Yves here. I suspect some readers will take issue about the post’s swipes about what Iran has or hasn’t been up to, since, for instance, Europe has been sending inspectors to Iran to monitor compliance. However, the big point about the status of the US “deal” is worth making.
By Raúl Ilargi Meijer, editor at Automatic Earth. Originally published at Automatic Earth
Dr. D: I know the U.S. hasn’t followed the law in 100 years, but let’s review the Iran Deal. A “Deal” with a foreign nation is supposed to be, for 200 years has been, and legally must be, a “Treaty”. Treaties under U.S. law are unique, as they are NOT to be brokered by the Congress and are a point of contention if Congressmen get involved, as you can imagine special deals and/or information leaks could damage the negotiating position.
This is one of the few things Congress doesn’t do. However, the deal, brokered by the President, is presented to the Senate and only the Senate, which is supposed to be the older, more stable house, and once upon a time when Americans were adults and the Senate was chosen by the State governments, this was true. Even with a Democratic election of Senators representing the people and not the States, (which is what the House is supposed to be) it’s the best we have.
So when Obama arranged the Iran “Deal”, he knew and did so against 220 years of history exclusively BECAUSE he knew the Senate would never approve an honest-to-God, legal “Treaty.” Worse, it was part of the reason the “Deal” was effectively secret, not overseen by anyone, and even John Kerry when asked what was in it said, “I don’t know.” You don’t know??? You’re the Secretary of State presumably brokering the deal. Who’s above you in the food chain that you’re not allowed to know? That was an interesting disclosure that the media – of course – never followed up on.
He also said, as the deal was never signed, it was “not legally binding.” Okay, yes, if the Senate does not approve it, making it therefore a “Treaty”, then it’s just a gentleman’s handshake verbal agreement and not binding. So…Iran therefore did NOT agree to stop weapons development, and certainly as proven did not agree to continue to use the U.S. petrodollar.
On the other hand, Obama DID send pallets of cash on 3 jumbo jets, and the U.S. prisoners were not released until those planes touched down. So Iran can legally reverse their weapons development, while you’re not going to get that cash back. That sounds like a terrible, terrible deal, a no-deal deal no one read and no one signed. And they’re upset this is cancelled? Why? What’s in it? Can we finally know now? Nope.
My personal theory is that since General Wesley Clark’s reveal that they planned 7 MENA wars, and named them in order back in 2001 and were to culminate in attacking Iran by 2013, they were years behind schedule on this world-domination murder-death play. In order to keep Iran in a holding pattern, still lacking viable nuclear weapons, they had to pay them billions and billions. Iran for their part knew they would win Syria anyway, so they were happy to play along and get a few billion dollars. And a lot of those billions Obama “gave” to Iran were Iran’s money anyway.
What? Yes, the U.S. confiscated and “froze” (actually stole and used) Iran’s western assets in 1979, and by law Iran was almost certainly owed this money plus interest. Then if I’m any judge of world politics, the negotiating parties — U.S., France, Germany, Iran, took these pallets of unmarked bills and used them for slush fund payouts among the various power factions, and about $50 ended up with the people.
This proved to be true, as Iran immediately ignored the U.S., moved into Syria, dumped the dollar, traded in Euros, and arguably continued weapons (missile) development. …But like I said, the important part got through: free cash payoffs, untraceable, back to the “right” people: the “Deep States” of the U.S., Iran, France, etc. You can see this in Macron and Merkel’s top priority and panic to force this deal to continue. And why? Isn’t that money gone? A one-time thing? Hmmm.
Back to the present, the nation is all agog about “ending” the Iran deal. You mean the deal we didn’t have? The one that was neither signed nor (generally) followed? How can Trump end it? He can end it because it was never a deal, it was a side-agreement by a specific President, THAT’S WHY WE HAVE TREATIES. So that they are in law, hard to negate, and much more stable. In fact, the Senate told Iran this outright: “if you sign this, you know that as soon as Obama is out of office, we’ll just reverse it.”
That wasn’t exactly a threat, it was simply a fact. If you don’t enlist the Senate and 220 year-old legal processes, you effectively have nothing but a wink and a smile. Then, yes, it is easy to undo as the wind blows. Now why the Senate and Congress didn’t stop this wink, withhold funds, or impeach the President for subverting law and Congressional authority is another matter: the only thing here is that there was no legal agreement, widely reported by all parties in the public media, so what is Trump really cancelling? Something that never existed except in the news?
We have law for a reason and this is what happens when you don’t follow it, but after not following it for 100 or more years, everyone forgets. This ain’t rocket science, folks. You want an Iran deal? Pass one.
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The big point about the status of the “deal,” as Raúl intimates, is that it’s par for the American course.
I said the following in response to a post by Emptywheel titled “Gina Haspel’s Fluid Moral Compass”:
That old quote by Marshall in Johnson v. M’Intosh is chillingly revealing in this context. We are not, nor have we ever been a nation that applies it’s laws objectively. Witness: “Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.” Power is always asserted subjectively. Objectively, GH should be in prison. But for the subjective application of the law over the last three presidencies, she’s an Eichmann. Untouchable until a presidential conqueror subjectively decides to begin enforcing the objective statutes and treaties.
Nation of laws my family bloggety blog. All we are is a nation that’s done a bang up PR job of rationalizing away the fact that we are governed by vicisitudinal cults of personality.
That’s all the deal was, and is, to the corporate media. Laws don’t matter to our leaders these days. Cults of personality that blindly follow the latest conqueror do.
Ilargi didn’t write this piece; Dr. D wrote it and Ilargi posted it at TAE.
Sorry for the lack of clarity but Ilargi didn’t have a link to Dr. D (he just put the name in red and reading the body of the post, it is clear Dr D is the author). I assumed it was hoisted from comments or e-mail. Technically it is still Ilargi’s post since he made the decision to run it but at his site in his own text he should have been way clearer about who Dr. D. is. Macrobusiness does a variant of this by having a one sentence into and then having the entirety of the rest of the post be from another publication or a research report. That strikes me as sketchy. Hoisting something more specific to your site is a bit less bad.
I can’t attribute it properly given our site conventions for author attribution. If someone can tell me who Dr. D is, I can obviously change the bit at the top.
Sorry, I have no idea who Dr. D is, other than a commenter at TAE, who occasionally writes a thread there at Ilargi’s invite.
Yup. My bad. I visit TAE fairly regularly and Ilargi does write original posts, so I guess I just assumed. My time stamp is 1:36am on the comment — that might have something to do with me not getting my facts straight as well. Good catch Schmoo.
If the author is trying to make the point that the international treaty between the P5+1+EU powers and approved of by the United Nations as well as approved by the European Union plus supervised by the International Atomic Energy Agency is not really a treaty, well, to use a local phrase, “Tell ‘im he’s dreaming!” If he is trying to say that it was not really a deal it is only because he is trying to see it through the lens of parochial politics, not intentional politics. Obama returning the money it swiped from the Iranians underlined the fact that a treaty was in effect. Did the Senate try to stop him then? (crickets)
What is really suffering out of all this is the reliability of the United States in any negotiation or treaty. North Korea will be taking note of this even though John Bolton assures them that this is different. In essence, it means that a country that has a treaty or agreement with the United States will reflect that with the election of every new President, that all these may be thrown out the window. That means that any treaty or agreement will be up for review each Presidential election cycle in 2020, 2024, 2028, 2032, etc. This cuts across trade as well. Say Country A buys a weapon system. Will the next President allow servicing or maintenance of that weapon system or give it the chop? This has already happened to the tanks America sold Iraq. And a Chinese country is going out of business because the US will no longer sell it vital components in spite of written contracts.
As for his claims that “Iran immediately ignored the U.S., moved into Syria, dumped the dollar, traded in Euros, and arguably continued weapons (missile) development” well, those were only the actions of an independent country who is not a vassal state. Of course they helped Syria. It was either that or have a Jihadist state on its border. Dumped the dollar and traded in Euros? There is no law saying that they had too and there are so many downsides to using the dollar for trade so that more countries are trying to bypass it.
Perhaps the author, to be sarky about it, needs to learn some Russian. One Russian word is недоговороспособны which means “non-agreement capable” and there are damning consequences to be paid for having a government behave that way.
Rev,
It kinda sounds like you’re saying what’s good for the goose, ain’t good for the gander. Occam’s razor seems to cut closer to Raul’s version of events in my mind.
But hey, I like laws.
I like laws too. They help keep out the jungle. All I was saying was that the US agreed to a treaty and through an election result, it states that it is now no longer bound to that treaty. If a country honors only what it feels like honoring, depending on who is in power at any one moment, that is only buying trouble for itself wholesale. Raul should read more history.
Again, Raul didn’t write this missive; Dr. D, a poster at TAE, is the one who wrote this.
Yeah, I saw your comment but yours was posted about an hour after I posted my last one. Good catch that by the way.
But the point is right: Obama never submitted the treaty for Senate approval (largely because he knew the GOP controlled Senate would never ratify it). In that sense, it is akin to a raft of executive actions that were undertaken by Obama, which were subsequently undone by Trump via the same mechanism. Which is not to say that the US has not breached or violated treaties in the past which had been passed with Senate approval (such as the 1994 nuclear freeze deal with North Korea, which the US started to violate with impunity the minute the Senate changed hands in the 1994 elections). But in this particular instance, Obama’s agreement (which I happened to support) was never approved by the Senate, which meant that it remained subject to the whims of executive action. The “treaty” lived and died via the same source.
So we can add that agreement (which appears to be or not a treaty depending on the viewpoint) to all the laws and decisions taken by Obama in such a way, or within such deadlines, that it is a cinch for his successor to overturn or cancel them.
It really looks as if Obama did all of this on purpose, doesn’t it?
The point is that it doesn’t take on the status of an internationally binding legal treaty unless it is approved by two-thirds of the Senate – the so-called “Treaty Clause” of the US Constitution. I think the US action sucks as well. But the author’s point is valid
GWB withdrew from the 1972 ABM treaty in 2001 and Carter withdrew from the 1954 US mutual defense treaty with Taiwan in 1980.
Wikipedia
The US has also bi-partisanly redefined combat, combatants, torture, and due process since 2001 to bypass the constraints of the Geneva Conventions and the Constitution.
Faced with the increasing powers of the unitary executive, the relentless bi-partisan pursuit of US hegemony internationally, and the specific authoritarianism of the Trump administration, the author’s point is barely even a hypothetical as to what would have happened if the Iran agreement had been a formal treaty.
Isn’t the agreement similar to Yalta, Potsdam, or the Shanghai Communique? A modus vivendi among executives? Except the UNSC resolution gives it teeth and complicates a withdrawal?
I agree with that conception Rev. Yes, we should. But attendant to law, is procedure. Which gets into the “letter of the law” vs. “spirit of the law” debate. In my experience the spirit of the law arguments never do too well in court.
Well said and point on.
There will be consequences for this duplicity.
Well said! I would like to add that what also annoyed me about the above article was the thought that European governments are only interested in backhanders (“pallets of cash”) from the US and/or Iran in order to continue the deal. I was in Iran in 2013 and let me tell you – that place was and is ripe for exploitation by the Western capitalist class. They are a decently developed country with a government that funds the sciences. They view themselves (rightfully IMHO) as a very sophisticated people with discerning tastes. Western companies have to be salivating to get in there as they are one of the last markets not opened up to them that could buy their goods. Not taking that into consideration in his analysis makes his conclusions look shallow and uninformed.
I’ll be honest, I’m disappointed by Automatic Earth and can see why I stopped reading them.
Uh, I don’t think “western,” that is U.S. companies, will be getting into Iran any time soon because of this kerfuffle. I think the Euros are smarter and will keep up the deal, maybe offsetting any U.S. sanctions and thereby reaping the harvest you refer to. And, I believe Russia is one of those which is going to benefit (if it keeps up the deal). Is this another occasion of Trump’s actions benefiting the Russians, unwittingly of course, as Trump doesn’t have the wit to be doing it deliberately.
While Redlife accurately describes iran as a cosmopolitan country, I think the western capitalist class has been salivating over iran for a long long time, and I expect that to continue
China will probably be there as well.
I have been a little baffled by the constant mantra that Iran is the worst terrorist-supporting state. Iran is Shiite. Not many other countries have significant Shiite populations. Iran is supporting Assad in Syria because Assad and a minority of Shiites control the Syria government (reverse of Iraq under Hussein where Sunni minority controlled Iraq). Here is a map of the Sunni dominance of the Islamic world. https://en.wikipedia.org/wiki/Sunni_Islam#/media/File:Islam_by_country.png
Outside of the Assad government, Hezbollah in Lebanon, and Yemen, pretty much every Islamic terrorist act that I hear about is by a Sunni that is affiliated with Al Qaeda or ISIS. These generally do not get funding from Iran and are usually actively opposed by Iran.
So I think the Iranian government is run by a bunch of old repressive religious male zealots who want to expand their influence, but the same can be said of Indiana. A big difference is that Indiana isn’t surrounded by a bunch of countries with the stated aim of overthrowing its government.
BTW – anybody with money, the will and 1940s technology can make a nuclear bomb. The US did in in WW II, Israel did it decades ago, as did China (Russia stole most of the secrets, so they had a head start), Pakistan, India, and North Korea. So the only thing stopping Iran from developing a bomb is a will not to develop one. Constant threats against their existence from the outside is not the way to give them the will to not develop a bomb. While the “treaty” was clearly flawed, I think it was better than nothing and likely was buying time to help provide a more stable region where Iran may decide not to build one in the future.
Well said. The cognitive dissonance of the media machine is pretty head-spinning. It’s also worth noting that Pakistan and Israel, U.S. “allies” both, are non-signatories to the NPT, and that Israel is actually a KNOWN proliferator, having assisted apartheid South Africa with its (IIRC, never-completed) nuclear weapons program.
And although NPR et al are eager to associate Iran with the Houthi in Yemen, to my knowledge, no link has ever been proven; nor does it even make much sense beyond the crudest “but—Shiite crescent!” The particular sect followed by the Houthi contains some ideas considered heretical in Qom, but more importantly, how would they even get anything into Yemen in the first place? Stealth helicopter?! The Saudis control all access to the country. Of course, that begs the question, would it even be so terrible if they are managing to aid the Houthi? Someone’s got to prevent that genocide after all…
Ever heard of “The Big Lie”?
Trump and his lackeys are telling one.
The “Axis of Evil” lie pre-dates Trump.
It clearly goes back to the Iranian Revolution where, for some unfathomable reasons, Iranians didn’t like the US-supported regime, along with its secret police, so they replaced it involuntarily and took some hostages simultaneously. I am not a fan of the Iranian Mullahs and the Revolutionary Guard which are a typical post-revolution political structure where the ideologues get replaced by power-hungry tyrants (e.g. France post-1789, Russia post-1917). But they don’t seem to be that much worse than many of the other governments in the world, many of which the US has supported since 1979. I suspect that the many embarrassments of 1979-80 have permanently tarred and feathered Iran in the US.
It is also clear that Israel and Iran don’t get along, and appear to be focused on a mutual destruction pact. Each need the other in their own way, as an object for “Two Minute Hates”.
So it was a treaty with Europe, but not with the US. So Europe keeps it, the US doesn’t.
I guess if the Iranians got their money back, they have reason to be satisfied.
Rev Kev, I get what you are saying, but I’m not sure it addresses the issue being raised in the article. The article raises the age old question of whether it is right for a branch of government (POTUS: Obama) to reach for powers that have not previously been recognized and that may be breaches of tradition.
I doubt there would be much argument opposing the evidence that the power of the POTUS has grown immensely since the first one. Thus I think it is a question that should not probably sound so foreign to us.
The ends cannot justify the means…at least cheaply. Hey, that might be the smallest algorithm that best describes the constitution I’ve seen.
The only consistent line throughout the article is really whether or not the government should be doing things that are arguably not legal or done in ways that are not transparent or break with tradition or protocol. Lack of transparency always ends in people to stealing and snatching for power.
BTW, I do not claim to know the answer to the author’s issue. It is a compelling question. One, like I sad, that should not probably sound so foreign to us.
Should the POTUS be able to enter into such quasi-treaty-ish thingamagummies without much oversight or input from other elected officials?
“Arguably not legal.” All these discussions seem to assume that there is a “body of law,” sprung perhaps full-blown from the foreheads of unspecified Solons, that is steeped in wisdom and reeks of “legitimacy.” All that’s required, it seems, is for the people who exercise power to “adhere to the law.” Seems that most everyone forgets how “law” is drafted, enacted and enforced in this “democracy” (and of course everywhere else in the world where the forms of legislation overlay the actual arbitrary and selective exercises of plain old force and coercion and the other manifestations of plain old power. There’s plenty and enough evidence of the reality behind “recourse to the law (and tradition,” where, top to bottom, those who have, acquire or are given more and live behind the opaque walls of impunity and “prosecutorial discretion” and “enforcement policies and directives.”
The whole notion of “the law” looks more like a “market,” where a set of beliefs influences human behavior, and where “the law” is a negotiable and arbitrarily applied set of texts that in large measure are just about protecting propertied interests and in good Libertarian fashion, providing a means for John Galts to constrain the worst excesses of each others’ activities. As in the force-fitting of “binding arbitration” on mopes, the enforcement of “debt” of former college and trade school students who, unlike corporations, can’t even engage in strategic default or gain the protection of a debt discharge and fresh start via bankruptcy. And of course “we” have debtors prisons for the people of Jefferson, MO and lots of other communities, and the discharge in “internal investigation” and stacked-jury proceedings of cops who kill citizens. And how about that “tax code,” hey, and all the other “laws” drafted by ALEC and other “very special interests” and enacted by a bought legislature floating on
bribescampaign contributions, and an ignorant, touching or occasional grudging acceptance of the “legitimacy” of all the “rules of general application” (sic) that said legislators enact at the end of the infinitely long intestinal wall that encloses the grinding of the ‘sausage-making process”?And then us mopes get to try to receive what is really being done to us, while our perceptions are clouded, bombarded daily by the Noah’s Flood of writings and blandishments by the spokespersons for the REAL Owners of Almost Everything, ladling out enormous portions of Fear, Uncertainty and Doubt to keep the mopes befuddled and in line. Killing any hope of development of forms and structures and guiding operating principles that might lead to comity and honesty and decency in “law-regulated human affairs.”
So debating the nature of the whatever-it-is, treaty or agreement or who knows, is a feckless activity. The folks with power patently will do what they will, for whatever reasons they have, and we mopes just get to create the wealth that makes such wonders possible, and live or die on the whims of our Rulers. And yes, there are pushes and shoves that various collections of people make, to try to “RESIST” the arbitrary self-seeking actions of those who have concentrated their energies on accumulating the faux “legitimacy” of electoral approbation and who extend their hegemony using the sad, weak beliefs of those of us who still hold the notion that the “constitutional” system somehow produces a “body of laws” that “serve the public interes” somehow. And If Only Enough Mr. Smiths Would Go To Washington, Things Would Be Better. News for them — Mr. Potter long since reduced Bedford Falls to his ownership, and used his power to apply “naming rights” to change that bucolic place name to Potterville…
And of course I am writing this stuff as just a little “Je Proteste!” against the hypocrisy and murderous reality of what actually happens in the world, modestly obscured by the screen that the notion of “rule of law” still gets projected on,” because given the overwhelming proofs of what our human nature is, how power over others “just develops,” it ain’t ever going to be any different. Not until the looting and destruction reach that final inflection point, and God or Gaia squishes us with a terminal “No mas!”
JT — “All these discussions seem to assume that there is a ‘body of law,’ sprung perhaps full-blown from the foreheads of unspecified Solons, that is steeped in wisdom and reeks of ‘legitimacy.’ All that’s required, it seems, is for the people who exercise power to ‘adhere to the law.’”
I’m pretty sure my first comment on this thread calls into question the assertion that “All these discussions seems to assume … .”
That said, kudos to a great comment. Totally agree.
JTMcPhee
May 11, 2018 at 8:06 am
Very well said.
I used to think if there was any relation between LAW and Justice, it was an accident. In my dotage, I believe more and more that the sole purpose of the law is injustice…
When speech and access mean money, it appears so, doesn’t it? But, it hasn’t always been so. And, it doesn’t have to remain so.
JT:
Yes, yes, the powerful corrupt everything. The more the power? The more they corrupt. Sometimes it is pure power madness, sometimes it is massive cases of Dunning Kruger effect, sometimes it is just self-deception. Yes, yes, of course.
But laws have been used throughout history to both balloon power and to emaciate it. Sunshine laws are important *possible* chemo against these power-delusional tumors. FOIA is way better than no FOIA. And yes, limitations of such laws and the fuckery that goes on in between the lines is real.
And I openly question the value of cynicism. Criticism is like the immune system needing to first identify dangerous bacteria and viruses in order to neutralize them. Cynicism, IMO, is a MERS resistant super bug and right now our nation’s IV is filled with it.
well said. I find the cynicism at NC to be overbearing at times.
succinct JT, thanks
There i snothing new about executive agreements with foreign nations. It’s just that everyone should realize that they last just as long as that particular executive. Which, at base, is what the piece says.
Treaties are generally open in the sense they contain a clausula rebus sic stantibus or equivalent. While the parties might not agree that the conditions have changed, there is generally no way to argue the point since the clause can be interpreted by any signatory of the underlying treaty. A treaty is therefore only valid if the signatories are willing to respect it or if one or more parties is able to enforce it through acts of war (embargoes are acts of war, for example).
The Iran agreement might not be a treaty since it was not signed by the Senate, but that is, as Rev Kev pointed out, merely a quirk of the US constitution with little bearing on international politics and outside the interest and understanding of Iran, Europe and others. But it is nonetheless an agreement which was entered into by the US with all the force and legality of a treaty.
If the author believes that no international agreement is binding unless it is part of a constitutionally approved treaty, then nothing Trump has said or done (I assume the author is a Trump apologist) with regards to any foreign entity has any legal status whatsoever. That includes any bans on immigration or trade agreements.
Basically, the author is full of it…another sad example of American hegemony. The US has all the big sticks so the rest of the world has to wallow in its violence and exploitative capitalism.
Article II, Section 2, Clause 2, of the United States Constitution, empowers the President of the United States to propose and chiefly negotiate agreements between the United States and other countries, which, upon receiving the advice and consent of a two-thirds supermajority vote of the United States Senate, become treaties under international law.
Expat: Except for the parts where the author goes on and on about the sad examples of American hegemony…
:)
In 2015, the members of the UN Security Council unanimously endorsed the JCPOA. The US ambassador to the UN voted for the resolution, knowing it committed the gov’t to the “deal”. To reneg on it now means the US is breaking its own commitment to the articles of the UN. The US agreed with the articles of the UN Charter back when the UN was formed, and one of these articles is that the member nations will accept and carry out the decisions of the Security Council. This commits the US to the “Iran deal” according to the international standards which we helped write all those years ago.
Plus, Congress had lots of opportunity to address the issue of fulfilling its treaty-making powers vis a vis the JCPOA and in the end passed what is called the Iran Nuclear Agreement Review Act, which allows them to have oversight of the JCPOA and which requires the president to submit regular updates to them. It’s not the same as the Senate creating a treaty, but by voting this Review Act into law, the Senate tacitly acknowledged the validity of our commitment to the JCPOA.
These are very compelling arguments. Thank you for stating them so clearly.
The Wikileaks embassy cables revealed that the US will knowingly acts against its own interests to please Israel. America’s Iran policy is pretty much written by that country and “laundered” via think tanks linked to the neocon cabal that orchestrated the Iraq invasion. While Israel is not as powerful as the paranoiacs who see “Zionists” behind every geopolitical event or situation like to imagine, no other country has the power to effectively dictate important aspects of America’s foreign policy directly to the nation’s elected officials. As a bonus most of the media simply ignore this inconvenient fact as it doesn’t fit the “narrative” they are currently pushing.
One could go a bit farther and assert that the mainstream media are actually a self-anointed part of the neocon team that launders Israeli desiderata into supposedly US-initiated policy.
“America’s love affair with Israel” was one the media’s favorite fantasy themes until it became too embarrassing even for them, what with BDS and campus pushback.
Raul intuits that the deal was just a delay, which seems true. Obama couldn’t count on the senate to sign a treaty, but needed to cork the “Bomb Iran” neocon chorus. The deal was done, no secret Iranian nuclear bombs would be miraculously discovered by private Israeli intel services.
Trump, receiving untold sums from people who desire the destruction of all the sovereign states of the middle east, reneges on the deal, both satisfying his donors and his campaign promise, at least in part. (Part two would be a new deal, which may or may not happen).
Now we get proxy war against Iran, largely symbolic at this point, according to Elijah J Magnier’s account, and let’s hope it stays that way
A treaty is a treaty, which is to say it has to conform to the provisions of the 1969 Vienna Convention on Treaties. Treaties have to be signed and ratified and once that happens they are legally binding on the signatory. If they are signed but not yet ratified, a state should act in accordance with the spirit of the treaty until it ratifies it. Signatories can withdraw from treaties later (think the UK and Brexit), and all treaties I know of contain withdrawal provisions, so any state can theoretically withdraw at any time. Any agreement which doesn’t respect these criteria, no matter how solemn and important, is not a treaty. It is only politically enforceable, and can be abandoned at any time.
Ratification is done in different ways in different countries, but essentially it’s needed because negotiators can’t commit elected governments to things. In the UK (an exception) the Crown ratifies treaties. In most other countries it’s parliament. Thus, what Trump has done, whilst disappointing, is not a violation of procedure.
The real issue is political. The US system, where Congress persists in seeing itself as an alternative government, makes negotiation and ratification of treaties very hard. It’s also a convenient tactic for US diplomats, who can say “I can’t agree to that, Congress will never ratify it.” It’s also possible for Presidents to sign treaties in the knowledge that they will never be ratified – Clinton did this with the Rome Statute in 1998, and there are international treaties, like the Convention on the Rights of the Child which the US has signed but will never ratify. It’s a problem with the US political system, and there’s no obvious solution.
We see this in lots of places. The Senate is so dysfunctional that executive actions are almost the only way anything gets done at all. Congress has had plenty of opportunities to step in and codify, for example, war making and immigration, and Iran policy.
And of course, has done nothing at all
I decided to check on the congressional record of Kevin McCarthy, who is my Congressman and has been on the job about a decade.
He’s done bupkis, I mean nothing in all that time, aside from renaming post offices, and he’s not the only one, it’s the only thing they get done, I kid you not.
‘Iran immediately ignored the U.S … and arguably continued weapons (missile) development.’
Straw man. The Iran nuclear deal was focused on uranium enrichment, reprocessing, and monitoring thereof.
The absence of prohibitions on weapons (missile) development is old news from the time the deal was inked:
The author is messing with us by citing supposed violations of the deal which the Iranian side, at least, does not regard as violations at all.
Fear, uncertainty and doubt. It’s how we mopes are ruled.
I’m not so sure. I said this over at Ian Welsh the other day in response to TenBears, who I think hit the nail on the head when he discriminated between the visions of Orwell & Huxley on how the “state” exerts control in our lives.
TenBears originally stated:
“Orwell feared those who would ban books; Huxley feared there would be no reason to ban books because nobody would want to read one.
Orwell feared those who would deprive us of information and conceal the truth; Huxley feared the truth would be drown in a sea of irrelevance.
Orwell feared we would become a captive culture; Huxley feared would become a trivial culture.
In 1984, people are controlled by inflicting pain; in Brave New World, people are controlled by inflicting pleasure.
Orwell feared that what we hate will ruin us; Huxley feared that we will love what will ruin us.
Not 1984, a Brave New World”
To which I replied:
“Ten Bears nailed it. What is our entire “entertainment” industry but Soma?
Seriously. Think about it. Every child learns the old saw about “boring is as boring does.” So why is entertainment a trillion dollar industry? Sloth seems to me to be the true root of all evil. Would anyone care to venture a guess how many hours are wasted in front of movies, TV, video games and the like that could be more productively spent addressing the ills of our world?
One has to wonder if the American revolution would have ever happened if the British empire had had television.”
Interesting distinctions, but to me it seems more a case of, pick your poison. Pleasure vs. pain, fear and loathing vs. stupefaction; the US seems to be most obliging in offering a heaping helping of either or depending on how much money one has or the color of their skin.
Honestly, we’re getting it from both distinctions.
can this be applied to the criticism v. cynicism idea raised by Bill?
The problem with both books is they were warning of authoritarian governments and likely sewed the seeds of the right’s anti government fervor, or at least bolstered their argument. The real problem is big business buying government.
Yeesh. I can see that.
KInd of shoe horns with Yves’s statement some months back about how torture is used not to gather information, but to demoralize. I think she was highlighting an article discussing torture demoralizing those looking for more socialist societies in South America or similar.
But for some reason rather than BNW or 1984, I think of One Flew Over A Cuckoo’s Nest.
Yes, a straw man and one that is being trotted out vigorously on the cable news right this minute. “But Iran has MISSILES! And they are USING them!” It’s reactionary war-mongering, given that Iran has followed to the letter everything that was required by them through the JCPOA.
What the US wants are agreements that read something like this: The US will stockpile, improve, or increase its nuclear, conventional, and chemical weapons as they desire. The US may provide or sell any versions of any of these weapons to any country it so chooses. You [Iran, North Korea, Libya, Iraq, etc.] are not among those favored countries. You may arm yourselves with some rocks and sharp pointy sticks. Should you be found with any other defensive weapons, you will be threatened, sanctioned, bombed or regime-changed as the US unilaterally decides. Codicil: The US reserves the right to count how many sticks you have stockpiled. The number of sticks must not rise above one less than the number of adult males in your population.
And a further addendum: If you mope places or other sovereign nations happen to have extractable resources, or have a pathway through your nominal geographic domain that would serve for a pipeline pathway or a belt or road or naval or military lily pad, we are gonna do what we are gonna do, and what are you gonna do about it? Bearing in mind that “the US” is that amalgam of corporate interests, pseudo-Democracy institutions, media miasmatics, arrogance and such that has read, learned and inwardly digested the truism that “the lion will have his share.”
Since the US routinely violates the UN prohibition against non-defensive war then it’s a little late to be talking about international law. This didn’t start with Trump. Perhaps the real problem is not so much that the US is non agreement capable but that our friends and allies seem to be non objection capable. The fig leaf that keeps our rogue foreign policy in operation is the unwillingness of other western nations to object.
Real power is in the hands of supranational corporations, no? “Nation” is, and maybe always has been, a chimaerical, mostly empty set, except as a category for Historians to pontificate about?
So which corporate interests, manipulating the marionettes labeled “nations,” are going to object to any of what’s going on? As long as Policy fosters looting opportunities?
Yup. This is right on point with the Crooked Timber post in the Links the other day that took issue with Polanyi’s conception of the roots of neoliberalism. It’s a great read if you didn’t catch it.
THAT, was very well said. In this world it is almost impossible to see the forest for the fig leaves frankly. The complete lack of reciprocity or objectivity on what is considered a crisis, war crime, rogue state, casus belli, genocide or even sound economics is one of the most perplexing and recurring mysteries of humanity. Not only are we non-agreement capable, it seems obvious we are even non-logic capable.
I would note that most of our trade deals are not treaties either.
They are legislation, though, which is why they have to be passed by both Houses – but only by a majority, I believe.
If I’m not mistaken, Trump himself didn’t point out that this non treaty (his words: “deal/agreement”) with Iran had no constitutional legitimacy, and for obvious reasons; Trump hopes soon to sign the exact same sort of non treaty treaty -deal or agreement- with North Korea. Either that, or he hopes to get the Senate on it’s knees for rejecting a formal treaty that at least looks like a trophy wife rather than a trophy mistress (trophy most likely being Trump’s idea of legitimacy more than wife or Senate approval vs. mistress or “deal”). Granted, neither one of those options is in the bag, but the more important point is that legitimacy is what people, legislatures and foreign countries will (can be made to) go along with.
As David says above, “The US system, where Congress persists in seeing itself as an alternative government, makes negotiation and ratification of treaties very hard.”. And as he suggests, whether by accident or by design it’s used as a feature and not a bug.
And, it is perfectly possible and even likely that Trump sees no issue whatsoever in tossing aside one “deal” from a previous non president president and assuming that his “deal” (regardless of formal integrity) will be considered solid and binding.
The money given to Iran was their money, frozen in the US since the revolution in the 70’s.
Actual legal treaty or just a “side deal” – it doesn’t matter. The good ol’ USA is not a reliable party.
Just ask American Natives how all those treaties worked out for them.
It turns out that those treaties were just fake news because Native Americans turned out to be a race, not sovereign nations. Congress and the US Supreme Court have simply been wrong for 200 years.
https://www.teenvogue.com/story/native-tribes-could-lose-federal-recognition-of-tribal-sovereignty-under-trump
Its interesting that interesting articles are showing up in Teen Vogue now, not just Politico etc.
If the Trashy Trump Administration tries to de-recognize the recognized Tribes they will fight back through the Official Legal System. If that ends up not working, they will take their many cases as Nations to the United Nations.
Even as some left and liberadical political thinkers and doers try to evolve an inter-identy class combat politics, the Trashy Trump Administration is working quite cleverly to inject new grievance into the identy groups and breath new life into a strict identy politics of a coalition of identy groups.
The Top Ten Percenter Democrats will hope to stay in power and keep the Bernies out of power by appealing to this freshly re-aggrieved identy coalition. The Trashy Trumpublicans hope to favor the TTP Democrats by making all the identy groups so aggrieved and afraid that they will tolerate a TTP Democrat Liberal nominee for President just to make the Trashy Trump pain stop.
The author writes: ‘A “Deal” with a foreign nation is supposed to be, for 200 years has been, and legally must be, a “Treaty”.’
Not all US agreements with foreign nations are considered treaties. NAFTA, for example, is an “Agreement”, not a “Treaty” – though the Mexicans consider it a treaty on their end – the Tratado de Libre Comercio.
And no matter what it’s called, the US reserves the right to breach it at any time.
Nations by definition are sovereign, masters of their own fate.
So treaties, agreements, whatnot are more for the country engaging in one, defined to the level required to protect themselves from themselves, rather than necessarily honoring some codified international laws.
At the end of the day economics and/or brute force are the real means by which sovereign countries interact.
I get the article, and it proves the point with it’s own analysis, that it’s all semantics, and if nations decide to agree on something then they do, and if they decide to disagree at a later date so be it.
I’d imagine that is pretty well understood by the diplomats on every side.
I feel so strongly about it I think I wasted my time just writing this comment. Much ado about nothing. Focus on the issues, not the methods.
In so far as the U.S. is concerned, withdrawal from the JCPOA on no evidence of violations is now fait accompli. The Trump administration has killed it or clarified its status, depending upon your personal view, such as it was. What’s next on their agenda?…
The aggressive co-option of war powers by the executive branch that has been so costly to our nation, and the acquiescence of Congress to the status quo and lack of checks and balances to the actions of the executive branch must be ended, as must the obfuscation and propaganda.
The 2001 Authorization to Use Military Force (AUMF), the Bush-Cheney administration’s concept of the “Unitary Executive”, and the draft Corker-Kaine AUMF to replace the 2001 AUMF all deserve public explanation and intensive Congressional and public review and comment, and specifically the granting of authority to the executive branch under the new AUMF to designate “associated forces” as targets of U.S. military action without Congressional approval.
If the “JCPOA minus One” countries continue to keep the agreement functioning and going, then the DC FedRegime is currently on the outside. Will the “Iran Deal minus One” countries keep to the agreements in hopes of a non Trashy Trump administration after 2020? I think they may try.
If the Democratic Party people cared about saving America’s presence in the agreements ( which they do not), here is something they could do ( which they will not do, because they do not care). They as a Party and every single one of their major officeholders could promise, if elected, to take America back into the Agreements. Which they will not do, because they do not care.
Got a little late to this party, but it seems a lot of people are hitting all around the core realities here without connecting as they should. In lieu of effective enforcement, any deal, in any context, depends on good faith and the integrity of the parties involved. Otherwise, any threadbare rationalization will suffice for weasels to do their thing. Trump’s entire history is that of a weasel, but in fact he has no lack of company in his current milieu: they’re generally just less obvious and vulgar about what they’re up to.
Ultimately, this whole issue comes down to doing what’s in the best interests of the US. And if abrogating the JCPOA really was, on the net, in its bests interests — considering among other things it would skewer any budding trust NK might have had in making a deal with the US— it needed to be done.
Various posters here are correct that the JCPOA is not a “legal” document (the POA, after all, labels it as a mere Plan-Of-Action). However, such executive agreements are what governments around the world have been using for a long time to do business with each other. They are between governments, not individuals, and they are not broken unless there is a very good reason. (This may be part of the problem we are now facing, with Trump viewing his personal prerogatives as those of a sovereign, like a King, instead of one in a series of chief executives). Basically, they are considered handshakes or “understandings,” being of negotiated duration, which are typically either extended, modified, or passively allowed to lapse as they become obsolete. Being informal to a degree, they are more appropriate when there is a relatively discrete issue that can be better addressed administratively, without the politics involved with a treaty. They typically address the details of how to handle a particular issue. Examples have been noted above, and they also include Status of Forces agreements, by which the US military is able to transit, visit, or base itself around the world. Every year hundreds of such agreements are made to facilitate the business of the US abroad. These are merely understandings that Party A will do X, and Party B will do Y. But they are understood to respected and binding as administrative expediencies, and without this reliability nothing would ever get done.
Something more “legally binding,” would be a treaty. But then there is the SCOTUS case of Goldwater v. Carter, again noted above, where Carter unilaterally annulled a treaty to defend Taiwan and the court punted to executive prerogatives (aka, expediencies). Perhaps a more pertinent example would be the UN Convention Against Torture, which again was ratified by the US Congress. Treaties are really just understandings, not unlike the JCPOA, that are placed, in their entirety, inside the legal code of the ratifying country. The Torture Convention is now part of US federal law, clearly defining what the CIA was doing as torture, and the consequences, in US law, for its violation. Following “lawful orders” is no excuse and the US was, chapter and verse, in violation. Government lawyers contrived bypass interpretations which Haspel (like a Good German-American) cited, which were analogous to the fine legal work Herbert Klemm did for the Nazis, for which he swung at Nuremberg. By its actions the US broke international law, and it’s own, as a matter of policy, when the involved legalities could not have been clearer.
The upshot of both cases is that the integrity (trustworthiness) of the US has been exposed as nonexistent. Even if less blatant examples abound, maybe it really is for the best we are no longer so sanctimonious about this sort of thing. The Bush administration violated the UN Convention and Obama endorsed those violations, saying they did not need to be “re-litigated” (having never been litigated in the first place). Both presidents were complicit in the corruption of US influence by showing the hollowness of ostensible US values, standards and promises. It’s hard to say precisely when such behavior exceeded what must be expected in a messy world, but once infections set-in they tend to spread quickly. What might have once been tolerated in the course of political expediency has quickly grown into a habit. There were certainly other mileposts, but this one is especially important, given how someone at the center of the Bush torture program is set for promotion to CIA Director, an action that will confirm to the world with extraordinary eloquence what the US really represents.
With Trump’s various actions, the perfidy and corruption of the US has come into even clearer view. Trump finds this reality particularly comfortable and is more open about it due to his background in business, where his MO was to con others into agreements he could then break. This is consistent with the rest of his profile as well, where the US chose as a president someone who represents the very worst of America. Apart from anything else that might define him, from his prideful arrogance to his vulgarity, where Trump has shown himself to be truly preeminent is in his corruption and lack of integrity, and this case shows it vividly. Abrogating the JCPOA was certainly Trump’s prerogative, even as it demonstrated to the world that neither he nor the US can be trusted to abide by their agreements. When deals like this are found to be unsatisfactorily, they need to be renegotiated or noses held until they expires. If this agreement really did strike him as “the worst deal in the history of the world,” it was certainly Trump’s duty to do something.
Entonces, the issue here then becomes whether his actions were appropriate and in the best interest of the US. Unfortunately, none of the many complaints about the JCPOA hold water. What criticisms do exist are supported more by raised voices and adamancy than anything else. Most of them have to do with Iranian activities, such as in Syria or with ballistic missiles, which have nothing at all to do with agreement; others harp on Iranian duplicity and inferred intentions dating from 2003 to 2007, when the agreement was not inked until 2015, making them irrelevant. There is also the broad assertion that a better deal could have been made, which implicitly concedes the current deal is working but simply stands to be improved, in which case a follow-on agreement would have been the obvious and more appropriate course to pursue. On the other hand, cancelled the US participation in this deal, with no follow-on agreement in place (and even less hope of one, given US unreliability), actively undermines the best interests of the US.
There are only two factors that rationally explain Trump’s actions. Those are his visceral, personal spite for anything Obama accomplished and the other is the combined pressure of two relatively minor foreign governments. Neither of these things has anything to do with what is in the best interests of the US.
Actions have consequences, and this one is no exception.
Thanks for this detailed post
I was going to mention that there are mechanisms and instruments of international law besides treaties, including custom, and UNSC resolutions – if I’m not mistaken the JCPOA was ratified in a UNSC resolution, which is binding. It’s been a while since I studied int’l law and I’m not aware of the specifics of the JCPOA and its attendant resolution, but the multilateral nature of the agreement leads me to question just how jeopardised the agreement is based on the US’ unilateral withdrawal?
A core issue here seems to be the structure and function of the US government with respect to international law and the US government’s ratification of treaties. But I feel like it’s also worth pointing out, going by some comments above, that a (multilateral) international law treaty doesn’t stop being a binding legal treaty just because the US doesn’t sign up to it.
Others have said much the same, but this needs to be reiterated constantly: IRAN DOES NOT HAVE A NUCLEAR WEAPONS PROGRAM. IT HAS NEVER HAD ONE.
The IAEA says it doesn’t have one. US intelligence says it doesn’t have one. Mossad says it doesn’t have one. There was a period, between 1999-2003, when they did some feasibility studies (not any actual development) on nuclear weapons, because they were worried Iraq was trying to develop them. They stopped even these after the US, er, ‘liberated’ Iraq.
Both Khomeini and Khamenei explicitly rejected nukes as incompatible with Islam. Now I don’t take any politician at their word, but all the evidence indicates these wishes were earnest and adhered to. The only time Iran has had any nuclear weapons ambitions was under our puppet Shah. And even if they did want to, they’ve now poured cement into their IR-40 Arak reactor, so there goes their source of weapons plutonium.
This entire affair has been an unjust farce from the start. Iran bent over backwards to agree to a ludicrous treaty preventing a weapons program that never existed, and that we know full well never existed. They have cooperated with everything the treaty obliges them to, and in the end we’ve stabbed them in the back (and never even unfroze their billions of dollars we were holding hostage). Now the Iranian moderates have been humiliated and discredited, and will probably be replaced by more radical players.
We’ve also shown yet again how utterly untrustworthy we are. Don’t think for one second the intelligence services of our ‘allies’ aren’t also fully aware Iran never had a bomb program.