Republicans fail in attempt at a civics lecture to Iranian leaders
by Prof. Curtis A. Bradley // Duke University
"On March 9, forty-seven Republican Senators signed an open letter directed at Iran’s leaders, ostensibly to warn them about the limited effect of any agreement they might reach with President Obama about their nuclear program. Embarrassingly, the letter’s effort to provide a civics lesson to the Iranians about the US constitutional system betrays a surprising amount of ignorance about that very system. The letter also displays a lack of knowledge about the importance —- to the United States —- of adhering to binding international agreements. The letter purports to describe the US constitutional process for concluding international agreements, explaining that either the Senate or the full Congress must normally “ratify” the agreement. Otherwise, the letter states, all that one has is “a mere executive agreement.” Such an executive agreement, the letter contends, would only bind the current leaders of the United States and Iran and, therefore, “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.”
What the letter does not explain is that there are a variety of forms of international agreements concluded by the United States, all of which are fully binding under international law. Three kinds of international agreements As I explain in my book International Law in the US Legal System, these forms of international agreements include: “treaties,” which receive the approval of two-thirds or more of the Senate; “congressional-executive agreements,” which receive the authorization or approval of a majority of both houses of Congress; and “sole executive agreements,” which are concluded by the President on his own constitutional authority without formal congressional or senatorial participation. Contrary to the Republicans’ letter, neither the Senate nor the Congress “ratifies” these agreements – even for the first two agreement types. Instead, under our Constitution, ratification is ultimately a decision for the President after the Senate or Congress has given its authorization or approval.
The third type of agreement —- a sole executive agreement —- does not involve even senatorial or congressional approval prior to ratification. Nevertheless, such an agreement is not merely a personal contract binding on the leaders of the respective countries. If the agreement is intended to constitute a legally binding agreement under international law, it will normally bind the countries, not just the leaders. Moreover, unless and until such an agreement were validly terminated under international law, it would continue to bind the United States despite any “stroke of the pen” by a subsequent president or even action by Congress. (There is a narrow basis in international law for nullifying an agreement if it is concluded by someone who clearly lacks authority to bind their country, but that qualification would not likely apply here.) Of course, this all assumes that the potential agreement with Iran will be established by the parties as a legally binding commitment. If not, then it will simply be a political understanding, in which case the lecture on the US constitutional process in the Republicans' letter is beside the point. If an accord with Iran is intended to be a binding sole executive agreement, it would not be the first time that the United States has made such an arrangement with Iran."
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by Prof. Curtis A. Bradley // Duke University
"On March 9, forty-seven Republican Senators signed an open letter directed at Iran’s leaders, ostensibly to warn them about the limited effect of any agreement they might reach with President Obama about their nuclear program. Embarrassingly, the letter’s effort to provide a civics lesson to the Iranians about the US constitutional system betrays a surprising amount of ignorance about that very system. The letter also displays a lack of knowledge about the importance —- to the United States —- of adhering to binding international agreements. The letter purports to describe the US constitutional process for concluding international agreements, explaining that either the Senate or the full Congress must normally “ratify” the agreement. Otherwise, the letter states, all that one has is “a mere executive agreement.” Such an executive agreement, the letter contends, would only bind the current leaders of the United States and Iran and, therefore, “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.”
What the letter does not explain is that there are a variety of forms of international agreements concluded by the United States, all of which are fully binding under international law. Three kinds of international agreements As I explain in my book International Law in the US Legal System, these forms of international agreements include: “treaties,” which receive the approval of two-thirds or more of the Senate; “congressional-executive agreements,” which receive the authorization or approval of a majority of both houses of Congress; and “sole executive agreements,” which are concluded by the President on his own constitutional authority without formal congressional or senatorial participation. Contrary to the Republicans’ letter, neither the Senate nor the Congress “ratifies” these agreements – even for the first two agreement types. Instead, under our Constitution, ratification is ultimately a decision for the President after the Senate or Congress has given its authorization or approval.
The third type of agreement —- a sole executive agreement —- does not involve even senatorial or congressional approval prior to ratification. Nevertheless, such an agreement is not merely a personal contract binding on the leaders of the respective countries. If the agreement is intended to constitute a legally binding agreement under international law, it will normally bind the countries, not just the leaders. Moreover, unless and until such an agreement were validly terminated under international law, it would continue to bind the United States despite any “stroke of the pen” by a subsequent president or even action by Congress. (There is a narrow basis in international law for nullifying an agreement if it is concluded by someone who clearly lacks authority to bind their country, but that qualification would not likely apply here.) Of course, this all assumes that the potential agreement with Iran will be established by the parties as a legally binding commitment. If not, then it will simply be a political understanding, in which case the lecture on the US constitutional process in the Republicans' letter is beside the point. If an accord with Iran is intended to be a binding sole executive agreement, it would not be the first time that the United States has made such an arrangement with Iran."
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