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Tuesday, November 23, 2010

Can Israel sue Obama for breaching the Bush letter?

In June 2004, President Bush wrote a letter to Prime Minister Ariel Sharon in which he promised
“Third... In light of new realities on the ground, including already existing major Israeli population centers, it is unrealistic to expect that the outcome of final-status negotiations will be a full and complete return to the armistice lines of 1949... It is realistic to expect that any final status agreement will only be achieved on the basis of mutually agreed changes that reflect these realities.”
We all know that upon taking office, one of the first actions President Obama took was to disavow that letter, which had been the basis upon which Prime Minister Sharon expelled more than 10,000 Jews from their homes in Gaza, and which had been endorsed by a large majority in Congress.

Recently, it has been reported that President Obama promised the 'Palestinians' that he endorses a 'Palestinian' state based on the borders between Jordan and Israel before the 1967 Six Day War. Clearly, that commitment is inconsistent with President Bush's 2004 commitment to Prime Minister Sharon. Can Israel sue Obama for violating Bush's commitment? Malvina Halberstam, formerly Counselor on International Law in the State Department's Office of the Legal Adviser, strongly implies that the answer is - theoretically - yes.
Although the US Constitution only provides for treaties ratified by the president with the advice and consent of two thirds of the Senate, executive agreements have been used since the beginning of the United States, and most agreements between the US and other countries today are by executive agreement rather than by treaty.

In two cases decided over 70 years ago, the US Supreme Court held that executive agreements are constitutional, and that, like treaties, they supersede inconsistent state law. Those cases involved an exchange of letters between president Franklin Delano Roosevelt and Maxim Litvinov, the people’s commissar for foreign affairs of the Soviet Union, in which the US agreed to recognize the Soviet Union and the Soviet Union assigned its claims against US nationals to the US.

More recently, the Supreme Court held constitutional an executive agreement in which Iran agreed to free US embassy personnel it had taken hostage and the US agreed to dissolve a freeze on Iranian assets and nullify attachments against such assets, including those based on judgments by US courts. The Supreme Court has even ruled that the term treaty in a statute applied to executive agreements as well.

While there is, of course, no way Israel, or any other country, can compel the US to honor its treaty commitments, the US has generally done so. If Obama fails to honor agreements made by his predecessor, it would not only tarnish the US reputation internationally, it would seriously impair America’s ability to negotiate future agreements, as other states would wonder whether any US commitments they received in return for concessions would be honored.
I'm afraid that Obama has done the damage already. All we can do is hope and pray that the bumbling, incompetent chief executive doesn't make things worse.

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At 1:41 PM, Blogger Witch-king of Angmar said...

In a word: NO. I do not have a degree in jurispudence, but I do have some rudimentary knowledge on the subject and common sense. The Bush letter is in no way a legally binding document. It was not so even for the Bush administration, let alone Obama administration or any other that wil follow. It is, at best, a statement of intent on the part of the USA, an intent that can change or cease to exist altogether.

The only legally binding documents are those that bear signatures of authorized representatives of interested parties, and even some those require ratification in the respective legislating bodies.

PS I am not sympathetic to Obama, this is just the way I see it.

At 1:58 PM, Blogger NormanF said...

The fact Israel's government needs to have Obama's freeze promises in writing tells you why they're not worth doing. If this was a President Israel could trust, the freeze would have passed already, trust me. But that's two words that are redundant when it comes to America's 44th President.

At 3:52 PM, Blogger Unknown said...

While Obama has been known to bumble, why not accept that he does bad things to Israel with malice aforethought?

At 6:01 PM, Anonymous Anonymous said...

yah, don't even know that Israel would have standing in a domestic court --but the new Israel referendum bill is a huge hedge against the Pinocchio in the White House; tho' if the Knesset is supposed to be supreme can one Knesset (legally supreme) bind its successors to a super-majority or a referendum? That's a possible paradox--what we get out of current US diplomacy is flop-sweat fibs.

At 6:42 PM, Blogger Michael Scharf said...

What this example tell us is that ANY concession that Israel makes must be in return for actual items in return. Obama wants a 90 day freeze, Pollard and Shalit would be a reasonable price for the US and the PA to pay.

How can the Israeli government seriously consider a promise to block UN resolutions in the future when the US is not blocking UN Human Rights Council resolutions today?


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