Legal Scholar: Over 200 Previous Treaties Have Been Renegotiated; The Iran Deal Should Be Too

There is significant legal precedent for Congress voting against the nuclear deal with Iran and initiating a renegotiation of the agreement, Orde Kittrie, a senior fellow at the Foundation for Defense of Democracies and the State Department’s former lead attorney for nuclear affairs, wrote in an op-ed (Google link) today in The Wall Street Journal.

In the case of treaties, as the Senate website explains, the Senate may “make its approval conditional” by including in the resolution of ratification amendments, reservations, declarations, and understandings (statements that clarify or elaborate agreement provisions but do not alter them). “The president and the other countries involved must then decide whether to accept the conditions . . . in the legislation, renegotiate the provisions, or abandon the treaty.”

The Iran Nuclear Agreement Review Act, which Mr. Obama signed in May, does not contain a provision for approval subject to conditions. However, a resolution of disapproval or separate legislation could specify what changes would be needed to meet congressional requirements. Since Congress can under the law reject the nuclear agreement outright, Iran and our negotiating partners should not be surprised if Congress takes the less drastic step of returning it to the president for renegotiation.

The historical precedents for Congress rejecting, or requiring changes to, agreements involve treaties or other legally binding international agreements. The Iran deal, formally titled the Joint Comprehensive Plan of Action, is unsigned and not legally binding. Mr. Kerry has repeatedly referred to it as a “political agreement.” Nonbinding, unsigned political agreements receive less deference and are considered more flexible than treaties or other legally binding international agreements. Congress should be comfortable sending one back for renegotiation.

Kittrie’s analysis was spurred by comments made by Sen. Chuck Schumer (D – N.Y.) who recommended renegotiating the deal when explaining his decision to vote against it in its current form. In fact, as Kittrie pointed out, over 200 treaties have been modified in similar ways by Congress, in addition to at least 130 treaties that were rejected outright or never ratified.

For example, in 2009, Congress forced President Barack Obama to renegotiate a nuclear treaty with the United Arab Emirates that eventually included “a legally binding commitment not to engage in enrichment and reprocessing” that had not been in the treaty’s first draft.

Schumer was not alone in suggesting that the Joint Comprehensive Plan of Action should be renegotiated to “get a better deal.” Rep. Brad Sherman (D – Calif.), who also announced his opposition to the deal last week, has recommended that it be renegotiated.

Washington Institute of Near East Policy executive director Robert Satloff wrote earlier this week that contrary to administration claims, a Congressional vote to reject the deal would not likely lead to war.

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