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

Michael John Garcia
Legislative Attorney
R. Chuck Mason
Legislative Attorney
October 1, 2009
Congressional Research Service
7-5700
www.crs.gov
R40614
CRS Report for Congress
P
repared 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 November 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 contemplated a long-term
presence by U.S. forces in Iraq. 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 appeared to dissipate
when U.S.-Iraq negotiations culminated in an agreement that did not contain a long-term binding
security commitment by the United States, but instead called for the withdrawal of U.S. forces
from Iraq by December 31, 2011.
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. For more information regarding the U.S.-Iraq security agreements,
see CRS Report R40011, U.S.-Iraq Withdrawal/Status of Forces Agreement: Issues for
Congressional Oversight
, by R. Chuck Mason, and CRS Report RL34568, U.S.-Iraq Agreements:
Congressional Oversight Activities and Legislative Response
, by Matthew C. Weed.

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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............................................................ 4
Sole Executive Agreements ............................................................................................. 5
Nonlegal Agreements ...................................................................................................... 7
Choosing Between a Treaty and Executive Agreement .................................................... 7
II. Historical Practice Regarding Security Agreements................................................................. 9
Categories of Security Agreements........................................................................................ 9
Collective Defense Agreements/“Security Commitments” ............................................... 9
Consultation Requirements/“Security Arrangements” .................................................... 10
Other Types of Military Agreements.............................................................................. 11
Agreements Granting the Legal Right to Military Intervention ...................................... 12
Non-Binding Security Arrangements ................................................................................... 14
Examples of Bilateral Security Agreements ......................................................................... 16
Afghanistan .................................................................................................................. 16
Iraq............................................................................................................................... 19
Germany....................................................................................................................... 22
Japan ............................................................................................................................ 24
South Korea .................................................................................................................. 25
Philippines .................................................................................................................... 26
III. Congressional Oversight...................................................................................................... 27
Notification......................................................................................................................... 27
Notification Pursuant to the Case-Zablocki Act ............................................................. 28
Notification Pursuant to Circular 175 Procedures .......................................................... 29
Annual Reporting of Security Arrangements Required by the National Defense
Authorization Act of 1991 .......................................................................................... 29
Consultation........................................................................................................................ 30
Approval, Rejection, or Conditional Approval of International Agreements ........................ 30
Implementation of an Agreement That Is Not Self-Executing .............................................. 31
Continuing Oversight .......................................................................................................... 32

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

Congressional Research Service

Oversight and Related Issues Concerning International Security Agreements

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,
T 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 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. 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 American 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 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 force January
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ratified following Presidential signature.3 The Senate may, in considering a treaty, condition its
consent on certain reservations,4 declarations5 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
executive agreements has grown significantly.10 Whereas 27 executive agreements (compared to

(...continued)
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”).
10 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 38-40.
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60 treaties) were concluded by the United States during the first 50 years of the Republic,11
between 1939 and 2009 the United States concluded roughly 16,500 executive agreements
(compared to approximately 1,100 treaties).12
Although some have argued that certain agreements may only be concluded as treaties, subject to
the advice and consent of the Senate,13 this view has generally been rejected by scholarly
opinion.14 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,15 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 requiring approval by two-thirds of the Senate presented a
nonjusticiable political question.16 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.17

11 WILLIAM R. SLOMANSON, FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 376 (5th ed. 2007).
12 This estimate is based on numbers obtained via SLOMANSON, supra note 11, at 376 (discussing executive agreements
and treaties that the United States has concluded between 1789 and 2004) and CRS research regarding treaties and
executive agreements concluded from 2005 to 2009. 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. SLOMANSON, supra note 11, at 376. The percentage of agreements entered as treaties
has decreased further since 2004.
13 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); 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).
14 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 13, 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).
15 RESTATEMENT, supra note 14, 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 14, at § 303, n. 11.
16 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).
17 In 1997, a federal district court in Texas ruled petitioner was not extraditable pursuant to a federal statute
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Nonetheless, as a matter of historical practice, some types of agreements have been concluded as
treaties, while others have been concluded as executive agreements.18
Congressional-Executive Agreements
In the case of congressional-executive agreements, the “constitutionality ... seems well
established.”19 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.20 NAFTA and the
General Agreement on Tariffs and Trade (GATT) are notable examples of congressional-
executive 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.21 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.22 Such authorization may be either explicit or implied by the terms of
the congressional enactment.23
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.24 Since the earlier treaty is the “Law of the Land,”25 the power to enter into an

(...continued)
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).
18 See YOO, supra note 13 (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).
19 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 5. See also HENKIN, supra note 8, at 215-18.
20 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 14, 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 Jeanne J. Grimmett.
21 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).
22 See, e.g., 19 U.S.C. § 3511 (approving agreements resulting from the Uruguay Round of multilateral trade
negotiations under the auspices of GATT).
23 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).
24 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 5.
25 U.S. CONST. art. VI, § 2 (“the laws of the United States ... [and] all treaties made, or which shall be made, under the
(continued...)
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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.26
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.27
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.28 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.29 If Congress has given implicit approval to the
President to enter into the agreement, or is silent on the matter, it is more likely that the
agreement will be deemed valid. When Congress opposes the agreement and the 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 treaty or 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

(...continued)
authority of the United States, shall be the supreme Law of the Land”).
26 See RESTATEMENT, supra note 26, § 303 cmt. d.
27 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).
28 See RESTATEMENT, supra note 14, § 303 (4).
29 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).
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 14, § 115, n.5. However, an executive agreement might trump preexisting federal law if it
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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, § 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, § 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
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

(...continued)
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).
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 RL33837, Congressional Authority to Limit U.S. Military Operations in
Iraq
, by Jennifer K. Elsea, Michael John Garcia, and Thomas J. Nicola.
35 U.S. CONST. art. I, § 9. Congress may specify the terms and conditions under which appropriations may be used, so
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 RL33837, Congressional Authority to Limit U.S. Military
Operations in Iraq
, supra note 34, at 23-29, 34-36.
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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.
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.37 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.”38 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.39
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 congressional-executive agreement, so that it may play
a greater role in the 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”40) include criteria

37 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).
38 22 C.F.R. § 181.2(a).
39 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/.
40 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
(continued...)
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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
avoid any invasion or compromise of the constitutional powers of the President, the Senate,
and the Congress as a whole.41
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.42 The State Department subsequently modified the Circular 175
procedure to provide for consultation with appropriate congressional leaders and committees
concerning significant international agreements.43 Consultations are to be held “as appropriate.”44
Congressional consultation on the substance and form of international agreements is discussed in
more detail later in this report.45

(...continued)
181 and 11 Foreign Affairs Manual (F.A.M.) chapter 720.
41 11 F.A.M. § 723.3 (2006).
42 S.Res. 536, S.Rept. 95-1171, 95th Cong. (1977).
43 11 F.A.M. § 724.4(b)-(c) (2006).
44 Id. at § 724.4(c).
45 See infra at 27.
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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 concluded as treaties and
others as executive agreements, this does not necessarily mean that future arrangements must
follow the same pattern. An arrangement that has typically been entered into as a treaty might
instead be concluded as a congressional-executive agreement, and vice versa.46 Similarly, while
some security arrangements have historically been entered as sole executive agreements,
Congress might effectively limit such agreements in the future via statutory enactment47—e.g.,
limiting the availability of appropriations to carry out commitments made in a sole executive
agreement.48
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.49 All seven agreements take the form of treaties that were ratified by the United States
between 1947 and 1960.50 Each of these agreements, with the exception of the Inter-American

46 But see YOO, supra note 13, at 830 (arguing the military commitments like NATO can only be effectuated by treaty,
and not a congressional-executive agreement).
47 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).
48 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.
49 State Department, Office of the Legal Adviser, U.S. Collective Defense Arrangements, at http://www.state.gov/s/l/
treaty/collectivedefense/.
50 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,
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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 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 resolution authorizing the use of military force).51
In addition to these defense treaties, the United States has also adopted security commitments
with respect to several former territories and possessions,52 including pursuant to congressional-
executive 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.”53 Arguably, these security commitments are distinct from other international defense
arrangements, as they concern commitments to newly sovereign entities over whom the United
States formerly exercised extensive and long-standing control.54
Consultation Requirements/“Security Arrangements”
The United States also has established security arrangements with other countries in which the
U.S. pledges to take some action in the event that the other country’s security is threatened. In a
1992 report to Congress listing U.S. security commitments and arrangements, President George
H.W. Bush 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.55

(...continued)
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.
51 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).
52 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.
53 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”).
54 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).
55 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).
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Most legally binding “security arrangements” listed in the President’s report constitute sole
executive agreements, including agreements with Israel, Egypt, Pakistan, and Liberia.56 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.57
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.58
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;59
• 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;60
• 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;61

56 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.
57 TREATIES AND OTHER INTERNATIONAL AGREEMENTS, supra note 4, at 248. See also Multinational Force and
Observers Participation Resolution, P.L. 97-132 (1981).
58 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).
59 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.
60 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.
61 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
(continued...)
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• 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;62 and
• agreements providing for arms transfers, military training, and joint military
exercises.63
Historically, almost all such agreements have taken a form other than treaty. Sometimes these
arrangements have been concluded as 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.
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 authorizes U.S. forces to engage in military operations within Iraq. The agreement is
discussed in more detail infra.64
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 self-
defense 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.”65

(...continued)
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.
62 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.
63 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.
64 See infra at “Iraq.”
65 Charter of the United Nations, 59 Stat. 1031, entered into force October 24, 1945, art. 51 (italics added).
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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.66 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.”67 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.68 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.69 In 1907, the United States concluded a treaty with the Dominican
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.70
There have been numerous instances where a country has permitted or invited the United States
to use military force within its territory,71 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 1907.72 Another example of a significant security

66 See generally Charles Henry Hyde, 1 International Law: Chiefly As Interpreted and Applied by the United States 27-
36 (1922).
67 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.
68 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.”).
69 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
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.
70 Treaty Between the United States and Dominican Republic Concerning the Collection and Application of Dominican
Customs Revenues, proclaimed July 25, 1907, 35 Stat. 1880.
71 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.”
72 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 ...
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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.73
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 comparable authority 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
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.74
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.”75 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 long-
standing dispute between the Congress and the Executive.76 In 1969, the Senate passed the

(...continued)
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 14, at 819 (italics omitted) (quoting THEODORE ROOSEVELT,
AN AUTOBIOGRAPHY 510 (1920)).
73 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.
74 See supra note 71 (discussing U.S. intervention in Lebanon in 1958).
75 For text of the joint declaration, see Dept. of State, American Foreign Policy: Current Documents, 1962, pp. 1091-
1093.
76 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 RL32170, Instances of Use of United States Armed Forces Abroad,
1798-2008
, by Richard F. Grimmett. 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), 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
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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.”77 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.”78
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
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.79
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,80 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.81 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.

(...continued)
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 , September 25, 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”).
77 S.Res. 85, 91st Congress, 1st Sess. (1969).
78 Id.
79 Committee Report, supra note 76, at 26.
80 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).
81 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).
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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,82
entered into an agreement regarding economic grants under the Foreign Assistance Act of 1961,83
as amended. Additionally, the agreement allows for the furnishing of defense articles, defense
services and related training, pursuant to the United States International Military and Education
Training Program (IMET),84 from the U.S. Government to the Afghanistan Interim
Administration (AIA).
The Foreign Assistance Act of 1961 is “an act to promote the foreign policy, security, and general
welfare of the United States by assisting peoples of the world in their efforts toward economic
development and internal and external security, and for other purposes.”85 Part I of the act,
addressing international development, established policy “to make assistance available, upon
request, under this part in scope and on a basis of long-range continuity essential to the creation
of an environment in which the energies of the peoples of the world can be devoted to
constructive purposes, free of pressure and erosion by the adversaries of freedom.”86 Part II of the
act, addressing international peace and security, authorizes “measures in the common defense
against internal and external aggression, including the furnishing of military assistance, upon
request, to friendly countries and international organizations.”87 The act authorizes the President
“to furnish military assistance on such terms and conditions as he may determine, to any friendly
country or international organization, the assisting of which the President finds will strengthen the
security of the United States and promote world peace and which is otherwise eligible to receive
such assistance.... ”88 The authorization to provide defense articles and services, noncombatant
personnel, and the transfer of funds is codified at 22 U.S.C. § 2311. While this authorization
permits the President to provide military assistance, it limits it to “assigning or detailing members
of the Armed Forces of the United States and other personnel of the Department of Defense to
perform duties of a noncombatant nature.”89

82 Exchange of notes at Kabul April 6 and 13, 2002. Entered into force April 13, 2002. Not printed in Treaties and
Other International Acts Series (T.I.A.S.).

83 P.L. 87-195, 75 Stat. 424 (September 4 1961).
84 22 U.S.C. § 2347 et seq.
85 75 Stat. 424.
86 Id. at 425.
87 Id. at 434.
88 Id. at 435.
89 22 U.S.C. § 2311(a)(2) (italics added).
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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.90 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 1961.91 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.92 In the agreement, the
Islamic Transitional Government of Afghanistan (ITGA)93 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.... ”94 The U.N. Security Council
implicitly recognized that the use of force was appropriate in response to the September 11, 2001,
terrorist attacks,95 and subsequently authorized the deployment of an International Security
Assistance Force (ISAF) to Afghanistan.96 Subsequent U.N. Security Council resolutions provide
a continuing mandate for ISAF ,97 calling upon it to “work in close consultation with” Operation
Enduring Freedom (OEF—the U.S.-led coalition conducting military operations in Afghanistan)
in carrying out the mandate.98 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

90 T.I.A.S. Exchange of notes September 26 and December 12, 2002 and May 28, 2003. Entered into force May 28,
2003.
91 Id.
92 Vienna Convention on Diplomatic Relations of April 18, 1961, T.I.A.S. 7502; 23 U.S.T. 3227.
93 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 Kenneth Katzman.
94 P.L. 107-40 (September 18, 2001); 115 Stat. 224.
95 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”).
96 U.N.S.C. Res. 1386 (December 20, 2001).
97 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.
98 See U.N.S.C. Res. 1776 § 5 (September 19, 2007); U.N.S.C. Res. 1707 § 4 (2007).
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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.... ”99
In 2004, the United States and Afghanistan entered an acquisition and cross-servicing agreement,
with annexes.100 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.101 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.102 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.103 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.104
Since at least 2003, the United States has entered into several accommodation assignment
agreements with Afghanistan regarding the use of land and facilities at the Bagram Airfield.105
The United States and its coalition partners have utilized the Bagram Airfield for military
purposes in the conflict against the Taliban and al Qaeda since late 2001, and it is presently the
primary facility used to detain suspected enemy belligerents captured in the conflict.106 The most
recent accommodation assignment agreement concerning Bagram was entered in 2006.107 The
agreement provides exclusive use and possession of the airfield to the United States, free of rent,
during the existence of the agreement.108 The preamble of the agreement states that the
consignment of the Bagram Airfield is “for use by the United States and Coalition Forces for
military purposes.” The United States has the right to assign the agreement to a successor nation
or organization.109 The agreement terminates when the United States or its successor determines
that usage of the Bagram Airfield is no longer required; however, the agreement does not provide
Afghanistan with the same option.

99 U.N.S.C. Res. 1746 § 25 (2007). For additional information on the war in Afghanistan, see CRS Report R40156,
War in Afghanistan: Strategy, Military Operations, and Issues for Congress, by Catherine Dale.
100 T.I.A.S. Signed at Doha and Kabul January 22 and February 16, 2004. Entered into force February 16, 2004.
101 10 U.S.C. §§ 2341-2350.
102 Id. at § 2342(a)(1).
103 Id. at § 2342(b)(1).
104 Id. at § 2342(b)(2).
105 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”].
106 Detainees are held in the Bagram Theater Internment Facility within the Airfield.
107 Accommodation Consignment Agreement for Lands and Facilities at Bagram Airfield Between the Islamic Republic
of Afghanistan Represented by His Excellency General Abdul Rahim Wardak Minister of Defense of the Office of the
Ministry of Defense and the United States of America. Entered into force September 28, 2006 [hereinafter “Bagram
Agreement”]. A copy of the agreement may be found as an exhibit attached to Gray Declaration, supra footnote 105.
108 Bagram Agreement, at arts. 1, 5, 9.
109 Id. at art. 2.
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On May 23, 2005, President Hamid Karzai and President Bush issued a “joint declaration”
outlining a prospective future agreement between the two countries.110 It envisions a role for U.S.
military troops in Afghanistan to “help organize, train, equip, and sustain Afghan security forces”
until Afghanistan has developed its own capacity, and to “consult with respect to taking
appropriate measures in the event that Afghanistan perceives that its territorial integrity,
independence, or security is threatened or at risk.” The declaration does not mention the status of
U.S. forces in Afghanistan, but if an agreement is concluded pursuant to the declaration, it can be
expected that a status of forces agreement would be included. In August 2008, shortly after U.S.
airstrikes apparently resulted in civilian casualties, President Karzai called for a review of the
presence of all foreign forces in Afghanistan and the conclusion of formal SOFAs with the
respective countries.111 However, to date, the United States and Afghanistan have not concluded
such an agreement.
Iraq112
Since March 2003, the United States has been engaged in military operations in Iraq, first to
remove the Saddam Hussein regime from power, and then to combat remnants of the former
regime and other threats to the stability of Iraq and its post-Saddam government. In late 2007, the
United States and 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.113
The strategic arrangement contemplated in the Declaration was intended to ultimately replace the
United Nations mandate under which the United States and allied forces are responsible for
contributing to the security of Iraq, which terminated on December 31, 2008.114 The Declaration
was rooted in an August 26, 2007, communiqué, signed by five top political leaders in Iraq, which
called for a long-term relationship with the United States. Pursuant to the Declaration, the parties
pledged to “begin as soon as possible, with the aim to achieve, before July 31, 2008, agreements
between the two governments with respect to the political, cultural, economic, and security
spheres.”115 Among other things, the Declaration proclaimed the parties’ intention to negotiate a
security agreement:
To support the Iraqi government in training, equipping, and arming the Iraqi Security Forces
so they can provide security and stability to all Iraqis; support the Iraqi government in

110 http://www.mfa.gov.af/Documents/ImportantDoc/US-Afghanistan%20Strategic%20Partnership%20Declaration.pdf.
111 Karen DeYoung, “Only a Two-Page ‘Note’ Governs U.S. Military in Afghanistan,” Washington Post, August 28,
2008, p. A07.
112 In the 1950’s, 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).
113 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 Kenneth Katzman, and CRS Report RL33793, Iraq: Regional Perspectives and U.S. Policy, by
Christopher M. Blanchard et al.
114 U.N.S.C. Res. 1790 (December 18, 2007).
115 Declaration of Principles, supra note 113.
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contributing to the international fight against terrorism by confronting terrorists such as Al-
Qaeda, its affiliates, other terrorist groups, as well as all other outlaw groups, such as
criminal remnants of the former regime; and to provide security assurances to the Iraqi
Government to deter any external aggression and to ensure the integrity of Iraq’s territory.116
This announcement became a source of congressional interest,117 in part because of statements by
Bush Administration officials that such an agreement would not be submitted to the legislative
branch for approval, despite potentially obliging the United States to provide “security
assurances” to Iraq.118 In the 110th Congress, multiple hearings were held which addressed the
proposed security agreement. In late 2007, Congress passed the Emergency Supplemental
Appropriations Act for Defense, 2008, which contained a provision limiting the funds it made
available from being used by U.S. authorities to enter into an agreement with Iraq that subjected
members of the U.S. Armed Forces to the criminal jurisdiction of Iraq.119 In October 2008,
Congress passed the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009,
which requires a report from the President to the House Foreign Affairs and Armed Services
Committees, and the Senate Foreign Relations and Armed Services Committees, on any
completed U.S.-Iraq agreement addressing specified subjects, including security assurances or
commitments by the United States, basing rights, and the status of U.S. forces in Iraq.120 Several
legislative proposals were introduced which would have required any such agreement to either be
submitted to the Senate for its advice and consent as a treaty or authorized by a statutory
enactment.
On November 17, 2008, after months of negotiations, U.S. Ambassador to Iraq Ryan Crocker and
Iraq Foreign Minister Hoshyar Zebari signed two documents: (1) the Strategic Framework
Agreement for a Relationship of Friendship and Cooperation between the United States and the
Republic of Iraq (Strategic Framework Agreement), 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). In some ways, the concluded agreements differ from the long-term security
arrangement originally contemplated by the Declaration of Principles. Perhaps most significantly,
the concluded agreements require the withdrawal of U.S. forces from Iraq by December 31, 2011.
The concluded agreements cover different issues and are intended by the parties to have different
legal significance. The Strategic Framework Agreement 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 pursuant to the terms of the

116 Id.
117 For further discussion, see CRS Report RL34568, U.S.-Iraq Agreements: Congressional Oversight Activities and
Legislative Response
, by Matthew C. Weed.
118 In a November 26, 2007 press briefing regarding the Declaration, General Douglas Lute, Assistant to the President
for Iraq and Afghanistan, stated that the Administration did not foresee a prospective agreement with Iraq having “the
status of a formal treaty which would then bring us to formal negotiations or formal inputs from the Congress.” White
House Office of the Press Secretary, Press Gaggle by Dana Perino and General Douglas Lute, Assistant to the
President for Iraq and Afghanistan, November 26, 2007, available at http://georgewbush-whitehouse.archives.gov/
news/releases/2007/11/20071126-6.html.
119 P.L. 110-161, Div. L, § 612 (2007).
120 P.L. 110-417, § 1212 (2008).
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Security Agreement.121 The Strategic Framework Agreement also states that “the temporary
presence of U.S. forces in Iraq is at the request and invitation of the sovereign government of
Iraq,” and that the United States may 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 is a legally binding agreement that terminates within three years, unless
terminated at an earlier date by either Party. The Security Agreement contains provisions
addressing a variety of military matters. As previously mentioned, it establishes a deadline for the
withdrawal of all U.S. forces from Iraq by December 31, 2011. The Agreement also contains
numerous provisions resembling those regularly contained in SOFAs concluded by the United
States.122 Specifically, the Agreement contains 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 contains other rules and requirements which have traditionally not been
found in SOFAs concluded by the United States, including provisions addressing combat
operations by U.S. forces. Operations by U.S. forces pursuant to the Agreement must be approved
by the Iraqi government and coordinated with Iraqi authorities through a Joint Military
Operations Coordination Committee. U.S. forces are also permitted to arrest or detain persons in
the course of operations under the Agreement. More broadly, the Security Agreement provides for
“strategic deliberations” between the parties in the event of external or internal threat or
aggression against Iraq, and provides that, as mutually agreed by the parties, the United States
“shall take appropriate measures, including diplomatic, economic, or military measures” to deter
the threat.
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 could properly be entered
on behalf of the United States by the Executive without the participation of Congress.123 As

121 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 (2009) (listing both the U.S.-Iraq Security and Strategic Framework Agreements as
legal agreements).
122 For further discussion, see CRS Report R40011, U.S.-Iraq Withdrawal/Status of Forces Agreement: Issues for
Congressional Oversight
, by R. Chuck Mason.
123 See CRS Report RL34568, U.S.-Iraq Agreements: Congressional Oversight Activities and Legislative Response,
supra note 117 (discussing congressional hearings and proposed legislation addressing the U.S.-Iraq security
arrangement).
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previously discussed, security agreements authorizing the United States to take military action in
defense of another country have typically been ratified as treaties.124 It could be argued that the
Security Agreement, which contemplates the United States engaging in military operations in Iraq
and potentially defending the Iraqi government from external or internal security threats, requires
congressional authorization for it to be legally binding under U.S. law. On the other hand,
because Congress has 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, it has impliedly authorized the President to enter short-term agreements
with Iraq which facilitate these operations.125
It is unclear what types of agreements, if any, may be concluded with Iraq upon the expiration of
the current Security Agreement, or whether the parties will seek to amend the existing Agreement
to extend its duration.126 Legislation may be introduced in the 111th Congress which clarifies the
legal status of the current U.S.-Iraq agreements or establishes requirements for the entering of any
future agreements with Iraq.127
Prior to concluding the agreements above, the United States entered into two defense-related
agreements with the Interim Government of Iraq: (1) an agreement regarding grants under the
Foreign Assistance Act of 1961, or successor legislation, and other items provided to the
Government of Iraq,128 and (2) an agreement regarding the bilateral end use, retransfer, and
security assurances of materials supplied by the United States.129
Germany
In 1951, the United States and Germany entered into an agreement130 related to the assurances
required under the Mutual Security Act of 1951.131 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

124 See supra at “Collective Defense Agreements/“Security Commitments”.
125 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.
126 For additional background on the Iraq war, see CRS Report RL34387, Operation Iraqi Freedom: Strategies,
Approaches, Results, and Issues for Congress
, by Catherine Dale.
127 See H.R. 335, 111th Cong., 1st Sess. (2009) (A bill introduced by Representative Barbara Lee that if enacted would
require the President to report annually to Congress regarding U.S. security commitments to, and arrangements with,
other countries. Also, directs the Secretary of State and the Secretary of Defense to consult Congress with respect to
any agreements concluded pursuant to the Strategic Framework Agreement. Additionally, prohibits any agreement (or
the obligation of implementing funds) containing a security commitment to, or security arrangement with, the Republic
of Iraq, from entering into force except pursuant to Article II, section 2, clause 2 (relating to treaties) or Article I,
section 7, clause 2 (relating to enactment of laws) of the Constitution of the United States.).
128 T.I.A.S. Exchange of notes at Baghdad July 24 and August 14, 2004. Entered into force August 14, 2004.
129 T.I.A.S. Exchange of notes at Baghdad July 28 and August 14, 2004. Entered into force August 14, 2004.
130 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.
131 P.L. 82-165, 65 Stat. 373 (October 10, 1951).
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[material] assistance to friendly nations in the interest of international peace and security.”132
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.”133 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.134
In 1955, the United States and Germany, both parties to the North Atlantic Treaty, entered into an
agreement on mutual defense assistance,135 obligating the United States to provide for “such
equipment, materials, services, or other assistance as may be agreed” to Germany.136 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
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 1954,137
which authorizes the furnishing of military assistance to certain nations[.]138
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.”139 The mutual defense assistance agreement is the basis for
numerous subsequent agreements between the United States and Germany.140

132 Id.
133 3 U.S.T. 4564; T.I.A.S. 2607; 181 U.N.T.S. 45.
134 65 Stat. 373.
135 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.
136 Id.
137 P.L. 83-665, 68 Stat. 832 (August 26, 1954).
138 6 U.S.T. 5999; T.I.A.S. 3443; 240 U.N.T.S. 47.
139 Id.
140 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.
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In 1959, the countries entered into an agreement implementing the NATO SOFA of 1953.141 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.142 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, California in
1951.143 The Mutual Defense Assistance Act of 1949144 and the Mutual Security Act of 1951145
are also referenced in the agreement as they provide for the furnishing of defense assistance by
the United States.146 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.147
In 1960, the countries entered into the Treaty of Mutual Cooperation and Security Between the
United States of America and Japan.148 The treaty was amended on December 26, 1990.149 Article
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.”150 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.”151
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[.]”152 Article VI provides further
that the use of facilities and the status of U.S. armed forces will be governed under a separate
agreement.153

141 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.
142 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.
143 3 U.S.T. 3169; T.I.A.S. 2490. Signed at San Francisco September, 8, 1951. Entered into force April 28, 1952.
144 63 Stat. 714.
145 65 Stat. 373.
146 5 U.S.T. 661; T.I.A.S. 2957; 232 U.N.T.S. 169.
147 Id.
148 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.
149 T.I.A.S. 12335.
150 11 U.S.T. 1632; T.I.A.S. 4509; 373 U.N.T.S. 186.
151 Id.
152 Id.
153 Id.
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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. 154 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.155
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.156
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.157 This executive
agreement was between the President of the Republic of Korea and the Commanding General,
U.S. Army Forces in Korea.158 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.”159 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, 1948.160
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.”161 The agreement provides that any individuals under the jurisdiction of the
Commanding General who is 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.162
In 1950, the countries entered into a mutual defense assistance agreement.163 The mutual defense
agreement references the Military Defense Act of 1949, 164 which provides for the furnishing of

154 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.
155 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.
156 Exchange of letters at Seoul August 9 and 11, 1948. Entered into force August 11, 1948.
157 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.
158 Id.
159 62 Stat. 3818.
160 Id.
161 Id. at 3819.
162 Id.
163 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,
(continued...)
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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.165
The United States and South Korea entered into a mutual security agreement in 1952.166 The
mutual security agreement references the Mutual Security Act of 1951,167 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.168
In 1954, the countries entered into a mutual defense treaty.169 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.170 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.171 Pursuant to the treaty, specifically Article
IV, in 1966, the countries entered into a SOFA with agreed minutes and an exchange of notes.172 It
was subsequently amended January 18, 2001.
Philippines
In 1947, the United States and the Republic of the Philippines entered into an agreement on
military assistance.173 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.174
The agreement was extended, and amended, for an additional five years in 1953.175

(...continued)
1950.
164 P.L. 81-329, 63 Stat. 714 (October 6, 1949).
165 1 U.S.T. 137; T.I.A.S. 2019; 80 U.N.T.S. 205.
166 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.
167 P.L. 82-165, 65 Stat. 373 (October 10, 1951).
168 3 U.S.T. 4619; T.I.A.S. 2612; 179 U.N.T.S. 105.
169 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.
170 Id.
171 Id.
172 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,
1967.
173 61 Stat. 3283; T.I.A.S. 1662. Signed at Manila March 21, 1947. Entered into force March 21, 1947.
174 61 Stat. 3284.
175 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.
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A mutual defense treaty was entered into by the United States and the Philippines in 1951.176 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[.]”177 The Treaty does not address or
provide for a SOFA.
The countries entered into a mutual security agreement in 1952,178 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.179
In 1993, the countries entered into a SOFA.180 The agreement was subsequently extended on
September 19, 1994, April 28, 1995, and November 29, December 1 and 8, 1995. The countries
entered into an agreement regarding the treatment of U.S. armed forces visiting the Philippines in
1998.181 This agreement was amended on April 11 and 12, 2006. The distinction between this
agreement and the SOFA originally entered into 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.182
III. Congressional Oversight
Congress has several tools at its disposal to exercise oversight regarding the negotiation,
conclusion, and implementation of international security agreements concluded 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.

176 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.
177 Id.
178 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.
179 Id.
180 T.I.A.S. Exchange of notes at Manila April 2, June 11 and 21, 1993. Entered into force June 21, 1993.
181 T.I.A.S. Signed at Manila February 10, 1998. Entered into force June 1, 1999.
182 T.I.A.S. Signed at Manila October 9, 1998. Entered into force June 1, 1999.
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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—i.e., 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 Act183 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.184 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.185 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.186
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 proposed agreements, as well. The
Secretary of State is required to annually report to Congress a list of executive agreements that
have not yet entered into force, which (1) have not been 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.”187
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.”188 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

183 1 U.S.C. § 112b
184 See H.Rept. 92-1301, 92nd Cong. (1972).
185 1 U.S.C. § 112b(a).
186 Id. at §112b(b).
187 Id. at § 112b(d).
188 H.Rept. 92-1301, 92nd Cong. (1972).
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• 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.189
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.190
Annual Reporting of Security Arrangements Required by the National
Defense Authorization Act of 1991

In addition to the Case-Zablocki Act, Congress has enacted legislation designed to ensure that it
remains informed about existing U.S. security arrangements. Section 1457 of the 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.”191 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.192 In addition to legally binding
security arrangements or commitments (e.g., mutual defense treaties and pre-positioning
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.”193

189 22 C.F.R. § 181.2(a).
190 11 F.A.M. § 725.1(5).
191 50 U.S.C. § 404c(a).
192 Id. at § 404c(c)-(d).
193 Id.
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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 § 1457 of the FY1991 National Defense
Authorization Act was neither specifically terminated by the Sunset Act nor listed in House Doc.
103-7. 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.”194 To that end, State Department regulations contemplate
congressional consultation regarding the conduct of negotiations to secure significant
international agreements.195
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 concluded 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
formal congressional consultation,”196 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.”197
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. If accepted,
these reservations, declarations, and understandings may limit and/or define U.S. obligations
under the treaty.

194 11 F.A.M. § 722(4).
195 Id. at § 725.1(5).
196 11 F.A.M. § 724.4(b)-(c).
197 Id. at § 724.4(b).
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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 a sole executive agreement through a
subsequent legislative enactment or through the conditioning of appropriations necessary for the
agreement’s commitment to be implemented.198 Similar measures could also be taken to limit or
condition U.S. adherence to a non-binding security arrangement.
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.199 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.200
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;201 or (3) the agreement manifests an intention that it shall not
become effective as domestic law without the enactment of implementing legislation.202
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

198 In the 110th Congress, legislation introduced 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)).
199 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.
200 See generally RESTATEMENT, supra note 14, § 111(4)(a) & cmt. h.
201 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).
202 RESTATEMENT, supra note 14, § 111(4)(a) & n. 5-6.
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obligations unless implementing legislation is enacted.203 Perhaps for this reason, Congress
typically appropriates funds necessary to carry out U.S. obligations under international
agreements.204
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.

Author Contact Information

Michael John Garcia
R. Chuck Mason
Legislative Attorney
Legislative Attorney
mgarcia@crs.loc.gov, 7-3873
rcmason@crs.loc.gov, 7-9294





203 See id., § 111, cmt. h.
204 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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