understanding

Lawmakers and pro-Israel groups have issued calls for United States President Donald Trump to ask Congress to review a recent memorandum of understanding (MoU) designed to end the US-Israeli war with Iran.

They cite the Iran Nuclear Agreement Review Act (INARA) as a precedent. Passed in 2015, the law says any agreements with Iran related to its nuclear programme must be submitted to Congress for review and a possible vote of disapproval.

The act came into effect when former US President Barack Obama was negotiating the now-defunct Joint Comprehensive Plan of Action (JCPOA) with Iran, and it remains on the books today.

US Senator Lindsey Graham was among the first lawmakers to invoke the act after this week’s memo was announced.

“Under our law, any nuclear deal with Iran will be sent to Congress for review and a vote. I look forward to reviewing the final product,” Graham, a longtime Iran hawk, wrote in a social media post on Sunday.

Critics, including some Democrats and pro-peace groups, have questioned the newfound interest in Congress asserting its powers, after Republicans repeatedly flouted the legislature’s authority during the war itself.

Some see the push as an effort to give the memorandum greater legitimacy, as Trump comes under fire for its terms. Others question whether Iran hawks are invoking INARA to push for a return to war.

Here’s what to know about the debate:

What does the law say?

INARA creates requirements for any agreement between the US and Iran “related to the nuclear program of Iran”, no matter “the form it takes” or whether the agreement is legally binding.

Ahead of its passage in 2015, it was championed by bipartisan opponents of the JCPOA. That deal, which saw Tehran curtail its nuclear programme and submit to regular inspections in exchange for sanctions relief, was subsequently subject to provisions of the law.

The law requires the president to submit the text of any agreement he strikes with Iran to Congress within five days, along with any related materials. That triggers a 30-day approval period.

During that period, members of Congress can choose to pass a joint resolution of disapproval to scuttle the deal.

Still, such a resolution would be subject to the presidential veto. A successful disapproval resolution would therefore require a two-third majority from both chambers to override any vetoes, an extremely high bar.

During the congressional review period, the president “may not waive, suspend, reduce, provide relief from, or otherwise limit the application of statutory sanctions with respect to Iran under any provision of law or refrain from applying any such sanctions pursuant to [the] agreement”, the law states.

Those terms could limit this week’s memorandum, as it includes sanctions relief for Iran.

Does INARA apply to the memorandum of understanding?

Trump has suggested he was open to sending the US-Iran memorandum to Congress, telling reporters earlier this week: “I like the idea. I mean, who wouldn’t approve it?”

But his administration has not yet done so. Administration officials have also not articulated a stance on whether or not they believes the memo is subject to the law. Trump, after all, has frequently denied needing congressional approval for his actions against Iran.

This week’s memorandum opens the Strait of Hormuz, lifts the US blockade on Iran’s ports, and halts fighting on all fronts, including in Lebanon.

It also immediately lifts US sanctions on Iran’s fossil fuel industry, while launching negotiations on the future of Iran’s nuclear programme, among other issues.

As part of the deal, both countries agree to maintain their nuclear “status quo” during ongoing negotiations, and Iran commits to diluting its highly enriched uranium “on site”, with details to be determined during the negotiations.

While Trump has yet to acknowledge INARA’s authority, legal experts from across the ideological spectrum have argued that his memorandum is subject to the law.

Tess Bridgeman, a legal adviser for the Obama White House, wrote that the law applies to “this new MoU, and any future final agreement that might be negotiated in the coming months”.

But in an article published in the policy forum Just Security, she argues that INARA should be repealed, so as to not impede the ongoing diplomacy.

“INARA was never an appropriate way for Congress to engage on Iran’s nuclear program, and that is even more true today,” Bridgeman wrote.

Jack Goldsmith, a Harvard Law School professor and fellow at the conservative American Enterprise Institute, also believes that the memorandum should trigger an INARA review.

He also notes that Trump’s commitment to “immediately” lift sanctions on Iran’s oil industry appears to run afoul of INARA.

“I don’t think the president has the authority under domestic law to issue these waivers,” Goldsmith wrote on the Executive Functions website.

Still, he anticipates that neither Congress nor the judicial branch will confront Trump over the issue.

Will Trump comply with the law?

Trump’s second term has been defined by a broad interpretation of presidential power.

His administration has previously flouted the US Constitution’s provision that Congress alone has the power to declare war.

Trump has maintained that Iran represented an “imminent threat” to the US, which allowed him to launch defensive strikes without congressional approval.

Administration officials have also argued that the president is not beholden to the legal requirement that he gain congressional approval within 60 days of launching an attack. The war, which started on February 28, has lasted nearly three and a half months.

In an interview with the news outlet Axios on Thursday, Trump mused that the war taught him there are “no limits” to his power as president.

It remains unclear if Trump will change course and embrace the congressional collaboration required for diplomacy under INARA.

In her article, Bridgeman argued that Trump could flout the law in whole or in part, particularly when it comes to the immediate sanctions relief, because his party controls Congress.

Goldsmith, meanwhile, pointed out that the administration could also try to argue that the memorandum only sets out terms to reach an eventual agreement and is not an agreement itself.

While Goldsmith believes that argument is faulty, he noted that “it’s doubtful that any institution will make the president comply with INARA”.

A newfound interest in congressional oversight?

Several pro-Israel groups, including The Jewish Institute for National Security of America (JINSA) and the American Israel Public Affairs Committee (AIPAC), have been among the loudest voices calling for congressional involvement in the deal.

Since the outset of the war, JINSA defended Trump’s claims that Iran represented an “imminent threat” to the US, thereby granting him authority to attack without congressional approval.

However, the group also called on Congress to pass an Authorisation for the Use of Military Force (AUMF) to bolster his actions.

Congress, however, has repeatedly sought and failed to re-assert over its authority to send the US to war.

Since February, several war powers resolutions have been introduced to halt US action against Iran and force Trump to engage with Congress.

Initially, several Democrats backed by AIPAC, including Senator John Fetterman, Representative Jared Moskowitz and Representative Josh Gottheimer, broke from the party to oppose those efforts.

Moskowitz and Gottheimer eventually shifted their stances in March to vote in favour of one of the resolutions. But Congress has yet to pass a bill with enough votes to overcome an eventual Trump veto.

Meanwhile, Republicans in both the House and Senate chose to ignore a 60-day deadline in May that legally required Trump to get congressional approval for continued military operations — or stop fighting.

In a statement on Friday, Democratic Senator Chris Van Hollen characterised the Republican embrace of INARA as evidence of hypocrisy.

“Republican senators who were AWOL [absent without leave] regarding their constitutional duties around STARTING the war against Iran all of a sudden demand that Congress play a role in STOPPING the war,” he wrote.

“A whole lot of warmongering going on.”

The recently concluded 14th Ministerial Conference of the WTO produced mixed results. While the multilateral system remains stuck on Appellate Body appointments, one of the most extensive pre-conference discussions focused on the Chinese-led Investment Facilitation for Development Agreement (IFDA). With 129 member states backing the IFDA, including countries like Bangladesh and several least developed countries (LDCs) from Africa, this has put India’s position as a key representative of the third world into question.

However, a thorough examination of India’s position reveals deeper concerns about the WTO within the ever-changing framework of global economic governance. In this article, I argue that India’s opposition to the IFDA is based not merely on apprehensions about China’s strategic influence, but also on other considerations founded on the grounds of jurisdiction, sovereign right to regulate and the procedure.

The Jurisdictional Argument & Potential Fragmentation of the International Trade Regime:

India’s primary objection to the IFDA emerges from a very pivotal question in the field of international law, challenging the jurisdiction and mandate of the WTO. In a rules-based transnational system, international organizations operate on a mandate-based framework. This mandate is primarily derived from the substantive provisions of their founding agreements and the consent of member states. Historically, the WTO’s mandate has centred on trade, specifically the regulation of trade in goods and services, as well as certain trade-related aspects of intellectual property and investment. While instruments such as the Agreement on Trade-Related Investment Measures (TRIMs) and the General Agreement on Trade in Services (GATS) incidentally touch upon investment, they do so only insofar as it is in relation with trade.

Given that the WTO’s mandate and primary focus are on trade, India maintains that the regulation of investment as an autonomous domain fall outside its negotiated competence. This position is grounded in the collapse of the “Singapore Issues,” which included investments as one of its four development agenda and were explicitly dropped from the Doha Developmental Agenda in 2004. The reintroduction of investment facilitation through the IFDA is thus viewed as lacking a legitimate mandate, raising serious concerns about the WTO’s overreach.

Another factor closely linked to the lack of mandate is the plurilateral character of the proposed agreement. Unlike multilateral agreements, which bind all WTO members on the basis of consensus, plurilateral agreements apply only to a subset of willing participants. While such arrangements are not unprecedented within the WTO framework, India views the IFDA as a symbolic representation of a broader trend towards fragmentation. The primary concern of New Delhi is the risk that plurilateralism brings to the system. India’s apprehension stems from creation of a two-tier system within the WTO, wherein economically powerful states effectively set the rules, leaving others in a position of reactive compliance. This seriously undermines the foundational principle of sovereign equality among the WTO members and erodes the consensus-based decision-making model that has historically been a salient feature of the WTO.

Right to Regulate

A further dimension of India’s opposition to the IDFA pertains to the preservation of regulatory autonomy. The IFDA, although framed as a facilitative instrument, introduces disciplines that may constrain domestic policymaking. The current bilateral system on which international investment law is based relies heavily on bilateral investment treaties (BITs) and dedicated chapters on investment in comprehensive economic partnership agreements (CEPA). This empowers developing countries such as India to specifically negotiate foreign investment policy in accordance with domestic requirements and national priorities.

However, under the IFDA’s plurilateral approach, India’s apprehension is grounded in obligations relating to non-discrimination, administrative review, and procedural standardisation, which over time may limit the flexibility required to implement industrial policy, promote local value addition, or regulate sensitive sectors in the public interest.

Further, India is also careful of the potential consequences that may arise from incorporating investment-related disciplines within the WTO framework. Although the IFDA does not formally include investor–state dispute settlement (ISDS) mechanisms, its provisions could nonetheless be invoked indirectly in arbitral proceedings under bilateral investment treaties (BITs).

Given India’s prior experience with investment treaty arbitration and the subsequent revisiting of its Model BIT in 2016 to ensure regulatory balance, this concern carries considerable weight. While at face value these provisions might seem benign and aimed at facilitation of flow of investments, their pro-investor interpretations might create problems by exposing India to international liability.

Another vital dimension of India’s critique pertains to the procedural legitimacy of the IFDA negotiations. It is quite commonly observed that the legitimacy of outcomes is intricately linked to the legitimacy of the processes that produce them. These negotiations were initiated through a Joint Statement Initiative (JSI) which remains controversial within the WTO system. India’s argument relies on the absence of an explicit mandate which contradicts the WTO’s decision-making framework, which is based on consensus.

Beyond these factors, India’s position can also be understood as a negotiation strategy. By resisting the incorporation of new issues such as investment facilitation into the WTO package, India seeks to preserve negotiating leverage in ongoing and future discussions. Accepting the IFDA could open a pandora’s box for the introduction of other areas, including digital trade and e-commerce, thereby shifting the balance of negotiations away from priorities of developing countries, such as agricultural subsidies.

It is important to note that India does not oppose investment facilitation in principle; rather, its criticism is related to the form, venue, and legal consequences of introducing non-trade disciplines at the WTO. India has, in fact, undertaken substantial domestic reforms aimed at improving the ease of doing business and attracting foreign investment. Its objection is more precisely directed at the form, forum, and legal implications of embedding such non-trade disciplines within the framework of WTO.

In summary, the refusal of India to sign the IFDA is a reflection of careful consideration of complex legal factors combined with prudence regarding institutional development and developmental policy. It underscores a broader tension within the contemporary multilateral trading system aiming to balance the ever-expansive rule-making to protect & promote investments, with preservation of regulatory policy space for host states.