The Mirfendereski Brief 

                                                                                                                      12 March 2015

Once again the chaotocracy, which passes these days as an example of the American federal model of governance, has revived a constitutional issue that for long one would have considered as resolved by precedent and common understanding. The term “chaotocracy” means a state of paralytic dysfunction in public affairs, best understood in Persian as khar-tou-khari, literally meaning a cabal orchestrated by self-indulging asses. 

At the core of the issue—aside from the Republicans’ purple-faced rants against everything that President Obama does or stands for—perhaps colored more by racial animus than reason—is the question of what constitutes a “treaty” and must all treaties receive the blessing of the US Senate. 47 US Senators have written an open letter addressed to the Leadership in Iran, saying any agreement between the US and Iran over its nuclear program, without Congressional say, can be invalidated with the stroke of a pen by a future President or by US legislation. 

Neither in the US constitutional parlance nor in the language of international law the term “treaty” signifies a meaning that cannot be conveyed also by the use of terms like compact, accord, memorandum of understanding, convention, concordat, protocol, exchange of notes, or simply agreement. Article 2 of the 1969 Vienna Convention on the Law of Treaties, too, makes no distinction between a treaty and an agreement: A “treaty” is an “international agreement concluded between States in written form and governed by international law … whatever its particular designation.” Neither Iran nor the US is party to the Vienna Convention, even though they signed the convention in 1969 and 1970, respectively. However, as the International Court of Justice (ICJ) noted in paragraph 41 of its Judgment (6 November 2003) in the Oil Platforms Case (ironically, between Iran and the United States), the Vienna Convention reflects the general international law rules regarding treaties.

In both the US and Iranian legal cultures, as the Bard would say, a rose by any other name is still a rose. In the US Constitution the term “treaty” seems to be used as a synonym with such terms as “compact” and “agreement.” For example, Article I, Sec. 10 of the Constitution forbids the states of the Union from entering into any “treaty,” “agreement,” or “compact” with a foreign power without the consent of Congress, meaning not only the consent of the Senate but also that of the House of Representatives. Article 77 of the Constitution of the Islamic Republic of Iran (1979, as amended) requires the approval by the Islamic Consultative Assembly, the county’s only national legislative organ, of “[i]nternational treaties, protocols, contracts, and agreements.” Prior to the Islamic constitution, Article 24 of Iran’s Fundamental Law (1906) required that “treaties and covenants … be subject to the approval of the National Consultative Assembly, with the exception of treaties which, for reasons of State and the public advantage, must be kept secret.”  Article 52 of the Supplemental Fundamental law (1907) provided that “[t]he treaties which … must remain secret, shall be communicated by the King, with the necessary explanations, to the National Consultative Assembly and the Senate after the disappearance of the reasons which necessitated such secrecy, as soon as the public interests and security shall require it.”

Under Article II, Sec. 2 of the US Constitution the President has the power, by and with the advice and consent of the Senate, “to make Treaties, provided two thirds of the Senators present concur.” However, there are international agreements entered into by the President that do not require the advice and consent of the Senate in order to become binding on the United States. Beginning as early as the 1810s under President Monroe, this specie of agreements—now known as “executive agreements”—have been a feature of American practice as an offshoot of the President’s inherent constitutional power—hence “executive”—to conduct the nation’s foreign military, diplomatic and political relations. These agreements ensure timely reaction to challenges and opportunities of the day (efficiency) and certain secrecy (in a good way) to the negotiating process, particularly if it involves interim protocols to be observed until a final agreement is reached.  

It is not clear if Iranian law or practice allows the Iranian executive branch to enter into international agreements without the consent of the parliament. However, from a practical standpoint, even though the approval of the Supreme Leader might suffice, it is expected that a nuclear agreement would go before the Assembly to be rubber-stamped, if for no other reason then to show good form. 

In the early days of the US Republic, the agreements entered into with foreign nations, without Senate approval, were directed to particular and trivial matters. In the shadow of events before and after World War II, especially with increasing US participation in world affairs, the subject-matter of these executive agreements have become at times more than just trivial—constituting a significant factor in the course of the country’s foreign policy such as forming temporary alliances or resolving international crises and threats to international peace and security. 

One example of these latter-day executive agreements is an “exchange of notes” in the early 1960s between Iran and the US by which Iran granted to the members of the US military advisory missions and their households in Iran immunity from prosecution in Iranian courts and under Iranian law for crimes committed in Iran. The US considered the agreement as an executive agreement for its purposes. The Iranian side, which by the constitutional provisions of the day could have kept the deal secret, nevertheless submitted the exchange of notes for approval to the Iranian Senate and the National Consultative Assembly for approval. Those bodies, being the equivalents of the US Senate and House of Representatives, respectively, approved the agreement. Subsequently, riots broke out all over Iran decrying this anti-Iranian and anti-Islamic capitulation to the United States. 

Another example of executive agreements is the Iran-US agreement known as the Algiers Accords (1981) that led to the release of the detained US diplomatic and consular personnel from captivity in Iran. The Accords also provided for the settlement of claims of nationals through the establishment of an arbitration tribunal, an escrow account to pay out claims, the return of the frozen Iranian assets, and a pledge by the US not to intervene, directly or indirectly, politically or militarily, in Iran’s internal affairs. On the US side, the agreement was not submitted to the Senate for its advice and consent. 

The view that an executive agreement on the part of the US could be annulled by the stroke of a pen by a future President or by subsequent legislation runs contrary to long-accepted tenets of international treaty law. While Article 26 of the Vienna Convention demands that the parties observe the treaty in good faith, it also provides in Article 46 for a party the right to invalidate a treaty on the grounds that its consent to be bound by the treaty was a manifest violation of an internal law of fundamental importance. No one can argue that the US Constitution’s provision on making treaties is not an internal law of fundamental importance. It is suspect, however, whether the conclusion of an executive agreement with Iran over its nuclear program is a manifest violation of the Constitution when the same constitutional system has given countenance to the practice of executive agreements for centuries. For that reason, the ICJ is likely to side with an Iranian claim that the US invalidation or breach of the nuclear agreement violated conventional and customary international law. 

There is no doubt that sanctions imposed on Iran by virtue of enacted US laws can only be lifted by supervening law—which means the concurrence of Congress and the President. Another class of sanctions can be relaxed or eliminated if the President certifies to Congress that certain conditions have been met or that national interest dictates their lifting. A third class of sanctions involves measures that can be lessened or removed by executive action alone because their imposition to begin with was an executive action. In any case, any attempt at the relaxation or elimination of sanctions could solicit judicial scrutiny.   

Things can get murky—spin out of control or even grind to a screeching halt—when a suit claims the nuclear agreement with Iran, or an executive action pursuant to its terms, violates the Constitution because the agreement never received the Senate’s approval and therefore there is no legal basis for the President’s executive action. This is where the decision of the US Supreme Court in Medellin v. Texas (2008) is instructive as to how the Court might rule on the controversy. 

José Ernesto Medellín, a Mexican national residing in Texas, was a self-confessed and convicted murderer. The local Texan law enforcement officers had failed to inform him of his rights under the 1963 Vienna Convention on Consular Relations. Mexico took his case and that of 51 other similarly-treated Mexican nationals to the ICJ. In the Case Concerning Avena and Other Mexican Nationals, the Court found the US in violation of Article 36(1) (b) of the convention, and decreed that the named individuals were entitled to review and reconsideration of their US state-court convictions. Once before the US Supreme Court, the Chief Justice John Roberts (writing for the majority) excused the enforcement of the ICJ’s decision on the grounds that even if the Vienna Consular Convention constituted an international law obligation on the part of the US not all international law obligations automatically constituted binding federal law enforceable in the US courts. 

The US Supreme Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constituted international law commitments—did not by themselves function as binding federal law. This distinction goes well into the past. As it was explained by Chief Justice John Marshall in Foster v. Neilson (1829), a treaty was equivalent to an act of the legislature, and hence self-executing, when it operated of itself without the aid of any legislative provision. When, in contrast, treaty stipulations were not self-executing they could only be enforced pursuant to legislation to carry them into effect. In sum, while treaties may comprise international commitments, they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms. 

Conclusion! It may well prove that the negotiation and conclusion of a nuclear agreement between the US (and equally with/among China, France, Germany, Great Britain, Russia) and Iran was lesser of an ordeal than the implementation of the agreement due to peculiarities of the US system. The cautionary tale for the nuclear negotiators therefore is to craft a document that would not require enabling legislation by the Congress—one that presages the predictable pitfalls—so that a first class effort does not turn into a third grade mishap.  

When the Constitution was elaborated and offered up for ratification by the states, some criticized the notion that a treaty negotiated by the President and approved only by the Senate, leaving out the House of Representatives, could not be the supreme law of the land like laws that are passed by both legislative assemblies. The critics insisted that treaties, like acts of assembly, should be repealable at pleasure. In The Federalist Papers (No. 64), John Jay, the would-be first Chief Justice of the US Supreme Court, wrote: “These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.”