Treasonous Republicans Undermine PotUS in Letter to Tehran

[Aimless]

http://www.reuters.com/article/2015/...0M516X20150309

Excerpt:

(Reuters) - Forty-seven Republican U.S. senators warned Iran's leaders on Monday that any nuclear deal with President Barack Obama could last only as long as he remains in office, an unusual partisan intervention in foreign policy that could undermine delicate international talks with Tehran.

[...]

"I think it's somewhat ironic to see some members of Congress wanting to make common cause with the hardliners in Iran. It's an unusual coalition," Obama told reporters.

A Western diplomat said the action was "without precedent." "It's 100 percent an American issue, but obviously it could become a real problem," the diplomat said.

Iran's Zarif blasted the Republicans. "I wish to enlighten the authors that if the next administration revokes any agreement 'with the stroke of a pen' ... it will have simply committed a blatant violation of international law," he said in a statement.

What a curious bunch

[Loki]

Technically not treason, but still only marginally better. The fact that they don't seem to know how international law works doesn't help either.

[Lewkowski]

Bwahahahaha 'international law.'

[Loki]

You realize that the reason we'd be obligated to help a NATO ally, for instance, would be because of international law, right? A country that makes a habit of violating its agreements just because of a change in government is going to be a country with whom no one makes agreements.

[Lewkowski]

You realize that the reason we'd be obligated to help a NATO ally, for instance, would be because of international law, right? A country that makes a habit of violating its agreements just because of a change in government is going to be a country with whom no one makes agreements.

There are no enforcement mechanisms that prevent a new POTSU/Congress from reneging on a deal the prior party in power had. An agreement with NATO both parties will abide by and unless some crazy shifts happen that won't be changing at all. Agreements with terror states like Iran? Not a big deal at all.

[wiggin]

You realize that the reason we'd be obligated to help a NATO ally, for instance, would be because of international law, right? A country that makes a habit of violating its agreements just because of a change in government is going to be a country with whom no one makes agreements.

Not that I disagree with your basic argument here, but doesn't US law treat executive agreements as, essentially, executive orders that can be abrogated at will by the executive branch? For that matter, US law in theory argues that the constitution supersedes any international treaties, even a fully ratified one. In that context, I think it would not be a violation of international law for the US to enter into an unratified agreement and then reverse said agreement. It might be unwise, it might have significant diplomatic repercussions, but I don't think it's illegal.

The US has a long history of signing but not ratifying treaties, or signing and ratifying treaties, but doing so with all sorts of provisos and signing statements and the like. We can get away with it, essentially, because of two things. First, the US is the 'indispensible nation' and any major international agreement needs US support, so other countries have to take us on our terms. Second, the US tends to abide by agreements even if we haven't ratified them. I don't think, though, that failing to abide by an unratified treaty would constitute a breach of international law.

[Loki]

There are no enforcement mechanisms that prevent a new POTSU/Congress from reneging on a deal the prior party in power had. An agreement with NATO both parties will abide by and unless some crazy shifts happen that won't be changing at all. Agreements with terror states like Iran? Not a big deal at all.

The mechanism is called reputation. You violate agreements and you become a pariah. Do you think there's no cost to being a North Korea?

[LittleFuzzy]

There are no enforcement mechanisms that prevent a new POTSU/Congress from reneging on a deal the prior party in power had. An agreement with NATO both parties will abide by and unless some crazy shifts happen that won't be changing at all. Agreements with terror states like Iran? Not a big deal at all.

Actually there are enforcement mechanisms. Among them is SCOTUS, who would have jurisdiction for arbitrating a domestic dispute about authority in making foreign policy.

But for the primary assertion Loki is making, I'm pretty sure most to all other countries foriegn-affairs ministries or departments of state are aware that unless Congress has also ratified an agreement, it is only as binding to the extent whoever is currently in the Oval Office chooses to treat it as such. And I'm sure all those parliamentary countries or other states where the head of government can genuinely speak for the entire government get aggravated about it but there isn't much they can do about it, nor would it helpful to just try and exclude the US from most international agreement-making.

[Loki]

Not that I disagree with your basic argument here, but doesn't US law treat executive agreements as, essentially, executive orders that can be abrogated at will by the executive branch? For that matter, US law in theory argues that the constitution supersedes any international treaties, even a fully ratified one. In that context, I think it would not be a violation of international law for the US to enter into an unratified agreement and then reverse said agreement. It might be unwise, it might have significant diplomatic repercussions, but I don't think it's illegal.

The US has a long history of signing but not ratifying treaties, or signing and ratifying treaties, but doing so with all sorts of provisos and signing statements and the like. We can get away with it, essentially, because of two things. First, the US is the 'indispensible nation' and any major international agreement needs US support, so other countries have to take us on our terms. Second, the US tends to abide by agreements even if we haven't ratified them. I don't think, though, that failing to abide by an unratified treaty would constitute a breach of international law.

American law is irrelevant. Just because something is legal in the US doesn't mean it's legal internationally and it certainly doesn't mean that the US wouldn't suffer a huge reputational cost for engaging in such an action.

There's a vast difference between including provisos in treaties that allow for non-compliance and reneging on an agreement that doesn't have such provisos. I find it highly unlikely that Iran would agree to anything that would allow the next administration to simply ignore the agreement (absent major violations on Iran's part).

The deal with Iran would be a non-binding international agreement, just like the kind we have for protecting American troops in foreign bases. Technically speaking, a violation of such an agreement would be political and not legal. It would still be an agreement violation, which carries with it the same kind of reputational costs as the violation of more formal agreements. Furthermore, countries have increased their reliance on such international agreements, which grants them a higher status by merit of international common law.

Comparing this to the NATO agreement was a mistake though, as that one does rest on a formal treaty.

Actually there are enforcement mechanisms. Among them is SCOTUS, who would have jurisdiction for arbitrating a domestic dispute about authority in making foreign policy.

But for the primary assertion Loki is making, I'm pretty sure most to all other countries foriegn-affairs ministries or departments of state are aware that unless Congress has also ratified an agreement, it is only as binding to the extent whoever is currently in the Oval Office chooses to treat it as such. And I'm sure all those parliamentary countries or other states where the head of government can genuinely speak for the entire government get aggravated about it but there isn't much they can do about it, nor would it helpful to just try and exclude the US from most international agreement-making.

A vast majority of our agreements with other countries are of the non-binding nature. I somehow doubt that other countries would be taking us seriously if we made a habit of violating them every time a new president came to power.

[EyeKhan]

All discussion of legality and consequences aside, this is a pretty fucked up maneuver by the Republican leadership. I can't believe how much they've gone out of their way to fuck with Obama - not just gridlock and partisanship, but overt displays of disrespect.

Fuzzy, are you going to say this sort of thing is nothing new? It sure seems new.

[LittleFuzzy]

A vast majority of our agreements with other countries are of the non-binding nature. I somehow doubt that other countries would be taking us seriously if we made a habit of violating them every time a new president came to power.

Considering the number of treaties we've signed and not ratified, and which we make no move to ratify, it would appear that the international community has gotten used to an administration announcing its support for something that isn't actually going to get followed.

All discussion of legality and consequences aside, this is a pretty fucked up maneuver by the Republican leadership. I can't believe how much they've gone out of their way to fuck with Obama - not just gridlock and partisanship, but overt displays of disrespect.

Fuzzy, are you going to say this sort of thing is nothing new? It sure seems new.

Honestly, I'm not sure. I know Congressional leadership has not been shy in the past to point out that whatever a President might be negotiating is something they're damn well not going to ratify. That's what has led to this habit of relying on executive agreements in the first place which has in turn ramped up Congressional attitude. It's at least different in degree from past behavior because this is not the type of foreign policy they've screwed around with in the past but whether it is truly different behavior is hard to say. I think you could make a good argument either way.

[wiggin]

American law is irrelevant. Just because something is legal in the US doesn't mean it's legal internationally and it certainly doesn't mean that the US wouldn't suffer a huge reputational cost for engaging in such an action.

There's a vast difference between including provisos in treaties that allow for non-compliance and reneging on an agreement that doesn't have such provisos. I find it highly unlikely that Iran would agree to anything that would allow the next administration to simply ignore the agreement (absent major violations on Iran's part).

The deal with Iran would be a non-binding international agreement, just like the kind we have for protecting American troops in foreign bases. Technically speaking, a violation of such an agreement would be political and not legal. It would still be an agreement violation, which carries with it the same kind of reputational costs as the violation of more formal agreements. Furthermore, countries have increased their reliance on such international agreements, which grants them a higher status by merit of international common law.

Comparing this to the NATO agreement was a mistake though, as that one does rest on a formal treaty.

I agree that there are reputational risks associated with routinely making executive agreements and then abrogating them. I was just disputing that it has anything to do with international law. As Fuzzy points out, countries are well aware of the risks inherent in negotiating with the US Executive branch when Congress has plenty of power to stop the ratification or implementation of an agreement. There's no explicit or implicit assumption that if the US executive signs an agreement, they in any way consider it binding.

Chaloobi, I don't know if Congress has gotten this blatant (to the point of contacting foreign governments themselves), but they do meddle in this sort of issue all the time.

[Hazir]

I must say I find it strange that the legislative would pull the rug from under the feet of the President before it gets to the point that there is anything to be ratified at all. If anything it shows that US politics are totally poisoned.

[LittleFuzzy]

At the very least it is the kind of spiteful partisan grandstanding which so many of us despise, yes. If it's a good agreement then whoever follows Obama will probably adhere to it and if a good agreement can't be reached then Obama himself probably won't commit to it so all the message really means is that the GOP Congress-critters are trying to create the image that Obama can't accomplish anything worthwhile (the traditional overuse of the "lame duck" political metaphor) and showing themselves as being in opposition to him generally.

[Lewkowski]

The mechanism is called reputation. You violate agreements and you become a pariah. Do you think there's no cost to being a North Korea?

Ah so while technically not treason, doing something that lessens the reputation is only slightly better? So really any action done by Congress or the President that weakens our reputation is only slightly better than treason? Really?

In any event no one is going to be worried about us keeping an agreement with a TERROR state.

[Lewkowski]

All discussion of legality and consequences aside, this is a pretty fucked up maneuver by the Republican leadership. I can't believe how much they've gone out of their way to fuck with Obama - not just gridlock and partisanship, but overt displays of disrespect.

Fuzzy, are you going to say this sort of thing is nothing new? It sure seems new.

Disagree - if POTUS does something you disagree with and you have the political ability to interject and you've been elected on the basis of you opposing crap that the POTUS does there is something of an obligation to follow through on those expectations.

[Loki]

I agree that there are reputational risks associated with routinely making executive agreements and then abrogating them. I was just disputing that it has anything to do with international law. As Fuzzy points out, countries are well aware of the risks inherent in negotiating with the US Executive branch when Congress has plenty of power to stop the ratification or implementation of an agreement. There's no explicit or implicit assumption that if the US executive signs an agreement, they in any way consider it binding.

Chaloobi, I don't know if Congress has gotten this blatant (to the point of contacting foreign governments themselves), but they do meddle in this sort of issue all the time.

This kind of deal doesn't have to be ratified, so that's a moot point. If the Republican senators simply said that they'd block the implementation of the deal using all the legal means at their disposal, no one would bat an eyelash. The main problem is that they said America would renege on a major international agreement just because it can. That is not a sign you want to be sending to our international partners. As I already mentioned, a vast majority of diplomacy involves precisely these kinds of non-binding agreements (can you imagine what would happen if the next Iraqi PM unilaterally decided to end special protections for US troops?). And there's every expectation that the US will stick to these agreements regardless of who's in power. At the very least, the US would be expected to renegotiate the agreements in good faith.

And all of this wouldn't lead to any real criticism of the GOP senators if it was done in private. If they really opposed the deal, that's how this letter should have been sent. It would send a much simpler message to the Iranians. Instead, these people are trying to openly make common cause with the hardliners in an enemy country. This is Jane Fonda territory here, except they're elected officials.

[EyeKhan]

Disagree - if POTUS does something you disagree with and you have the political ability to interject and you've been elected on the basis of you opposing crap that the POTUS does there is something of an obligation to follow through on those expectations.

I read it as telling the Iranian government "Don't bother making an agreement with this president because once Republicans have the White House, we're cancelling it." So no matter what they do, good faith or not, good deal or not, the US will renege. It tells them - and the world - the US can't be trusted and is not reliable. Presumably one of the reasons the Iranian government is interested in nuclear weapons capability is they suspect it's the only way to safeguard themselves from an overtly hostile, untrustworthy US. And here the Republicans confirm "you're right, we are hostile to you and we always will be, despite what this president is telling you now." It reinforces their fears and attempts to steer the entire situation in the direction of war as the only means to prevent an Iran with nuclear weapons. Do you support war with Iran without even trying to resolve the situation any other way???

[RandBlade]

As a general rule of thumb in the UK (which I believe applies to the US and many other but not necessarily all nations) there is a guiding principle in that "no government can bind its successor". Yes governments can make laws, either national or international. Yes too these laws may apply to the government itself and its agents and agencies. But just as much governments can revoke laws too.

There may be consequences of abrogating yourself from your responsibilities but it is not illegal per se. A government can make it difficult for a future government to revoke a law it has passed, but it can not forbid it from doing so. In the US the highest threshold thus far is amending the Constitution so the 18th Amendment's instructions to future American governments were revoked by the passage of the superceding 21st Amendment.

Congress undermining the President is weird and an unedifying spectacle, furthermore had Democrats been doing this to Bush they'd have been called treasonous by many Republican supporters (many were for less). But it isn't treason and it isn't really saying anything that wasn't already known and obvious.

Interestingly amongst American history it is this notion of who has ultimate sovereignty that led to the American Civil War. The South viewing itself as sovereign and able to withdraw from its agreements with the rest of the USA, Lincoln disagreeing and ultimately enforcing his view by force. It was military might, not legal logic that decided that decision.

[Loki]

The whole point of international law is to bind your successors. Countries always have the option of violating international law or violating international agreements, but just because something is legal domestically makes no less of an international violation.

[RandBlade]

Name an international agreement you can't revoke.

All it takes is a country to legally say: We revoke the law authorising this agreement and its nul and void. Some countries don't operate that but the UK and I believe USA most definitely do. International agreements (even the EU for the UK) are only valid based upon the laws that authorise them and the electorate can revoke any international agreement by electing a government that revokes the old agreement.

[Loki]

Most of them actually (if you mean unilaterally)...Some allow for a country to withdraw after giving notice, but that still means that the agreement is in effect until that time period passes...Why the hell do you think anyone would make agreements if one side can unilaterally back out without warning?

[RandBlade]

Actually no all agreements can be revoked unilaterally whether its in writing or not. All it takes is a country to either want to revoke it enough, or need to revoke it enough. Ultimately agreements only last so long as all sides agree they do and if any back out (with or without warning) then they're over.

To take an old example, how is the League of Nations doing today?
To take a modern example, the Euro was created to be permanent and deliberately NOT to have any exit mechanism. However reality intervenes and only an idiot would now suggest its impossible that Greece may end up exiting, even if its still unlikely. If Syriza had been elected on only a slightly more left-wing platform then they would be exiting - any international agreements be damned.

The notion that an exit is only possible either if allowed, or on the terms allowed is a fantasy. To rely on a terms of a disrespected agreeement as to determine whether the agreement must be respected or not is no more plausible than the logic that God exists because the Bible says so, and the Bible is right because God says so.

[Loki]

You seem to be conflating the physical ability to leave and the right to leave.

[Hazir]

You seem to be conflating the physical ability to leave and the right to leave.

What most people don't quite seem to understand also is that while an international agreement can be cancelled, mere national obstacles can not formally dissolve a treaty. Not even a Constitution. If the Supreme Court in the US would find that a Treaty is in violation of the US Constitution then the US would still be bound by it untill it has formally withdrawn from it (in most cases that would be done through withdrawal of ratification). A ruling of the Supreme Court could NOT cancel the treaty all by itself.

The example of the euro/Greek situation is eminently unhelpful because even though there is no de-jure exit from the eurozone there is a de facto exit thinkable, which only THEN leads to the conclusion that the country has entered a state where it's de jure membership has dissolved. The decision the Greek government would have to take to fall out of the eurozone is not to state that it leaves the eurozone, but that it prints Drachma.

[RandBlade]

You seem to be conflating the physical ability to leave and the right to leave.

They are the same. Every future government has the right to leave any agreement the current government signs, unless the current government somehow fully revokes its own sovereignty. Which the USA (and UK and many other nations) have not done in agreements currently signed so isn't the case.

There may be consequences for leaving in a disrespectful or disorderly manner, but the option exists and denying that is disingenuous.

What most people don't quite seem to understand also is that while an international agreement can be cancelled, mere national obstacles can not formally dissolve a treaty. Not even a Constitution. If the Supreme Court in the US would find that a Treaty is in violation of the US Constitution then the US would still be bound by it untill it has formally withdrawn from it (in most cases that would be done through withdrawal of ratification). A ruling of the Supreme Court could NOT cancel the treaty all by itself.

Of course a national obstacle can dissolve a treaty. Any treaty. National laws trump international ones, unless the nation chooses to obey the international ones. International laws only operate under the auspices of the national authority that authorises it. With that authority revoked the treaty is void.

If SCOTUS rules that a Treaty was unconstitutional and ruled that the US was no longer bound by it as such, then it would be automatically voided by SCOTUS's decision. If Congress and POTUS voted to withdraw unilaterally from any Treaty the same would be true.

Most agreements will be left in a more orderly fashion in the same way that it is easier to leave a building by walking out the door than by jumping out the window or smashing a hole in the wall - but countries have every right to revoke anything they please.

[Hazir]

Randblade, you have very obviously zero knowledge about the way treaties work. Treaties are a well established part of international law and a basic principle is that national obstacles are irrelevant with relation to a ratified treaty. The way out of a treaty is withdrawing ratification Which is an act of international law, not a national obstacle.

[Aimless]

Some thoughts from elsewhere

http://www.yalelawjournal.org/forum/...s-consequences

(putting aside sovereignty)

[Lewkowski]

Saying something is against 'international law' is a joke. Since no international agreement can violate our own sovereignty the statement is silly and is just pure spin. In the end we are America and can damn well do as we please. Violating an agreement with a strategic ally DOES have consequences. Violating an agreement with Iran... LOL. Tell them to stop funding terrorists and I might pretend to care.

[wiggin]

This kind of deal doesn't have to be ratified, so that's a moot point. If the Republican senators simply said that they'd block the implementation of the deal using all the legal means at their disposal, no one would bat an eyelash. The main problem is that they said America would renege on a major international agreement just because it can. That is not a sign you want to be sending to our international partners. As I already mentioned, a vast majority of diplomacy involves precisely these kinds of non-binding agreements (can you imagine what would happen if the next Iraqi PM unilaterally decided to end special protections for US troops?). And there's every expectation that the US will stick to these agreements regardless of who's in power. At the very least, the US would be expected to renegotiate the agreements in good faith.

And all of this wouldn't lead to any real criticism of the GOP senators if it was done in private. If they really opposed the deal, that's how this letter should have been sent. It would send a much simpler message to the Iranians. Instead, these people are trying to openly make common cause with the hardliners in an enemy country. This is Jane Fonda territory here, except they're elected officials.

My point is that if it doesn't need to be ratified, then it isn't binding (or at least isn't binding to anywhere near the same level as that of a ratified treaty or convention). It's binding in the sense that there are costs associated with reneging on the agreement, but it isn't international law - the right of unilateral withdrawal is implicit in these sorts of agreements. The only way I could imagine it being a legal issue is if customary int'l law got to the point where it assumed that such non-ratified executive agreements had a presumption of being binding... something that, as far as I can tell, is far from the case today.

Let's take your example - if the Iraqi or Afghan governments revoked an SFA, they have every right to do so - the US would not be able to, say, take them to the ICJ for adjudication of the dispute (don't know about jurisdiction here, but let's assume the ICJ could theoretically try it). Of course, there would be consequences - likely an immediate withdrawal of all US and allied forces from the country in question. But it wouldn't be illegal. In fact, that's more or less what happened with the US withdrawal from Iraq - though Iraq just failed to sign a satisfactory SFA to replace the previous authorization for US forces to operate in Iraq, so the US left.

Due to domestic politics and our governmental structure, the US often fails to ratify those treaties it signs. It often states an intention to abide by the provisions of said treaty, but sometimes is explicit in saying that it will not even seek ratification because of some reservations about aspects of the treaty (e.g. UNCLOS). In fact, the treaties the US actually does ratify are illuminating - either they deal with an issue that is largely apolitical and minor, or they deal with something so important that the US can't afford to look like it isn't serious, like strategic arms control. It's the stuff in between - that has political elements but isn't critical to convince the counterparties we'll abide by the agreement - that fail to get ratified. That suggests that the US (and presumably counterparties) agree with the basic idea that signed but unratified treaties are not legally binding, even if the US may strive to follow them in most cases.

There's no legal problem with reneging as the Republicans suggest, at least so long as the current Executive is negotiating in good faith. There's all sorts of stupidity behind what they're doing, but I don't think it's a problem with international law. That's my only point.