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June 25, 2020 4:32 am

Are US International Agreements Carved in Stone?

avatar by Yoram Ettinger

Opinion

A worker on a crane hangs a US flag next to an Israeli flag near the site of the US Embassy in Jerusalem. Photo: Reuters / Ronen Zvulun.

Even when US commitments are driven by the purest of intentions, one should recognize certain features — a derivative of the Constitution and the power struggle between the legislature and the executive — which have characterized all US international agreements, pacts, memoranda of understanding, and guarantees since 1776. These inherent features (thoroughly researched by Hebrew University professor Michla Pomerance) are designed to subordinate the implementation (or non-implementation) of all US international commitments to overriding US interests, as defined by the implementing president, not necessarily the president who signed the commitments.

Take, for example, the feature of vagueness and non-specificity, as demonstrated by the Trump “Peace to Prosperity” plan. The plan stipulates Israeli security control in the entire area from the Jordan River to the Mediterranean. But who defines “control?” Will it be President Donald Trump and his team, or the team of President Joe Biden? Obviously, each team will have a different interpretation, reflecting their different worldviews and ideology, minimizing or maximizing the scope of “control,” which could render Israeli “control” highly constrained and quite ineffective.

What constitutes “interpretation” for the promisor (US) may be perceived as “breach” and “evasion” by the promisee (Israel).

Moreover, the plan’s list of preconditions for the establishment of a Palestinian state is subject to contradictory, subjective interpretations of the preconditions and compliance. Thus, in 1993, PLO chairman Yasser Arafat and Mahmoud Abbas supposedly accepted a list of preconditions in order to establish the Palestinian Authority in Judea, Samaria, and Gaza. Notwithstanding their systematic and egregious violations of these preconditions, Arafat became a frequent visitor to President Bill Clinton’s White House and was awarded the 1994 Nobel Peace Prize.

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Then, there is the feature of non-automaticity, which stipulates that the implementation of all US agreements and guarantees is in the hands of the sitting president, and depends on the president’s worldview and assessment of US interests. The bottom line — and the third feature of US international commitments — is that they are deliberately open-ended, in order to preserve US interests, irrespective of other interpretations and reservations by the other parties to the agreement.

Anyone who assumes that a US international commitment is carved in stone should examine the very important, yet non-specific, non-automatic and open-ended NATO treaty (Article 5): “The Parties agree that an armed attack against one or more of them shall be considered an attack against them all … . Each of them … will assist the Party of Parties so attacked by taking … such action as it deems necessary, including the use of armed force.” (Emphasis added.)

Another feature of US international commitments involves the balance of power between the country’s legislative and executive branches of government. Thus, the ratification of a formal treaty agreement requires a two-thirds Senate majority (at least 67 senators) — currently an impossibility given the political climate on Capitol Hill. As an example, in 1999 and 2000, Bill Clinton signed the Comprehensive Test Ban Treaty, prohibiting international nuclear testing, and the Rome Statute, which established the International Criminal Court in the Hague. However, he did not submit the Rome Statute for Senate ratification (realizing that there was no support for ratification), and the Test Ban Treaty was also not ratified — it was defeated 48-51 in the Senate.

The open-ended nature of US international commitments, and the paramount role of US interests during the implementation phase, were demonstrated in the US defense treaty signed with New Zealand (in 1951), which was suspended in 1986 due to US considerations. Likewise with the 1955 US-Taiwan Defense Pact, terminated in 1979 when President Jimmy Carter decided that enhancing ties with China was much more important than abiding by a prior treaty with Taiwan.

The power of the president to suspend international treaties was reaffirmed in a November 2001 memorandum submitted by the US Justice Department: “The President has broad constitutional powers with respect to treaties, including the powers to terminate and suspend them.”

When it comes to Israel:

In 2000, Clinton pledged to Israeli Prime Minister Ehud Barak $800 million in emergency aid to fund Israel’s withdrawal from Lebanon. However, it was never delivered, since Congress, which possesses the power of the purse, did not agree to fund the self-defeating withdrawal.

In 1967 — on the eve of the Six-Day War — Israel became increasingly besieged by Egyptian violations of the demilitarization of the Sinai Peninsula, blockading the port of Eilat and forming the joint Egypt-Syria-Jordan anti-Israel military command. Therefore, Israeli Prime Minister Levi Eshkol submitted to President Lyndon Johnson the assurance from President Dwight D. Eisenhower issued in 1957 in order to entice Israel to withdraw from the Sinai Peninsula. The Eisenhower assurance implied, but did not specify, a US willingness to deploy its military in the face of Egyptian violations. The pro-Israel Johnson invoked Constitutional and Congressional non-compliance, stating that Eisenhower’s executive commitment did not bind Eisenhower’s successors, and “it ain’t worth a solitary dime.”

In 1979 — during the final stages of the Israel-Egypt peace talks, when President Carter attempted to insert a reference to a future Israeli withdrawal from the Golan Heights, the Israeli team shared with Carter the September 1, 1975 assurance of President Gerald Ford to Prime Minister Yitzhak Rabin, geared to induce an Israeli withdraw from the Gulf of Suez to the Mitla Pass in mid-Sinai: “[The US] will give great weight to Israel’s position that any peace agreement with Syria must be predicated on Israel remaining on the Golan Heights.” Carter’s correct response was that President Ford’s executive commitment did not bind any of Ford’s successors in the White House.

The aforementioned comments do not constitute a criticism of the United States, but rather advice to Israeli policy-makers to study precedents, and to realize the substantial vagueness and other limitations of any US presidential commitment, guarantee, or assurance — and avoid, rather than repeat, critical mistakes. Moreover, Israel’s national security must be based on the worst-case scenario, especially in the increasingly unpredictable, turbulent political climate in the Middle East and the world at large, including the United States. Finally, Israel must retain the independence of national security action, including the application of its laws to the Jordan Valley and Judea and Samaria, rather than await a “green light” from Washington, DC.

This critical feature of leadership was demonstrated — in defiance of brutal US and international pressure — by prime ministers David Ben-Gurion (expanding Israel’s area by some 30% during the 1948-49 war), Levi Eshkol (preempting an Arab war on Israel, reuniting Jerusalem, and establishing the initial Israeli neighborhoods beyond the “Green Line”), Golda Meir (expanding Jewish presence beyond the “Green Line”), Menachem Begin (applying Israel’s law to the Golan Heights and bombing Iraq’s nuclear reactor), and Yitzhak Shamir (bolstering Israel’s presence in Judea and Samaria).

Yoram Ettinger is a former ambassador and head of Second Thought: A US-Israel Initiative.

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