement with Iran
relating to its nuclear program without clear evidence that Iran was
violating the agreement, there is a danger that such an action would
make it more difficult to conclude other comparable agreements, such as
an agreement with North Korea relating to its nuclear program.
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New York Declaration for Refugees and Migrants
A Resolution Adopted by the United Nations
General Assembly on 19 September 2016
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