[Senate Hearing 115-630]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-630

          THE PRESIDENT, CONGRESS, AND SHARED AUTHORITY OVER 
                         INTERNATIONAL ACCORDS

=======================================================================

                                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

                              ----------                              


                       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.
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\ See Oona A. Hathaway, Presidential Power Over International 
Law: Restoring the Balance, 119 Yale L.J. 140 (2009).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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'').
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \14\ See Department of State Authorities Act, Fiscal Year 2018, S. 
1631, 115th Cong. Sec. 7802.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.

                               __________

             New York Declaration for Refugees and Migrants


               A Resolution Adopted by the United Nations
                 General Assembly on 19 September 2016

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