Friday, 20 March 2015

A nuclear deal with Iran - would it stick?

Although the Obama administration has taken the leading role in the effort to negotiate a nuclear deal with Iran, the negotiations are not, of course, a purely US-Iranian effort.  Five other world powers are involved – namely the other members of the Security Council (China, France, Russia and the UK) together with Germany.  US Secretary of State, John Kerry, has been skilful and successful not only in his dealings with his Iranian opposite number, but in carrying the rest of the negotiating team along with him.
Of these Russia, and to a lesser extent China, were sympathetic to Iran and its political aspirations from the start, and thus supported the direction the negotiations were taking.  But France, the UK and Germany have also each indicated a willingness to turn a blind eye to Iran’s appalling record in sponsoring terror across the world in pursuit of its Islamist objectives, bring it in from the cold, and conclude an agreement that would progressively lift the sanctions that have been crippling Iran’s economy, while leaving the regime with the ability eventually even after 10 years to become a nuclear military force.

It was because a deal along these lines was in prospect, and the deadline of March 31 for reaching a framework agreement was fast approaching, that 47 US Republican senators took the extraordinary step on March 9 of writing direct to the leaders of Iran.  The essence of their 286-word letter was that the writers "will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.  The next president could revoke such an executive agreement with the stroke of a pen, and future Congresses could modify the terms of the agreement at any time."

This missive resulted in a veritable furore in the States. The cannonade of accusations hurled at the signatories ranged from political skulduggery to outright treason.  One line of attack claimed that the act of addressing the Iranian leaders was illegal. The law the senators was said to have transgressed ­ the Logan Act of 1799 bans US citizens from engaging “without authority of the United States” in “correspondence or intercourse with any foreign government ... with intent to influence the measures or conduct of any foreign government ... in relation to any disputes or controversies with the United States.”

Fortunately for Senator Tom Cotton of Arkansas and his 46 co-signatories, that law is no longer enforced and is quite likely unconstitutional. Jonathan Turley, a law professor at the George Washington University, compares the likelihood of a prosecution under the act to “the chances of being eaten by a Tyrannosaurus Rex on Capitol Hill.”

With that particular red herring out of the way, the remark of State Department spokeswoman Jen Psaki that the senators’ letter was factually incorrect seems almost milk and water.

"Congress doesn't have the power to alter the terms of international arrangements negotiated by the executive," she said. "The letter is incorrect when it says that Congress could modify the terms of the agreement at any time."

Is she right?  Not exactly, according to the Pulitzer Prize winning  It all depends on distinguishing between two types of international accords treaties and executive agreements.

Under the US constitution, treaties with foreign countries are negotiated and signed by the executive branch, but ratification only occurs after the Senate gives its approval in a two-thirds vote. Authority for reaching executive agreements, however, lies outside the constitution, and derives from longstanding practice and Supreme Court judgements.

"Presidents since Washington have concluded such agreements,” says Anthony Clark Arend, a Georgetown University professor of government and foreign service, “and the Supreme Court has ruled that the president has the authority to conclude such agreements."

But there is a downside to executive agreements ­ they are much easier to reverse than treaties.  Legal opinion seems clear that a future president has the constitutional power to reverse an executive agreement reached by a predecessor. That is one possible un-sticking point. For its part, Congress could legislate, and, according to Kermit Roosevelt, a University of Pennsylvania legal scholar, “a valid federal statute will prevail in a conflict with an executive agreement… So in that sense, the senators are right."

For a practical view of the senators’ claim, however, other factors need to be taken into account.  The most obvious is that the negotiations with Iran are being conducted by six world powers, not merely the US. For any agreement to be modified in the future, the other signatories would also have to sign off, which would involve difficult, and not very likely, negotiations by a future US administration.  Not a very feasible scenario.

Even if Congress successfully legislated to reverse the executive agreement, implementing it unilaterally might involve the US in violating international law, which requires compliance with binding agreements.  The US’s diplomatic credibility would be profoundly affected. Retreating from an executive agreement would be a radical step, endangering the nation's ability to ensure that old agreements stand and to strike new agreements. concludes that while the senators’ letter makes the process of undoing or modifying any agreement with Iran sound more feasible than is the case, they are correct to say that a future president or a future Congress could do so.

US Secretary of State John Kerry, however, begs to differ. “Let me make clear to Iran, to our P5+1 counterparts who are deeply involved in this negotiation, that, from our point of view, this letter… was, in fact, incorrect in its statements about what power they do have,,,and as far as we are concerned, the Congress has no ability to change an executive agreement …”

And so the negotiations proceed along the lines which have caused such dismay to the Middle East in general, and Israel’s prime minister in particular.  One major cause of concern is the failure of Washington and the rest of the P5+1 to support the director of the UN nuclear watchdog, the International Atomic Energy Agency (IAEA). Yukiya Amano has repeatedly raised questions about the “possible military dimensions” of Iran’s nuclear programme, has challenged Iran’s professed willingness to cooperate, and pointed out again this month that a dozen IAEA questions to Iran regarding its nuclear programme remain unanswered.  Reference to Amano’s concerns are noticeable by their absence from the various media statements made by the principals.

In the final analysis any agreement with Iran which it subsequently violates, or which contains loopholes or a so-called “sunset clause” (ie permitting Iran to become a military nuclear power in due course), undoubtedly lays itself open to eventual challenge a challenge that could come either in accordance with the letter of the Republican senators, or in other ways.

Published in the Jerusalem Post on-line, 22 March 2015:

Published in the Eurasia Review, 21 March 2015:

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