Deputy National Security Advisor Avril D. Haines
“The Importance of Treaties”
Yale Law School
As Prepared for Delivery
Saturday, October 15, 2016
Good afternoon. Thank you for having me—and on a Saturday, no less. I’m thrilled to be here with so many distinguished scholars, students, and friends. And having worked for years in the State Department’s Office of Treaty Affairs, you should know that discussing treaties and international law on a Saturday is actually my idea of a good time.
As Brian indicated in his remarks, in recent years, we have experienced a backlash against treaties. I am the first to admit that you have to judge the substance of a treaty – not every deal is a good deal – but the criticism has frequently been framed against treaties generally. They are criticized as unnecessary limitations on our sovereignty, tools for the federal government to take power away from the states, and vehicles through which the United States submits itself to international bodies that do not share our values.
I have an entirely different image of treaties that I want to share with you – not as a treaty lawyer but as a policymaker and a national security professional in today’s complex world. I see treaties as enablers of U.S. foreign policy and core U.S. interests. From my perspective, treaties – whether advice and consent, or otherwise – are absolutely essential to meeting the challenges we face as a country. We need to change the conversation about treaties.
Brian explained how, as a legal matter, there are tools available to the Senate for addressing risks or concerns about particular treaties, including any federalism issues that are raised. What I thought I would spend my time on is why we need treaties; how we use treaties, international agreements, and even non-legally binding commitments to advance American interests; and then give you a sense of why I believe that if we turn away from treaties as a tool of foreign policy or demand that they only be ratified if no compromises have been made in the context of negotiations, we will be abdicating U.S. leadership in the world when it is sorely needed and to our great advantage as a country.
Let me start on an optimistic note. Thanks in large part to the international system that the United States has played a leading role in building and maintaining, we are living in the most prosperous and progressive era in human history. It has been decades since we’ve seen a war between major powers. Most people live in democracies. Over the last 25 years, more than 1 billion people have been lifted out of extreme poverty. We’ve saved over 60 million lives from measles and malaria and tuberculosis. And as President Obama likes to say, if you had to choose one moment in history in which you could be born, and you didn’t know ahead of time who you were going to be—what nationality, what gender, what race, whether you’d be rich or poor, gay or straight—you’d choose today.
At the same time, we live in an increasingly complex and fast-paced world—one in which issues that first arise across the globe can reach our shores in record time or impact us from abroad, creating national security challenges for the United States. We face threats when states fail, from the strain that uncontrolled migration places on our societies; and from the rise of non-state actors such as terrorists and criminal networks. We’re grappling with global pandemics and the daunting impact of climate change, which have yet to be fully felt or even fully appreciated.
Naturally, people question whether governments can meet all of these challenges and threats. We see this in polls reflecting the falling trust that people have in their government—not just in the United States but in Europe and elsewhere around the world.
So how do we address the challenges and harness the opportunities? When defining our core interests as a nation, past administrations have typically focused on three: security, prosperity, and values. We added a fourth to our National Security Strategy: promoting international order—or, as the 2015 strategy put it, “a rules-based international order advanced by U.S. leadership that promotes peace, security, and opportunity through stronger cooperation to meet global challenges.”
Why make this change? Why emphasize it as a core national interest? Because it is through a rules-based international order that we are able to promote security, prosperity, and even our values and without it, we are in danger of not achieving these core interests. The United States, as powerful as it is, cannot bear every burden alone—nor should we seek to do so. Establishing multilateral frameworks is how we address challenges that span borders and amplify our ability to prevent and respond to increasingly complex threats that demand coordinated action. A rules-based order promotes prosperity and influences behavior without the need to resort to military force. A rules-based order has served us well in promoting our values, such as equality and human dignity. That’s why—as the United States has recognized from our founding to the creation of the post-war international framework to today—fostering a rules-based international order is not just a nice idea, but a core national interest. Of course, treaties and other international instruments, form the backbone of a rules-based international order.
Let me give you a few examples to illustrate my point. When Ebola swept through West Africa, our response benefitted greatly from the resources of the World Health Organization, which was established by an international agreement. When the globe was gripped by a worldwide financial crisis, the World Bank and IMF, two institutions founded by treaties, allowed us to take measures to respond and mitigate the recession. And when we need a force to maintain fragile peace in South Sudan, Haiti, or Kashmir, the Security Council, an organ of the United Nations established by treaty, is empowered to send in those Blue Helmets. In other words, treaties framing the international order allow us to mobilize unprecedented collective action to address challenges central to global prosperity and stability.
Treaties and other forms of international agreements are likewise important to our economy: free trade agreements, bilateral investment treaties, and the WTO contribute to our economic growth by helping American businesses operate in and export their products to foreign markets and protect the intellectual property of American innovators. Bilateral tax treaties make it so that U.S. companies with overseas presences are not subject to double taxation.
Another example is the Iran nuclear deal, which demonstrates how a rules-based international order can provide sufficient leverage to change another country's behavior in our national security interest without resorting to the use of military force. We imposed unprecedented sanctions on Iran through the Security Council in response to its nuclear program, and then led a hard-fought campaign of multilateral diplomacy that achieved the Joint Comprehensive Plan of Action. As a result, Iran has dismantled two-thirds of its installed centrifuges and shipped 98 percent of their enriched uranium stockpile out of the country, and we’ve put a lid on its nuclear program without firing a shot.
Or take the South China Sea. To be sure, we’ve seen growing tensions between China and Southeast Asian nations over maritime claims. But, recently, we saw the Philippines make a lawful and peaceful effort to resolve their maritime claims with China using the tribunal established under the Law of the Sea Convention. The tribunal’s ruling delivered a clear and legally binding decision on maritime claims in the South China Sea as they relate to China and the Philippines—a ruling that we and a number of other countries have made very clear should be respected. Without the Law of the Sea Convention to establish clear rules of the road—or the ocean, as the case may be—the risk of a clash between competing claimants could well be higher.
And through a rules-based order, we are able to lead by example and promote U.S. values. Brian talked about the Genocide Convention and other core human rights treaties that promote U.S. interests in preventing atrocities and promoting universal rights and fundamental freedoms. Of course, this really only works when we can actually demonstrate that the rules and principles underpinning the order we are crafting, apply to the United States as much as to other countries. As a party to the WTO, we’ve shown that even a nation as powerful as the United States is not above the law if we commit trade violations or other infringements. And, in a number of instances, we’ve agreed to adopt a uniform set of rules governing particular conduct or transactions, such as intellectual property treaties and certain environmental agreements.
This brings me to the heart of my talk and today’s event. Treaties and other forms of international agreements underwrite so many of the institutions, rules, and structures that are critical to the international order—and therefore to U.S. interests. And the same charges made against the international order frequently are leveled against treaties—that they’re obsolete in today’s world, that they reduce our national power, or that they require us to compromise our sovereignty.
In my view, the very opposite is true. Treaties are at least as essential today as they have ever been. They are a vital tool in helping the United States achieve our national objectives. And they provide a framework in which we can harness the cooperative energy of other countries to address threats that no single nation—no matter how powerful—can address on its own.
I recognize that there are scholars who see international law as an impediment rather than as an enabler. There are those who argue that entering into arms control treaties with Russia limits American military options while Russia ignores its obligations. Or that adhering to the laws of armed conflict places us at a disadvantage when our enemies flout the rules. Or that ratifying the UN Disabilities Treaty would allow an international committee to tell American parents how to raise their children. I won't address each substantive issue—suffice it to say that I believe we should join the UN Disabilities Treaty, remain convinced that following the law of armed conflict is critical, and that arms control treaties, while not perfect, remain among the best mechanisms I know for promoting a safer world. But I would like to make two broader points.
First, I don't think those same critics are necessarily saying that all treaties are bad—just some of them because of concerns about substance or actors, or both. And thus I would ask you, as you write on these issues, that you make the point that treaties or other international instruments are not, in and of themselves, problematic, as I fear that gets lost in the public debate.
I doubt, frankly, that anyone—on a bipartisan basis—would regard most treaties as problematic. But the average person may not realize how often we all rely on legal frameworks established by treaties. When you want to call, email, or send a letter to a friend living abroad, you’re able to do so thanks to rules established by treaties. One of the reasons that you can feel reasonably assured of your safety when getting on a commercial flight in countries around the world is that the International Civil Aviation Organization establishes safety standards. Treaties help improve the quality of our air and ensure that food imported from abroad doesn’t make us sick. Overall, the United States is a party to over 10,000 treaties—and that’s a good thing for enhancing our everyday lives and advancing American interests in the world.
Second, if we are to reap the benefits of negotiated international instruments, while we should insist on a good deal for the United States, we should also be prepared to comply with the rules we are telling everyone else to comply with and to take on some risk with respect to, for example, the possibility that international mechanisms we establish will not always do exactly what we want them to do, so long as we believe that they are worth it in the long run as mechanisms that promote U.S. security, prosperity, and values.
My concern is that this strain of skepticism regarding treaties and other international instruments has stymied what has long been a healthy dynamic between Congress and the White House, regardless of which party has been in power—and the impact has been stark. Since 1960, the U.S. Senate has provided advice and consent to ratification of over 800 treaties, a rate of more than one treaty every month. Between 1995 and 2000, when President Clinton was in office and Jesse Helms chaired the Senate Foreign Relations Committee, the Senate approved over 140 treaties, including the Chemical Weapons Convention, the START Treaty, and treaties dealing with labor rights, law enforcement cooperation, environmental protection and investment protection.
But since 2009 the Senate has provided advice and consent to just 20 treaties, or roughly 2.5 per year—a fraction of the historical average. While we have seen some signs of progress in the past few months of this Congress, the trend line is not encouraging.
That is to our detriment as a nation, and this skeptical attitude toward treaties would have been surprising to our founders, who routinely relied on treaties to build political and economic relationships. The prominent placement of treaties in our Constitution is due to the founders’ strong belief that entering into treaties with other nations and carrying out the obligations they provide for were essential tools to allow the country to protect and advance its interests in the world.
The insight central to this view—that our country is stronger when we can work together with other nations and that some problems we face can’t be solved by our efforts alone—is truer today than ever before. Treaties are essential to helping us address the increasing number of global challenges that affect us and are important even with respect to domestic challenges, given the mobility of our citizens, the increasing contact that our citizens have with persons and entities outside of the United States, and the impact that the world has on the United States. And as the challenges evolve, so should our legal framework, which means new treaties or other international instruments.
This is my final point. Another charge against treaties is that they are obsolete—we have done what we need to do in treaty form. This is a point generally made with respect to advice and consent treaties because we have all seen the challenges associated with Senate approval, but I simply do not accept that assertion; why would we willingly give up on a type of international agreement, particularly given the potential limits that might provide on what we can negotiate with other countries? We should not accept this. Some argue that we've established all of the multilateral and bilateral frameworks needed but nothing could be further from the truth. We need every tool and we need to ensure that our legal frameworks evolve in step with the challenges and opportunities we face as a country.
Over the last eight years, at the President’s direction, we have worked to advance our core interests in the international order by building on existing legal frameworks—or creating new ones—that allow us to share the burden in meeting the global challenges we face, while simultaneously reducing the chance of conflict and instability. As President Obama told graduates at the Air Force Academy earlier this year, “one of the most effective ways to lead and work with others is through treaties that advance our interests.”
The President rallied the world against the threat of climate change with the historic Paris Agreement, and after a long night in Kigali, Rwanda – we just adopted an amendment to the Montreal Protocol to phase down harmful emissions like hydrofluorocarbons, which is a particularly potent greenhouse gas. We’re working to strengthen our economy through TTIP (the Transatlantic Trade and Investment Partnership), as well as TPP (the Trans-Pacific Partnership), an agreement that, if approved by Congress, will advance America’s economic and strategic interests by helping us sell more American exports to the Asia Pacific, leveling the playing field for our workers and establishing strong labor and environmental standards. We’ve bolstered our security through the New START Treaty with Russia to reduce nuclear stockpiles, and by concluding a protocol to allow Montenegro to join NATO, which is now pending in the Senate. Every one of these new instruments represent critical developments that were built on existing instruments, many of which were advice and consent treaties.
Far from tying our hands, treaty regimes serve as mechanisms through which the United States exercises its power and advances its interests and values. When the United States negotiates environmental treaties, for example, that obligate other countries to take measures that we typically already take domestically, we are effectively shaping the world’s approach to dealing with environmental problems, raising foreign standards to meet our own, leveling the playing field for our industries, and helping to protect the health of our people. When we negotiated the Law of the Sea Convention, we enshrined rules regarding freedom of navigation and rights of coastal states that benefit the United States more than any other state. Conversely, when we choose to stay outside treaty regimes, we allow others to shape the terms of international cooperation, in ways that maximize their interests and advance their values rather than our own. It means, for example, that our companies will have to operate under others’ rules in many of the places they do business around the world—or else, in the absence of international legal frameworks, operate in a less predictable and certain environment.
So treaties and international agreements play a vital role in upholding the international order and advancing our interests. Nevertheless, the institutions and norms built up in the post-war era are being tested—by the forces of globalization, by an unprecedented migration crisis, by growing regional and sectarian violence. We cannot ignore the fact that the benefits of globalization and automation have not been distributed equally. We cannot ignore the inequality within and among nations, or the fact that international institutions are ill-equipped, underfunded, and under-resourced to handle the problems we are handing them. For example, if we do not address the growing inequality in many states, we’re likely to see economic retrenchment, further political polarization between the “haves” and “have-nots,” and a return to mercantilist economic policies that would endanger American access to foreign markets and threaten global economic growth—and a withdrawal from U.S-led international organizations and agreements.
The key is that we cannot hope to address the impact of these vital trends without engaging the world and ultimately developing and strengthening the international mechanisms discussed, which are established by treaties. And this is true across the board from a foreign policy and national security standpoint. Whether we are trying to strike the right balance in the South China Sea between demonstrating resolve and avoiding inadvertent escalation, or reassuring our allies and reinforcing resilience in Europe in the face of a migrant crisis, or in adapting the U.S. government’s capacity to exploit new opportunities and mitigate risks associated with an emerging technological landscape. International legal mechanisms are among the most important tools we have for addressing these policy issues.
I hope I have convinced you to stand up for treaties. I don’t mean to suggest that you should not criticize the substance of particular treaties—and although I have views on that too, I am not taking that up today. I just ask that you separate out your concern over substance, even if linked to trends in treaty-making, from concerns regarding treaties generally as an instrument in foreign policy, which needs to be preserved, as treaties are the backbone of a rules-based international order that serves the interests of the United States and ultimately promotes U.S. security, prosperity, and values.