Open Skies Treaty

Are There Shortcuts for the U.S. to Rejoin the Open Skies Treaty?

By Stephen Rademaker
Friday, January 15, 2021, 8:01 AM

President Trump has moved aggressively over the course of his administration to withdraw the United States from a variety of treaties and other international agreements. Most recently, the administration’s notice of withdrawal from the Treaty on Open Skies took effect on Nov. 22, 2020, six months after it was provided to the treaty depositaries.

While the Open Skies Treaty is not widely known outside of the arms control community, it is warmly regarded within that community, and the U.S. withdrawal from the agreement just before the commencement of the Biden administration has exasperated the treaty’s supporters. This has given rise to a search for legal theories that would either negate the Trump administration’s withdrawal from the treaty or, failing that, permit the Biden administration to return the United States to the treaty without having to go through the cumbersome process of obtaining Senate advice and consent to reratification.

As one commentator put it, “The new administration should make clear its intention to rejoin the treaty and put some clever lawyers to work figuring out a way to make that happen.”

All of these theories rest on a key concern: Opposition from Republican Senators will prevent the Biden administration from gaining the necessary two-thirds majority support in the Senate for a resolution of advice and consent to reratify the treaty.

Among the theories that have been suggested for circumventing the expected lack of sufficient support in the Senate for reratifying the treaty are:

  • The Biden administration could reratify the treaty, relying on the Senate’s original resolution of advice and consent to ratification of the treaty, adopted in 1993, as legal authority for this action.
  • The Senate advice and consent process could be circumvented in this case by the enactment of a joint resolution (passed by a majority vote in the House and the Senate) authorizing reratification of the treaty.
  • The Trump administration’s notice of withdrawal could be deemed legally invalid because it was submitted in disregard of restrictions contained in the National Defense Authorization Act for fiscal 2020.
  • The other parties to the treaty could agree among themselves that they “stopped the clock” on U.S. withdrawal on Nov. 22, 2020, such that the U.S. notice of withdrawal never took effect, and the other parties and the new Biden administration can agree after Jan. 20 that the U.S. is still party to the treaty notwithstanding the Trump administration’s notice of withdrawal.

All of these theories are problematic. Some are legally unsupportable, while others others are impractical because of institutional considerations that are likely insurmountable in the context of the Open Skies Treaty.

Reratification in Reliance on the 1993 Resolution of Advice and Consent

On Aug. 6, 1993, the Senate adopted a resolution stating in relevant part: “Resolved, (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Treaty on Open Skies signed at Helsinki on March 24, 1992[.]” In reliance on this resolution, and in accordance with established practice under Article II, Section 2, Clause 2 of the Constitution, President Clinton ratified the Open Skies Treaty on Nov. 3, 1993.

If President-elect Joe Biden wishes to reratify the treaty following President Trump’s withdrawal from it, why should he have to seek Senate approval of another resolution with effectively the same operative language as the 1993 resolution advising and consenting to the original U.S. ratification of the treaty? Why can’t he simply rely on the original resolution to ratify the treaty for a second time? Several recent articles have argued that there’s no reason why the Senate should have to act a second time to authorize reratification of the treaty.

Among other things, the authors of these articles argue that Senate resolutions advising and consenting to treaty ratification typically contain no expiration date, specify no time period within which the president must act to ratify the treaty, and contain no language suggesting that the advice and consent to ratification is limited to a single ratification of the treaty in question. They point out that there is precedent for the president to wait for an extended period of time before ratifying a treaty to which the Senate has advised and consented. For example, the Senate advised and consented to ratification of the Vienna Convention on Diplomatic Relations and its Optional Protocol in 1965, but President Nixon did not ratify them until 1972.

The authors acknowledge that there is no precedent in U.S. history for the proposition that a Senate resolution advising and consenting to ratification of a treaty conveys authority to the president that is both perpetual and reusable. They note, however, that there are few instances in U.S. history when a president wanted to reratify a treaty from which the U.S. has withdrawn. They also cite, as a quasi-precedent, the U.S. return to the executive agreement establishing UNESCO in 2003, following an earlier U.S. withdrawal from that agreement, in which President George W. Bush relied on the 1946 statute that authorized the original U.S. adherence to that agreement.

Finally, they suggest that construing Senate resolutions of advice and consent to authorize reratification of treaties from which a president has withdrawn should be welcomed by the Senate as an interpretation that preserves and maximizes the Senate’s role in treaty-making. They point out that there are a number of instances in which senators have disputed the authority of the president to unilaterally withdraw the United States from a treaty to which the Senate has advised and consented. Consistent with this view, they argue, the Senate should welcome the idea that resolutions of advice and consent convey authority that is both perpetual and reusable in the event that a president withdraws from a treaty without having obtained congressional approval to do so.

Notwithstanding these arguments, there is no obscuring the fact that Senate resolutions of advice and consent are fundamentally grants of authority to the president. The question here is whether such Senate resolutions are a narrow grant of authority to take a one-time action (ratify a treaty), or a broad grant of perpetual authority to take that action repeatedly, unless Congress at some future point affirmatively rescinds the authority. Until now, it has never occurred to the Senate or anyone else that such resolutions were more than a narrow grant of authority to take a one-time action. Establishing the broad interpretation could only be understood to expand the power of the president vis-à-vis the Senate, because it would empower the president to take repeated actions that he otherwise could not take without first obtaining the Senate’s approval.

Even senators who favor readherence by the United States to the Open Skies Treaty would need to worry about where this expansion of presidential authority might lead. It could certainly empower the president to reratify other lapsed treaties that might no longer claim the broad support in the Senate that supporters of the Open Skies Treaty believe that treaty has.

One hypothetical that illustrates this concern, due to the controversy surrounding the treaty’s termination, would be a unilateral decision by a president to reratify the U.S.-Taiwan Mutual Defense Treaty. The Senate gave its advice and consent to ratification of this treaty in 1955, and President Carter abrogated it in 1979 as part of his decision to recognize the People’s Republic of China. Reratifying the treaty today not only would send a powerful signal of opposition to the People’s Republic of China but also would revive a legal obligation on the part of the United States to defend Taiwan from attack by China. This is hardly a remote possibility, given that China regards Taiwan as a rebellious province that one day must be resubordinated to Beijing’s control. Legally recommitting the United States to defend Taiwan could easily lock the United States into an armed conflict with a nuclear-armed power.

How many senators would be comfortable with the notion that the president is today fully authorized to legally recommit the United States to the defense of Taiwan? Just because two-thirds of the Senate agreed in 1955 that making such a commitment served U.S. interests then does not mean that there would be substantial support in the Senate today for reviving that commitment. And many senators would object to the proposition that the decision to do this is the president’s alone to make. The legal interpretation that would permit President-elect Biden to reratify the Open Skies Treaty would also permit any future president to reratify a similar treaty such as the Mutual Defense Treaty with Taiwan.

Those who have argued that the president has authority under the 1993 Senate resolution of advice and consent to reratify the Open Skies Treaty recognize this risk. However, they distinguish the Taiwan case by suggesting that there has been an “implied repeal” of the 1955 resolution of advice and consent to the U.S.-Taiwan Mutual Defense Treaty by, among other measures, the Taiwan Relations Act of 1979, which was “premised on normalized relations with mainland China and non-treaty relations with Taiwan[.]”

Under the theory of reratification that has been put forward, in any case where Congress has not adopted legislation explicitly repealing or nullifying a resolution of advice and consent to ratification, it would fall to the president alone to decide whether that resolution had been impliedly repealed. Dismayed members of Congress could complain and they could even sue the president seeking to negate his action. Various obstacles have prevented prior such challenges from reaching the merits, including standing, ripeness and the political question doctrine. So the president may well end up having the final word.

The U.S.-Taiwan Mutual Defense Treaty is merely one example of a moribund treaty that could be revived unilaterally by a president under the theory that Senate resolutions of advice and consent to treaty ratification grant authority to the president that is both perpetual and reusable.

The risks attendant on this theory are most evident in the case of treaties like the U.S.-Taiwan Mutual Defense Treaty that could obligate the United States to fight a war. The U.S.-Taiwan Mutual Defense Treaty is not the only example of such a treaty. What about the Southeast Asia Collective Defense Treaty of 1954 (also known as the Manila Pact), of which the Senate advised and consented to ratification in 1955? This treaty, which essentially established a NATO for Southeast Asia called SEATO, committed the United States to respond to “aggression” in “the general area of Southeast Asia[,]” including in particular against treaty parties Thailand and the Philippines. Likewise, the Baghdad Pact of 1955 established a NATO equivalent in the Middle East and South Asia called CENTO and included as treaty parties, among others, Iraq and Pakistan.

But treaties extending security guarantees to other countries are only the tip of the iceberg. Who knows what other economic, political or security obligations might be reimposed unilaterally by the president under the theory that has been proposed?

Acceptance of this theory may also have implications beyond treaty ratification. The constitutional provision under which the Senate advises and consents to treaty ratification—Article II, Section 2, Clause 2—also provides for Senate advice and consent to presidential nominees for appointment as “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

When the Senate votes to advise and consent to a presidential nomination, it transmits its approval to the president in a document reading, “Resolved, that the Senate advise and consent to the following nomination: [name] to be [office].” Similar to resolutions of advice and consent to treaty ratification, these resolutions contain no expiration date, specify no time period within which the president must appoint the nominee, and contain no language suggesting that the advice and consent to appointment of the nominee is limited to a single appointment to the office in question. If Senate resolutions advising and consenting to treaty ratification adopted under Article II, Section 2, Clause 2 convey perpetual and reusable authority to the president, why would the same not be true of Senate resolutions advising and consenting to the appointment of presidential nominees adopted under that same clause of the Constitution? The next time a president wants to reappoint former Cabinet secretaries like former Secretary of Defense Donald Rumsfeld or former Attorney General William Barr to the positions they previously held, might “clever lawyers” discover there’s no need to bother seeking Senate advice and consent a second time?

All of the foregoing considerations suggest that it would be a questionable departure from past practice for the executive branch to assert that the authority of Senate resolutions of advice and consent to treaty ratification convey perpetual and reusable authority to the president. And that the consequences would be far-reaching—and potentially alarming—if Congress were to acquiesce in such an assertion.

Reratification in Reliance on a Statute Enacted by Congress

Congress could also enact legislation that would authorize the president to reratify the treaty. This would allow the president to bring the United States back into the Open Skies Treaty without obtaining two-thirds majority support in the Senate. There is no constitutional obstacle to doing this, and history would suggest that there would be no institutional reasons why the House of Representatives would hesitate to approve such legislation. Instead, the biggest obstacle is likely to be Senate concern over the protection of its constitutional prerogatives with respect to treaty-making.

While Article II, Section 2, Clause 2 of the Constitution provides that the president may make treaties “by and with the Advice and Consent of the Senate ... provided two thirds of the Senators present concur,” there is ample precedent for the president to rely on a grant of statutory authority to bypass the constitutionally prescribed method for bringing treaties into force. The most familiar example is international trade agreements, which, in modern practice, are routinely approved and brought into force pursuant to “fast-track authority” under which both houses of Congress vote on whether to approve the proposed agreement. In effect, majority approval by both houses of Congress is substituted for two-thirds approval by the Senate. Due to the Senate’s filibuster rules, the vast majority of legislation actually requires 60 rather than 50 votes to pass the Senate.

Purists might argue that international trade agreements approved by statute under fast-track authority are not treaties at all but, rather, “congressional-executive agreements.” However, this is little more than a neologism or category error that has been adopted to rationalize the approval of such agreements by means other than the mechanism set forth in Article II, Section 2, Clause 2 of the Constitution. Indeed, the Senate Foreign Relations Committee has acknowledged that “[a]lthough [reciprocal trade agreements] are legally binding treaties under international law, these trade agreements are not treaties in the U.S. terminology, that is, agreements submitted to the Senate for its advice and consent. Instead, they have been concluded as statutory or congressional-executive agreements.”

Statutory approval has been relied on to ratify treaties in other areas besides international trade, including arms control. Most significantly, in 1972, President Nixon brought into force the SALT I agreement—the seminal strategic arms control agreement of the modern era—pursuant to a law that authorized the president “to approve on behalf of the United States the interim agreement between the United States and the Union of Soviet Socialist Republics on certain measures with respect to the limitation of strategic offensive arms.”

More recently, when the Clinton administration considered it urgent to obtain approval to ratify a negotiated revision to the Conventional Armed Forces in Europe Treaty, known as the “CFE Flank Agreement,” it called on Congress to approve the treaty by statute. In that instance, the House of Representatives was happy to oblige, passing legislation to do precisely that in 1997. The Senate, however, declined to take up the legislation and, instead, ultimately adopted a resolution advising and consenting to ratification of the CFE Flank Agreement.

This episode exposed the divergent interests of the two houses of Congress. The constitutional design assigns responsibility for treaty approval to the Senate and effectively leaves the House of Representatives as a bystander. However, when the back door is opened for the House to participate in approving treaties, it is often eager to participate. The Senate, by contrast, correctly perceives that when this happens, its prerogatives are being usurped by the lower house. Sometimes, the Senate is prepared to acquiesce in such usurpation, but those instances are rare. Whether a majority of the Senate will consider rejoining the Open Skies Treaty to be sufficiently important to justify such acquiescence will be an interesting test of the Senate’s priorities. It may also be an interesting test of President Biden’s priorities, given his long service as a member and chairman of the Senate Committee on Foreign Relations.

Invalidation of the Trump Administration’s Notice of Withdrawal

When the Trump administration provided notice of its decision to withdraw from the treaty to the depositaries of the Open Skies Treaty on May 22, 2020, it consciously acted in disregard of § 1234(a) of the National Defense Authorization Act for fiscal 2020 (NDAA). That provision required the secretaries of defense and state to notify Congress at least 120 days in advance of notifying the depositaries of a U.S. decision to withdraw from the Open Skies Treaty.

The administration’s defiance of this provision was based on the statement that President Trump issued in December 2019 upon signing the NDAA, in which he made clear that he regarded the provision as constitutionally problematic and therefore would treat it “consistent with the President’s exclusive constitutional authorities as Commander in Chief and as the sole representative of the Nation in foreign affairs[.]” Such signing statements have been issued routinely by recent administrations, and § 1234(a) was just one of roughly two dozen provisions in the NDAA that Trump flagged as potentially unconstitutional and, therefore, in his view, nonbinding.

The Justice Department amplified this interpretation in an opinion issued by the Office of Legal Counsel (OLC) in September 2020, asserting that the notice period required under § 1234(a) “unconstitutionally interferes with the President’s exclusive authority to execute treaties and to conduct diplomacy, a necessary incident of which is the authority to execute a treaty’s termination right.”

The Biden administration, upon taking office, would have the option of repudiating the OLC opinion, declaring that § 1234(a) was not an unconstitutional infringement of the president’s authority after all, that it was binding on the executive branch all along, and, therefore, because the Trump administration’s notice of withdrawal from the treaty was submitted unlawfully, that it is void.

It is not clear what the other parties to the Open Skies Treaty would or could make of such a declaration. Ordinarily, treaty parties cannot look behind representations made by other treaty parties to ascertain whether they were provided in accordance with applicable domestic legal requirements. From the other parties’ perspective, such a declaration by the Biden administration would appear to be indistinguishable from a notice—received after the Trump administration’s notice of withdrawal had taken effect—that the United States had reconsidered and no longer wished to withdraw from the treaty. If rejoining the Open Skies Treaty were as simple as declaring that the United States had changed its mind about withdrawing, there would be no need to consider any of the options discussed in this article.

A more immediate challenge, however, would be gaining agreement within the executive branch that the assertions about § 1234(a) in the OLC opinion and in President Trump’s signing statement were incorrect as a matter of constitutional law. Such assertions are typically accepted as settled principles of constitutional interpretation within the executive branch, and the Justice Department in particular is hesitant to agree that it was wrong about such an important matter.

Whatever theory was put forward to justify repudiating Trump’s position on § 1234(a) would likely have implications for many other statutory provisions that Trump and his predecessors have dismissed as nonbinding, not just in the NDAA but also in countless other laws. The Biden administration would need to consider what other legislative restrictions it was now accepting as constitutional and binding as a result of its new interpretation.

And with reference specifically to the termination of treaties, the Biden administration would need to consider what other legislative restrictions it was prepared to accept as constitutional if it was prepared to agree that it is permissible for Congress to require prior notice of a decision to withdraw from a treaty. Is the executive branch prepared to agree, for example, that Congress could have imposed preconditions on, or even forbidden, President Carter’s withdrawal from the U.S.-Taiwan Mutual Defense Treaty? If not, how can that be distinguished from the conditions set forth in § 1234(a)?

In short, this option will be available to the Biden administration, but pursuing it could end up tying the president’s hands in lots of unintended ways, and it’s not clear how doing this will restore the United States to membership in the treaty.

Stopping the Clock

At least one proponent of the Open Skies Treaty has tried to develop a theory whereby the other parties to the treaty could accept a U.S. declaration negating the Trump administration’s notice of withdrawal. Under this theory, the other parties to the treaty would simply agree that, as of the date on which that withdrawal otherwise would have become effective (Nov. 22, 2020), they “stopped the clock” on U.S. withdrawal in order to give the Biden administration time to assume office and decide whether it wanted to remain in the treaty.

The idea is explained as follows:

In cases where tough negotiations are making progress, but a deadline is about to run out, the members of the negotiation sometimes agree to stop the clock at one minute to midnight. This buys a few hours or days of extra time to resolve the last issues. The tactic requires the tacit consent of all involved and cannot be used to indefinitely prolong negotiations which are not making progress. But it is a useful and much-recognised manoeuvre under certain circumstances. The variation on this tactic which is being proposed here is that the other Treaty members agree amongst themselves to “stop the clock” on the American withdrawal at one minute to midnight on November 21.

Neither the author nor other literature explains how ignoring the deadlines would be applied to specified treaty deadlines. Nor is it explained how a technique used in other contexts to buy “a few hours or days of extra time” could serve as precedent for stopping the clock on treaty withdrawal for a period of two months or longer.

In addition, this proposal contains the logical flaw that all parties to the treaty are to agree “at one minute to midnight” on the day before the U.S. withdrawal takes effect that they are stopping the clock. But, by all accounts, the United States was still a party to the treaty at one minute to midnight on the day before the withdrawal took effect. Presumably, therefore, what is really being suggested is either that all parties but one agree to stop the clock before the U.S. withdrawal took effect or that the remaining parties wait until after the U.S. withdrawal took effect to stop the clock. It’s not clear, of course, why the timing of a decision to stop the clock would really matter; once the parties to a treaty agree to begin disregarding rules applicable to the treaty, there’s no limit to what they can agree to do.

This theory can fairly be described as proposing that the parties conspire to violate the treaty in order to save it. While some observers might argue that this is a case where the ends justify the means, few would disagree that, generally speaking, conspiracies of treaty parties to disregard treaty provisions are to be discouraged. One could imagine many other circumstances in which agreeing to stop the clock on treaty deadlines, or to disregard other inconvenient treaty provisions, could have pernicious consequences.

Notwithstanding these issues, the Russian press has reported that this idea “is now being seriously discussed in Vienna.” Russian media ascribes to former Under Secretary of State Rose Gottemoeller the statement that the idea “deserves consideration.” If at some point it is announced that the clock was stopped and the United States is deemed never to have withdrawn from the treaty in the first place, some senators will likely ask hard questions about what other provisions of Open Skies or other treaties may be disregarded in the future.

Conclusion

A time-honored legal maxim states that “hard cases make bad law.” For the reasons outlined above, it would be hard to find a better illustration of that maxim than the options discussed above for returning the United States to the Open Skies Treaty without seeking Senate advice and consent to reratification of the treaty.