24 Nov The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?
A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany. The text of the ‘Joint Plan of Action’ is also widely available (see here or here).
My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law. Look at how the Preamble begins:
The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….
The ‘goal’ implies something aspirational rather than required. The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.
Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:
Elements of a first step
The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.
Iran would undertake the following voluntary measures:
- From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
- Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .
In return, the E3/EU+3 would undertake the following voluntary measures:
- Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
- Suspend U.S. and EU sanctions on:
- Iran’s petrochemical exports, as well as sanctions on associated services.5
- Gold and precious metals, as well as sanctions on associated services.
- · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .
Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).
To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’. Moreover, the document is unsigned and lacks final clauses. So, the bottom line for me . . . this isn’t binding under international law. It’s a political commitment, not a legal one.
OK. Say I’m right? Why does it matter if this is not a treaty? To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts. Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery. But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category. The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.
That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal. First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance. Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages. Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty. The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’. Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.
For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it. Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures. The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties). Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done. In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself. But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion. Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties. I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate. I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).
What do others think? Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement? And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?
[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title — referencing a ‘U.S.-Iran’ deal when there are 7 States involved — en route to discussing whether this text would’ve required congressional or Senate approval IF it was legally binding. I’ve fixed the title accordingly and recommend readers check out Ingrid’s post.]