The Washington Times: Subverting the role of the treaty in American diplomacy

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It is ironic that the contemporary discussion concerning American diplomacy should focus on the Paris Climate Accord. Students of history will appreciate that in 1778 that the first grand diplomatic debate of our country, the Treaty of Amity and Commerce, centered on France and is considered the first cornerstone treaty in American history.

It is important to hearken back to those initial debates because these ghosts haunt our decisions today. The American Congress was concerned about such a treaty, even in that desperate year of 1778 because they knew that America’s word had to be binding, and that future American foreign policy would henceforward be governed by any such treaty. It is not an accident of history that during the only two World Wars, the focus of American military policy was the defense and liberation of our oldest ally, France.

It is in this vein that we should reject President Obama’s penchant for actively subverting the treaty process and engaging in dangerous executive agreements that distort the constitutional requirements of Senate approval. This is not to reject altogether the use of executive agreements: Diplomacy is fluid and the expediency of any given time may require the president to utilize executive agreements to protect and promote American vital interests.

However, when such diplomacy is potentially multipresidential as is the case of the Iran deal (formally known as Joint Comprehensive Plan of Action, or JCPOA), or multigenerational as is the case with the Paris Climate Accords, then it is clear from any originalist argument that this is what the Founders wanted. Further, treaties create stability and credibility that no executive agreement can ever come near.

Although international relations between nations require both treaties and executive agreements, treaties signal the intent of longevity. They hold any single president and Congress accountable to the past whereby a prior Congress and president spent months, or years, debating the merits of binding American foreign policy down a specific path. They negate the vagaries of any given lapse of judgment and force the American government to do something it often does poorly — look at American interests from a long-term strategic objective. NATO, the Australia, New Zealand, United States Security Treaty, and the mutual security treaties with South Korea and Japan are all clear examples. These treaties, from Presidents Truman to Trump, continue to govern American foreign policy and have created the strongest alliance of western democracies in world history.

In contrast, Mr. Obama engaged in dangerous adventurism through executive decisions designed to subvert the authority of the Senate and the American people. If the Iran deal and the Paris Accords were as important as the previous administration claimed and were the lynchpin of the Obama diplomatic legacy, then why were they not crafted as treaties, sent to the Senate and by that action, allowed the constitutionally proper voice of the American people to be heard?

Concerning the Iran deal, former Secretary of State John Kerry stunned many when he admitted that the reason it was not submitted as a treaty was that the administration knew it would not pass. He also stated, “We’ve been clear from the beginning. We’re not negotiating a ‘legally binding plan.’ We’re negotiating a plan that will have in it a capacity for enforcement.” An administration known for its mental gymnastics receives another gold medal. It has been claimed that one of the reasons the Obama administration engaged in this was for expediency. The Obama administration cited a variety of treaties that the Senate has refused to ratify, notably the Law of the Sea Treaty and the Comprehensive Test Ban Treaty.

In both cases, it is highly questionable if these are advantageous to the United States. But here is the point: The Founders intended bad treaties to be defeated, and they intended that long-lasting diplomacy would be based on treaties and not fiat. Both the Paris Accords and the Iran deal should be required to pass the test for treaties: They commit multiple presidential administrations, they are multigenerational, and they will require America to be a credible partner, even if others are not. America has always rejected the full force of European realism. Every nation knows that if America commits, America keeps its word, but that commitment must be made in a procedurally and constitutionally sound manner.

All that the Obama administration achieved did not enhance American interests, but was a series of calculated moves to shore up the administration’s political base. The Obama administration knew full well that any executive agreement made by any president could be overturned by any future one. Now the situation has been muddied, in part because many of our allies do not fully understand American history, political culture or constitutional law. The United States specifically avoided ad hoc diplomacy during our formative years. Rather, it engaged in hard-nosed diplomacy and only made international agreements after much soul-searching and debate. Foreign policy’s No. 1 currency is credibility. Lose that, and it takes generations for it to return.