Yale-Duke Foreign Relations Law Roundtable: The Future of International Agreements

Brian J. Egan
Legal Adviser
Yale Law School, Connecticut
October 15, 2016

Thanks very much to Professors Hathaway, Bradley and Koh for the invitation to be with you this afternoon. It is an honor to be here to talk about the future of international agreements in the United States, with some of the most prominent American legal scholars on the topic.

Many of you in the audience have written extensively about current U.S. practice in this area. And my friend and colleague Harold Koh has even had occasion to compare himself to an "unratified treaty" as he awaited Senate confirmation as Legal Adviser. So there is a lot of talent and experience in this crowd, which is terrific.

I also wanted to take a moment to talk about the deep connections and partnerships between Yale and its law school and the Office of the Legal Adviser, or “L.” You are all familiar, of course, with Harold’s very successful tenure as Legal Adviser earlier in the Obama Administration. Harold noted that there were 15 attorneys from Yale on the staff of the Legal Adviser’s office when he was Legal Adviser. Mary McLeod, who was my immediate predecessor, was part of the first class to include women at Yale College. Decades earlier, Jack Tate, author of the well-known “Tate Letter” on the restrictive theory of sovereign immunity, spent many years working for the Yale Law School. And Herbert Hansell, President Carter’s first Legal Adviser, also had deep roots at Yale – I understand that we have a number of Hansell Fellows in the crowd today, which speaks to the generosity of Herb and the Hansell family, and the enduring connections between Yale and L.

I agree that it is important to devote additional research and thought to some of the key questions raised by the different ways that the United States has approached, and may approach, international agreements. There are many difficult questions that we on the government side must face in providing advice in this area – from the practical distinctions between legally binding agreements and “non-binding” arrangements, to the mechanisms for entering into binding agreements, to the difference between self-executing and non-self-executing treaties. All of these topics merit further study, in my opinion.

But today, I’d like to focus on one particular part of this topic that should be important to future Administrations, whatever their makeup. And this is the need to preserve the continued importance and vitality of Article II treaties in our system.

There appears to be much talk in academic circles about the “end” – including the end of Article II treaties. I submit that Article II treaties are not dead, although some notable failures to garner Senate advice and consent in recent years warrant further reflection and examination. It is also true that some Article II treaties continue to generate anxiety. I'll explain why I think that general anxiety over treaties is unwarranted and curtails the United States' ability to promote U.S. interests and values.

In short, I will use these brief remarks on Article II treaties to suggest some occasions for optimism, some causes for concern, and some proposals for progress.

First, let’s talk about why we should be optimistic.

In spite of the widely publicized recent failures to provide advice and consent to the Disabilities Convention and the Law of the Sea Treaty earlier in the Obama Administration, a host of other treaties have received the required 2/3 vote in the same timeframe. For all the challenges the advice and consent process sometimes poses, it’s clear that – even in the current environment – the executive branch and the Senate can work together effectively on treaties.

As recently as the 110th Congress of 2007 to 2008, the Senate provided advice and consent to over 80 treaties across a broad range of subject matters. For example:

  • Treaties in the environment area addressing control of anti-fouling systems on ships and land based sources of marine pollution;
  • Treaties in the law of armed conflict area addressing explosive remnants of war, use of blinding laser weapons, use of incendiary weapons, and protection of cultural property during armed conflict;
  • Intellectual property conventions addressing patents, trademarks, and international regulation of industrial designs;
  • Treaties addressing cooperation to combat terrorism and the proliferation of weapons of mass destruction; and
  • A range of law enforcement treaties enhancing law enforcement cooperation with the European Union and its member states.

During the most recent Congress, much of the focus in this area has been on two instruments that were not Article II treaties: the Joint Comprehensive Plan of Action with Iran, and the Paris Agreement. Less attention has been paid, however, to recent, enhanced efforts by the Administration and the Senate to work together on pending Article II treaties. Those efforts have resulted in seven treaties being approved by the Senate this year. While seven is significantly fewer than 80, seven is not "zero."

Two of the treaties approved by the Senate this year are multilateral treaties – one addressing access to plant genetic resources, and the other addressing choice of law rules regarding certain transactions involving securities. Five bilateral law enforcement treaties were also approved. This of course follows on the heels of the successful partnership between the Administration and the Senate in 2010 to ratify the New START treaty with Russia.

A few things are notable about these successes:

First, they each occurred in periods of divided government. During the 2007-2008 period, the Republicans held the White House and the Democrats controlled the Senate. And our recent, albeit more modest, successes occurred with a Democratic President and a Republican-controlled Senate. So this history demonstrates that bipartisan cooperation on treaties is possible, even in polarized times.

Second, a number of the treaties approved during these periods were non-routine multilateral agreements. In approving them, the Senate was not simply deferring to familiar past practice. Rather, these treaties required at least two-thirds of the Senate to make judgments about the merits of a variety of unique treaty regimes, each with diverse groups of stakeholders, and impacting a range of U.S. interests. The Senate’s approval of these treaties confirms the continuing support for the view that multilateral cooperation through treaties can advance U.S. interests.

Third, a number of these treaties were approved by the Senate subject to declarations that they are self-executing – in other words, that they can be enforced by our courts without further legislation. Among these is the recently passed Hague Securities Convention, which addresses transactions that are otherwise governed by state law enactments of the Uniform Commercial Code and thus interfaces significantly with state law. This suggests, even in a time of increased attention to federalism issues, support from a substantial majority of the Senate for having treaties operate directly in U.S. law at least in some categories of cases, including in ways that may displace state law.

Declarations of self-execution are a recent phenomenon in U.S. treaty practice, and they are indicative of the Senate’s increasing sophistication in its use of reservations, understandings and declarations to facilitate entering into treaties that might otherwise raise federalism or other types of concerns. As most of you already know, reservations, understandings and declarations, or “RUDs,” are tools the Senate has long used to address risks or concerns about particular treaties in a way that would allow the United States to join. Where a treaty’s provisions may be ambiguous on particular points of importance to the United States, we have often publicly stated how we will interpret the provision, and such interpretive understandings are often included in the Senate’s resolution of advice and consent approving ratification of the treaty. Such statements are also used to indicate how a treaty’s provisions relate to U.S. law and how the United States expects to implement them. In some instances, treaties permit reservations, allowing the United States to decline to accept particular obligations that it disagrees with or that would conflict with our law. As some of you have discussed in your writings, there are of course limits to the use of RUDs – sometimes in the text of the treaty itself, and as a matter of customary international law. But in general, I think that RUDs, used appropriately, are an important mechanism for facilitating the treaty approval process.

In recent decades, RUDs adopted in approving treaties have included provisions to address concerns related to the potential impact of the treaties on U.S. states and to ensure that treaties won’t be interpreted to require or authorize actions prohibited by the Constitution. They also include so-called declarations of non-self-execution, which ensure that the treaties won’t create rights enforceable in U.S. courts independent of the laws relied on to implement the treaties. U.S. courts, including the Supreme Court, have routinely given effect to such conditions when considering claims involving these treaties. The use of RUDs has proven to be successful and is an important tool for facilitating continued work on Article II treaties between the political branches of government.

Our track record on finding mechanisms for joining treaties, including complex multilateral treaties, suggests that there are many reasons to see the Article II treaty glass as half full. However, there are other aspects of the Senate’s approach to certain treaties that create cause for concern, and that are worth examining:

As the Senate has recognized in a variety of contexts, RUDs can be highly effective. However, they have not always been sufficient to generate the required support for a given treaty. And some have suggested that doubt exists as to whether these tools can be fully effective even in contexts in which they have been used previously. For example, during the Senate’s consideration of the Convention on the Rights of Persons with Disabilities in 2013, the then ranking member (and now Chairman) of the Senate Foreign Relations Committee Bob Corker announced that he could not support the Convention because U.S. ratification could “undermine the constitutional balance between the state and federal governments and the legitimacy of our democratic processes.” He expressed uncertainty that “even the strongest RUDs” designed to address such concerns “would stand the test of time,” and said that “any uncertainty on this issue is not acceptable.” To some, this is reminiscent of the controversy surrounding World War II-era human rights treaties that nearly resulted in the adoption of the Bricker Amendment. Among other things, the Bricker Amendment would have required that treaties could become effective as domestic law in the United States only through enactment of legislation that would be valid in the absence of the treaty – meaning both that treaties could never be self-executing and that Congress could not rely on a treaty to enact legislation necessary and proper to its implementation.

Senator Corker’s statement doesn’t indicate any particular instances in which he believes prior human rights treaties approved in this way have harmed our Constitutional system. I would submit that the “test of time” has actually shown the absence of any such problems. In other words, the Senate and executive branch have managed to enter a variety of multilateral treaties under conditions that appropriately addressed and minimized federalism and related constitutional concerns.

The United States has had a successful experience with joining and implementing such human rights treaties in a manner consistent with our Constitution. Beginning with U.S. ratification of the Genocide Convention in the 1980s, we have established a consistent practice of support for core human rights treaties based on the understanding that such treaties, are consistent with—and help promote—U.S. human rights interests and values, including the ability to exercise political and moral leadership on issues of human rights and human dignity. In joining these treaties, the United States has relied on a variety of reservations, understandings and declarations to ensure that the United States could join in a manner consistent with our Constitution. Similar approaches have been followed in respect to the United States’ joining the Convention Against Torture, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Presidents Reagan, George H.W. Bush, and George W. Bush advocated for ratification of these human rights treaties – which address genocide, torture, civil and political rights, and human trafficking and sexual slavery – subject to appropriate reservations, understandings and declarations. None of this would have been possible if past Presidents and Senates had believed that RUDs were ineffective tools in the way Senator Corker appears to suggest.

Given this history of reliance on RUDs, it would be worrying if the Senate came to doubt the effectiveness of RUDs approved by the Senate to address federalism or other potential concerns. In the absence of tools capable of addressing such concerns, the default position for many Senators with such concerns may be to oppose treaties altogether. In my view, this stance would be unnecessary and would come at a great cost to the ability of the United States to exercise political and moral leadership on issues of human rights and human dignity. A fresh look at using these tools in a manner consistent with the Senate’s practices over the last several decades could help to provide paths toward approval for more treaties.

These points connect to a larger point about how we approach treaties generally. The United States takes treaty obligations seriously. For that reason, we give treaties careful consideration before joining them. We want to be sure we understand what they mean, how we will implement them, and whether they advance U.S. interests and values. This is all as it should be, and is extremely important. This judicious approach to treaties does not, however, require that every treaty be perfect in every respect in order for joining a treaty to be in our interests. It should not mean than any hypothetical risk associated with joining a treaty, no matter how remote or implausible, should serve as a bar to our joining, particularly when tools are available to address such risks.

President Reagan saw treaties in these terms. In recommending U.S. ratification of the Convention Against Torture, he noted that “In view of the large number of States concerned, it was not possible to negotiate a treaty that was acceptable to the United States in all respects.” This fact, however, did not cause Reagan to oppose the Convention. Rather, he recommended to the Senate that the United States join the Convention subject to certain RUDs to address a series of concerns he had with the Convention. This approach to treaties is consistent with common sense approaches we see in other areas. Legislators in our Congress and in our state legislatures are familiar with the need to compromise in order to enact laws that benefit their constituents, and that often involves supporting legislation that includes some provisions they personally oppose. Similarly, businesses regularly negotiate contracts that involve compromises but that on balance produce benefits that will help them become more profitable.

Seeing treaties in this vein can lead to a more balanced view of the costs and benefits associated with a treaty. Whatever concerns one might have, for example, about the International Seabed Authority created under the Law of the Sea Convention, are they really so significant as to justify our staying out of a regime that codifies for the world our views about the uses of the oceans and provides enormous benefits to our military and industry?

Does the possibility that a human rights treaty body might make a recommendation regarding the interpretation of the treaty that we disagree with and remain free to disregard really mean that we should stay outside the treaty and forfeit our ability to lead and shape the international community’s approaches on matters of human rights and human dignity? In short, taking treaties seriously should not mean that we focus only on the ways in which a treaty might lead to outcomes of concern. Rather it should also mean that we look closely at the ways we can mitigate such risks, using all the tools available to us, and that we consider any such risks in the contexts of the benefits that joining the treaty regime can provide.

Often these benefits are practical and tangible. Our joining the Law of the Sea Convention, for example, would clarify U.S. sovereign rights over maritime areas and would promote the maritime mobility of the U.S. military. Sometimes, the benefits are to ensure continued U.S. leadership on an issue of importance to our country. In the disabilities area, our Americans with Disabilities Act was groundbreaking legislation in establishing standards for prohibiting discrimination and ensuring equal opportunity for persons with disabilities. Our Congress led with this law, and the core principles in the Disabilities Convention can be found in our own ADA.

Another area in which recent efforts on treaties have been less successful is tax treaties. Historically, tax treaties have been among the least controversial treaties, and they have enjoyed broad bipartisan support. The United States has tax treaty relationships with over 60 countries, pursuant to treaties that have received the Senate’s advice and consent. Tax treaties help U.S. businesses by providing greater certainty regarding their potential liability for tax in foreign jurisdictions, and by allocating taxing rights between jurisdictions to reduce the risk of double taxation. They also provide important tools to prevent tax evasion, including mechanisms allowing for the exchange of information between tax authorities to assist in the administration and enforcement of tax laws.

However, the Senate has not approved a tax treaty since 2010. The Senate Foreign Relations Committee has favorably reported tax treaties to the full Senate without opposition in each of the last three Congresses, but in each instance a single Senator has objected to their approval. Eight tax treaties are currently on the Senate’s executive calendar and sitting in limbo. Given that, under the Constitution, a two-thirds majority of the Senate is sufficient to advise and consent to ratification of a treaty, the opposition of one Senator should not be enough to defeat a treaty. Yet, to date, the Senate has been unwilling to hold a vote on tax treaties to allow the voices of the Senate as a whole to be heard on the matter. Though the practice has been less common in recent years, in the 1980s the Senate frequently held roll call votes on treaties, precluding isolated minority views from preventing the Senate from providing its advice and consent. Voting, of course, requires the Senate to find time on a full calendar to debate an issue and may come at the expense of its ability to spend time on other pressing matters. But the alternative establishes a de facto unanimity requirement for treaties. And in the case of the tax treaties, this would result in an indefinite halt to forging new cooperative relationships on tax matters, harming the interests of U.S. businesses and our ability to combat tax evasion. So the time has come for the Senate to hold a vote to approve the tax treaties.

Rather than end on a despairing note, let me conclude with some proposals for progress at this important juncture. This is a particularly useful moment to be considering our approach to treaties. We are about to experience a Presidential transition and the beginning of a new session of the Senate. Lessons from this recent experience can usefully inform the next Administration and Senate and help guide cooperation on treaties. With this in mind, I’d like to offer a few thoughts on steps both branches can take to promote productive work on treaties in the period ahead.

First and foremost is dialogue. Successful efforts on treaties require the active engagement of both the executive branch and the Senate. Dialogue between the branches throughout the treaty process is essential, and touches a range of issues. To name a few:

  • Treaty negotiation: Executive branch engagement with the Senate early in the treaty negotiating process can play a very important role in maximizing chances for treaty approval. Doing so gives the Senate a chance to learn about the problem to be addressed by a proposed treaty, to provide input on issues in the negotiation, and to become a stakeholder in the outcome.
  • Development of a treaty agenda: Dialogue between the executive branch and the Senate on a treaty agenda can help both branches focus efforts on treaties that have the greatest chances of winning support, as well as identifying areas where further work can create additional opportunities.
  • Treaty ratification process: Close consultation between the executive branch and the Senate in preparing for hearings on treaties and drafting resolutions of advice and consent is critical to identifying issues that may need to be addressed and developing workable solutions that advance a treaty’s chances for approval.

The importance of dialogue isn’t limited to the executive branch and the Senate. Successful efforts on treaties also require engagement with treaty stakeholders, including the private sector, civil society, interest groups, scholars and others – including state and local governments. These actors are often among the most effective advocates for (or against) treaties that affect their interests, and mobilizing their support and addressing their concerns is critical.

The area of private international law provides one example of the importance of this collaboration. The United States is a relative newcomer to the field. Although Europe began work in earnest on private international law treaties in the 19th century, the United States did not actively participate in negotiations over private international law instruments until the 1960s. Our reluctance was based in significant part on federalism concerns – the idea that commercial law was an area for the U.S. states to regulate. Over time, we have learned how to work with state law officials, the private sector, and academic experts to develop a practical private international law agenda – to prioritize our work on areas that have tangible benefits, in a manner that can be compatible with U.S. state law.

It’s also important for the executive branch and Senate to prioritize work on treaties.

  • For the executive branch’s part, this requires giving early and consistent attention to treaties and how they fit into a broader policy agenda. This can be done in part through of the “treaty priority list” that the State Department usually transmits to the Congress at the beginning of a new Congress. This can also be accomplished by considering whether the negotiation of new treaties would advance important objectives in particular areas, or whether those objective can be met better through other legal instruments. This work can then inform efforts advance work on treaties both in the Senate and with international partners.
  • For the Senate’s part, prioritizing treaties requires planning for work on them as an integral part of its legislative agenda. The Senate Foreign Relations Committee can develop a treaty work plan, allocating time on the Committee’s calendar for hearings on treaties at regular intervals throughout the year. And, while many treaties can proceed without controversy, others – as I noted earlier – may require debate or roll call votes. Allocation of time on the Senate calendar for these steps is important as well.

In addition, it will be important for the next Administration to be able to explain the benefits of treaties and to advocate effectively on their behalf. Avril and I are here to make a general case for the importance of treaties to the United States here today. But winning support for particular treaties requires explaining the tangible benefits a treaty provides and why it advances U.S. interests. This is an area where we as a government can and should sharpen our efforts. The next Administration should give careful thought about how to make better use of its public messaging and public diplomacy tools to effectively make the case for treaties.