The National Defense Authorization Act for Fiscal Year 2023 (NDAA), which Congress passed on Dec.15 and President Joe Biden signed today, contains sweeping new transparency requirements for international agreements. The legislation, led by Senate Foreign Relations Committee (SFRC) Chair Robert Menendez, implements a number of the reforms that we argued for in our 2020 article, “The Failed Transparency Regime for Executive Agreements.” The legislation also for the first time imposes transparency requirements for nonbinding agreements, something that we had also argued for as a possible reform. Before now, those agreements had not been subject to any publication or congressional reporting requirements, even though, as we document in a forthcoming article, they have become a significant part of the United States’ international agreements practice. While there are still important gaps in the oversight regime, this legislative enactment represents the most significant transparency reform for international agreements in a half century.
International Agreement-Making in the United States
The Constitution specifies only one process by which the federal government can make international agreements: Article II provides that presidents can make treaties “by and with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur.” But since the early days of the nation, presidents have also concluded agreements, binding on the nation under international law, based on either authorization in statutes or on their own constitutional authority. Since the 1930s, these “executive agreements” have far outnumbered Article II treaties. From 1939 to 1989, for example, the United States concluded over 11,000 executive agreements and only about 700 treaties. In recent years, the number of Article II treaties has dropped even further.
Congress has sought to regulate executive agreements primarily through a combination of publication and reporting obligations. A statute dating to 1950 requires the State Department to publish non-classified executive agreements within 180 days after they take effect. Since 1994, however, the Department has been allowed to exempt from publication those agreements for which it concludes that “the public interest . . . is insufficient to justify their publication.” State Department regulations currently allow for sixteen categories of agreements to be exempted from publication. In our 2020 article, we found that less than half of the agreements being reported to Congress were getting published.
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