Did GOP authors of Iran letter get international law wrong?
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The lesson isn’t so clear in the wake of a controversial letter–signed by 47 Republican lawmakers—advising Iran’s leaders that any nuclear agreement with the United States could be short-lived under the nation’s constitutional system.
U.S. legal scholars are debating the letter’s claims, while Iran’s foreign minister is offering to “enrich the knowledge of the authors.”
The GOP letter (PDF) begins, “It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system.”
The letter says the president negotiates international agreements, but “Congress plays the significant role of ratifying them. In the case of a treaty, the Senate must ratify it by a two-thirds vote. … We will consider any agreement regarding your nuclear-weapons program that is not approved by 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.”
Iranian Foreign Minister Mohammad Javad Zarif offered his own lesson in response, saying the letter “has no legal value and is mostly a propaganda ploy,” according to this website of Iran’s Foreign Ministry. He said the negotiations include the participation of five other countries, including all permanent members of the United Nations Security Council, and any agreement would be endorsed by a Security Council resolution. NPR has a story.
“The authors may not fully understand,” Zarif said, “that in international law, governments represent the entirety of their respective states, are responsible for the conduct of foreign affairs, are required to fulfill the obligations they undertake with other states and may not invoke their internal law as justification for failure to perform their international obligations.”
“I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law,” he said.
Zarif wasn’t the only observer to comment on the letter. Some of the online analysis:
• Writing at LawFare, Harvard law professor Jack Goldsmith argues it’s not technically true that the Senate ratifies treaties. “The Senate does not ratify treaties,” he says, quoting from the Senate’s website. “Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification.”
• Writing at Opinio Juris, Hofstra University law professor Julian Ku says the letter is accurate on the law, but it may have conceded more than the writers intended. “There is still a plausible constitutional argument out there,” Ku says, “that [the] president must submit the Iran nuke agreement to either the Senate (as a treaty) or to Congress as a whole. The letter all but concedes that the president can indeed conclude a sole executive agreement with Iran on this matter. Doesn’t this undercut the Senators’ argument that they should, indeed, must have their say on this deal?”
• The blog Just Security says the letter insinuates a U.S.-Iran agreement would lack legal force, but that’s “wrong as a matter of law and policy.” The blog points to a 2009 article by Yale law professor Oona Hathaway, who is a critic of executive agreements without congressional approval, that found longtime practice has given the president the authority to make such agreements.
• Some law professors and liberal commentators have opined that the letter violates the 1799 Logan Act, ABC News reports. The law bars U.S. citizens from corresponding with foreign governments in an attempt to influence conduct in disputes with the United States. The story says there has been only one indictment under the law, however, and a letter sent by lawmakers to a foreign government “is hardly unprecedented.”
