The Iran Deal and the Rule of Law

Via:  it-is-me  •  5 months ago  •  20 comments

The Iran Deal and the Rule of Law

Has President Donald Trump just shown the world that America’s word is worthless ?

That’s one of the chief arguments put forward by opponents of Trump’s decision to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA), a.k.a. the Iran nuclear deal. The president’s dismissal of the concerns of America’s allies and partners in the PK5+1 group that negotiated the deal is being criticized as epitomizing an “America First” approach in which friends, as well as foes, can no longer count on the U.S. New York Times columnist Roger Cohen argued that after Trump’s decision, the world may come to believe “America’s word is worthless.” His colleague Nikolas Kristof described the move as a form of “vandalism” that demonstrates a similar lack of respect for both alliances and strategic continuity from one administration to the next.

The problem with this argument has more to do with the events of 2015 than with the current debate on the merits of Trump’s decision. Had the Obama administration passed the Iran deal as a treaty, giving it not only greater legitimacy but the force of law, it would be possible to argue that Trump indeed trashed the good name of the United States by going back on the nation’s word. Instead, in deliberately bypassing the constitutional process for ratifying a pact with a foreign power, President Obama and Secretary of State John Kerry assumed that once the deal was in place, no successor would dare try to overturn it.

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Though the document that contained the final version of the JCPOA was never actually signed by the Iranians, it effectively constituted the most significant foreign treaty negotiated by the United States since the end of the Cold War. Yet Obama and Kerry had no intention of following the process set up by the Constitution for ratifying treaties. Instead, they classified the deal as merely an understanding between the United States and other governments.

The excuse for doing so, as illogical as it was false, was eventually provided by Kerry, at a House Committee on Foreign Affairs hearing: “Well congressman, I spent quite a few years trying to get a lot of treaties through the United States Senate, and it has become physically impossible. That’s why [we bypassed the Senate]. Because you can’t pass a treaty anymore.”

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Trump’s decision to withdraw from the JCPOA can’t have shown the world that America’s word is worthless, because the JCPOA never represented America’s word to begin with.

Obama’s brazen refusal to submit the JCPOA to the Senate gave the lie to the notion that America’s word was at stake in sticking to the deal. But in one of the cleverest maneuvers of his eight years in office, he was still able to procure a fig leaf of congressional cover for the agreement, with crucial help from Republicans who were otherwise publicly opposed to his scheme.

Obama was making foreign policy with the same arrogant contempt for the constitutional separation of powers that he had shown in making immigration policy. The likely implementation of the Iran deal without Senate approval was no different from Obama’s executive orders that granted amnesty to millions of illegal immigrants in full disregard of Congress’s refusal to pass the laws he wanted. The difference in this case was the foolish desperation of Republicans to be granted the appearance of having a say in the matter.

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Consensus on any issue is difficult to obtain in the hyper-partisan atmosphere of contemporary Washington. But it is not impossible if there is general agreement on an issue involving national security. Had Kerry brought back from Vienna a treaty that fulfilled Obama’s 2012 campaign promises about ending, rather than merely legalizing and postponing, the Iranian nuclear program, it would have garnered considerable support from Republicans, as well as from allies like Israel and Saudi Arabia that are in the crosshairs of the Iranian regime. Instead, he brought back a treaty that really was impossible to pass through the Senate.

Thus, Trump’s decision to withdraw from the JCPOA can’t have shown the world that America’s word is worthless, because the JCPOA never represented America’s word to begin with. If Obama’s acolytes are now frustrated that his signature foreign-policy “achievement” has been undone with the stroke of a pen, they have no one to blame but their hero himself.

https://www.msn.com/en-us/news/opinion/the-iran-deal-and-the-rule-of-law/ar-AAx4VjR?OCID=HPDHP

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It Is ME
1  seeder  It Is ME    5 months ago

The "Deal" that NEVER WAS !

It had NO Guts..... and it defiantly had NO Glory !

 
 
Greg Jones
1.1  Greg Jones  replied to  It Is ME @1    5 months ago

That's what will happen when a malcontent who got a purple heart for some paper cuts, and an unqualified inexperienced dude, chosen only for his hue, attempt to make world policy.

 
 
Galen Marvin Ross
1.1.1  Galen Marvin Ross  replied to  Greg Jones @1.1    5 months ago
That's what will happen when a malcontent who got a purple heart for some paper cuts, and an unqualified inexperienced dude, chosen only for his hue, attempt to make world policy.

Then why did you vote for Trump?????????????????

 
 
It Is ME
2  seeder  It Is ME    5 months ago

"Trump’s decision to withdraw from the JCPOA can’t have shown the world that America’s word is worthless, because the JCPOA never represented America’s word to begin with."

 
 
It Is ME
3  seeder  It Is ME    5 months ago

Though the document that contained the final version of the JCPOA was never actually signed by the Iranians.

 
 
ArkansasHermit-too
4  ArkansasHermit-too    5 months ago

Trump's unilateral withdrawal from the JCPOA proved to the world that the word of a Trump led America is worthless.

Trump is aware of what a dick move he made which is why he kept asking his cabinet members, "Can I break it yet?", and they kept telling him "No Mr. President, because Iran is keeping their word which means that if you break yours first you'll look like a dick while dishonoring America's world standing".

So Trump just fired the folk that tried to defend Americas honor then went out and got him some "yes master" butt kissers who finally gave him the answer he wanted to hear.

"Can I break it yet?"  "Sure boss, burn it all down and prove that the word of the Iranians has more worth than the word of a Trump led America."

Executive agreement - international law

Executive agreement, an agreement between the United States and a foreign government that is less formal than a treaty and is not subject to the constitutional requirement for ratification by two-thirds of the U.S. Senate.

The Constitution of the United States does not specifically give a president the power to conclude executive agreements. However, he may be authorized to do so by Congress, or he may do so on the basis of the power granted him to conduct foreign relations. Despite questions about the constitutionality of executive agreements, in 1937 the Supreme Court ruled that they had the same force as treaties. Because executive agreements are made on the authority of the incumbent president, they do not necessarily bind his successors.

Most executive agreements have been made pursuant to a treaty or to an act of Congress. Sometimes, however, presidents have concluded executive agreements to achieve purposes that would not command the support of two-thirds of the Senate. For example, after the outbreak of World War II but before American entry into the conflict, President Franklin D. Roosevelt negotiated an executive agreement that gave the United Kingdom 50 overage destroyers in exchange for 99-year leases on certain British naval bases in the Atlantic.

The use of executive agreements increased significantly after 1939. Prior to 1940 the U.S. Senate had ratified 800 treaties and presidents had made 1,200 executive agreements; from 1940 to 1989, during World War II and the Cold War, presidents signed nearly 800 treaties but negotiated more than 13,000 executive agreements.

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screenshotwww.yjil.yale.edu20180516094304.jpg

Is the Trump Administration Bound by the Iran Deal?

Introduction

The Joint Comprehensive Plan of Action (“JCPOA”)—also often referred to as the Iran Deal or the Iran Agreement—marked a significant shift in the relationship between the United States and Europe, and the Islamic Republic of Iran. Under this Agreement, Iran agreed to eliminate its stockpile of medium-enriched uranium, cut its existing stockpiles of low-enriched uranium, and reduce the number of its centrifuges in exchange for the lifting of a number of sanctions imposed by the United States, the European Union, and the United Nations Security Council. Iran also agreed to restrict the amount of nuclear fuel it will keep over the next fifteen years.

The Deal, signed in Vienna on July 14, 2015, ended decades of animosity between the United States—and the West more broadly—and Iran. After years of tough sanctions from the US and Europe, Iran agreed to come to the negotiating table. The JCPOA, which has brought together six different world powers (China, France, Russia, United Kingdom, United States, Germany) and the EU, will significantly stall Iran’s nuclear development program.

What is the Iran Deal?

Whether the Trump Administration can withdraw or dismantle the JCPOA rests in part on what the Agreement actually is.

What type of agreement is it domestically?

Traditionally, there have been three kinds of agreements concluded under U.S. law: 1) Article II treaties (signed by the president with the advice and consent of the Senate); 2) sole executive agreements (concluded by the president acting solely and within his independent constitutional authority and without any input from Congress); and 3) congressional-executive agreements (which involve a Congressional statute, passed either before or after an agreement has been made, which grants the President authority to conclude the). On occasion, the executive has also entered into non-binding political agreements.[1]

Although the Deal may have begun as a series of talks, the Iran Nuclear Agreement Review Act of 2015 (“Review Act”) re-framed what type of agreement the Iran Deal is. What was originally intended to be a way to curb the President’s power may have actually been the very thing that transformed “what would have been a constitutionally dubious exercise of unilateral executive authority (a ‘sole executive agreement’) into a constitutionally unimpeachable exercise of joint legislative and executive power (a ‘congressional-executive agreement’).” It was ultimately this Review Act that gave President Obama the authority to conclude a “legally binding nuclear agreement, [and] not just an informal political pact.” Along with the “constitutional text, democratic principles, and entrenched practice,” the Review Act adopted in May 2015 supports the binding character of the Agreement and “grants the Administration authority to negotiate and implement binding legal commitments with Iran.

What type of agreement is it internationally?

Internationally, the Iran Deal is a treaty. The distinction that exists under domestic U.S. law regarding the type of agreement the Iran Deal may or may not be isn’t replicated on the international level. The Vienna Convention established the definition of a treaty without prejudice to differing uses of the term ‘‘treaty’’ in the domestic laws of various states. Article 2, Section 1(a) of the Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Treaties have been used consistently throughout the twentieth century, to establish durable relationships and aid in international governance. They consistently serve “as an intrinsic part of our global order and have been considered legally binding.”[2] International agreements are transformed from a piece of paper, or most likely a sum of papers, meetings, phone calls, and other communications, into a binding law is the formal agreement made by countries through an act of consent.[3] The Iran Deal has all the characteristics of an international treaty: written document, buy-in from a number of states, and firm commitments. As such, under international law, the Agreement is presumptively legally binding.

Can the Trump Administration Legally Withdraw from the Deal under International Law?

As an international treaty, the Iran Deal is governed by the paramount principle of international law pacta sunt servanda—the notion that that treaties must be kept. As such, without cause or justification, the United States would be in breach of international law if it simply walks away from the Agreement. However, as laid out in the United National Security Council Resolution blessing the deal, the Agreement provides the parties with a possibility to withdraw from the agreement through a “snapback” mechanism. This allows any of the six parties to the Agreement to flag significant non-compliance and, if concerns remain unresolved, snap back all sanctions previously leveled against Iran. Nowhere in the Agreement is “significant non-compliance” defined, leaving the definition and scope up to each individual member.

Lawful but Awful

As laid out above, both domestically and internationally, President Trump has a legal and legitimate way to withdraw from the Agreement. This blog post joins a chorus of voices calling on President Trump to consider the awful implications of tearing up this Agreement, and argues it would be much more prudent for the Trump Administration to continue to abide by the Agreement and waive sanctions in return for international monitoring, limiting nuclear development, and cooperation with Iran.

For those who worry Iran has gotten the better side of the deal and that the Agreement was not enough to deter Iran from developing nuclear weapons, it is worth noting where Iran was before the deal was struck. In 2013, at the start of negotiations, Iran’s breakout time— the time it would take Iran to create enough material for one nuclear bomb—was about two months. As a result of the Agreement, Iran will be forced to slow down its enrichment and development program for the next fifteen years, giving the international world at least that much time to prepare for a possible nuclear Iran. Many U.S. allies joined President Obama’s call for sanctions in 2009, in part because they were convinced absent a diplomatic path, “the result could be war, with major disruptions to the global economy, and even greater instability in the Middle East.” Sanctions, thus, were the tool employed by the U.S. and its allies to force Iran to engage in a diplomatic solution.

 
 
It Is ME
4.1  seeder  It Is ME  replied to  ArkansasHermit-too @4    5 months ago

There is only honor in actual "Treaties" !

This "Iran Deal" of Obamas and Kerry's was nothing more than a non-binding pinky swear !

 
 
ArkansasHermit-too
4.1.1  ArkansasHermit-too  replied to  It Is ME @4.1    5 months ago
This "Iran Deal" of Obamas and Kerry's was nothing more than a non-binding pinky swear !

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I'm not sure President Trump agrees with you. 

If he thought your view of the JCPOA had any worth he would have gotten out January 21, 2017 instead of sticking to it for 16 months.

Instead he waited until he could get the just the right combination of Sycophants around him, stroking his tiny hands and give him the courage to, once again, embarrass America on the world stage.

 
 
It Is ME
4.1.2  seeder  It Is ME  replied to  ArkansasHermit-too @4.1.1    5 months ago
If he thought your view of the JCPOA had any worth he would have gotten out January 21, 2017 instead of sticking to it for 16 months.

He had other "Important" things to deal with. NOW, he dealt with this Playground piece of paper. It's DONE !

 
 
Explorerdog
4.1.3  Explorerdog  replied to  It Is ME @4.1.2    5 months ago

You do mean the 145 days at his properties of which 113 were golf days, I guess we all have different concepts of what is important.

 
 
It Is ME
4.1.4  seeder  It Is ME  replied to  Explorerdog @4.1.3    5 months ago

I meant and referenced nothing of the sort.

Are you posting on the WRONG article again ?

 
 
Explorerdog
4.2  Explorerdog  replied to  ArkansasHermit-too @4    5 months ago

NK is poised to enter a "deal" and we know from history that their deals are subject to being dumped whenever they take a notion, trump has the same credibility now.

 
 
It Is ME
4.2.1  seeder  It Is ME  replied to  Explorerdog @4.2    5 months ago
NK is poised to enter a "deal" and we know from history that their deals are subject to being dumped whenever they take a notion, trump has the same credibility now.

There was NO BINDING DEAL with Iran. John Kerry said as much.

 
 
Explorerdog
4.2.2  Explorerdog  replied to  It Is ME @4.2.1    5 months ago

Perhaps and I will admit I do not know the details, but for a "non binding" agreement it seems that everyone took it seriously and now that trump has withdrawn he wants them to still abide by its tenants, typically twisted.

 
 
It Is ME
4.2.3  seeder  It Is ME  replied to  Explorerdog @4.2.2    5 months ago

John Kerry said Congress didn't have the authority to change it, as it was just an agreement (wink,wink) between executives of countries. Of course, Obama and Kerry Bypassed congress to get this Pinky Swear done.

 
 
Greg Jones
4.3  Greg Jones  replied to  ArkansasHermit-too @4    5 months ago

It can be revoked by the next president because it was and still is a threat to our national security, and that of other nations in that region. It is non binding and wasn't being adhered to by Iran.

 
 
1stwarrior
4.3.1  1stwarrior  replied to  Greg Jones @4.3    5 months ago

Wonder why folks are so irate over the FACT that Iran didn't/never signed or agreed to the "deal" and Trump is just vacating a worthless document?

 
 
It Is ME
4.3.2  seeder  It Is ME  replied to  1stwarrior @4.3.1    5 months ago

It's Trump. chuckle

 
 
sixpick
4.4  sixpick  replied to  ArkansasHermit-too @4    5 months ago
Executive agreement, an agreement between the United States and a foreign government that is less formal than a treaty and is not subject to the constitutional requirement for ratification by two-thirds of the U.S. Senate.

So you think something of this significance should be an agreement instead of a treaty which requires the Senate to be involved.  When Trump has a problem with the Liberal Judges in doing his Constitutional duties or rights for being the top of the Executive Branch and you think Obama can do this without anyone other than him making the decision?

 
 
Sean Treacy
5  Sean Treacy    5 months ago

To quote the Obama administration:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document.

 
 
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