The Iran Nuclear Deal. What Will the Senate Do?

Cartoon: The Economist

Last week, the America administration, together with the governments of China, Germany, France, Russia and Great Britain, agreed the framework of an agreement with the Iranian government regarding the latter’s nuclear capacity. In brief, the deal will lift sanctions on Iran in exchange for preventing Iran from quickly building a nuclear bomb, although Iran’s nuclear program remains in place.

Immediately, Israeli Prime Minister Netanyahu denounced the deal. The western world’s media is undecided as to whether the deal is beneficial and whether it will work. The parties have until June to produce the formal agreement. Once this is in place, the participating governments will be asked to approve it. In the case of America, those who negotiated the deal will not decide whether it becomes law. The American Constitution gives that power to the Senate under its “advise and consent” responsibility.

When a treaty is submitted for approval, the Senate has several options. It may approve or reject the treaty as it has been submitted or it may make its approval conditional by including amendments to the text of the treaty. The President and the other countries involved must then decide whether to accept the conditions and changes in the legislation, renegotiate the provisions, or abandon the treaty. Finally, the Senate may choose to take no definitive action, leaving the treaty pending in the Senate until withdrawn at the request of the President or, occasionally, at the initiative of the Senate.

Will the Senate approve the Iran deal? The Senate has a history of rejecting treaties. During the last quarter of the 19th century, numerous international agreements, mainly relating to trade, were rejected. In an effort to avoid the same fate for his 1898 peace treaty with Spain, President McKinley named three U.S. senators to negotiate the treaty. Senators from both parties roundly criticized his action, but the Senate ultimately ratified the agreement.

A generation later, senators criticized President Wilson for not including some of its members in the delegation that negotiated the Treaty of Versailles, which ended World War I and established the League of Nations. When the President hand-delivered the treaty to the Senate in July 1919, Democrats mostly supported it, but Republicans were divided. The “Reservationists” called for approval of the treaty only if certain reservations, or alterations, were adopted. The “Irreconcilables” opposed the treaty in any form. The disputes and disagreements resulted in the United States never ratifying the Treaty, nor did America join the League of Nations. Interestingly, President Truman involved the chairman and the ranking Republican of the Senate Foreign Relations Committee in the creation of the United Nations. This action helped to spare the U.N. the fate of the League of Nations.

It is possible to by-pass the Senate by classifying a deal as an executive agreement, not a treaty, a distinction that has only domestic significance. International law regards each mode of international agreement as binding, whatever its designation under domestic law. The challenge of obtaining two-thirds vote in the Senate on treaties was one of the motivating forces behind the vast increase in executive agreements after World War II. For example, in 1952 the United States signed 14 treaties and 291 executive agreements. In recent years, the growth in executive agreements is also attributable to the sheer volume of business conducted between the United States and other countries, coupled with the already heavy workload of the Senate.

It is difficult to envisage President Obama taking the Senate-avoidance route in the Iran case. The treaty is hugely important and several other nations are involved. Failure to involve the Senate would demonstrate the President’s weakness and a lack of confidence in the treaty itself. The problem for the President is twofold. First, the Republican senators may vote en-masse on political grounds to defeat their enemy in the White House. Second, many Democrat senators are influenced by the pro-Israel lobby and will be reluctant to approve a treaty which can be construed as a threat to Israel’s security. All of this leads to: “watch this space.”