Congressional Oversight and Related Issues Concerning International Security Agreements Concluded by the United States

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Congressional Oversight and Related

Issues Concerning International Security

Agreements Concluded by the United States

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Legislative Attorney

June 7, 2012

Congressional Research Service

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R40614

CRS Report for Congress

Prepared for Members and Committees of Congress

Oversight and Related Issues Concerning International Security Agreements

Summary

The United States is a party to numerous security agreements with other nations. The topics

covered, along with the significance of the obligations imposed upon agreement parties, may

vary. Some international security agreements entered by the United States, such as those obliging

parties to come to the defense of another in the event of an attack, involve substantial

commitments and have traditionally been entered as treaties, ratified with the advice and consent

of the Senate. Other agreements dealing with more technical matters, such as military basing

rights or the application of a host country’s laws to U.S. forces stationed within, are entered more

routinely and usually take a form other than treaty (i.e., as an executive agreement or a nonlegal

political commitment).

Occasionally, the substance and form of a proposed security agreement may become a source of

dispute between Congress and the executive branch. In late 2007, the Bush Administration

announced its intention to negotiate a long-term security agreement with Iraq that would have

committed the United States to provide security assurances to Iraq and maintain a long-term

military presence in that country. This announcement became a source of congressional interest,

in part because of statements by Administration officials that such an agreement would not be

submitted to the legislative branch for approval. Congressional concern dissipated when U.S.-Iraq

negotiations culminated in an agreement that did not contain a long-term security commitment by

the United States, but instead called for the withdrawal of U.S. forces from Iraq by December 31,

2011.

On May 2, 2012, President Barack Obama and President Hamid Karzai signed the Enduring

Strategic Partnership Agreement Between the United States of America and the Islamic Republic

of Afghanistan. Under the terms of the Agreement, the parties pledge to work cooperatively in a

number of fields, including to promote shared democratic values, advance long-term security,

reinforce regional security, advance social and economic development, and strengthen Afghan

institutions and governance. Additionally, the Agreement provides that the United States and

Afghanistan shall initiate negotiations on a Bilateral Security Agreement (with the goal of

concluding such an agreement within a year), which is intended to replace the existing agreement

relating to the status of military and civilian personnel currently in Afghanistan.

It is likely that future disputes will arise between the political branches regarding the entering or

implementation of international security agreements. Regardless of the form a security

arrangement may take, Congress has several tools to exercise oversight regarding the negotiation,

form, conclusion, and implementation of the agreement by the United States. This report begins

by providing a general background on the types of international agreements that are binding upon

the United States, as well as considerations affecting whether they take the form of a treaty or an

executive agreement. Next, the report discusses historical precedents as to the role that security

agreements have taken, with specific attention paid to past agreements entered with Afghanistan,

Germany, Japan, South Korea, the Philippines, and Iraq. The report discusses the oversight role

that Congress exercises with respect to entering and implementing international agreements

involving the United States.

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Oversight and Related Issues Concerning International Security Agreements

Contents

I. International Agreements Under U.S. Law .................................................................................. 1

Treaties ...................................................................................................................................... 1

Executive Agreements ............................................................................................................... 2

Congressional-Executive Agreements................................................................................. 4

Executive Agreements Made Pursuant to Treaties .............................................................. 5

Sole Executive Agreements................................................................................................. 5

Nonlegal Agreements .......................................................................................................... 7

Choosing Between a Treaty and Executive Agreement ...................................................... 8

II. Historical Practice Regarding Security Agreements ................................................................... 9

Categories of Security Agreements ........................................................................................... 9

Collective Defense Agreements/“Security Commitments”............................................... 10

Consultation Requirements/“Security Arrangements”...................................................... 11

Other Types of Military Agreements................................................................................. 12

Agreements Granting the Legal Right to Military Intervention........................................ 13

Non-Binding Security Arrangements ...................................................................................... 14

Examples of Bilateral Security Agreements ............................................................................ 16

Afghanistan ....................................................................................................................... 16

Iraq .................................................................................................................................... 20

Germany............................................................................................................................ 22

Japan.................................................................................................................................. 23

South Korea....................................................................................................................... 24

Philippines......................................................................................................................... 26

III. Congressional Oversight.......................................................................................................... 27

Notification.............................................................................................................................. 27

Notification Pursuant to the Case-Zablocki Act................................................................ 27

Notification Pursuant to Circular 175 Procedures............................................................. 28

Annual Reporting of Security Arrangements Required by the National Defense

Authorization Act of 1991.............................................................................................. 28

Consultation............................................................................................................................. 29

Approval, Rejection, or Conditional Approval of International Agreements .......................... 30

Implementation of an Agreement That Is Not Self-Executing ................................................ 31

Continuing Oversight .............................................................................................................. 31

Contacts

Author Contact Information........................................................................................................... 32

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Oversight and Related Issues Concerning International Security Agreements

T

he United States is a party to numerous security agreements with other nations. The topics

covered, along with the significance of the obligations imposed upon agreement parties,

may vary. Some international security agreements entered by the United States, such as

those obliging parties to come to the defense of another in the event of an attack, involve

substantial commitments and have traditionally been entered as treaties, ratified with the advice

and consent of the Senate. Other agreements dealing with more technical matters, such as military

basing rights or the application of a host country’s laws to U.S. forces stationed within, are

entered more routinely and usually take a form other than treaty.

Regardless of the form of a security arrangement, Congress has several tools which enable it to

exercise oversight regarding the negotiation, form, conclusion, and implementation of the

agreement by the United States. This report begins by providing a general background as to the

types of international agreements that are binding upon the United States, as well as

considerations affecting whether they take the form of a treaty or an executive agreement. Next,

the report examines historical precedents, with specific attention paid to past agreements entered

with Afghanistan, Iraq, Germany, Japan, South Korea, and the Philippines. Finally, the report

discusses the oversight role that Congress exercises with respect to entering and implementing

international agreements involving the United States.

I. International Agreements Under U.S. Law

Under U.S. law, a legally binding international agreement can be entered into pursuant to either a

treaty or an executive agreement. The Constitution allocates primary responsibility for entering

such agreements to the executive branch, but Congress also plays an essential role. First, in order

for a treaty (but not an executive agreement) to become the “Law of the Land,”1 the Senate must

provide its advice and consent to treaty ratification by a two-thirds majority. Alternatively,

Congress may authorize congressional-executive agreements. Many treaties and executive

agreements are not “self-executing,” meaning that in order for them to take effect domestically,

implementing legislation is required to provide U.S. bodies with the authority necessary to

enforce and comply with the agreements’ provisions. While some executive agreements do not

require congressional approval, adherence to them may nonetheless be dependent upon Congress

appropriating necessary funds or authorizing the activities to be carried out (where compliance

with the agreement would contravene some statutory provision).

Treaties

Under U.S. law, a treaty is an agreement negotiated and signed2 by the executive branch, which

enters into force if it is approved by a two-thirds majority in the Senate and is subsequently

1

U.S. CONST., art. VI, §2. In this regard, it is important to distinguish “treaty” in the context of international law, in

which “treaty” and “international agreement” are synonymous terms for all binding agreements, and “treaty” in the

context of domestic U.S. law, in which “treaty” more narrowly refers to a particular subcategory of binding

international agreements. It should be noted, however, that the term “treaty” is not always interpreted under U.S. law to

refer only to those agreements described in Article II, §2 of the Constitution. See Weinberger v. Rossi, 456 U.S. 25

(1982) (interpreting statute barring discrimination except where permitted by “treaty” to refer to both treaties and

executive agreements); B. Altman & Co. v. United States, 224 U.S. 583 (1912) (construing the term “treaty,” as used in

statute conferring appellate jurisdiction, to also refer to executive agreements).

2

Under international law, States (i.e., countries) that have signed but not ratified treaties have the obligation to refrain

from acts that would defeat the object or purpose of the treaty. Vienna Convention on the Law of Treaties, entered into

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ratified following presidential signature.3 The Senate may, in considering a treaty, condition its

consent on certain reservations,4 declarations,5 and understandings6 concerning treaty application.

If accepted, these reservations, declarations, and understandings may limit and/or define U.S.

obligations under the treaty.7

Executive Agreements

The great majority of international agreements that the United States enters into are not treaties

but executive agreements8—agreements made by the executive branch that are not submitted to

the Senate for its advice and consent. There are three types of prima facie legal executive

agreements: (1) congressional-executive agreements, in which Congress has previously or

retroactively authorized an international agreement entered into by the executive; (2) executive

agreements made pursuant to an earlier treaty, in which the agreement is authorized by a ratified

treaty; and (3) sole executive agreements, in which an agreement is made pursuant to the

President’s constitutional authority without further congressional authorization. The executive’s

authority to promulgate the agreement is different in each case.

Although executive agreements are not specifically discussed in the Constitution, they

nonetheless have been considered valid international compacts under Supreme Court

jurisprudence and as a matter of historical practice.9 Starting in the World War II era, reliance on

(...continued)

force January 27, 1980, 1155 U.N.T.S. 331 [hereinafter “Vienna Convention”], art. 18. Although the United States has

not ratified the Vienna Convention, it recognizes it as generally expressing customary international law. See, e.g.,

Fujitsu Ltd. v. Federal Exp. Corp., 247 F.3d 423, 433 (2nd Cir. 2001) (“we rely upon the Vienna Convention here as an

authoritative guide to the customary international law of treaties ... [b]ecause the United States recognizes the Vienna

Convention as a codification of customary international law ... and [it] acknowledges the Vienna Convention as, in

large part, the authoritative guide to current treaty law and practice”) (internal citations omitted).

3

Oftentimes, a bilateral treaty will only come into effect after the parties exchange instruments of ratification. In the

case of multilateral treaties, ratification typically occurs only after the treaty’s instruments of ratification are submitted

to the appropriate body in accordance with the terms of the agreement.

4

A “reservation” is “a unilateral statement ... made by a State, when signing, ratifying, accepting, approving or

acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in

their application to that State.” Vienna Convention, art. 2(1)(d). In practice, “[r]eservations change U.S. obligations

without necessarily changing the text, and they require the acceptance of the other party.” CONGRESSIONAL RESEARCH

SERVICE, TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE, A STUDY

PREPARED FOR THE SENATE COMM. ON FOREIGN RELATIONS 11 (Comm. Print 2001); Vienna Convention, arts. 19-23.

5

Declarations are “statements expressing the Senate’s position or opinion on matters relating to issues raised by the

treaty rather than to specific provisions.” TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 11.

6

Understandings are “interpretive statements that clarify or elaborate provisions but do not alter them.” Id.

7

As a matter of customary international law, States are “obliged to refrain from acts which would defeat the object and

purpose of a treaty,” including entering reservations that are incompatible with a treaty’s purposes. Vienna Convention,

arts. 18-19.

8

LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 215 (2nd ed. 1996).

9

E.g., American Ins. Ass’n v. Garamendi, 539 U.S. 396, 415 (2003) (“our cases have recognized that the President has

authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate ... this power

having been exercised since the early years of the Republic”); United States v. Belmont, 301 U.S. 324, 330 (“an

international compact ... is not always a treaty which requires the participation of the Senate”).

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executive agreements has grown significantly,10 with the number of international agreements

entered as executive agreements significantly dwarfing those entered as treaties.11

Although some have argued that certain agreements may only be entered as treaties, subject to the

advice and consent of the Senate,12 this view has been rejected by many scholars.13 Adjudication

of the propriety of executive agreements has been rare, in significant part because plaintiffs often

cannot demonstrate that they have suffered a redressable injury giving them standing to challenge

an agreement,14 or fail to make a justiciable claim. In 2001, the Eleventh Circuit Court of Appeals

held that the issue of whether the North American Free Trade Agreement (NAFTA) was a treaty

10

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 38-40.

According to one estimate, between 1789 and 2004, the United States entered 1,834 treaties and 16,704 executive

agreements, meaning that roughly 10% of agreements concluded by the United States during that period took the form

of treaties. WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 376 (5th ed. 2007). This

number may not take into account the numerous minor or technical agreements entered by the United States each year,

which are often entered to implement more general provisions found in treaties or executive agreements. Cf. 21 C.F.R.

§181.2(a)(2) (interpreting Case-Zablocki Act, 1 U.S.C. §112b, which requires congressional notification of

international agreements other than treaties which enter into force for the United States, and 1 U.S.C. §112a, requiring

the publishing of international agreements to which the United States is a party, to not cover “minor or trivial

undertakings, even if couched in legal language and form”).

12

E.g., Edwin Borchard, Treaties and Executive Agreements: A Reply, 54 YALE L. J. 616 (1945) (arguing that the

congressional-executive agreement is not a constitutionally permissible alternative to a treaty, and that sole executive

agreements are permissible in limited circumstances); Bradford C. Clark, Domesticating Sole Executive Agreements, 93

VA. L. REV. 1573 (2007) (arguing that the text and drafting history of the Constitution supports the position that treaties

and executive agreements are not interchangeable, and also arguing that the Supremacy Clause should be read to

generally preclude sole executive agreements from overriding existing law); Laurence H. Tribe, Taking Text and

Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221

(1995) (arguing that the Treaty Clause is the exclusive means for Congress to approve significant international

agreements); John C. Yoo, Laws as Treaties?: the Constitutionality of Congressional-Executive Agreements, 99 MICH.

L. REV. 757 (2001) (arguing that treaties are the constitutionally required form for congressional approval of an

international agreement concerning action lying outside of Congress’s constitutional powers, including matters with

respect to human rights, political/military alliances, and arms control, but are not required for agreements concerning

action falling within Congress’s powers under Art. I of the Constitution, such as agreements concerning international

commerce).

13

RESTATEMENT (THIRD) OF FOREIGN RELATIONS, §303 n.8 (1987) (“At one time it was argued that some agreements

can be made only as treaties, by the procedure designated in the Constitution.... Scholarly opinion has rejected that

view.”); HENKIN, supra note 8, at 217 (“Whatever their theoretical merits, it is now widely accepted that the

Congressional-Executive agreement is available for wide use, even general use, and is a complete alternative to a

treaty....”); Yoo, supra note 12, at 759 (noting that “a broad intellectual consensus exists that congressional-executive

agreements may serve as full substitutes for treaties”); Oona A. Hathaway, Treaties’ End: The Past, Present, And

Future Of International Lawmaking In The United States, 117 YALE L.J. 1236, 1244 (2008) (noting that “weight of

scholarly opinion” since the 1940s has been in favor of the view that treaties and congressional-executive agreements

are interchangeable). Cf. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995)

(arguing that developments in the World War II era altered historical understanding of the Constitution’s allocation of

power between government branches so as to make congressional-executive agreement a complete alternative to a

treaty); Myres S. McDougal and Asher Lans, Treaties and Congressional-Executive or Presidential Agreements:

Interchangeable Instruments of National Policy (parts I and II), 54 YALE L. J. 181, 534 (1945) (arguing that historical

practice supports the interchangeability of congressional-executive agreements and treaties).

14

RESTATEMENT, supra note 13, at §302, n. 5; HENKIN, supra note 8, at 142-148. See also Greater Tampa Chamber of

Commerce v. Goldschmidt, 627 F.2d 258 (D.C. Cir. 1980) (finding that plaintiffs lacked standing to challenge the

propriety of the form taken by an international agreement between the United States and United Kingdom). Executive

agreements dealing with matters having no direct impact upon private interests in the United States (e.g., agreements

concerning military matters or foreign relations) are rarely the subject of domestic litigation, in part because persons

typically cannot demonstrate that they have suffered an actual, redressable injury and therefore lack standing to

challenge such agreements. RESTATEMENT, supra note 13, at §303, n. 11.

11

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requiring approval by two-thirds of the Senate presented a nonjusticiable political question.15 It

does not appear that an executive agreement has ever been held invalid by the courts on the

grounds that it was in contravention of the Treaty Clause.16 Nonetheless, as a matter of historical

practice, some types of agreements have been concluded as treaties, while others have been

concluded as executive agreements.17

Congressional-Executive Agreements

In the case of congressional-executive agreements, the “constitutionality ... seems well

established.”18 Unlike treaties, where only the Senate plays a role in authorization, both houses of

Congress are involved in the authorizing process for congressional-executive agreements.

Congressional authorization takes the form of a statute passed by a majority of both houses of

Congress. Historically, congressional-executive agreements cover a wide variety of topics,

ranging from postal conventions to bilateral trade to military assistance.19 NAFTA and the

General Agreement on Tariffs and Trade (GATT) are notable examples of congressionalexecutive agreements.

Congressional-executive agreements also may take different forms. Congress may enact

legislation authorizing the executive to negotiate and enter agreements with other countries on a

specific matter.20 A congressional-executive agreement may also take the form of a statute passed

following the negotiation of an agreement which incorporates the terms or requirements of the

agreement into U.S. law.21 Such authorization may be either explicit or implied by the terms of

the congressional enactment.22

15

Made in the USA Foundation v. United States, 242 F.3d 1300 (11th Cir. 2001), cert. denied by United Steelworkers of

America, AFL-CIO, CLC v. United States, 534 U.S. 1039 (2001).

16

In 1997, a federal district court in Texas ruled petitioner was not extraditable pursuant to a federal statute

implementing an executive agreement, and held that extradition requires an extradition treaty ratified by the President

and approved by two-thirds of the Senate. In re Surrender of Ntakirutimana, 988 F.Supp. 1038 (S.D.Tex. 1997). The

Fifth Circuit Court of Appeals overturned the district court’s finding and held that a person could be extradited by

statute rather than treaty. Ntakirutimana v. Reno, 184 F.3d 419 (5th Cir. 1999), cert. denied by 528 U.S. 1135 (2000).

17

See Yoo, supra note 12 (discussing the kinds of agreements historically taking the form of treaties in contrast to

those taking the form of executive agreements). See also infra pp. 9-15 (discussing form that different types of U.S.

security agreements have historically taken).

18

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 5. See also HENKIN, supra note 8, at 215-18.

19

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 5. Reciprocal trade agreements which were

once concluded as treaties now typically take the form of congressional-executive agreements. RESTATEMENT, supra

note 13, at §303, n. 9. See also 19 U.S.C. §2111 (conditionally authorizing the President to enter trade agreements with

other nations); CRS Report 97-896, Why Certain Trade Agreements Are Approved as Congressional-Executive

Agreements Rather Than as Treaties, by (name redacted).

20

See, e.g., 16 U.S.C. §1822(a) (authorizing the Secretary of State to negotiate international fishery agreements); 22

U.S.C. §6445(c) (authorizing the President to enter binding agreements with other nations pledging to end practices

violating religious freedom).

21

See, e.g., 19 U.S.C. §3511 (approving agreements resulting from the Uruguay Round of multilateral trade

negotiations under the auspices of GATT).

22

See, e.g., 19 U.S.C. §3471 (authorizing U.S. participation in and appropriations for Commission on Labor

Cooperation, established by a supplemental NAFTA agreement not expressly approved by Congress).

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Executive Agreements Made Pursuant to Treaties

The legitimacy of agreements made pursuant to treaties is also well established, though

controversy occasionally arises as to whether the agreement was actually imputed by the treaty in

question.23 Since the earlier treaty is the “Law of the Land,”24 the power to enter into an

agreement required or contemplated by the treaty lies fairly clearly within the President’s

executive function. However, the Senate occasionally conditions its approval of a treaty upon a

requirement that any subsequent agreement made pursuant to the treaty also be submitted to the

Senate as a treaty.25

Sole Executive Agreements

Sole executive agreements rely on neither treaty nor congressional authority for their legal basis.

There are a number of provisions in the Constitution that may confer limited authority upon the

President to promulgate such agreements on the basis of his power to conduct foreign affairs.26

The Litvinov Assignment, under which the Soviet Union purported to transfer claims against

American assets previously nationalized by the Soviet Union, is an example of a sole executive

agreement.

If the President enters into an executive agreement pursuant to and dealing with an area where he

has clear, exclusive constitutional authority—such as an agreement to recognize a particular state

for diplomatic purposes—the agreement is legally permissible regardless of Congress’s opinion

on the matter.27 If, however, the President enters into an agreement and his constitutional

authority over the subject matter is unclear, or if Congress also has constitutional authority over

the subject matter, a reviewing court may consider Congress’s position in determining whether

the agreement is enforceable as U.S. law.28 If Congress has given implicit approval to the

President to enter into the agreement, or is silent on the matter, a reviewing court might be more

likely to view the agreement as valid.29 When Congress opposes the agreement and the

23

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 5.

U.S. CONST. art. VI, §2 (“the laws of the United States ... [and] all treaties made, or which shall be made, under the

authority of the United States, shall be the supreme Law of the Land”).

25

See RESTATEMENT, supra note 25, §303 cmt. d.

26

U.S. CONST. art. II, §1 (“The executive power shall be vested in a President of the United States of America ...”), §2

(“The President shall be commander in chief of the Army and Navy of the United States ...”), §3 (“he shall receive

ambassadors and other public ministers ...”). Courts have recognized foreign affairs as an area of very strong executive

authority. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936).

27

See RESTATEMENT, supra note 13, §303 (4).

28

See Dames & Moore v. Regan, 453 U.S. 654 (1981) (establishing that Congress’s implicit approval of executive

action, such as historical practice of yielding authority in a particular area, may legitimize an agreement); Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (“When the President acts pursuant to an express or implied

authorization of Congress, his powers are at their maximum.... Congressional inertia, indifference or quiescence may ...

invite, measures of independent Presidential responsibility.... When the President takes measures incompatible with the

expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter.”) (Jackson, J., concurring).

29

See citations accompanying note 28. But see Medellin v. Texas, 552 U.S. 491, 531-532 (2008) (suggesting that

Dames & Moore analysis regarding significance of congressional acquiescence might be relevant only in a “narrow set

of circumstances,” where presidential action is supported by a “particularly longstanding practice” of congressional

acquiescence).

24

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President’s constitutional authority to enter the agreement is ambiguous, it is unclear if or under

what circumstances a court would recognize such an agreement as controlling.

Because sole executive agreements do not rely on congressional authority to support their

legality, they do not require congressional approval to become binding, at least as a matter of

international law. Courts have recognized, however, that if a sole executive agreement conflicts

with preexisting federal law, the earlier law will remain controlling in most circumstances.30

Even if a sole executive agreement does not conflict with prior federal law, Congress may still act

to limit the agreement’s effect through a subsequent legislative enactment, so long as it has

constitutional authority to regulate the matter covered by the agreement.31 In the security context,

Congress has clear constitutional authority to enact measures that would limit the effect of sole

executive agreements involving military commitments. Article I, Section 8 of the Constitution

accords Congress the power “To lay and collect Taxes ... to ... pay the Debts and provide for the

common Defence,” “To declare War, grant letters of Marque and Reprisal, and make Rules

concerning Captures on Land and Water,” “To raise and support Armies,” “To provide and

maintain a Navy,” “To make Rules for the Government and Regulation of the land and naval

Forces,” as well as “To provide for calling forth the Militia to execute the Laws of the Union,

suppress Insurrections and repel Invasions” and “To provide for organizing, arming, and

disciplining, the Militia, and for governing such Part of them as may be employed in the Service

of the United States.”32 Further, Congress is empowered “To make all Laws which shall be

necessary and proper for carrying into Execution the foregoing Powers” as well as “all other

Powers vested by this Constitution in the Government of the United States, or in any Department

or Officer thereof.”33

In addition to the constitutional provisions that provide Congress with authority to legislate on

matters concerning military affairs,34 Congress also has virtual plenary power over

appropriations—authority not qualified with reference to Congress’s enumerated powers under

Article I, Section 8. The Appropriations Clause provides that “[n]o money can be paid out of the

Treasury unless it has been appropriated by an act of Congress.”35 Accordingly, adherence to

30

Executive agreements have been held to be inferior to conflicting federal law when the agreement concerns matters

expressly within the constitutional authority of Congress. See, e.g., United States v. Guy W. Capps, Inc., 204 F.2d 655

(4th Cir. 1953) (finding that executive agreement contravening provisions of import statute was unenforceable);

RESTATEMENT, supra note 13, §115, n.5. However, an executive agreement might trump preexisting federal law if it

concerns an enumerated or inherent executive power under the Constitution, or if Congress has historically acquiesced

to the President entering agreements in the relevant area. See id.; United States v. Pink, 315 U.S. 203, 230 (1942) (“[a]ll

Constitutional acts of power, whether in the executive or in the judicial department, have as much legal validity and

obligation as if they proceeded from the legislature”) (quoting THE FEDERALIST NO. 64 (John Jay)); Dames & Moore,

453 U.S. at 654 (upholding sole executive agreement concerning the handling of Iranian assets in the United States,

despite the existence of a potentially conflicting statute, given Congress’s historical acquiescence to these types of

agreements). But see Medellin, 552 U.S. at 531-532 (suggesting that sole executive agreements may create

domestically enforceable law in a limited number of areas). See also Clark, supra note 12 (discussing and criticizing

development of pre-Medellin jurisprudence recognizing domestic legal effect of sole executive agreements).

31

The “last in time” rule establishes that a more recent statute trumps an earlier, inconsistent international agreement,

while a more recent self-executing agreement may trump an earlier, inconsistent statute. Whitney v. Robertson, 124

U.S. 190 (1888).

32

U.S. CONST. art. I, §8.

33

Id.

34

For additional discussion, see CRS Report R41989, Congressional Authority to Limit Military Operations, by

(name redacted), (name redacted), and (name redacted).

35

U.S. CONST. art. I, §9. Congress may specify the terms and conditions under which appropriations may be used, so

(continued...)

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pledges made in sole executive agreements may be dependent upon the availability of

appropriations authorized by Congress. Congress may specify the terms and conditions under

which appropriations may be used, so long as it does not impose unconstitutional conditions upon

the use of appropriated funds.36

Nonlegal Agreements

Not every pledge, assurance, or arrangement made between the United States and a foreign party

constitutes a legally binding international agreement. In some cases, the United States makes

“political commitments” or “gentlemen’s agreements” with foreign states. Although these

commitments are nonlegal, they may nonetheless carry significant moral and political weight.37

The executive has long claimed the authority to enter such agreements on behalf of the United

States without congressional authorization, asserting that the entering of political commitments

by the executive is not subject to the same constitutional constraints as the entering of legally

binding international agreements.38 An example of a nonlegal agreement is the 1975 Helsinki

Accords, a Cold War agreement signed by 35 nations, which contains provisions concerning

territorial integrity, human rights, scientific and economic cooperation, peaceful settlement of

disputes, and the implementation of confidence-building measures.

An international agreement is generally presumed to be legally binding in the absence of an

express provision indicating its nonlegal nature. State Department regulations recognize that this

presumption may be overcome when there is “clear evidence, in the negotiating history of the

agreement or otherwise, that the parties intended the arrangement to be governed by another legal

system.”39 Other factors that may be relevant in determining whether an agreement is nonlegal in

nature include the form of the agreement and the specificity of its provisions.40

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long as it does not impose unconstitutional conditions on the use of appropriated funds.

36

See United States v. Klein, 80 U.S. (8 Wall.) 128 (1872) (holding invalid an appropriations proviso that effectively

nullified some effects of a presidential pardon and that appeared to prescribe a rule of decision in court cases); United

States v. Lovett, 328 U.S. 303 (1946)(invalidating as a bill of attainder an appropriations provision denying money to

pay salaries of named officials). For further discussion of Congress’s ability to use its appropriations power to limit the

deployment or use of U.S. military forces, see CRS Report R41989, Congressional Authority to Limit Military

Operations, by (name redacted), (name redacted), and (name redacted).

37

See generally Kal Raustiala, Compliance & Effectiveness in International Regulatory Cooperation, 32 CASE W. RES.

J. INT'L L. 387, 423-427 (2000) (discussing advantages of nonlegal agreements, and suggesting that they may

occasionally facilitate greater changes in countries’ behavior than binding agreements); Oscar Schachter, Editorial

Comment, The Twilight Existence of Nonbinding International Agreements, 71 AM. J. INT’L L. 296 (1977) (discussing

significance of nonlegal agreements in international practice).

38

See generally Robert E. Dalton, Asst. Legal Adviser for Treaty Affairs, International Documents of a Non-Legally

Binding Character, State Department, Memorandum, March 18, 1994, available at http://www.state.gov/documents/

organization/65728.pdf (discussing U.S. and international practice with respect to nonlegal, political agreements);

Duncan B. Hollis and Joshua J. Newcomer, “Political” Commitments and the Constitution, 49 VA. J. INT’L L. 507

(2009) (discussing U.S. political commitments made to foreign States and the constitutional implications of the

practice).

39

22 C.F.R. §181.2(a).

40

Id. See also infra at “Notification Pursuant to the Case-Zablocki Act”; State Department Office of the Legal Adviser,

Guidance on Non-Binding Documents, at http://www.state.gov/s/l/treaty/guidance/.

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Choosing Between a Treaty and Executive Agreement

A recurring concern for the executive and legislative branches is whether an international

commitment should be entered into as a treaty or an executive agreement. The Senate may prefer

that significant international commitments be entered as treaties, and fear that reliance on

executive agreements will lead to an erosion of the treaty power. The House may want an

international compact to take the form of a congressional-executive agreement, so that it may

play a greater role in its consideration. In cases where congressional action is necessary for an

agreement to be implemented, the executive may prefer to submit an international compact as a

congressional-executive agreement, so that approval of the agreement and the enactment of

necessary implementing legislation may be accomplished in a single step. The executive’s

preference as to whether an international compact takes the form of a treaty or executive

agreement may also be influenced by the agreement’s prospects for approval by a two-thirds

majority of the Senate or a simple majority of both houses.

State Department regulations prescribing the process for coordination and approval of

international agreements (commonly known as the “Circular 175 procedure”)41 include criteria

for determining whether an international agreement should take the form of a treaty or an

executive agreement. Congressional preference is one of several factors considered when

determining the form that an international agreement should take. According to State Department

regulations,

In determining a question as to the procedure which should be followed for any particular

international agreement, due consideration is given to the following factors:

(1) The extent to which the agreement involves commitments or risks affecting the nation as

a whole;

(2) Whether the agreement is intended to affect state laws;

(3) Whether the agreement can be given effect without the enactment of subsequent

legislation by the Congress;

(4) Past U.S. practice as to similar agreements;

(5) The preference of the Congress as to a particular type of agreement;

(6) The degree of formality desired for an agreement;

(7) The proposed duration of the agreement, the need for prompt conclusion of an agreement,

and the desirability of concluding a routine or short-term agreement; and

(8) The general international practice as to similar agreements.

In determining whether any international agreement should be brought into force as a treaty

or as an international agreement other than a treaty, the utmost care is to be exercised to

41

Circular 175 initially referred to a 1955 Department of State Circular which established a process for the

coordination and approval of international agreements. These procedures, as modified, are now found in 22 CFR part

181 and 11 Foreign Affairs Manual (F.A.M.) chapter 720.

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avoid any invasion or compromise of the constitutional powers of the President, the Senate,

42

and the Congress as a whole.

In 1978, the Senate passed a resolution expressing its sense that the President seek the advice of

the Senate Committee on Foreign Relations in determining whether an international agreement

should be submitted as a treaty.43 The State Department subsequently modified the Circular 175

procedure to provide for consultation with appropriate congressional leaders and committees

concerning significant international agreements.44 Consultations are to be held “as appropriate.”45

Congressional consultation on the substance and form of international agreements is discussed in

more detail later in this report.46

II. Historical Practice Regarding

Security Agreements

The following sections provide a general overview of the categories of security agreements

entered into by the United States of a legally binding nature. Such categories of security

agreements predominantly take the form of a treaty, while others typically take the form of an

executive agreement.

Categories of Security Agreements

Although some categories of security agreements have historically been entered as treaties and

others as executive agreements, this does not necessarily mean that future arrangements must

follow the same pattern. Arguably, an arrangement that has typically been entered into as a treaty

might instead take the form of a congressional-executive agreement, and vice versa.47 Similarly,

while some security arrangements have historically been entered as sole executive agreements,

Congress might effectively limit such agreements in the future via statutory enactment48—for

42

11 F.A.M. §723.3 (2006).

S.Res. 536, S.Rept. 95-1171, 95th Cong. (1977).

44

11 F.A.M. §724.4(b)-(c) (2006).

45

Id. at §724.4(c).

46

See infra at 27.

47

In 1976, the Senate gave its advice and consent to ratification of the Treaty of Friendship and Cooperation with

Spain, 27 U.S.T. 3005 (entered into force September 21, 1976), which included provisions relating to U.S. basing rights

and the status of U.S. forces in Spain. Following the end of the Franco regime and Spain becoming a member of

NATO, the United States concluded an executive agreement with Spain which was of similar scope to the 1976 treaty.

Agreement on Friendship, Defense and Cooperation Between the United States and Spain, with Complementary

Agreements, 34 U.S.T. 3885, entered into force May 14, 1983. But see Yoo, supra note 12, at 830 (arguing the military

commitments like NATO can only be effectuated by treaty, and not by way of congressional-executive agreement).

48

Legislation proposing to limit the usage of sole executive agreements has periodically been introduced, but thus far

no bill has been enacted. See, e.g., S.Res. 85, 91st Cong. (1969) (non-binding resolution passed by the Senate

expressing its sense that national commitments should be entered pursuant to treaty or executive agreement specifically

authorized by Congress); H.R. 4438, 94th Cong. (1976) (proposing to require the President to transmit any agreement

involving a national commitment to Congress, and allowing the agreement to take effect only if Congress did not pass a

measure disapproving it within 60 days).

43

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example, limiting the availability of appropriations to carry out commitments made in a sole

executive agreement.49

Collective Defense Agreements/“Security Commitments”

The State Department currently lists the United States as being party to seven collective defense

agreements, under which members are obligated to assist in the defense of a party to the

agreement in the event of an attack upon it: the Inter-American Treaty of Reciprocal Assistance;

the North Atlantic Treaty; the Australia, New Zealand, and United States Security Treaty; the

Southeast Asian Treaty; and bilateral security treaties with Japan, the Philippines, and South

Korea.50 All seven agreements take the form of treaties that were ratified by the United States

between 1947 and 1960.51 Each agreement, with the exception of the Inter-American Treaty of

Reciprocal Assistance (the first to be ratified by the United States), includes a provision

specifying that the agreement’s requirements are to be carried out in accordance with the parties’

respective constitutional processes. These provisions were included to assuage congressional

concerns that the agreements could be interpreted as sanctioning the President to engage in

military hostilities in defense of treaty parties without further congressional authorization (i.e., a

declaration of war or joint resolution authorizing the use of military force).52

In addition to these defense treaties, the United States has also adopted security commitments

with respect to several former territories and possessions,53 including pursuant to congressionalexecutive agreement. Congress has approved compacts changing the status of certain territories to

Freely Associated States (FAS), while also imposing upon the United States “the obligation to

defend the [FAS] ... from attack or threats thereof as the United States and its citizens are

defended.”54 Arguably, these security commitments are distinct from other international defense

49

The Constitution provides that “No money shall be drawn from the Treasury, but in Consequence of Appropriations

made by Law.” U.S. CONST., art. I, §9, cl. 7.

50

State Department, Office of the Legal Adviser, U.S. Collective Defense Arrangements, at http://www.state.gov/s/l/

treaty/collectivedefense/.

51

Inter-American Treaty of Reciprocal Assistance, 62 Stat. 1681, entered into force December 3, 1948; North Atlantic

Treaty, 63 Stat. 2241, entered into force August 24, 1949; Security Treaty Between Australia, New Zealand and the

United States of America, 3 U.S.T. 3420, entered into force April 29, 1952; Mutual Defense Treaty Between the United

States of America and the Republic of the Philippines, 3 U.S.T. 3947, entered into force August 27, 1952; Mutual

Defense Treaty Between the United States of America and the Republic of Korea, 5 U.S.T. 2368, entered into force

November 17, 1954; Southeast Asia Collective Defense Treaty, 6 U.S.T. 81, entered into force February 19, 1955;

Treaty of Mutual Cooperation and Security Between the United States of America and Japan, 11 U.S.T. 1632, entered

into force June 23, 1960 (replacing Security Treaty Between the United States of America and Japan, 3 U.S.T. 3329,

entered into force April 28, 1952). In 1954, the United States entered a mutual defense treaty with the Republic of

China (Taiwan), 6 U.S.T. 433, but this agreement was terminated by President Carter in 1979.

52

For background, see S.Rept. 797, 90th Cong., at 14-15 (1967) (describing ratification history of North Atlantic

Treaty); LOUIS FISHER, PRESIDENTIAL WAR POWER 105-111 (2004) (describing Senate deliberations on North Atlantic

Treaty).

53

For example, the Panama Canal treaties provided that the United States and Panama would, in accordance with their

respective constitutional processes, defend the Canal from attack. Treaty Concerning the Permanent Neutrality and

Operation of the Panama Canal, with Annexes and Protocol, 33 U.S.T. 1, entered into force October 1, 1979.

54

Act Approving Compacts of Free Association with the Republic of the Marshall Islands and the Federated States of

Micronesia, P.L. 99-239, §311 (1986). See also Act approving Compact of Free Association between the United States

and the Government of Palau, P.L. 99-658, §352 (1986) (recognizing an attack on Palau as a danger to the United

States, and pledging that the United States “would take action to meet the danger to the United States and Palau in

accordance with its constitutional processes”).

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arrangements, as they concern commitments to newly sovereign entities over whom the United

States formerly exercised extensive and long-standing control.55

Consultation Requirements/“Security Arrangements”

The United States also has established security arrangements with other countries in which the

United States pledges to take some action in the event that the other country’s security is

threatened. A 1992 report submitted by President George H. W. Bush to Congress listing U.S.

security commitments and arrangements, claimed that unlike “security commitments,” which

oblige the United States to act in the common defense of a country in case of an armed attack,

“security arrangements” generally “oblige the United States to consult with a country in the event

of a threat to its security. They may appear in legally binding agreements, such as treaties or

executive agreements, or in political documents, such as policy declarations by the President,

Secretary of State or Secretary of Defense.”56

Most legally binding “security arrangements” listed in the President’s report constitute sole

executive agreements, including agreements with Israel, Egypt, Pakistan, and Liberia.57 Only one

arrangement, committing the United States to the establishment of the Multinational Force and

Observers in the Sinai, could clearly be described as a congressional-executive agreement.58

Although some scholars and government officials have characterized the terms “security

commitment” and “security arrangement” as having distinct and particular meanings, this practice

is by no means uniform. Indeed, the question of what constitutes a “security commitment” has

long been a subject of dialogue and dispute by the executive and legislative branches.59

55

Some have argued that these agreements are “more akin to the Texas and Hawaii annexation resolutions than to

international defense arrangements,” given the historical status of the FAS. Peter J. Spiro, Treaties, Executive

Agreements, and Constitutional Method, 79 TEX. L. REV. 961, n. 184 (2001).

56

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 248 (quoting A Report on United States

Security Arrangements and Commitments with Other Nations, Submitted to the Congress in accordance with Section

1457 of P.L. 101-510, the National Defense Authorization Act of 1991, August 17, 1992).

57

Id. See also Memorandum of Agreement Between the Governments of Israel and the United States Concerning

Assurances, Consultations, and United States Policy on Middle East Peace, 32 U.S.T. 2160, entered into force February

27, 1976; Agreement Between the United States and Egypt Concerning Implementation of the Egyptian-Israeli Peace

Treaty of March 26, 1979, 32 U.S.T. 2148, entered into force March 26, 1979; Agreement of Cooperation Between the

Government of the United States of America and the Government of Pakistan, 10 U.S.T. 317, entered into force May

19, 1959; Agreement of Cooperation Between the Government of the United States of America and the Government of

Liberia, 10 U.S.T. 1598, entered into force July 8, 1959.

58

TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 248. See also Multinational Force and

Observers Participation Resolution, P.L. 97-132 (1981).

59

See The Proposed U.S. Security Commitment to Iraq: What Will Be In It and Should It Be a Treaty?: Hearing Before

the Subcomm. on International Organizations, Human Rights, and Oversight & Subcomm. on the Middle East and

South Asia of the House Comm. on Foreign Affairs, January 23, 2008 (statement by Prof. Michael J. Matheson)

(recognizing distinction between “security commitment” and “security arrangement,” while acknowledging that the

“question of what constitutes a ‘security commitment’ ... has been the subject of dialogue between the executive branch

and Congress for decades”). See also TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 213-215,

247-250 (discussing legislation considered and enacted by Congress in response to concerns that the Executive had

entered agreements imposing national commitments upon the United States without congressional notification or

approval).

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Other Types of Military Agreements

The United States is also a party to a significant number of defense agreements that do not

obligate the United States to take action when another country is attacked, but nonetheless

involve military affairs. Categories of such agreements include

•

military basing agreements, permitting the United States to build or use

permanent facilities, station forces, and conduct certain military activities within

a host country;60

•

access and pre-positioning agreements, permitting the stationing of equipment in

a host country and the improvement and use of the country’s military or civilian

facilities, without establishing a permanent military presence;61

•

Status of Forces Agreements (SOFAs), defining the legal status of U.S. forces

within a host country and typically according them with certain privileges and

immunities from the host country’s jurisdiction;62

•

burden-sharing agreements, permitting a host country to assume some of the

financial obligations incurred by the stationing of U.S. forces within its

territory;63 and

•

agreements providing for arms transfers, military training, and joint military

exercises.64

Historically, almost all such agreements have taken a form other than treaty. Sometimes these

arrangements have taken the form of sole executive agreements; others could be deemed

executive agreements pursuant to treaty (e.g., military stationing agreements concluded with other

NATO parties); still others have been explicitly or implicitly authorized by statute and may be

considered congressional-executive agreements.

As a matter of historical practice, the types of agreements described above have not directly

authorized the United States to engage in significant military operations in defense of the host

country, though such agreements may supplement separate agreements or U.N. mandates that do.

60

See, e.g., Agreement Between the United States of America and the Kingdom of Greece Concerning Military

Facilities, 4 U.S.T. 2189, entered into force October 12, 1953.

61

An example of such an agreement is the 2005 memorandum of understanding between the United States and

Norway, discussed in more detail at American Forces Press Service, Rumsfeld Signs Pre-positioning Agreement With

Norway, June 8, 2005, at http://www.defenselink.mil/news/newsarticle.aspx?id=16458.

62

See, e.g., Agreement under Article VI of the Treaty of Mutual Cooperation and Security Regarding Facilities and

Areas and the Status of United States Armed Forces in Japan, 11 U.S.T. 1652, entered into force June 23, 1960. The

only SOFA agreement to which the United States is a party that was concluded as a treaty is the North Atlantic Treaty

Status of Forces Agreement (NATO SOFA), 4 U.S.T. 1792, entered into force August 23, 1953. All supplementary

agreements to the NATO SOFA have been executive agreements. For further discussion and background on the use of

SOFAs, see CRS Report RL34531, Status of Forces Agreement (SOFA): What Is It, and How Has It Been Utilized?, by

(name redacted).

63

See, e.g., Memorandum of Agreement Between The Ministry of National Defense Republic of Korea and the United

States Forces in Korea Regarding The Construction of Facilities at 2nd ID USA To Improve Combined Defense

Capabilities, 34 U.S.T. 125, entered into force February 2, 1982.

64

See, e.g., Agreement for Cooperation on Defense and Economy Between the Governments of the United States of

America and of the Republic of Turkey in Accordance with Articles II and III of the North Atlantic Treaty, 32 U.S.T.

3323, entered into force December 18, 1980.

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For example, although U.S. basing agreements with Germany, Japan, and South Korea do not

expressly authorize the United States to use military force to defend those countries in case of

attack, they assist the United States in fulfilling security commitments owed to those countries

under separate defense treaties. Arguably, an exception to this practice occurred in 2008, when the

United States and Iraq concluded a security agreement, sometimes characterized as a SOFA,

which authorized U.S. forces to engage in military operations within Iraq. The agreement is

discussed in more detail infra.65

Agreements Granting the Legal Right to Military Intervention

Besides the categories of agreements described above, the United States has, on occasion, entered

into long-term agreements that grant the United States the legal right to intervene militarily within

the territory of another party to defend it against internal or external threats. Unlike collective

defense agreements, these security agreements provide the United States with the right, but not

the duty, to militarily intervene when the security of the other country is threatened. Such

agreements may also be distinguished from the authority to intervene recognized under the

United Nations Charter. Whereas military intervention agreements discussed below provide the

United States with the positive legal right to intervene in a country, the U.N. Charter merely

provides that its provisions do not “impair the inherent right of individual or collective selfdefense if an armed attack occurs against a Member of the United Nations, until the Security

Council has taken measures necessary to maintain international peace and security.”66

In the early part of the 20th century, the United States entered into legal agreements with several

Latin American countries which granted the United States the right to use military force either to

defend those countries from external threat or to preserve domestic tranquility.67 All of these

agreements were concluded as treaties. In 1903, following the Spanish-American War, the United

States concluded a treaty with the newly independent Republic of Cuba under which the United

States was expressly given “the right to intervene for the preservation of Cuban independence, the

maintenance of a government adequate for the protection of life, property, and individual

liberty.”68 Similarly, in the aftermath of the U.S. invasion and occupation of Haiti in 1915, a treaty

between the two countries was concluded that provided the United States with the right to

intervene in Haiti when the United States deemed it necessary.69 In 1904, the United States

ratified a treaty with Panama that provided the United States “the right, at all times and in its

discretion” to employ its armed forces for the safety and protection of the Panama Canal and the

shipping occurring therein.70 In 1907, the United States concluded a treaty with the Dominican

65

See infra at “Iraq.”

Charter of the United Nations, 59 Stat. 1031, entered into force October 24, 1945, art. 51 (italics added).

67

See generally Charles Henry Hyde, 1 International Law: Chiefly As Interpreted and Applied by the United States 2736 (1922).

68

Treaty on Relations Between the United States and Cuba, May 22, 1903, 33 Stat. 2248, at art. III. In 1906, acting

pursuant to this authority, the United States intervened in Cuba following serious revolutionary activity in order to

establish a stable government there.

69

Treaty on Administration of Haiti: Finances and Development, entered into force November 15, 1915, T.S. 623,

1915 U.S.T. LEXIS 29, at art. XIV (providing that “The high contracting parties shall have authority to take such steps

as may be necessary to insure the complete attainment of any of the objects comprehended in this treaty; and, should

the necessity occur, the United States will lend an efficient aid for the preservation of Haitian Independence and the

maintenance of a government adequate for the protection of life, property and individual liberty.”).

70

Isthmian Canal Convention with the Republic of Panama, entered into force February 26, 1904, 33 Stat. 2234, at art.

XXIII. More generally, the agreement provided that the United States “guarantees and will maintain the independence

(continued...)

66

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Republic establishing plans for the financial rehabilitation of that country, and authorizing the

United States to use military force necessary to effectuate the carrying out of those plans.71

There have been numerous instances where a country has permitted or invited the United States

to use military force within its territory,72 but authority to intervene has not been given via treaty.

When the Senate initially opted not to approve a treaty authorizing U.S. military and financial

involvement in the Dominican Republic, President Theodore Roosevelt entered a temporary

“modus vivendi” executive agreement adopting similar policies as the unapproved treaty. This

agreement, which elicited significant opposition from many Members of Congress as an

unconstitutional usurpation of the Senate’s treaty power, was terminated following Senate

approval of a modified version of the treaty in 1907.73 Another example of a significant security

agreement taking a form other than treaty occurred in 1941 when, prior to the United States

entering World War II, President Franklin D. Roosevelt concluded sole executive agreements

concerning the stationing of U.S. troops in Iceland and Greenland to protect those territories from

attack.74

Although publicly available agreements expressly granting the United States the legal right to

intervene militarily in another country generally take the form of a treaty, this report does not

consider whether any comparable authority is provided pursuant to classified agreements.

Non-Binding Security Arrangements

Some security arrangements are not legally binding; though they may nonetheless carry

significant political or moral weight. While executive practice of extending political defense

commitments to foreign countries can be traced back to the Monroe Doctrine, in which the United

States proclaimed its opposition to further colonization of the Americas by European powers,

U.S. pledges to assist foreign states in security matters have become more commonplace in the

(...continued)

of Panama.” Id. at art. I. The agreement also provided the United States with authority to ensure public order in the

cities of Panama City and Colon if, in the opinion of the United States, the government of Panama was unable to

maintain order. Id. at art. VII.

71

Treaty Between the United States and Dominican Republic Concerning the Collection and Application of Dominican

Customs Revenues, proclaimed July 25, 1907, 35 Stat. 1880.

72

For example, in 1958, President Dwight Eisenhower deployed U.S. troops to Lebanon at the invitation of its

government to help protect against a threatened insurrection. Congress had passed legislation in 1957 that authorized

such action. See P.L. 85-7 (1957). Specifically, the legislation permitted the President to “undertake, in the general area

of the Middle East, military assistance programs with any nation or group of nations of that area desiring such

assistance.” The enactment further provided that “if the President determines the necessity thereof, the United States is

prepared to use armed forces to assist any such nation or group of such nations requesting assistance against armed

aggression from any country controlled by international communism: Provided, that such employment shall be

consonant with the treaty obligations of the United States and with the Constitution of the United States.”

73

For further discussion, see W. Stull Holt, TREATIES DEFEATED BY THE SENATE 212-229 (1933) (discussing events

leading to the ratification of the 1907 treaty with the Dominican Republic). In his autobiography, Roosevelt suggested

that a treaty was preferable to the executive agreement he entered with the Dominican Republic, because “a treaty ...

was the law of the land and not merely ... a direction of the Chief Executive which would lapse when that particular

executive left office.” ACKERMAN & GOLOVE, supra note 13, at 819 (italics omitted) (quoting THEODORE ROOSEVELT,

AN AUTOBIOGRAPHY 510 (1920)).

74

Agreement Between the United States and Denmark Concerning the Defense of Greenland, signed April 9, 1941, 55

Stat. 1245; Agreement Concerning Defense of Iceland By United States Forces, July 1, 1941, 55 Stat. 1547.

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post-World War II era. Such commitments may take several forms, including a unilateral pledge

or policy statement by the executive or a joint declaration between U.S. and foreign officials.

For example, bilateral arrangements authorizing U.S. military intervention, when not concluded

as treaties, generally have not taken the form of a legally binding, permanent agreement.75

Instead, in non-treaty arrangements authorizing U.S. intervention, the host country often retains

full discretion as to the degree and duration of U.S. presence within its territory. In 1962, for

instance, U.S. Secretary of State Dean Rusk and Thai Foreign Minister Thanat Khoman issued a

joint declaration in which Secretary Rusk expressed “the firm intention of the United States to aid

Thailand, its ally and historic friend, in resisting Communist aggression and subversion.”76 The

United States thereafter deployed armed forces to Thailand to assist the government in combating

communist forces.

The executive’s authority to enter such arrangements, and, more broadly, to engage in military

operations in other countries without congressional approval, has been the subject of longstanding dispute between Congress and the executive.77 In 1969, the Senate passed the National

Commitments Resolution, stating the sense of the Senate that “a national commitment by the

United States results only from affirmative action taken by the executive and legislative branches

of the United States government by means of a treaty [or legislative enactment] ... specifically

providing for such commitment.”78 The Resolution defined a “national commitment” as including

“the use of the armed forces of the United States on foreign territory, or a promise to assist a

foreign country ... by the use of armed forces ... either immediately or upon the happening of

certain events.”79

According to the committee report accompanying the Resolution, the motivation for the

Resolution was concern over the growing development of “constitutional imbalance” in matters

of foreign relations, with Presidents frequently making significant foreign commitments on behalf

75

See supra note 72 (discussing U.S. intervention in Lebanon in 1958).

For text of the joint declaration, see Dept. of State, American Foreign Policy: Current Documents, 1962, pp. 10911093.

77

See S.Rept. 91-129 (1969) (Senate Committee on Foreign Relations report in favor of the National Commitments

Resolution, S.Res. 85, criticizing the undertaking of “national commitments” by the Executive, either through

international agreements or unilateral pledges to other countries, without congressional involvement) [hereinafter

“Committee Report”]. The vast majority of U.S. military interventions in other countries have been to protect U.S.

persons, property, or interests. See CRS Report R41677, Instances of Use of United States Armed Forces Abroad,

1798-2010, by (name redacted). The Executive has historically claimed broad authority to deploy armed forces to

protect these interests, even in the absence of clear congressional authorization. See, e.g., Dept. of Justice, Office of

Legal Counsel (OLC), Authority to Use Military Force in Libya, 2011 OLC LEXIS 1, at 8 (2011) (claiming that

“prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant

risk over a substantial period” may generally require prior congressional authorization, but “historical practice of

presidential military action without congressional approval precludes any suggestion that Congress’s authority to

declare war covers every military engagement, however limited, that the President initiates”); OLC, 4A U.S. OP. OFF.

LEGAL COUNSEL 185, Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization (1980)

(alleging presidential authority to deploy forces to protect, and retaliate for injuries suffered by U.S. persons and

property); OLC, The President’s Constitutional Authority To Conduct Military Operations Against Terrorists And

Nations Supporting Them, 2001 OLC LEXIS 14 (2001) (asserting presidential authority, even in the absence of

congressional action, to take military action against entities responsible for the 9/11 terrorist attacks, as well authority

to preemptively use force against entities that “pose a similar threat to the security of the United States and the lives of

its people, whether at home or overseas”).

78

S.Res. 85, 91st Congress, 1st Sess. (1969).

79

Id.

76

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of the United States without congressional action. Among other things, the report criticized a

practice it described as “commitment by accretion,” by which a

sense of binding commitment arises out of a series of executive declarations, no one of

which in itself would be thought of as constituting a binding obligation. Simply repeating

something often enough with regard to our relations with some particular country, we come

to support that our honor is involved in an engagement no less solemn than a duly ratified

treaty.80

The National Commitments Resolution took the form of a sense of the Senate resolution, and

accordingly had no legal effect. Although Congress has occasionally considered legislation that

would bar the adoption of significant military commitments without congressional action,81 no

such measure has been enacted. The executive branch regularly makes unilateral security pledges

or enters non-binding arrangements with foreign countries concerning security matters.82 The

primary means Congress uses to exercise oversight authority over such non-binding arrangements

is its appropriations power, by which it may limit or condition actions the United States may take

in furtherance of the arrangement.

Examples of Bilateral Security Agreements

The following sections discuss in greater detail the form, nature, and content of bilateral security

agreements made by the United States with Afghanistan, Germany, Japan, South Korea, the

Philippines, and Iraq.

Afghanistan

Following the terrorist attacks of September 11, 2001, the United States initiated Operation

Enduring Freedom to combat Al Qaeda and prevent the Taliban regime in Afghanistan from

providing them with safe harbor. Shortly thereafter, the Taliban regime was ousted by U.S. and

allied forces, and the United States thereafter concluded a number of security agreements with the

new Afghan government. In 2002, the United States and Afghanistan, by an exchange of notes,83

entered into an agreement regarding economic grants under the Foreign Assistance Act of 1961,84

as amended. Additionally, the agreement allows for the furnishing of defense articles, defense

80

Committee Report, supra note 77, at 26.

See, e.g., H.R. 4438, Executive Agreements Review Act, 94th Cong., 1st Sess. (proposing to establish legislative veto

over executive agreements involving national commitments); S.Res. 24, Treaty Powers Resolution, 95th Cong., 1st Sess.

(proposing that it would not be in order for the Senate to consider any legislation authorizing funds to implement any

international agreement which the Senate has found to constitute a treaty, unless the Senate has given its advice and

consent to treaty ratification).

82

See generally The November 26 Declaration of Principles: Implications for UN Resolutions on Iraq and for

Congressional Oversight: Hearing of the Subcommittee on International Organizations, Human Rights, and Oversight,

February 8, 2008 (statement of Prof. Michael J. Glennon discussing presidential practice of entering non-binding

security arrangements).

83

Agreement Regarding Grants under the Foreign Assistance Act of 1961,U.S.-Afghanistan, T.I.A.S. No. 02-413,

entered into force April 13, 2002, available at http://www.state.gov/documents/organization/165174.pdf.

84

P.L. 87-195, 75 Stat. 424 (September 4 1961). The Foreign Assistance Act of 1961, as amended, and related

legislation provide statutory authority for a broad range of executive agreements in matters including security and

economic cooperation, and appear to serve as a legal authority supporting a substantial number of executive agreements

entered into in recent decades.

81

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services, and related training, pursuant to the United States International Military and Education

Training Program (IMET),85 from the U.S. government to the Afghanistan Interim Administration

(AIA).

An agreement exists regarding the status of military and civilian personnel of the U.S.

Department of Defense present in Afghanistan in connection with cooperative efforts in response

to terrorism, humanitarian and civic assistance, military training and exercises, and other

activities.86 Such personnel are to be accorded “a status equivalent to that accorded to the

administrative and technical staff” of the U.S. Embassy under the Vienna Convention on

Diplomatic Relations of 1961.87 Accordingly, U.S. personnel are immune from criminal

prosecution by Afghan authorities, and are immune from civil and administrative jurisdiction

except with respect to acts performed outside the course of their duties.88 In the agreement, the

Islamic Transitional Government of Afghanistan (ITGA)89 explicitly authorizes the U.S.

government to exercise criminal jurisdiction over U.S. personnel, and the government of

Afghanistan is not permitted to surrender U.S. personnel to the custody of another state,

international tribunal, or any other entity without consent of the U.S. government. Although the

agreement was signed by the ITGA, the subsequently elected government of the Islamic Republic

of Afghanistan assumed responsibility for ITGA’s legal obligations, and the agreement remains in

force. The agreement does not appear to provide immunity for contract personnel.

The agreement with Afghanistan does not expressly authorize the United States to carry out

military operations within Afghanistan, but it recognizes that such operations are “ongoing.”

Congress authorized the use of military force there (and elsewhere) by joint resolution in 2001,

for targeting “those nations, organizations, or persons [who] planned, authorized, committed, or

aided the terrorist attacks that occurred on September 11, 2001.”90 The U.N. Security Council

implicitly recognized that the use of force was appropriate in response to the September 11, 2001,

terrorist attacks,91 and subsequently authorized the deployment of an International Security

Assistance Force (ISAF) to Afghanistan.92 Subsequent U.N. Security Council resolutions provide

a continuing mandate for ISAF,93 calling upon it to “work in close consultation with” Operation

85

22 U.S.C. §2347 et seq.

Agreement Regarding the Status of United States Military and Civilian Personnel of the U.S. Department of Defense

Present in Afghanistan, T.I.A.S., 2002 U.S.T. LEXIS 100, entered into force May 28, 2003 [hereinafter “U.S.-Afghan

SOFA”].

87

Id.

88

Vienna Convention on Diplomatic Relations of April 18, 1961, T.I.A.S. 7502; 23 U.S.T. 3227.

89

The transitional government has since been replaced by the fully elected Government of the Islamic Republic of

Afghanistan. For information about the political development of Afghanistan since 2001, see CRS Report RS21922,

Afghanistan: Politics, Elections, and Government Performance, by (name redacted).

90

P.L. 107-40 (September 18, 2001); 115 Stat. 224.

91

U.N.S.C. Res. 1368 (September 12, 2001) (“Recognizing the inherent right of individual or collective self-defence in

accordance with the [UN] Charter,” and expressing its “readiness to take all necessary steps to respond to the terrorist

attacks”).

92

U.N.S.C. Res. 1386 (December 20, 2001).

93

ISAF has its own status of forces agreement with the Afghan government in the form of an annex to a Military

Technical Agreement entitled “Arrangements Regarding the Status of the International Security Assistance Force.” The

agreement provides that all ISAF and supporting personnel are subject to the exclusive jurisdiction of their respective

national elements for criminal or disciplinary matters, and that such personnel are immune from arrest or detention by

Afghan authorities and may not be turned over to any international tribunal or any other entity or State without the

express consent of the contributing nation. In 2003, NATO assumed command of ISAF in Afghanistan.

86

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Enduring Freedom (OEF—the U.S.-led coalition conducting military operations in Afghanistan)

in carrying out the mandate.94 While there is no explicit U.N. mandate authorizing the OEF,

Security Council resolutions appear to provide ample recognition of the legitimacy of its

operations, most recently by calling upon the Afghan government, “with the assistance of the

international community, including the International Security Assistance Force and Operation

Enduring Freedom coalition, in accordance with their respective designated responsibilities as

they evolve, to continue to address the threat to the security and stability of Afghanistan posed by

the Taliban, Al-Qaida, other extremist groups and criminal activities.”95

In 2004, the United States and Afghanistan entered an acquisition and cross-servicing agreement,

with annexes.96 An acquisition and cross-servicing agreement (ACSA) is an agreement providing

logistic support, supplies, and services to foreign militaries on a cash-reimbursement,

replacement-in-kind, or exchange of equal value basis.97 After consultation with the Secretary of

State, the Secretary of Defense is authorized to enter into an ACSA with a government of a NATO

country, a subsidiary body of NATO, or the United Nations Organization or any regional

international organization of which the United States is a member.98 Additionally, the Secretary of

Defense may enter into an ACSA with a country not included in the above categories, if after

consultation with the Secretary of State, a determination is made that it is in the best interests of

the national security of the United States.99 If the country is not a member of NATO, the Secretary

of Defense must submit notice, at least 30 days prior to designation, to the Committee on Armed

Services and the Committee on Foreign Relations of the Senate and the Committee on Armed

Services and the Committee on Foreign Affairs of the House of Representatives.100

Since at least 2003, the United States has entered into several accommodation assignment

agreements with Afghanistan regarding the use of land and facilities, including for the internment

of captured enemy forces.101 Beginning in late 2001, the United States and its coalition partners

utilized the Bagram Airfield for military purposes in the conflict against the Taliban and Al

Qaeda. The Bagram Airfield also served as the primary facility used to detain suspected enemy

belligerents captured in the conflict until 2010,102 when a new detention facility was completed in

Parwan, Afghanistan.103 The detention center had reportedly been slated to be turned over to

Afghan authority by January 2012, but rapid growth of the prisoner population caused the transfer

to be delayed.104 In March 2012, the United States and the Afghan government concluded an

94

See U.N.S.C. Res. 1776 §5 (September 19, 2007); U.N.S.C. Res. 1707 §4 (2007).

U.N.S.C. Res. 1746 §25 (2007). For additional information on the war in Afghanistan, see CRS Report R40156, War

in Afghanistan: Strategy, Operations, and Issues for Congress, by (name redacted).

96

Acquisition and Cross-servicing Agreement, with Annexes, U.S.-Afghanistan, T.I.A.S. No. 04-216, entered into

force February 16, 2004, available at http://www.state.gov/documents/organization/173052.pdf.

97

10 U.S.C. §§2341-2350.

98

Id. at §2342(a)(1).

99

Id. at §2342(b)(1).

100

Id. at §2342(b)(2).

101

Declaration of Colonel James W. Gray, filed March 5, 2007, Al Maqaleh v. Gates, 06-CV-01669 (U.S. D.D.C.),

available at http://graphics8.nytimes.com/packages/pdf/topics/bagram/Affidavit.pdf [hereinafter “Gray Declaration”].

102

Detainees were held in the Bagram Theater Internment Facility within the Airfield.

103

See Lisa Daniel, “Task Force Ensures Fair Detainee Treatment, Commander Says,” American Forces Press Service,

August 6, 2010, available at http://www.defense.gov/News/NewsArticle.aspx?ID=103004.

104

See Kevin Sieff, “Afghan Prison Transfer Delayed,” Washington Post, August 12, 2011, available at

http://www.washingtonpost.com/world/asia-pacific/afghan-prison-transfer-delayed/2011/08/12/

gIQApCGMBJ_story.html.

95

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agreement effectuating the transfer of the Parwan detention facility to Afghan control.105 The

memorandum also contemplates U.S. forces maintaining continued control of Parwan detainees

during a six-month handover period, at which point all Afghan nationals in U.S. custody shall be

transferred to the control of Afghanistan.

A separate memorandum of understanding was also concluded in April 2012 concerning special

operations (night raids) on Afghan soil. Under the agreement, the parties affirm that such

operations will be “conducted by Afghan Forces with support of U.S. Forces in accordance with

Afghan laws.”106 Afghan forces are designated with responsibility for the “temporary holding” of

persons captured in the course of such operations. Afghan citizens detained by U.S. forces outside

of special operations are to be transferred to Afghan authorities or released.

On May 2, 2012, U.S. President Barack Obama and Afghan President Hamid Karzai signed the

Enduring Strategic Partnership Agreement Between the United States of America and the Islamic

Republic of Afghanistan (Strategic Partnership Agreement).107 The Strategic Partnership

Agreement is a legally binding agreement under which the parties pledge to work cooperatively

in a number of fields, including on promoting shared democratic values, advancing long-term

security, reinforcing regional security, social and economic development, and strengthening

Afghan institutions and governance. The agreement remains in force until the end of 2024, unless

terminated at an earlier date by either party.

In the area of security, the Strategic Partnership Agreement provides that the United States and

Afghanistan shall “initiate negotiations on a Bilateral Security Agreement … with the goal of

concluding within one year” an agreement to replace the current agreement relating to the status

of military and civilian personnel currently in Afghanistan.108 The Strategic Partnership

Agreement also states that Afghanistan “shall provide U.S. forces continued access to and use of

Afghan facilities through 2014, and beyond as may be agreed in the Bilateral Security

Agreement” and that the United States “reaffirms that it does not see permanent military facilities

in Afghanistan, or a presence that is a threat to Afghanistan’s neighbors.” Additionally, the

Agreement determines that the “nature and scope of the future presence and operations of U.S.

forces in Afghanistan” shall be addressed in the Bilateral Security Agreement to be negotiated.

105

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on

Transfer of U.S. Detention Facilities in Afghan Territory to Afghanistan, signed March 9, 2012, available at

http://www.lawfareblog.com/wp-content/uploads/2012/04/2012-03-09-Signed-MOU-on-Detentions-Transfer-2.pdf.

106

Memorandum of Understanding between the Islamic Republic of Afghanistan and the United States of America on

Afghanization of Special Operations on Afghan Soil, signed April 8, 2012, available at http://www.isaf.nato.int/images/

20120408_01_memo.pdf.

107

The text of this agreement is available at http://www.whitehouse.gov/sites/default/files/2012.06.01u.s.afghanistanspasignedtext.pdf [hereinafter “Strategic Partnership Agreement”].

108

U.S.-Afghan SOFA, supra note 86.

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Iraq109

In 2007, following the removal of the Saddam Hussein regime from power, the United States and

the post-Saddam government of Iraq signed a Declaration of Principles for a Long-Term

Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States

of America.110 The Declaration announced the intention of the parties to negotiate a long-term

security agreement that would have committed the United States to provide security assurances to

Iraq and maintain a long-term military presence in that country. This announcement became a

source of congressional interest, in part because of statements by Administration officials that

such an agreement would not be submitted to the legislative branch for approval.111

Congressional concern dissipated when U.S.-Iraq negotiations culminated in the signing of two

separate agreements on November 17, 2008, neither of which provided for a long-term security

commitment by the United States:112 (1) the Strategic Framework Agreement for a Relationship of

Friendship and Cooperation between the United States and the Republic of Iraq (Strategic

Framework Agreement),113 and (2) the Agreement Between the United States of America and

Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of

Their Activities during Their Temporary Presence in Iraq (Security Agreement).114 Indeed, rather

than establishing a long-term security commitment by the United States, the Security Agreement

concluded by the parties instead called for the withdrawal of U.S. forces from Iraq within three

years.

The concluded agreements cover different issues and were intended by the parties to have

different legal significance. The Strategic Framework Agreement, which remains in force, is a

legally binding agreement under which the parties pledge to work cooperatively in a number of

fields, including on diplomatic, security, economic, cultural, and law enforcement matters. In the

area of security, the Agreement provides that the United States and Iraq shall “continue to foster

close cooperation concerning defense and security arrangements,” which are to be undertaken

109

In the 1950s, almost 40 years prior to the 1991 Persian Gulf War, the United States entered into a series of

agreements with Iraq, including (1) a military assistance agreement (T.I.A.S. 3108. Agreement of April 21, 1954); (2)

an agreement relating to the disposition of military equipment and materials provided under the military assistance

agreement (T.I.A.S. 3289. Agreement of July 25, 1955); and (3) an economic assistance agreement (T.I.A.S. 3835.

Agreement of May 18 and 22, 1957). However, in response to the Revolution of July 14, 1958 and the subsequent

change in the government of Iraq, the United States agreed to a termination of the above agreements (10 U.S.T. 1415;

T.I.A.S. 4289; 357 U.N.T.S. 153. Exchange of notes at Baghdad May 30 and July 7, 1959. Entered into force July 21,

1959).

110

The text of this agreement is available at http://georgewbush-whitehouse.archives.gov/news/releases/2007/11/

20071126-11.html [hereinafter “Declaration of Principles”]. For a historical perspective of U.S. operations in Iraq and

issues related to Iraqi governance and security, see CRS Report RL31339, Iraq: Post-Saddam Governance and

Security, by (name redacted), and CRS Report RL33793, Iraq: Regional Perspectives and U.S. Policy, by

(name redacted) et al.

111

For further discussion, see CRS Report RL34568, U.S.-Iraq Agreements: Congressional Oversight Activities and

Legislative Response, by (name redacted).

112

Prior to concluding the agreements, the United States entered into numerous defense-related agreements with the

Interim Government of Iraq, including an agreement regarding grants under the Foreign Assistance Act of 1961, or

successor legislation, and other items provided to the government of Iraq.

113

Strategic Framework Agreement for a Relationship of Friendship and Cooperation between the United States of

America and the Republic of Iraq, T.I.A.S., 2008 U.S.T. LEXIS 116. Signed in Baghdad November 17, 2008. Entered

into force January 1, 2009.

114

Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary

Presence in Iraq, T.I.A.S. 2008 U.S.T. LEXIS 115. Signed in Baghdad November 17, 2008. Entered into force January

1, 2009.

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pursuant to the terms of the Security Agreement.115 The Strategic Framework Agreement also

states that “the temporary presence of U.S. forces in Iraq [was] at the request and invitation of the

sovereign government of Iraq,” and that the United States could not “use Iraqi land, sea, or air as

a launching or transit point for attacks against other countries[,] nor seek or request permanent

bases or a permanent military presence in Iraq.”

The Security Agreement remained in effect for three years, and contained provisions addressing a

variety of military matters, including a deadline for the withdrawal of all U.S. forces from Iraq by

December 31, 2011. The Agreement also contained numerous provisions resembling those

regularly contained in SOFAs concluded by the United States.116 Specifically, the Agreement

contained provisions concerning the parties’ right to assert civil and criminal jurisdiction over

U.S. forces, as well as provisions which establish rules and procedures applicable to U.S. forces

relating to the carrying of weapons, the wearing of uniforms, entry and exit into Iraq, taxes,

customs, and claims. The Security Agreement established other rules and requirements

traditionally not found in SOFAs concluded by the United States, including provisions addressing

combat operations by U.S. forces.

The Security and Strategic Framework Agreements entered into force on January 1, 2009,

following an exchange of diplomatic notes between the United States and Iraq. Although the

agreements required approval on multiple levels by the Iraqi government, the Bush

Administration did not submit the agreements to the Senate for its advice and consent as a treaty

or request statutory authorization for the agreements by Congress.

There has been some controversy regarding whether these agreements were properly entered on

behalf of the United States by the executive without the participation of Congress.117 As

previously discussed, security agreements authorizing the United States to take military action in

defense of another country have typically been ratified as treaties.118 It could be argued that the

Security Agreement, which contemplated the United States engaging in military operations in

Iraq and potentially defending the Iraqi government from external or internal security threats,

properly required congressional authorization for it to be legally binding under U.S. law. On the

other hand, because Congress had authorized the President to engage in military operations in

Iraq, both pursuant to the 2002 Authorization to Use Military Force Against Iraq and subsequent

appropriations measures in effect for the duration of the Security Agreement, it arguably had

115

Initially, the Bush Administration expected any negotiated strategic framework agreement with Iraq to take the form

of a political, rather than a legally binding agreement. Hearing of the Subcommittee on the Middle East and South Asia,

and the Subcommittee on International Organizations, Human Rights, and Oversight of the House Foreign Affairs

Committee; Declaration and Principles: Future U.S. Commitments to Iraq, March 4, 2008 (statement by Ambassador

David M. Satterfield in response to question by Representative William Delahunt). Subsequent developments,

including pressure from the Iraqi parliament that the negotiated U.S.-Iraq security agreements be submitted to it for

approval before they could go into effect for Iraq, resulted in the agreements taking the form of legally binding

instruments. See also STATE DEPT, TREATIES IN FORCE, A LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS

OF THE UNITED STATES IN FORCE (2011) (listing both the U.S.-Iraq Security and Strategic Framework Agreements as

legal agreements).

116

For further discussion, see CRS Report R40011, U.S.-Iraq Withdrawal/Status of Forces Agreement: Issues for

Congressional Oversight, by (name redacted).

117

See CRS Report RL34568, U.S.-Iraq Agreements: Congressional Oversight Activities and Legislative Response, by

(name redacted) (discussing congressional hearings and proposed legislation addressing the U.S.-Iraq security

arrangement).

118

See supra at “Collective Defense Agreements/“Security Commitments”’”

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impliedly authorized the President to enter short-term agreements with Iraq in order to facilitate

these operations.119

Germany

In 1951, the United States and Germany entered into an agreement120 related to the assurances

required under the Mutual Security Act of 1951.121 This act is “an act to maintain the security and

promote the foreign policy and provide for the general welfare of the United States by furnishing

[material] assistance to friendly nations in the interest of international peace and security.”122

Specifically, the agreement references the “statement of purpose contained in Section 2 of the

Mutual Security Act of 1951, and reaffirms that ... [Germany] is firmly committed to join in

promoting international understanding and good will and in maintaining world peace and to take

such action as may be mutually agreed upon to eliminate causes of international tension.”123 The

statement of purpose in Section 2 of the act is

to maintain the security and to promote the foreign policy of the United States by authorizing

military, economic, and technical assistance to friendly countries to strengthen the mutual

security and individual and collective defense of the free world, to develop their resources in

the interest of their security and independence and the national interest of the United States

and to facilitate the effective participation of those countries in the United Nations system for

collective security.124

In 1955, the United States and Germany, both parties to the North Atlantic Treaty, entered into an

agreement on mutual defense assistance,125 obligating the United States to provide for “such

equipment, materials, services, or other assistance as may be agreed” to Germany.126 The

agreement reflected the

desire to foster international peace and security through measures which further the ability of

nations dedicated to the purposes and principles of the Charter of the United Nations to

participate effectively in arrangements for collective self-defense in support of those

purposes and principles, and conscious of the determination to give their full cooperation to

United Nations collective security arrangements and measures and efforts to obtain

agreement on universal regulation of armaments under adequate guarantees against violation

119

The 2002 Authorization to Use Military Force Against Iraq (2002 AUMF, P.L. 107-243) authorized the President to

use military force as he deemed necessary and appropriate to “(1)defend the national security of the United States

against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions

regarding Iraq.” It could be argued that the removal of Saddam Hussein’s regime from power in Iraq and the

termination of the U.N. Security Council mandate mean that the 2002 AUMF no longer serves as a legal basis for U.S.

operations in Iraq. Regardless of the continuing viability of the 2002 AUMF, Congress’s appropriation of funds in

support of ongoing military operations may be viewed as legal authorization for those operations. For further

discussion, see CRS Report RL33837, Congressional Authority to Limit U.S. Military Operations in Iraq, supra note

34.

120

3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45. Exchange of letters at Bonn December 19 and 28, 1951.

121

P.L. 82-165, 65 Stat. 373 (October 10, 1951).

122

Id.

123

3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45.

124

65 Stat. 373.

125

6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47. Signed at Bonn June 30, 1955. Entered into force December 27,

1955.

126

Id.

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or evasion; [and] considering the support which the Government of the United States of

America has brought to these principles by enacting the Mutual Security Act of 1954,127

which authorizes the furnishing of military assistance to certain nations[.]128

Germany guarantees that it “will not use such assistance for any act inconsistent with the strictly

defensive character of the North Atlantic Treaty, or, without the prior consent of the [United

States], for any other purpose.”129 The mutual defense assistance agreement is the basis for

numerous subsequent agreements between the United States and Germany.130

In 1959, the countries entered into an agreement implementing the NATO SOFA of 1953.131 The

agreement provided additional supplemental agreements, beyond those contained in the NATO

SOFA, specific to the relationship between the United States and Germany.

Japan

In 1954, the United States and Japan entered into a mutual defense assistance agreement with

annexes.132 The agreement was amended on April 18 and June 23, 2006. The agreement

references the Treaty of Peace signed between the countries in San Francisco, CA, in 1951.133 The

Mutual Defense Assistance Act of 1949134 and the Mutual Security Act of 1951135 are also

referenced in the agreement as they provide for the furnishing of defense assistance by the United

States.136 The agreement provides that the United States and Japan “will make available to the

other and to such other governments as the two Governments signatory to the present Agreement

may in each case agree upon, such equipment, materials, services, or other assistance as the

Government furnishing such assistance may authorize” subject to the conditions and provisions of

the Mutual Defense Assistance Act of 1949, the Mutual Security Act of 1951, and appropriation

acts which may affect the furnishing of assistance.137

In 1960, the countries entered into the Treaty of Mutual Cooperation and Security Between the

United States of America and Japan.138 The treaty was amended on December 26, 1990.139 Article

127

P.L. 83-665, 68 Stat. 832 (August 26, 1954).

6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47.

129

Id.

130

See, e.g., Mutual Defense Assistance: Disposition of Military Equipment and Materials. 6 U.S.T. 6005; T.I.A.S.

3444; 240 U.N.T.S. 69. Exchange of notes at Bonn June 30, 1955. Entered into force December 27, 1955. Mutual

Defense Assistance: Purchase of Certain Military Equipment, Materials, and Services. 7 U.S.T. 2787; T.I.A.S. 3660;

278 U.N.T.S. 9. Exchange of notes at Washington October 8, 1956. Entered into force December 12, 1956. Defense:

Training of German Army Personnel. 8 U.S.T. 149; T.I.A.S. 3753; 280 U.N.T.S. 63. Exchange of notes at Bonn

December 12, 1956. Entered into force December 12, 1956.

131

14 U.S.T. 689; T.I.A.S. 5352; 490 U.N.T.S. 30. Signed at Bonn August 3, 1959. Entered into force July 1, 1963.

132

5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169. Signed at Tokyo March 8, 1954. Entered into force May 1, 1954.

133

3 U.S.T. 3169; T.I.A.S. 2490. Signed at San Francisco September, 8, 1951. Entered into force April 28, 1952.

134

63 Stat. 714.

135

65 Stat. 373.

136

5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169.

137

Id.

138

11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186. Signed at Washington January 19, 1960. Entered into force June

23, 1960.

139

T.I.A.S. 12335.

128

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III of the Treaty provides that the countries, “individually and in cooperation with each other, by

means of continuous and effective self-help and mutual aid will maintain and develop, subject to

their constitutional provisions, their capacities to resist armed attack.”140 Article V provides that

the countries recognize “that an armed attack against either party in the territories under the

administration of Japan would be dangerous to its own peace and safety and declares that it would

act to meet the common danger in accordance with its constitutional provisions and processes.”141

Under Article VI of the Treaty, the United States is granted “the use by its land, air and naval

forces of facilities and areas in Japan” in order to contribute “to the security of Japan and

maintenance of international peace and security in the Far East[.]”142 Article VI provides further

that the use of facilities and the status of U.S. Armed Forces will be governed under a separate

agreement.143

Under Article VI of the Treaty of Mutual Cooperation and Security Between the United States of

America and Japan, the countries entered into a SOFA in 1960.144 The SOFA addresses the use of

facilities by the U.S. Armed Forces, as well as the status of U.S. forces in Japan. The agreement

has been modified at least four times since the original agreement.145

South Korea

In 1948, the United States and South Korea entered into an agreement related to the transfer of

authority to the government of South Korea and the withdrawal of U.S. occupation forces.146

Shortly after the initial agreement, the United States and Korea entered into a second agreement

concerning interim military and security matters during a transitional period.147 This executive

agreement was between the President of the Republic of Korea and the Commanding General,

U.S. Army Forces in Korea.148 The agreement calls for the “Commanding General, United States

Army Forces in Korea, pursuant to directives from his government and within his capabilities” to

“organize, train and equip the Security forces of the Republic of Korea” with the obligation to

train and equip ceasing “upon the completion of withdrawal from Korea of forces under his

command.”149 The agreement also requires the Commanding General, U.S. Army Forces in

Korea, to retain authority to exercise over-all operational control of security forces of Korea until

withdrawal, as contemplated by Resolution No. II passed by the United Nations General

Assembly on November 14, 1948.150

140

11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186.

Id.

142

Id.

143

Id.

144

11 U.S.T. 1652; T.I.A.S. 4510; 373 U.N.T.S. 248. Signed at Washington January 19, 1960. Entered into force June

23, 1960.

145

Agreements concerning new special measures relating to Article XXIV (related to costs of maintenance of U.S.

forces in Japan and furnishment of rights of way related to facilities used by U.S. forces in Japan) of the agreement of

January 19, 1960, have been signed in 1991, 1995, 2000, and 2006.

146

Exchange of letters at Seoul August 9 and 11, 1948. Entered into force August 11, 1948.

147

62 Stat. 3817; T.I.A.S. 1918; 9 Bevans 477; 79 U.N.T.S. 57. Signed at Seoul August 24, 1948. Entered into force

August 24, 1948.

148

Id.

149

62 Stat. 3818.

150

Id.

141

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Oversight and Related Issues Concerning International Security Agreements

Article III of the Agreement contains provisions related to the status of U.S. forces during the

transition period. The Commanding General, U.S. Army Forces in Korea, “shall retain exclusive

jurisdiction over the personnel of his command, both military and civilian, including their

dependents, whose conduct as individuals shall be in keeping with pertinent laws of the Republic

of Korea.”151 The agreement provides that any individuals under the jurisdiction of the

Commanding General who are apprehended by law enforcement agencies of South Korea shall be

immediately turned over to the custody and control of the Commanding General. Individuals not

under jurisdiction of the Commanding General, but apprehended in acts detrimental to the

security of personnel or property under his jurisdiction, shall be turned over to the custody and

control of the government of South Korea.152

In 1950, the countries entered into a mutual defense assistance agreement.153 The mutual defense

agreement references the Military Defense Act of 1949,154 which provides for the furnishing of

military assistance by the United States to South Korea. The mutual defense assistance agreement

provides that each country “will make or continue to make available to the other, and to other

Governments, such equipment, materials, services, or other military assistance” in support of

economic recovery that is essential to international peace and security.155

The United States and South Korea entered into a mutual security agreement in 1952.156 The

mutual security agreement references the Mutual Security Act of 1951,157 which provides for

military, economic, and technical assistance in order to strengthen the mutual security of the free

world. The mutual security agreement provides that South Korea agrees to promote international

understanding and good will and to take action, that is mutually agreed upon, to eliminate causes

of international tensions.158

In 1954, the countries entered into a mutual defense treaty.159 As part of the treaty the countries

agree to attempt to settle international disputes peacefully, consult whenever the political

independence or security of either party is threatened by external armed attack, and that either

party would act to meet the common danger in accordance with their respective constitutional

processes.160 Article IV of the treaty grants the United States “the right to dispose ... land, air and

sea forces in and about the territory” of South Korea.161 Pursuant to the treaty, specifically Article

IV, in 1966, the countries entered into a SOFA with agreed minutes and an exchange of notes.162 It

was subsequently amended January 18, 2001.

151

Id. at 3819.

Id.

153

1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205. Signed at Seoul January 26, 1950. Entered into force January 26,

1950.

154

P.L. 81-329, 63 Stat. 714 (October 6, 1949).

155

1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205.

156

3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105. Exchange of notes at Pusan January 4 and 7, 1952. Entered into

force January 7, 1952.

157

P.L. 82-165, 65 Stat. 373 (October 10, 1951).

158

3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105.

159

5 U.S.T. 2368; T.I.A.S. 3097; 238 U.N.T.S. 199. Signed at Washington October 1, 1953. Entered into force

November 17, 1954.

160

Id.

161

Id.

162

17 U.S.T. 1677; T.I.A.S. 6127; 674 U.N.T.S. 163. Signed at Seoul July 9, 1966. Entered into force February 9,

(continued...)

152

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Oversight and Related Issues Concerning International Security Agreements

Philippines

In 1947, the United States and the Republic of the Philippines entered into an agreement on

military assistance.163 The agreement was for a term of five years, starting July 4, 1946, and

provided that the United States would furnish military assistance to the Philippines for the

training and development of armed forces. The agreement further created an advisory group to

provide advice and assistance to the Philippines as had been authorized by the U.S. Congress.164

The agreement was extended, and amended, for an additional five years in 1953.165

A mutual defense treaty was entered into by the United States and the Philippines in 1951.166 The

treaty publicly declares “their sense of unity and their common determination to defend

themselves against external armed attack, so that no potential aggressor could be under the

illusion that either of them stands alone in the Pacific Area[.]”167 The Treaty does not address or

provide for a SOFA.

The countries entered into a mutual security agreement in 1952,168 as related to the assurances

required by the Mutual Security Act of 1951. The assurances required under the Mutual Security

Act of 1951 included a commitment to accounting procedures for monies, equipment, and

materials furnished by the United States to the Philippines.169

In 1993, the countries entered into a SOFA.170 The agreement was subsequently extended on

September 19, 1994; April 28, 1995; and November 29, December 1, and December 8, 1995. The

countries entered into an agreement regarding the treatment of U.S. Armed Forces visiting the

Philippines in 1998.171 The distinction between this agreement and the SOFA originally entered in

1993 is that this agreement applies to U.S. Armed Forces visiting, not stationed in the Philippines.

The countries also entered into an agreement regarding the treatment of Republic of Philippines

personnel visiting the United States.172

(...continued)

1967.

163

61 Stat. 3283; T.I.A.S. 1662. Signed at Manila March 21, 1947. Entered into force March 21, 1947.

164

61 Stat. 3284.

165

4 U.S.T. 1682; T.I.A.S. 2834; 2163 U.N.T.S. 77. Exchange of notes at Manila June 26, 1953. Entered into force July

5, 1953.

166

3 U.S.T. 3947; T.I.A.S. 2529; 177 U.N.T.S. 133. Signed at Washington August 30, 1951. Entered into force August

27, 1952.

167

Id.

168

3 U.S.T. 4644; T.I.A.S. 2617; 179 U.N.T.S. 193. Exchange of notes at Manila January 4 and 7, 1952. Entered into

force January 7, 1952.

169

Id.

170

Agreement Regarding the Status of U.S. Military and Civilian Personnel, U.S.-Philippines, T.I.A.S. Exchange of

notes at Manila April 2, June 11 and 21, 1993. Entered into force June 21, 1993.

171

Agreement Regarding the Treatment of United States Armed Forces Visiting the Philippines, T.I.A.S. 12931.

Signed at Manila February 10, 1998. Entered into force June 1, 1999.

172

Agreement Regarding the Treatment of Republic of Philippines personnel visiting the United States, T.I.A.S. 12931.

Signed at Manila October 9, 1998. Entered into force June 1, 1999.

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III. Congressional Oversight

Congress has several tools at its disposal to exercise oversight regarding the negotiation,

conclusion, and implementation of international security agreements entered by the United States.

Notification

One manner in which Congress exercises oversight of international agreements is via notification

requirements. Obviously, in cases where an agreement requires action from one or both houses of

Congress to take effect, notification is a requisite. Before a treaty may become binding U.S. law,

the President must submit it to the Senate for its advice and consent. Likewise, the executive must

inform Congress when it seeks to conclude an executive agreement that requires congressional

authorization and/or implementing legislation to become U.S. law, so that appropriate legislation

may be considered.

While constitutional considerations necessitate congressional notification in many circumstances,

it has historically been more difficult for Congress to keep informed regarding international

agreements or pledges made by the executive that did not require additional legislative action to

take effect—that is, sole executive agreements and executive agreements made pursuant to a

treaty. Additionally, even in cases where congressional action is necessary for an agreement to

take effect, the executive has sometimes opted not to inform Congress about an agreement until it

has already been drafted and signed by the parties. In response to these concerns, Congress has

enacted legislation and the State Department has implemented regulations to ensure that Congress

is informed of the conclusion (and in some cases, the negotiation) of legally binding international

agreements.

Notification Pursuant to the Case-Zablocki Act

The Case-Zablocki Act173 was enacted in 1972 in response to congressional concern that a

number of secret agreements had been entered by the executive imposing significant

commitments upon the United States.174 It is the primary statutory mechanism used to ensure that

Congress is informed of international agreements entered by the United States. Pursuant to the

act, all executive agreements are required to be transmitted to Congress within 60 days of their

entry into force.175 If the President deems the immediate public disclosure of an agreement to be

prejudicial to national security, the agreement may instead be transmitted to the House Committee

on Foreign Affairs and the Senate Committee on Foreign Relations. The President is also required

to annually submit a report regarding international agreements that were transmitted after the

expiration of the 60-day period, describing the reasons for the delay.176

Although the Case-Zablocki Act originally only imposed reporting requirements with respect to

executive agreements that had entered into force, the act was amended in 2004 to ensure that

Congress was regularly notified regarding the status of signed agreements which have yet to enter

173

1 U.S.C. §112b.

See H.Rept. 92-1301, 92nd Cong. (1972).

175

1 U.S.C. §112b(a).

176

Id. at §112b(b).

174

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Oversight and Related Issues Concerning International Security Agreements

force, as well. The Secretary of State is required to annually report to Congress a list of executive

agreements which (1) have not been or are not proposed to be published in the United States

Treaties and Other International Agreements compilation and (2) the United States has “signed,

proclaimed, or with reference to which any other final formality has been executed, or that has

been extended or otherwise modified, during the preceding calendar year.”177

The Case-Zablocki Act does not define what sort of arrangements constitute “international

agreements” falling under its purview, though the legislative history suggests that Congress “did

not want to be inundated with trivia ... [but wished] to have transmitted all agreements of any

significance.”178 In its implementing regulations, the State Department has established criteria for

determining whether an arrangement constitutes a legally binding “international agreement”

requiring congressional notification. These include

•

the identity of the parties, and whether they intended to create a legally binding

agreement;

•

the significance of the agreed-upon arrangement, with “[m]inor or trivial

undertakings, even if couched in legal language and form,” not considered to fall

under the purview of the Case-Zablocki Act;

•

the specificity of the arrangement;

•

the necessity that the arrangement constitute an agreement by two or more

parties; and

•

the form of the arrangement, to the extent that it helps to determine whether the

parties intended to enter a legally binding agreement.179

Notification Pursuant to Circular 175 Procedures

The State Department’s Circular 175 procedure also contemplates that Congress will be notified

of developments in the negotiation of “significant” international agreements. Specifically,

department regulations provide that

With the advice and assistance of the Assistant Secretary for Legislative Affairs, the

appropriate congressional leaders and committees are advised of the intention to negotiate

significant new international agreements, consulted concerning such agreements, and kept

informed of developments affecting them, including especially whether any legislation is

considered necessary or desirable for the implementation of the new treaty or agreement.180

Annual Reporting of Security Arrangements Required by the

National Defense Authorization Act of 1991

In addition to the Case-Zablocki Act, Congress has on occasion enacted legislation designed to

ensure that it remains informed about existing U.S. security arrangements. Section 1457 of the

177

Id. at §112b(d).

H.Rept. 92-1301, 92nd Cong. (1972).

179

22 C.F.R. §181.2(a).

180

11 F.A.M. §725.1(5).

178

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Oversight and Related Issues Concerning International Security Agreements

National Defense Authorization Act for FY1991 (P.L. 101-510) requires the President to submit

an annual report to specified congressional committees regarding “United States security

arrangements with, and commitments to, other nations.”181 The report, produced in classified and

unclassified form, is to be submitted by February 1 each year to the Committee on Armed

Services and the Committee on Foreign Relations of the Senate, and the Committee on Armed

Services and the Committee on Foreign Affairs of the House of Representatives.182 In addition to

legally binding security arrangements or commitments (e.g., mutual defense treaties and prepositioning agreements), the report must describe non-binding commitments, such as expressed

U.S. policy formulated by the executive branch. It must also include, among other things, “[a]n

assessment of the need to continue, modify, or discontinue each of those arrangements and

commitments in view of the changing international security situation.”183

Although reports were submitted to the appropriate committees pursuant to this statutory

requirement in 1991 and 1992, it does not appear that any subsequent reports have been issued.

The Federal Reports Elimination and Sunset Act of 1995 (Sunset Act, P.L. 104-66) terminated

many reporting requirements existing prior to its enactment. The act eliminated or modified

several specific reporting requirements, and also generally terminated any reporting requirement

that had been listed in House Doc. 103-7, unless such a requirement was specifically exempted.

However, the reporting requirement contained in Section 1457 of the FY1991 National Defense

Authorization Act was neither specifically terminated by the Sunset Act nor listed in House Doc.

103-7. Moreover, Congress has twice amended Section 1457 after the enactment of the Sunset

Act, in 1996 and 1999.184 Accordingly, it does not appear that this requirement has been

terminated.

Consultation

State Department regulations requiring consultation with Congress regarding significant

international agreements may provide a means for congressional oversight as to the negotiation of

security arrangements. One of the stated objectives of the Circular 175 procedure is to ensure that

“timely and appropriate consultation is had with congressional leaders and committees on treaties

and other international agreements.”185 To that end, State Department regulations contemplate

congressional consultation regarding the conduct of negotiations to secure significant

international agreements.186

Circular 175 procedures may also provide for congressional consultation concerning the form that

a legally binding international agreement should take. When there is question as to whether an

international agreement should be entered as a treaty or an executive agreement, the matter is first

brought to the attention of the State Department’s Legal Adviser for Treaty Affairs. If the

Assistant Legal Adviser for Treaty Affairs believes the issue to be “a serious one that may warrant

181

50 U.S.C. §404c(a).

Id. at §404c(c)-(d).

183

Id.

184

National Defense Authorization Act for Fiscal Year 1996, P.L. 104-106, Div A, §1502(c)(4)(C) (rearranging and

revising provisions §1457 of the 1991 National Defense Authorization Act ); National Defense Authorization Act for

Fiscal Year 2000, P.L. 106-65, Div A, §1067(10) (amending §1457 to reflect name change of House Committee on

National Security to House Committee on Armed Services).

185

11 F.A.M. §722(4).

186

Id. at §725.1(5).

182

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Oversight and Related Issues Concerning International Security Agreements

formal congressional consultation,”187 consultations are to be held with appropriate congressional

leaders and committees. State Department regulations specify that “every practicable effort will

be made to identify such questions at the earliest possible date so that consultations may be

completed in sufficient time to avoid last minute consideration.”188

Approval, Rejection, or Conditional Approval of

International Agreements

Perhaps the clearest example of congressional oversight in the agreement-making context is

through its consideration of treaties and congressional-executive agreements. For a treaty to

become binding U.S. law, it must first be approved by a two-thirds majority in the Senate. The

Senate may, in considering a treaty, condition its consent on certain reservations, declarations,

and understandings concerning treaty application. For example, it may make its acceptance

contingent upon the treaty being interpreted as requiring implementing legislation to take effect,

or condition approval on an amended version of the treaty being accepted by other treaty

parties.189 If accepted, these reservations, declarations, and understandings may limit and/or

define U.S. obligations under the treaty.

As previously discussed, a congressional-executive agreement requires congressional

authorization via a statute passed by both houses of Congress. Here, too, approval may be

conditional. Congress may opt to authorize only certain types of agreements, or may choose to

approve only some provisions of a particular agreement. In authorizing an agreement, Congress

may impose additional statutory requirements upon the executive (e.g., reporting requirements).

Congress may also include a statutory deadline for its authorization of an agreement to begin or

expire.

Because sole executive agreements do not require congressional authorization to take effect, they

need not be approved by Congress to become binding, at least as a matter of international law.

Nonetheless, as discussed earlier, Congress may limit the effect of a sole executive agreement

through a subsequent legislative enactment or through the conditioning of appropriations

necessary for the agreement’s commitment to be implemented.190 Similar measures could also be

taken to limit or condition U.S. adherence to a non-binding security arrangement.

187

11 F.A.M. §724.4(b)-(c).

Id. at §724.4(b).

189

In 2007, for instance, the Executive negotiated and signed treaties with the United Kingdom and Australia

concerning the export of defense articles, both of which included language in their preambles stating that the treaties

were self-executing for the United States. Treaty with the United Kingdom Concerning Defense Trade Cooperation,

preamble, SEN. TREATY DOC. 110-7, entered into force April 13, 2012 (“Understanding that the provisions of this

Treaty are self-executing in the United States …”); Treaty with Australia Concerning Defense Trade Cooperation,

Treaty with the United Kingdom Concerning Defense Trade Cooperation, preamble, SEN. TREATY DOC. 110-10,

entered into force April 13, 2012 (“Understanding that the provisions of this Treaty are self-executing in the United

States …”). However, the Senate conditioned its approval of both treaties on declarations that they were not selfexecuting, notwithstanding the language in the agreements’ preambles. 156 CONG REC. S7719, 7772, and 7724

(September 29, 2010).

190

In the 110th Congress, legislation was introduced that would have prohibited appropriations from being used to carry

out any U.S.-Iraqi security agreement that was not approved by the Senate as a treaty or authorized by legislation

passed by both houses of Congress. See, e.g., S. 2426 (Congressional Oversight of Iraq Agreements Act of 2007); H.R.

4959 (Iraq Strategic Agreement Review Act of 2008); H.R. 5626 (the Protect Our Troops and Our Constitution Act of

2008).

188

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Oversight and Related Issues Concerning International Security Agreements

Implementation of an Agreement That Is Not Self-Executing

Congress may exercise oversight regarding international agreements via legislation implementing

the agreements’ requirements. Certain international treaties or executive agreements are

considered “self-executing,” meaning that they have the force of law without the need for

subsequent congressional action.191 However, many other treaties and agreements are not

considered self-executing, and are understood to require implementing legislation to take effect,

as enforcing U.S. agencies otherwise lack authority to conduct the actions required to ensure

compliance with the international agreement.192

Treaties and executive agreements have, in part or in whole, been found to be non-self-executing

for at least three reasons: (1) implementing legislation is constitutionally required; (2) the Senate,

in giving consent to a treaty, or Congress, by resolution, requires implementing legislation for the

agreement to be given force;193 or (3) the agreement manifests an intention that it shall not

become effective as domestic law without the enactment of implementing legislation.194

Until implementing legislation is enacted, existing domestic law concerning a matter covered by

an international agreement that is not self-executing remains unchanged and is controlling law in

the United States. However, when a treaty is ratified or an executive agreement is entered, the

United States acquires obligations under international law and may be in default of those

obligations unless implementing legislation is enacted.195 Perhaps for this reason, Congress

typically appropriates funds necessary to carry out U.S. obligations under international

agreements.196

Continuing Oversight

After an international agreement has taken effect, Congress may still exercise oversight over

executive implementation. It may require the executive to submit information to Congress or

congressional committees regarding U.S. implementation of its international commitments. It

may enact new legislation that modifies or repudiates U.S. adherence or implementation of an

international agreement. It may limit or prohibit appropriations necessary for the executive to

implement the provisions of the agreement, or condition such appropriations upon the executive

implementing the agreement in a particular manner.

191

For purposes of domestic law, a self-executing agreement may be superseded by either a subsequently enacted

statute or a new self-executing agreement. Whitney, 124 U.S. at 194.

192

See generally RESTATEMENT, supra note 13, §111(4)(a) & cmt. h.

193

For example, in the case of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984), the

Senate gave advice and consent subject to a declaration that the treaty was not self-executing. U.S. Reservations,

Declarations, and Understandings to the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, 136 CONG. REC. S17486-01 (daily ed., October 27, 1990).

194

RESTATEMENT, supra note 13, §111(4)(a) & n. 5-6.

195

See id., §111, cmt. h.

196

See TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 166-170 (discussing congressional use of

the appropriations power to influence the implementation of international agreements by the United States).

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Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

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