Congress Can Rewrite the Iran Deal

By Orde Kittrie

The Wall Street Journal

August 12, 2015

President Obama and Secretary of State John Kerry claim that Congress has only two options for the Iran nuclear agreement: Approve it as is, or block it, and war results. Last week Sen. Chuck Schumer (D., N.Y.) recommended a third option, to renegotiate the agreement. Noting the Iran deal’s many weaknesses, Mr. Schumer called for the U.S. government to strengthen sanctions and “pursue the hard-trodden path of diplomacy once more, difficult as it may be.”

This is a nonstarter for the administration. Mr. Obama warns that failure to approve the deal as is means that America will lose its “credibility as a leader of diplomacy,” indeed “as the anchor of the international system.” Mr. Kerry asserts that refusing to approve the deal would be inconsistent with “the traditional relationship” that has existed “between the executive and Congress.”

Nonetheless, Congress has flatly rejected international agreements signed by the executive branch at least 130 times in U.S. history. Twenty-two treaties were voted down. According to 1987 and 2001 Congressional Research Service reports, the Senate has permanently blocked at least 108 other treaties by refusing to vote on them.

Moreover, the 1987 CRS report and an earlier study in the American Journal of International Law note that more than 200 treaties agreed by the executive branch were subsequently modified with Senate-required changes before receiving Senate consent and finally entering into force (examples below).

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.

Several treaties that the Senate required be modified before ratification were with the Soviet Union. For example, the Threshold Test Ban Treaty and the Peaceful Nuclear Explosion Treaty, both of which entered into force in 1990, had been blocked by senators who insisted on new provisions enhancing the U.S. ability to verify Soviet compliance. The Senate consented to ratification only after the two treaties were each augmented by new U.S.-Soviet side agreements making it easier for the U.S. to detect Soviet cheating. These renegotiations succeeded despite the fact that the Soviet Union, with its nuclear-armed missiles pointed at U.S. cities, had far more leverage than Iran does now.

The Obama administration has itself already renegotiated at least one international agreement in response to congressional opposition. In January 2009, the U.S. secretary of state and the foreign minister of the United Arab Emirates signed a nuclear cooperation agreement. Some in Congress, including Rep. Howard Berman (D., Calif.), then House Foreign Affairs Committee chairman, objected that the agreement didn’t ensure that the U.A.E. wouldn’t follow Iran’s footsteps and engage in uranium enrichment and spent-fuel reprocessing.

The Obama administration reopened the negotiations and by May 2009 had extracted from the U.A.E. a legally binding commitment not to engage in enrichment and reprocessing. The revised agreement soon entered into force.

In many other cases, the Senate has insisted on conditioning its consent to agreements even when they included numerous other participating countries. In 1997, the Senate resolution approving a modification to the Conventional Forces in Europe treaty with 22 participating countries (including Russia) contained 14 conditions, two of which addressed verification and compliance. The 1997 Senate resolution approving the Chemical Weapons Convention, with 87 participating countries, contained 28 conditions, many relating to verification and compliance. Neither agreement was derailed by the Senate’s conditions.

As Sen. Henry Cabot Lodge said many years ago, a Senate amendment to a treaty is “offered at a later stage of the negotiation by the other part of the American treaty-making power.”

Presidents typically resist when Congress sends them back to the negotiating table. As a 2001 CRS report put it, they regularly claim that an agreement “has been so delicately negotiated that the slightest change . . . would unbalance the package and kill the treaty.” That has not been true in an overwhelming majority of cases.

The Iran nuclear deal could be significantly improved by a supplementary agreement containing amendments and understandings designed to mitigate the deal’s key gaps and ambiguities regarding verification and compliance. This step would be consistent with the Constitution, the Iran Nuclear Agreement Review Act and past U.S. diplomatic practice, and would be no surprise to the international community.

Mr. Kittrie is a law professor at Arizona State University, senior fellow at the Foundation for Defense of Democracies and former lead State Department attorney for nuclear affairs.