[Congressional Record (Bound Edition), Volume 155 (2009), Part 14]
[Senate]
[Page 19058]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         TREATY MAKING PROCESS

  Mr. McCONNELL. Mr. President, as some of my colleagues may be aware, 
this week the State Department acceded to a Treaty of Amity and 
Cooperation in Southeast Asia, TAC. This action reflects an effort by 
the administration to engage vigorously in the region, which I applaud.
  The State Department consulted with the Senate prior to taking this 
step. During the course of these consultations, Senator Kerry, Senator 
Lugar, and I sought clarification on issues related to the substance of 
the TAC and to the unique process suggested for U.S. accession. To 
confirm our understandings on these points, Senators Kerry, Lugar, and 
I sent a letter to the Secretary of State on July 10, 2009. On the 
basis of the understandings set forth in this letter, we did not object 
to the Department's plan for acceding to the TAC. I believe the letter 
may be of some interest to Senators since it involves both the 
constitutional role of the Senate in the treaty making process and 
American foreign policy in Southeast Asia.
  I ask unanimous consent to have printed in the Record the letter to 
Secretary Clinton dated July 10, 2009.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, July 10, 2009.
     Hon. Hillary Rodham Clinton,
     Secretary of State,
     Washington, DC.
       Dear Secretary Clinton: We write to you regarding the 
     proposed U.S. accession to the Treaty of Amity and 
     Cooperation in Southeast Asia (TAC). We believe that U.S. 
     accession to the TAC reflects the strong American commitment 
     to the region and to vigorous engagement with the Association 
     of Southeast Asian Nations (ASEAN), both of which we fully 
     support. The U.S. has important foreign policy and economic 
     interests in Southeast Asia which we believe this agreement 
     can further.
       There are two important points of clarification, however, 
     that we wish to make as part of the Senate's input in the 
     context of the State Department's congressional 
     consultations. First, we understand that the Department is 
     considering having the United States accede to the TAC in 
     late July as a sole executive agreement, which would not 
     require the advice and consent of the Senate. We note that 
     the title of the agreement refers to the agreement as a 
     ``treaty,'' and we are unaware of any precedent for the 
     United States acceding to an agreement styled as a ``treaty'' 
     without the advice and consent of the Senate as provided for 
     in Article 11, Section 2 of the Constitution. At the same 
     time, we are mindful that other factors apart from the formal 
     name of the agreement could suggest that it is consistent 
     with U.S. practice for the United States to accede to the TAC 
     as an executive agreement. Of particular importance, the 
     agreement is largely limited to general pledges of diplomatic 
     cooperation and would not appear to obligate the United 
     States to take (or refrain from taking) any specific action 
     (with the exception of provisions of Article X which we 
     understand will be the subject of a reservation as discussed 
     below). We also note that the United States did not take part 
     in the negotiations among ASEAN countries leading up to the 
     conclusion of the TAC in 1976, or in the decision to 
     characterize it as a treaty.
       In light of these unique considerations, we will not object 
     to the Department's plan to accede to the TAC as an executive 
     agreement. We continue to believe, however, that the use of 
     the term ``treaty'' in the title of an agreement will 
     generally dictate that Senate advice and consent will be 
     required before the United States may accede to the 
     agreement. In this regard, treatment of the TAC as an 
     executive agreement should not be considered a precedent for 
     treating future agreements entitled ``treaties'' as sole 
     executive agreements. To ensure our understanding that the 
     process surrounding this agreement is not misinterpreted in 
     the future as a precedent, we will submit this letter into 
     the Congressional Record. We would also request that the 
     State Department include it in the next edition of the Digest 
     of United States Practice in International Law.
       Second, Article X of the TAC provides that ``[e]ach High 
     Contracting party shall not in any manner or form participate 
     in any activity which shall constitute a threat to the 
     political and economic stability, sovereignty, or territorial 
     integrity of another High Contracting Party.'' We also note 
     that the U.S. has proposed a reservation to the TAC that 
     states that the TAC, noting in particular Article X, ``does 
     not limit actions taken by the United States that it 
     considers necessary to address a threat to its national 
     interests.''
       We interpret this reservation as ensuring that the TAC does 
     not limit the authority of the U.S. government--either the 
     executive branch or the Congress--to take actions that it 
     considers necessary in pursuit of U.S. national interests in 
     the region or with respect to any individual nation.
       We thank you for your close consideration of this matter 
     and for the Department's consultation prior to acceding to 
     the TAC.
           Sincerely,
     John F. Kerry,
       Chairman, Senate Committee on Foreign Relations.
     Mitch McConnell,
       Republican Leader United States Senate.
     Richard G. Lugar,
       Ranking Member Senate Committee on Foreign Relations.

                          ____________________