Secretary of State John Kerry recently assured the Congress that any agreement that resulted from the ongoing negotiations with the Islamic Republic of Iran would not be “legally binding”.
Apparently both the President and Secretary Kerry hoped such an assurance alone would make every concern about these secretive negotiations evaporate. At least any concerns that Senators from either party might have expressed about the negotiations. Further, since Secretary Kerry has stated that any agreement signed by both the United States and Iran is not legally binding, then Congress will not have any reason to approve or disapprove such an agreement, since it is not really a treaty.
Similarly, other administrations have entered into other agreements that were not legally binding, such as the 1992 Declaration on Environment and Development that was produced by the Earth Summit meeting in Rio de Janeiro. The Rio Declaration simply outlined the environmentalist pipe dreams that began with the realization that environmentalists could use such international agreements to effectively control how the citizens of a signatory would be limited to act in their own interest and irrespective of what the national will of their own country might prefer.
Legally the Rio Declaration was not legally binding, in and of itself, and would require amendments which are known among lawyers (who get really, really excited about this sort of thing) as protocols.
Think back on the phrase “Kyoto Protocol” if you are seeking an example.
In international law and international relations, a “protocol” is generally what a treaty or international agreement that supplements a previously signed treaty or international agreement is called. A protocol can amend the previous treaty, or add additional provisions. Parties to the earlier agreement are not required to adopt the protocol. Sometimes this is made clearer by calling it an “optional protocol”, especially where many parties to the first agreement do not support the protocol.
Sorry that you had to read through that, but perhaps you just really needed a reason for a nap. But I digress.
A protocol, as an actual, not just kidding around, treaty, acquires the force of Constitutional law in the United States. The famous Supreme Court justice Oliver Wendell Holmes wrote describing this consequence in the 1920 case of Missouri v. Holland (252 U.S. 416):
Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. [Emphasis supplied]
This might explain why the Senate did not approve the Kyoto Protocol, since as it was written, it could have conceivably undermined the sovereign independence of the United States.
It sounds as if there are enough safeguards to prevent the misapplication of any clause of a treaty, or accord, or protocol which would result in a threat to the national security and independence of a nation that bled profusely for that independence and security.
Of course, none of Founding Fathers, none of the Senators who have been elected over the past 200 plus years, or the many justices appointed over that same span of time ever expected to have a President who would be expected to determine on his (or her) own what was and was not “legally binding”.
Apparently, things have changed.
President Obama must have his own, personal copy of the Constitution. It must have a section that indicates that law does not have to rely on any words that have been written down on paper. His copy must have a section that explains that the founders really didn’t expect that any of those words really meant exactly what they said. And this copy in Obama’s possession apparently related that he can ignore any law although it might have been voted on and passed by Congress. His personal copy apparently allows the President to re-write a law, modify it, or even ignore it completely depending on how he believes it should have been written.
He seems determined to come to some sort of agreement with the terrorist enabling clique in charge of Iran and act as if any agreement, no matter how much it endangers the United States, really was a full-fledged treaty with regard to inhibiting the nuclear ambitions of Iran. If it actually was a treaty, and was therefore legally binding, then President Obama would have the support of the Constitution to craft this agreement in a way that he seems to hunger for. He would then be able to inhibit not Iran, but Congress from acting in any way contrary to this agreement that he is working so hard to achieve.
Given his recurring use of this personal, secret copy of the Constitution that he uses to come up with things like the Dreamers concept, or DACA, or gifting alien invaders of the Homeland with special benefits not available to immigrants who follow what Congress actually thought the law they passed said, it actually allows him to act as if his personal preferences are, in fact, law.
Because of this there is a very good chance that Barack Hussein Obama will function as if the agreement with Teheran, no matter how detrimental to the United States of America, will be acted upon exactly as if it was a legally binding treaty. He will uphold his side of the agreement regardless of what Iran actually does. He will have his minions work overtime at convincing the press, the public and the Congress that he, and he alone, is the only one that KNOWS what he’s doing, and so it must be Right and Just.
I’m reasonably sure that there will be a “non-binding” codicil as part of the agreement with Iran that indicates that any violation of the agreement, regardless of the offending party, will be blamed on George W. Bush. Just to make sure that Obama has no loose ends so that in January 2017, no matter what goes wrong or who the next President might be, his successor won’t be able to follow his lead for blaming their predecessor as he was able to do.
Published at Canada Free Press on March 15, 2015