Shadow Government

Tehran Is Treating the Nuke Deal Like a Treaty

Why Doesn't the United States?


Both the President of the United States and the President of the Islamic Republic thought they found a way to circumvent the treaty ratification process of their respective governments. President Barack Obama and President Hassan Rouhani wasted no time in submitting the Joint Comprehensive Plan of Action (JCPOA) — what they claimed to be an informal, non-binding set of political commitments — to the U.N. Security Council. The Security Council dutifully voted unanimously for a resolution of approval before the U.S. Congress or the Majlis had an opportunity to review the arrangement.

President Obama was convinced that he had found a way around the U.S. constitutionally-mandated ratification process. He declared that the JCPOA was not a legally-binding international treaty and therefore he could enter into and implement the arrangement under his own authority. Rouhani argued strenuously in Tehran that the JCPOA should not be subject to ratification by the Majlis on the same grounds. Supreme Leader Ali Khamenei, however, overruled Rouhani and said that the Majlis does have a role to play in deciding whether the JCPOA is approved or disapproved. After Khamenei’s statement, the Research Center of the Guardian Council just released its report stipulating that the JCPOA indeed is an international treaty and as such, according to the Islamic Republic’s constitution, must be ratified by the Majlis. (The Guardian Council is a 12-member body charged by the Supreme Leader with authority for constitutional interpretation.)

Does this mean that the Islamic Republic is more democratic than the United States? No. What this development really suggests is that Supreme Leader Khamenei now has an opportunity to amend the nuclear deal or cause it to be disapproved through the Majlis. Khamenei could demand changes in the deal’s provisions to obtain the concessions he wanted but were not included in the deal negotiated by Rouhani’s team. For example, Khamenei could insist behind-the-scenes that the Majlis, as a condition for its approval of the JCPOA Treaty, require the immediate removal, not suspension, of sanctions against the regime. If his effort to change the agreement fails or the deal is otherwise disapproved, the Majlis, not the Supreme Leader, would be seen by the Iranian public as directly responsible for the demise of the nuclear deal.

In short, contrary to the carefully executed plans of Obama and Rouhani, the JCPOA Treaty negotiations may not be concluded. Can the U.S president continue to assert that the arrangement between the P5 + 1 and Iran is some sort of non-binding arrangement when the principal party involved — Iran — has determined that it is a legally-binding international treaty and subject to ratification by its parliament? The JCPOA negotiations may not be at an end after all. If the Iranian Majlis sends Rouhani’s team back to the negotiating table seeking amendments to the document the Islamic Republic declares a treaty, what actions should the U.S. Senate take? And what is the status of the U.N. Security Council resolution that the Obama team rushed to secure before the domestic constitutional processes of the respective parties to the arrangement could unfold?

How could the terms and conditions of the JCPOA be legally-binding on some parties to the agreement, but non-binding on other parties to the agreement? Previous deliberations of the nuclear deal in the U.S. Senate surely have been overtaken by this new development in Tehran. It defies belief that the world’s greatest deliberative body – the United States Senate – would abdicate its constitutional role and responsibility of subjecting the JCPOA Treaty to ratification. The Senate should not countenance the precedent of an American president entering into and implementing a long-term arms control agreement on his own authority. How ironic! The Senate may find an unwitting ally, in the form of the Iranian Supreme Leader, in its struggle with President Obama to subject the nuclear arrangement, now declared a treaty by the Islamic Republic, to the constitutionally-mandated U.S. ratification process.


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