On September 29, President Donald Trump issued an executive order entitled “Ensuring the Security of the State of Qatar,” which sets out significant U.S. security commitments to Qatar in the event of an external attack against it.
The order announces that “it is the policy of the United States to guarantee the security and territorial integrity of the State of Qatar against external attack.” In pursuit of this policy, the order states that “the United States shall regard any armed attack on the territory, sovereignty, or critical infrastructure of the State of Qatar as a threat to the peace and security of the United States” and that “in the event of such an attack, the United States shall take all lawful and appropriate measures — including diplomatic, economic, and, if necessary, military — to defend the interests of the United States and of the State of Qatar and to restore peace and stability.”
The order raises a number of important legal and policy questions that merit careful consideration by Congress and the public. The commitments it makes are extraordinary, both in that they are as far-reaching as the defense commitments the United States has made to its closest treaty allies and that they appear to have been made on a unilateral, rather than a reciprocal, basis. Congress does not appear to have had any formal role in the decision to make these weighty commitments, which is inconsistent with past practice and raises significant constitutional questions. It is unclear whether these commitments are legally binding on the international plane; and the significant policy ramifications of making these commitments have not been addressed publicly in any detail. I’ll address each of these below.
1. The breadth of the commitments: why are they on par with mutual defense treaties?
The commitments announced in the order are on par with the mutual defense commitments the United States provides its closest allies. The administration has not clarified whether this was intentional, but, as noted, the executive order commits the United States to regard an armed attack on Qatar as a threat to its own peace and security, and to act to defend Qatar in the event of such an attack. These commitments mirror the commitments the United States has made to its NATO allies in the North Atlantic Treaty and those contained in the U.S. mutual defense treaties with Japan, South Korea, and the Philippines.
The breadth of these commitments stands in contrast to more limited kinds of security assurances the United States has made to other states with which it does not have formal treaty-based alliances. For example, recent executive agreements with Bahrain and Ukraine have included commitments to consult with those states at senior levels in the event of external aggression or the threat of external aggression, but have stopped short of committing the United States to act to defend those states against such aggression, as it has committed to its partners in treaty-based alliances. The administration was likely aware of these models, but appears instead specifically to have chosen to make more expansive commitments.
The executive order is brief and hasn’t been accompanied by any more detailed public explanation of what will be entailed in meeting these full-scale security commitments to Qatar. Important questions that the United States would typically analyze before making commitments of this kind include:
- How likely is it that Qatar will face the threat of an armed attack in the near or medium term that would implicate the defense commitments contained in the executive order?
- Who might be the likely parties in such an attack, and what actions would the United States be prepared to take against such parties, particularly if they, too, are U.S. partners or allies? (Given recent Israeli missile strikes on Doha, this scenario merits careful consideration.)
- What are the scope and scale of actions anticipated to be required to defend Qatar against such an attack?
- What are the financial and other resource requirements associated with ensuring that the U.S. military is prepared to act to defend Qatar against an armed attack?
- What are the implications for other U.S. security commitments and priorities of devoting resources to be prepared to defend Qatar?
- What impact will committing to defend Qatar have on relations with other close U.S. partners to which the United States has not been willing to date to extend comparable security guarantees?
2. Does the President have authority to make these commitments absent Congressional involvement?
Past U.S. mutual defense commitments of the kind announced in the executive order have been made via treaties entered into with the Senate’s advice and consent, ensuring legislative participation in the decision to make the commitments. As the Qatar commitments were announced via executive order, Congress had no formal role in deciding to make them.
Congress has historically carefully guarded its role in decisions by the United States to make security commitments. In 1969, the Senate passed the National Commitments Resolution addressing the making of “national commitments” that involve “a promise to assist a foreign country, government, or people by the use of the Armed Forces or financial resources of the United States, either immediately or upon the happening of certain events.” The resolution stated that:
it is 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, statute, or concurrent resolution of both Houses of Congress specifically providing for such commitment.
Making commitments to defend Qatar against armed attack without Congressional participation is inconsistent with both historical practice and the Senate’s longstanding position, and raises significant constitutional questions. Article I of the Constitution gives Congress the authority both to declare war and to decide whether to appropriate funds to support U.S. military actions. Fulfilling a U.S. commitment to defend Qatar in the event of an armed attack would almost certainly require Congressional action, and making such a commitment without Congressional approval entails an extraordinary and seemingly unprecedented claim of independent authority by the President.
It is further notable that the executive order omits language contained in U.S. mutual defense treaties stating that the actions each party commits to take in response to an armed attack would be taken “in accordance with its constitutional processes.” Such language has historically been included to reflect recognition of Congress’s role in decisions to use force, and to avoid prejudging Congress’s willingness to authorize particular actions. By contrast, the executive order commits the United States to take “all lawful and appropriate measures” to defend U.S. and Qatari interests, without any more specific provision addressing a Congressional role in authorizing such measures.
3. Are the commitments unilateral in nature, as it appears in the E.O.?
Historically, U.S. commitments to defend foreign states have been made as part of a mutual defense agreement, in which each party commits to act together to defend against an attack on another party to the agreement. In such agreements, the United States receives commitments from its partners that they will act to defend against an attack on the United States in exchange for the commitments the United States makes to defend its partners. Of note, the NATO mutual defense commitment was invoked when the United States was attacked on September 11, 2001, and NATO allies took actions to assist in the U.S. defense effort pursuant to their NATO obligations.
By contrast, the executive order’s security commitment to Qatar appears to be made unilaterally, without any mention of a reciprocal pledge on Qatar’s part to act in the defense of the United States in response to an attack on it. The order does mention Qatar’s historical cooperation with the United States on defense matters, including Qatar’s hosting of U.S. forces and enabling critical security operations. But it does not suggest that Qatar is making the same defense commitment to the United States as other U.S. allies have made in the context of our mutual defense treaties. It is not clear why the United States would not expect from Qatar a commitment to act to defend the United States comparable to that which the United States has received from other states to which it has extended security commitments. (Of course, we can’t be sure whether Qatar has privately made such assurances to the United States, but if it did so, it would be odd for the U.S. side’s commitments to be made public and not those of a reciprocal partner.)
4. Are the commitments intended to be binding or non-binding?
The apparent unilateral nature of the commitments also raises questions about their legal character as a matter of international law. Because the commitments are conveyed in a unilateral instrument rather than in a bilateral international agreement, it does not appear that they would be governed by the international law of treaties. This might suggest an assumption that the commitments are discretionary in nature and not legally binding on the United States.
Under some circumstances, however, unilateral undertakings have been held to give rise to binding legal obligations under international law. In 1974, the International Court of Justice held in the Nuclear Test Cases that a unilateral declaration by France to cease nuclear testing in the Pacific gave rise to a binding legal obligation not to conduct further tests. In doing so, the ICJ explained generally that “when it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration.”
Further clarification from the administration about its intention regarding the legal character of the commitments in the executive order could shed light on its legal significance. It is notable, however, that the executive order uses language often used in international practice to reflect an intention to create a legal obligation. It states that the United States “shall” regard any armed attack on the territory, sovereignty, or critical infrastructure of the State of Qatar as a threat to the peace and security of the United States, and that in the event of such an attack, the United States “shall” take all lawful and appropriate measures — including diplomatic, economic, and, if necessary, military — to defend the interests of the United States and of the State of Qatar and to restore peace and stability. The use of “shall” rather than a discretionary term such as “intends” could be interpreted as reflecting an intention to assume a legally binding obligation, in the absence of other evidence to the contrary.
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Decisions to commit the United States to involvement in armed conflict are among the weightiest decisions we can make as a country. The commitments contained in the Qatar executive order have not received the kind of public attention and deliberation the United States has historically given to such important matters. The executive order leaves unanswered significant questions about the nature and extent of the pledges it makes and the legal basis for making them. Congress and the public should demand answers to these questions.
