The Iran pact -- a deal, not a treaty

Tuesday, July 14, 2015 - 12:00 StudyHall.Rocks

President Barack Obama talks with national security staff in the Oval Office after being notified of the nuclear agreement with Iran. Image: White House Photo by Pete Souza.

After months of negotiations, President Barack Obama announced July 14 a deal with Iran aimed at preventing that country from developing a nuclear weapon.

    “Iran currently has a stockpile that could produce up to 10 nuclear weapons,” Obama said. “Because of this deal, that stockpile will be reduced to a fraction of what would be required for a single weapon.”
     This stockpile limitation will last 15 years. The deal is “not built on trust,” he added. “It is built on verification.”
     As Iran puts the deal into place, the U.S. will begin to lift sanctions against the country. “This relief will be phased in,” Obama said. “Iran must complete key nuclear steps before it begins to receive new sanctions relief.”
     Details of the deal will be presented to Congress, and Obama said he welcomes a robust debate. Iran has been “a sworn adversary of the United States for over 35 years,” Obama pointed out. He said he would veto any legislation that prevents the successful implementation of the deal.
     And it is just that, a deal -- not a treaty. In April, the Senate voted against a proposal to elevate the deal to a treaty.
     So why can't we have a treaty with Iran? Here is the rundown:

     First, let's get a definition. What is a treaty?
     Under international law, a treaty is “any legally binding agreement between nations,” according to a 2001 report by the Congressional Research Service, Treaties and Other International Agreements: The Role of the United Sates Senate.“In the United States, the word treaty is reserved for an agreement that is made by and with the Advice and Consent of the Senate.”

What does the Constitution say about treaties?
The president ‘‘shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”

So what does "advice and consent" actually mean?
That's unclear. “The Convention that drafted the Constitution did not spell out more precisely what role it intended for the Senate in the treaty-making process. Most evidence suggests that it intended the sharing of the treaty power to begin early, with the Senate helping to formulate instructions to negotiators and acting as a council of advisers to the president during the negotiations, as well as approving each treaty entered into by the United States," the Congressional Research report said.

     What is the president's role?
      His function is “to provide unity and efficiency in treaty-making and to represent the national interest as a whole,” the report said.
      But the Constitution is "silent about many elements of the treaty-making power," writes Louis Fisher, scholar in residence at the Constitution Project, in the 2008 article, "Treaty Negotiation: A Presidential Monopoly?" on the Library of Congress website. "It says nothing about the president’s authority to negotiate treaties, the process of terminating a treaty, or the allocation of authority to interpret and reinterpret a treaty. Nothing is said about the role of the House of Representatives, which not only provides funds to implement most treaties but must be alert to treaties that may encroach upon its prerogatives over tariffs and foreign commerce."

In practice, why has the process become complicated?
In foreign affairs, elected officials should work together in the country’s best interest. But consider that when the Constitution was written, the makeup of the Senate was different. “Senate participation during the negotiations stage seemed essential if the Senate was to play a meaningful constitutional role. At the time, such direct participation by the Senate also seemed feasible, since the number of treaties was not expected to be large and the original Senate contained only 26 members,” the Congressional Research Service report said.

Executive agreements.
There are also executive agreements. "Some executive agreements are concluded solely on the basis of the president’s independent constitutional authority and do not have an underlying explicit or implied authorization by treaty or statute," the Congressional Research paper explained. "Authorities from the Constitution that presidents claim as a basis for such agreements include:

The president's general executive authority in Article II, Section 1, of the Constitution;
His power as commander in chief of the Army and Navy in Article II, Section 2, Clause 1;
The treaty clause itself for agreements, which might be part of the process of negotiating a treaty in Article II, Section 2, Clause 2;
His authority to receive ambassadors and other public ministers in Article II, Section 3; and
His duty to ‘‘take care that the laws be faithfully executed’’ in Article II, Section 3."

In April, former Secretary of State Condoleezza Rice was quoted by the AP and other news organizations as saying that the proposed Iranian nuclear agreement was "classically an executive agreement and doesn't need to be a treaty with advice and consent of the Senate." She added that Congress "should be able to opine, given that congressionally mandated sanctions would have to be lifted."

     Why is this a deal and not a treaty?
     Bottom line: politics. If the U.S. had a treaty with Iran, Obama would need two-thirds of the Senate's approval. That might be difficult to get, as Obama is a Democrat and the Senate is controlled by Republicans. This wouldn't be the first time a president had this problem. The Senate famously rejected the Treaty of Versailles after World War I. (See story here.)
     Earlier this year, a bipartisan agreement was reached that required any deal to be reviewed by Congress. So we have a deal, and the deal will go to Congress. In essence, this puts the balance of power in Obama's favor. In his statement, Obama said he would veto any legislation that scuttles the deal. That means that in order to override his veto, Congress would need a two-thirds vote.

Sources:

The Associated Press: Senate votes against making nuclear deal a treaty.
Congressional Research Service: Treaties and Other International Agreements: The Role of the United Sates Senate, January 2001.
The United States Senate: The Senate’s Role in Treaties.
The National Archives: The U.S. Constitution.
The White House: The Iran deal.
The Library of Congress: "Treaty Negotiation: A Presidential Monopoly?" by Louis Fisher.

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