International Agreements (Part III): Transparency Measures

International Agreements (Part III): Transparency Measures

Legal Sidebari

International Agreements (Part III):
Transparency Measures
September 29, 2023
This Legal Sidebar discusses legislative measures to increase transparency into the United States’
international commitments. It is the third installment in a three-part series on international agreements in
the U.S. legal system. Part I introduces the primary forms of international instruments and the process for
making them. Part II examines options for Congress to influence international instruments. For more
information on these topics, see International Law and Agreements: Their Effect upon U.S. Law.
Background
Section 5947 of the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (FY2023
NDAA), which went into effect on September 19, 2023, expands the transparency framework governing
international agreements and non-binding instruments. Pre-FY2023 laws require the executive branch to
publish binding agreements (1 U.S.C. § 112a) and transmit executive agreements to Congress (1 U.S.C.
§ 112b). The FY2023 NDAA amends these statutes to address gaps in the transparency regime and align
the executive branch’s reporting obligations with modern international practice.
Pre-FY2023 NDAA Requirements
Publication: 1 U.S.C. § 112a
Originally enacted in 1950, 1 U.S.C. § 112a requires the Secretary of State to compile and publish
annually a list of all treaties and executive agreements to which the United States is a party. Congress
amended the statute in 1994 to lessen the publication burden on the State Department, which lacked the
resources to publish agreements promptly. The 1994 amendment permits the State Department to exclude
categories of executive agreements from the publication requirement when public interest in the
agreements is insufficient to justify their publication. The State Department later issued regulations listing
sixteen exempt categories of agreements that will not published. A 2004 amendment to Section 112a
requires online publication in addition to annual written compilations.
Congressional Research Service
https://crsreports.congress.gov
LSB11050
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

Congressional Research Service
2
Transmittal to Congress: 1 U.S.C. § 112b
Concerned about secret international commitments during the Nixon Administration, Congress enacted
legislation in 1973 commonly called the Case-Zablocki Act or Case Act (1 U.S.C. § 112b). The Case-
Zablocki Act required the Secretary of State to transmit executive agreements to Congress no later than 60
days after their entry into force. If immediate public disclosure of an agreement would, in the President’s
opinion, prejudice U.S. national security, the Act allowed the agreement to be submitted only to the
Senate Foreign Relations Committee (SFRC) and House Foreign Affairs Committee (HFAC) under an
injunction of secrecy. When transmitting agreements to Congress, State Department regulations required a
background statement explaining the agreement and a “precise citation of legal authority.”
A 1978 amendment to the Case-Zablocki Act allowed the Secretary of State to determine whether an
arrangement constitutes an international agreement subject to the Act’s transmittal and reporting
mandates. State Department regulations set criteria for this determination, which excluded several
categories of instruments from the Act’s requirements. Excluded categories included non-binding
commitments, arrangements that lack “precision and specificity,” and “[m]inor or trivial undertakings,
even if couched in legal language.” Although these exclusions narrowed the Case-Zablocki Act’s scope,
the State Department struggled in the past to meet the 60-day transmittal requirement for executive
agreements. Congress prohibited use of federal funds to implement late-submitted executive agreements
in 1988 and 1989 and again in 2005 through 2007, but those appropriations restrictions expired.
Context-Specific Requirements
Apart from the general transparency mandates in 1 U.S.C. §§ 112a and 112b, Congress has occasionally
enacted agreement-specific or context-specific disclosure requirements. The statutory report-and-wait
frameworks discussed in Part II of this series, for example, require disclosure to Congress before an
agreement enters into force.
FY2023 NDAA Amendments
In Section 5947 of the FY2023 NDAA, Congress enacted its first comprehensive set of transparency
measures for international instruments since the Case-Zablocki Act. Using Freedom of Information Act
lawsuits, researchers obtained new data revealing large numbers of unpublished international agreements,
late-reported agreements, and agreements submitted without background statements. In addition, the pre-
FY2023 NDAA transparency statutes do not apply to non-binding instruments. As outlined in Part I of
this Sidebar series, non-binding commitments have become prominent tools in modern American
diplomacy, and the lack of transparency mandates for these instruments led to diminished congressional
visibility into the United States’ international commitments. The FY2023 NDAA seeks to address these
issues through comprehensive reform and modernization of the executive branch’s transparency
obligations.
Qualifying Non-Binding Instruments
The FY2023 NDAA requires, for the first time, the executive branch to transmit and publish qualifying
non-binding instruments. The statute defines this term as instruments with foreign governments,
international organizations, or foreign entities (including non-state actors) that could reasonably be
expected to have a significant impact on U.S. foreign policy. The term is also defined to include any
instrument that is the “subject of a written communication” from the chair or ranking member of SFRC or
HFAC to the Secretary of State requesting the instrument’s text. Instruments concluded or implemented
based on authorities relied on by the Department of Defense, the Armed Forces, or the intelligence
community are exempt from the definition.

Congressional Research Service
3
Publication Requirements
Section 5947 of the FY2023 NDAA overhauls the publication mandates in 1 U.S.C. § 112a and
consolidates them within 1 U.S.C. § 112b. Section 5947 requires the Secretary of State to publish the text,
authorizing authority, and implementing authority for each instrument on its website within 120 days of
entering into force or becoming operative. The FY2023 NDAA removes the Secretary of State’s authority
to determine which instruments have insufficient public interest to justify publication. In place of the
public interest exception (and the sixteen categories of exempt agreements based upon it), the FY2023
NDAA exempts five sets of instruments from its publication requirement. Exempted instruments are those
that contain classified information or information exempt from public disclosure, address certain military
matters, establish the terms for certain foreign assistance, establish technical details for existing projects,
or have been published separately.
Transmission and Reporting Requirements
Along with the overhauled publishing obligations, Section 5947 requires the Secretary of State to provide
monthly written reports containing the material listed in the text box below to the majority and minority
leaders of the House and Senate and of the foreign affairs committees. Whereas the Case-Zablocki Act
required transmission of executive agreements only after entry into force—which can occur long after an
agreement is negotiated and signed—the FY2023 NDAA’s transparency provisions require reporting both
when an instrument is “signed, concluded, or otherwise finalized” and when it enters into force.
Congressional Reporting Requirements in the FY2023 NDAA
Section 5947 of the FY2023 NDAA requires the Secretary of State to provide the fol owing each month:
List: A list of all international agreements and qualifying non-binding instruments that were signed, concluded, or otherwise
finalized or that entered into force or became operative in the prior month.
Text: The text of each agreement and instrument, including any implementing material, annex, appendix, side letter, or
similar document entered into contemporaneously and in conjunction with the underlying agreement or instrument.
Authorizing authority: A detailed description of the legal authority that the executive branch views as authorizing the
agreements and instruments. All citations to the Constitution, treaties, and statutes must include the specific article, section,
or subsection that the executive branch relies upon. If the relied-upon authority includes Article II of the Constitution, the
executive branch must explain the basis for its reliance.
Implementing authority: A statement of any new or amended statutory or regulatory authority anticipated to be
necessary to implement a listed agreement or instrument that entered into force or became operative.
Other Oversight and Transparency Provisions
Other provisions in the FY2023 NDAA facilitating congressional oversight of and transparency into
international instruments include the following.
Implementing Agreements
The Secretary of State must submit implementing agreements or arrangements not otherwise required to
be provided to Congress under the FY2023 NDAA upon request from a chair or ranking member of the
foreign affairs committees. In response, the Secretary must provide the implementing agreements or
arrangements to the majority and minority leaders of the House and Senate and of the foreign affairs
committees within 30 days.
Oral Agreements
All oral agreements must be reduced to writing to fulfill reporting and publication requirements.

Congressional Research Service
4
Congressional Consultations and Briefings
The Secretary of State must consult the House and Senate foreign affairs committees on matters related to
implementing the FY2023 NDAA’s transparency provisions before and after the law’s enactment. The
Secretary must also brief these committees on the Administration’s implementation efforts 90 days after
the law’s enactment and once every 90 days for the next year.
Audits and Non-Compliance
The Comptroller General is required to conduct and publish a triennial audit of the executive branch’s
compliance with its transparency obligations. The Secretary of State must establish a mechanism for the
State Department personnel to report non-compliance with the law’s transparency requirements to the
Secretary of State.
Internal Executive Branch Processes
The FY2023 NDAA creates new administrative procedures the executive branch must follow when
negotiating and concluding international instruments. When any executive branch agency concludes an
international instrument, it must provide the Secretary of State with the text and a statement of
authorizing authority within 15 days after the date of conclusion. Agencies may not conclude binding
international agreements without consulting the Secretary of State. Any agency that enters into an
international instrument must appoint a chief international agreements officer to ensure compliance with
statutory obligations.
Sense of Congress
The FY2023 NDAA includes a “sense of Congress” that “the executive branch should not prescribe or
otherwise commit to or include specific legislative text in a treaty or executive agreement unless Congress
has authorized such action.”
Considerations for Congress
Congressional oversight of the United States’ international commitments is of perennial interest, and
Congress may wish to monitor implementation of the FY2023 NDAA. One area of interest is how the
State Department implements the new transparency requirements for qualifying non-binding instruments.
Only those non-binding instruments that are expected to have a “significant impact” on U.S. foreign
policy will be subject to the FY2023 NDAA unless designated Members of Congress specifically request
an instrument. In a 2022 committee report, SFRC expressed the view that the “significant impact”
analysis should be based on the totality of the circumstances and should assess the instrument’s political
significance, congressional or public interest, and the effect of implementation. The FY2023 NDAA gives
the President, acting through the Secretary of State, rulemaking authority, and the State Department could
elaborate on the “significant impact” standard through rulemaking or by providing guidance.
Congress may also wish to monitor the exceptions to the FY2023 NDAA’s transparency and reporting
requirements. Some observers have argued that an exemption for non-binding defense- and intelligence-
related instruments will undercut the benefits of the FY2023 NDAA’s new transparency regime.
Additionally, in the anticipation of increased volumes due to greater reporting, Congress may wish to
ensure that the legislative branch has adequate personnel and resources to review transmitted materials
effectively.
Acknowledgment
CRS Paralegal Mitchell Ruhl contributed to this product.

Congressional Research Service
5
Author Information

Stephen P. Mulligan

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB11050 · VERSION 1 · NEW