Iran Responds to US Senators’ Letter, Shows Why Congress Should Be Involved in the First Place

by Julian Ku

I am totally swamped with various overlapping projects right now, so let me procrastinate anyway by noting that Iran took my suggestion and sent a response to the “open letter” sent them from 47 US Senators yesterday.  The letter actually shows why the President, and not the senators, is the one who is operating on the edge of constitutionality.

In the letter, Iran’s foreign minister suggested the senators were violating the US Constitution’s allocation of foreign policy conduct to the President.

[Foreign Minister] Zarif “expressed astonishment that some members of Congress find it appropriate to write leaders of another country against their own president,” a press release explained. “It seems that the authors not only do not understand international law, but are not fully cognizant of the nuances of their own Constitution when it comes to presidential powers in the conduct of foreign policy.”

As I explained yesterday, I don’t think the letter is a  violation of the Constitution, although there is a closer question under the much-cited, never used Logan Act.

What I found more interesting is the Iranian FM’s suggestion that a future president who withdrew from or amended the agreement would violate international law. This statement illustrates why I think Congress should be included in this process in the first place.

[Zarif] warned that a change of administrations would not relieve the U.S. of its obligations under an international agreement reached under the previous administration. Any attempt to change the terms of that agreement, he added, would be a “blatant violation of international law.”

“The world is not the United States, and the conduct of inter-state relations is governed by international law, and not by U.S. domestic law,” Zarif explained. “The authors may not fully understand that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfil the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”

Zarif is no doubt right as a matter of international law (assuming there will be a binding agreement as opposed to a mere political commitment).  But think about it.  Why should a president be allowed to commit the US to binding obligations under international law that neither Congress nor a future President can withdraw from without violating international law?  Shouldn’t such a president be required to first get approval from Congress before committing the United States to this path? Isn’t that why there is a Treaty Clause in the first place? At the very least, doesn’t it make constitutional sense for Congress to have a right to weigh in?

So while lefty blogs and lefty senators are having a field day accusing the Republican senators of violating the law or exaggerating Jack Goldsmith’s pretty minor quibble with the letter’s use of the term ratification, they are ignoring the real constitutional question here.  The President seems ready to commit the United States to a pretty serious and important international obligation without seeking prior or subsequent approval from Congress.  And foreign countries are ready to denounce the United States if, say Congress, decides to pull out or refuses to carry out those obligations. Even if the President’s actions are good policy, it seems like a political and constitutional train wreck that could easily be avoided if the Administration simply agreed to send the Iran deal to Congress.

Way back in 2008, leading scholars like Oona Hathaway and Bruce Ackerman repeatedly denounced President Bush for considering executing a security agreement with Iraq without Congress. Where are the academic defenders of Congress’s foreign policy prerogatives now?

http://opiniojuris.org/2015/03/09/iran-responds-to-us-senators-letter-shows-why-congress-should-be-involved-in-the-first-place/

15 Responses

  1. I guess the best arguments from the standpoint of lefty bloggers and lefty senators is Republican Congresses and Republican Senators are quite eager to enter into “Executive” agreements when it suits them.

    *There is an old Office of Legal Council opinion from the 1940s DOJ discussing when the President has to submit a treaty of international agreement to the Senate for advice and consent.

  2. Dear Julian,

    Thank you for bringing to our attention the letter and the reply. In interpreting Iranian’s reply by looking at the VCLT– under the VCLT the President has the full powers to bind the state internationally (art.7, art.14 VCLT), and the sole presidential agreements, as they are termed in U.S. law, can also treaties under international law (art.2 VCLT). Therefore, the U.S. is bound internationally, although any U.S. statute can precede its effect, if any, in domestic law.

    I would add that FM Zarif’s argument that the change of the agreement would violate international law–perhaps refers to the pacta sunt servanda (also in art.26 VCLT). In my opinion, a unilateral termination violate more the international agreement itself (see e.g. art.70/1(b) and 72/1(b) VCLT “[termination or suspension] does not affect any right, obligation or legal situation of the parties created
    through the execution of the treaty prior to its termination”). Moreover, the term “agreement” also shows that any change made to the agreement has to be consensual.

    In my view, this letter exhibits that the U.S. views international law through its domestic-law-lense. International law is not what the U.S. says it is, but what many states acting in concert created it to be.

    @Tim, I would really appreciate the link on the DOJ’s 1940s memo!

  3. Isn’t this the basic stumbling block for the Vienna Convention on the law of Treaties? That international law views any international agreement, whether denominated as a treaty, or a confessional executive action, or a sole-executive action, as binding international law? And, Congress wants the power to, later, overturn agreements by the executive. We’re a signatory, not a party to that convention – it was never approved by the Senate. (But, Congress also recognizes that the convention is, basically, a codification of the customary international law. See the 2001 Congressional Research Service’s memo on the Senate’s role in treaties, p. 45)

    But, the vast majority of international agreements the United States enters into are NOT treaties and so could be repealed by Congress, but would be a violation of international law to do so. (Actually, the courts have said Congress can legislatively repeal even treaties, even though to do so would be a violation of international law). By 1999, the U.S. had 16,000 international agreements and less than 1,000 were Article II treaties. Each one would be, according to the Vienna Convention, binding international law. Since only about 6% of our nation’s agreements go through Article II, 94% of them bind our nation to international law without those Article II safeguards.

    And, I assume, your complaint against executive-only agreements would also apply to Congressional-Executive Action, why should Congress, with less than 2/3rds majority, be able to bind future congresses and Presidents?

    Some examples of executive-only agreements: the open door policy toward China; the Taft-Katsura Agreement of 1905; the Lansing-Ishii Agreement of 1917; American recognition of the Soviet Union in the Litvinov Agreement of 1933; the Destroyers-for-Bases Exchange with Great Britain prior to American entry into World War II; the Yalta Agreement of 1945, a secret portion of which made far-reaching concessions to the Soviet Union to gain Russia’s entry into the war against Japan; and, the 1973 Vietnam Peace Agreement.

    The court had long accepted the executive’s ability to enter into these sorts of agreements, for example, American Insurance Association v, Garamendi, the court noted the use of such agreements dating back to the earliest days of the Union. (“Presidents from Washington to Clinton have made many thousands of agreements … on matters running the gamut of U.S. foreign relations”) So, at the very least, any allegation of Constitutional crisis must be grounded in much more than simply an executive agreement made without Congressional input.

  4. The ‘waters edge’ policy codified by the Logan Act is a great example of both, the frequent dysfunction in American foreign policies (see also Iraq in 2007), and one of many rarely enforced federal laws that give the DOJ too much prosecutorial discretion. Either enforce it or repeal it! This chaos is clearly dividing and hurting us.

  5. Julian: I don’t see an Iranian statement that the U.S. has no right to withdraw from an agreement. Withdrawal could be done by the President if in accord with customary international law reflected in the VCLT.

  6. The 1945 opinion to which Tim links was written by the Deputy SG, Hugh Cox. (OLC did not yet exist, and the SG’s Office had been delegated the AG’s opinion authority.) That opinion does not “discuss[] when the President has to submit a treaty of international agreement to the Senate for advice and consent.” It does caution, in passing, that If the executive agreements in question “required or contemplated action by the [executive branch] that was unauthorized or forbidden by domestic law, a serious question might arise as to whether the agreements could be consummated as executive agreements” — which is undoubtedly true. But that barely begins to answer the broader question of what sorts of agreements can be effected by the executive acting alone–let alone which must be submitted to the Senate as treaties for advice and consent.

  7. The thing is, the use of “executive agreements” in place of “treaties” has been going on for awhile now. Ronald Reagan used them copiously, as several people have pointed out over the past couple of days, including sensitive agreements with Iran and China. (See http://goo.gl/ChQP1Z and also http://goo.gl/0rqTIz ). It’s not like this is something President Obama just invented. It may be that this is something the Senate needs to review and clarify, sometime in the future when senators aren’t using the issue to score political points, but now would not seem to be that time.

  8. It is pretty well spelled out that it is the executive branch’s duty alone to negotiate with foreign nations.Congress must approve, but there is no agreement or treaty. Republicans have twice now corresponded with foreign leaders in attempts to sabotage ongoing US negotiations. Ther is nothing patriotic about that in the least.

  9. International law is a matter of politeness.

    Any country can withdraw from or repudiate any treaty. This is a “violation of international law”, but it’s potentially an *unimportant* one. It only becomes important if other countries get offended by the withdrawal or repudiation and decide to start sabre-rattling.

    “Violation of international law” is best translated as “grounds for sanctions or war”.

    So if a later President or Congress repudiates an old treaty or agreement, this is grounds for the country on the other side to issue sanctions against the US or declare war on it.

    That’s what “violation of international law” means.

    It shouldn’t stop anyone from doing the right thing. For example, the US should repudiate the various Drug War treaties which purport to demand that various drugs be made illegal.

    This would theoretically be a “violation of international law” and would theoretically be grounds for all the other countries in the treaty agreements to implement sanctions or declare war on the US, *but they wouldn’t do so*. In fact, many of them want to get out of those treaties too.

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