More on the Senate’s Role in the Impending Iran Deal

By Jack Goldsmith
Tuesday, March 10, 2015, 6:58 AM

Iran’s Foreign Minister Javad Zarif has responded here to the letter from the 47 Republican Senators, on which I commented yesterday.  Just as the Senators’ letter purported to school Iran on U.S. constitutional law of foreign relations, Zarif says that the Senators “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.”

Some quick reactions to the exchange:

The Senators’ letter noted that any agreement by President Obama with Iran would be an Executive agreement.  They added: “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 any time.”  To which Zarif responded: “Change of administration does not in any way relieve the next administration from international obligations undertaken by its predecessor in a possible agreement about Iran`s peaceful nuclear program. … 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 adds: “according to international law, Congress may not modify the terms of the agreement at any time as they claim, and if Congress adopts any measure to impede its implementation, it will have committed a material breach of US obligations.”  These are accurate statements of international law, though they prejudge the question whether any Executive agreement between President Obama and Iran will in fact be a binding legal agreement under international law.

But assume that President Obama does purport to enter into an agreement with Iran (either bilaterally or with other countries) that binds the United States under international law.  The Senators were not speaking about consequences under international law.  They were talking about consequences under domestic law.  Here they are probably right that the next President has the domestic authority to abrogate any Obama Executive agreement, even if doing so violates international law.  And they are certainly right that Congress can abrogate the agreement by statute, even if doing so violates international law, assuming that the next President signs the Bill or Congress can override his veto.  Zarif is quite right that under international law, as a general matter, nations “may not invoke their internal law as justification for failure to perform their international obligations.”  So the United States cannot wiggle out of any obligations under international law by pointing to the legitimacy of the abrogation of the agreement under domestic constitutional law.  (But see caveat immediately below.)  And yet it is still the case that the Senators are right that the United States could in fact renounce the agreement after President Obama leaves office and face whatever political and diplomatic consequences would follow.

Zarif's statement about the illegitimacy of invoking internal law as a justification for failure to comply with a treaty parrots Article 27 of the Vienna Convention on Treaties, which provides: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”  (The United States has not ratified the Vienna Convention but considers many of its provisions to reflect customary international law.)  However, Article 27 states that “[t]his rule is without prejudice to article 46.”  And Article 46 provides:

Article 46 

Provisions of internal law regarding competence to conclude treaties

1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2) A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

In other words, under international law a nation can invoke its internal law to invalidate consent to a treaty (including a treaty made by Executive agreement) if consent to the treaty was a “violation of a provision of its internal law regarding competence to conclude treaties” and “that violation was manifest and concerned a rule of its internal law of fundamental importance.”  This qualification of the rule of Article 27 points to a line of argument – at least under domestic law, though probably not under international law – against the impending agreement with Iran that I am surprised the Senate letter did not take.

That argument, in a nutshell, is that the President lacks the authority under the U.S. Constitution to negotiate a pure Executive agreement in this context.  Almost all major arms control agreements have been made as treaties that needed Senate consent, and the one major exception, the Salt I treaty, was a congressional-executive agreement.  Past presidents surely must have made minor arms control agreements pursuant to Executive agreement at some point (I have not researched the point), but at a minimum the scope of the President's domestic constitutional authority to make a binding executive agreement with Iran on control of its nuclear weapons is an open question.  It is also true that the Senate has long taken the view that at least major arms control treaties must pass through the Senate for its consent.  A good statement of this view can be seen in a letter, co-written in 2002 by Senator Biden to Secretary of State Powell, outlining “Senate prerogative regarding international arms control agreements” in a context similar (though not identical) to the current one.  (The context was President Bush’s nuclear arms reduction agreement with Russia, which Biden, a lion of Senate prerogatives, insisted be approved via the treaty process.)

I am not saying that the President lacks the power to make a pure Executive agreement in this context (or to claim delegated authority from Congress to make such an agreement).  The question of what must go to the Senate for approval as a treaty is contested.  Nor am I saying that this domestic constitutional question is adequately manifest to be invoked as a reason to abrogate President Obama's consent under international law -- it almost certainly is not.  But with those important caveats, it does seem to me that focusing on Senatorial prerogatives in the domestic constitutional context is a more fruitful direction for Senators who oppose the impending deal, especially since they are sure to find many, many statements about Senatorial prerogative in this context from now-VP and former Senator Biden.