State Department Confirms that Senators Rubio and Cotton were Right, Professors Ackerman and Golove were Wrong

by Julian Ku

I can’t resist one final post to complete an earlier discussion between myself and professors Bruce Ackerman and David Golove on the legal status of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal.  As several others in the blogosphere have noted, the U.S. State Department has confirmed, in a letter to Congress, the following:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JPCOA reflects political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

(Thanks to Michael Ramsey at the Originalism Blog and Matthew Weybrecht at Lawfare for noting and posting this letter).

This letter confirms that, contra the argument advanced by Professors Ackerman and Golove in the Atlantic and on this blog, the JCPOA is NOT a congressional-executive agreement authorized by Congress when it passed the Iran Review Act last spring.  Rather, the entire JCPOA is a “political commitment.”

As Professor Ramsey correctly notes, this means that Senator Marco Rubio was quite right in saying that, if elected President, he could withdraw the JCPOA without violating U.S. or international law.  It also means that Senator Tom Cotton was quite right, as a practical matter, in his famous open letter saying that the next US president could withdraw the agreement.  And it means (less importantly in the grand scheme of things but important for me), that I was right in saying that the JCPOA is not a congressional-executive agreement.

The larger issue is this: If the President is going to go around making political commitments, that’s fine.  But he should be clear that this is what he is doing so that smart people like Professors Ackerman and Golove don’t get confused into thinking he is making a binding agreement..  As Dan Bodansky explains, the U.S. is going to make the Paris Agreement a political commitment (at least with regards to emissions reductions).  As I’ve been arguing here and elsewhere, the U.S. should be clear about what it is doing in Paris, and what it is not.

http://opiniojuris.org/2015/12/03/state-department-confirms-that-marco-rubio-and-sen-tom-cotton-were-right-professors-ackerman-and-golove-were-wrong/

7 Responses

  1. Of course this assumes that DOS is right!

    And it is also unclear within what legal system we are analyzing it. DOS are agues that it “is not a treaty or an executive agreement, and is not a signed document.” “Executive agreement” does not exist under international law – either something is a treaty or not (MOU etc). Executive agreement is a treaty under the VCLT. So when DOS says this I think we can safely understand that they are concluding it is not a treaty under US law. Also, the letter comes from the Asst Sec of Legislative Affairs, so presumably she is focused on US legislative matters, not international law. Lastly, the observation that the JCPOA is not “signed” is absurd. Treaties under the VCLT do not need to be signed to be legally binding. So for all these reasons, I understand this letter to conclude that the agreement is not a treaty under US law – or at least DOS believes that it does not qualify under US law.

    But all of this excludes international law. Now the JCPOA also might not qualify as a treaty under the VCLT because of e.g. the “governed by international law” requirement, but that is not addressed in the DOS letter as far as I can see.

    So this might mean that a Rubio President could withdraw from the JCPOA without violating US constitutional law (if we agree with DOS), but might not mean that he could withdraw without violating international law.

    I agree that the administration should preferably be clear about the legal value of the agreement but I suspect that letters like this are deliberately obscuring the legal value rather than clarifying it.

  2. I agree with Will. Moreover, if the terms of the agreement are endorsed by a unanimous UNSC under Article 41 of the UN Charter, I am not sure about the legality of any US withdrawal under international law…

  3. U.S domestic law aside, where does this letter suggest that the JCPOA is not legally binding under “international law”? As far as international law is concerned, it really doesn’t matter how you designate this multilateral agreement in U.S domestic law parlance. Calling it a “treaty”, an “executive agreement”, a “congressional executive agreement” or a “political commitment” in the United States shouldn’t in principle have any bearance on its binding character under international law. In fact, whether the JCPOA is binding or not binding on future U.S presidents under U.S domestic law is also irrelevant as far as “international law” is concerned. The JCPOA is a multilateral agreement, endorsed by the UNSC, governed by international law and customary norms of VCLT 1969; it is not governed by U.S domestic law. And it is binding on the United States (and future administrations) under international law, namely because states cannot invoke their internal law as a justification for failure to perform their international obligations.

  4. According to so-called “international law” there seem to be two standards for determining if an agreement qualifies as a “treaty”: (1) Is it valid under VCLT? (2) Is it valid under “a unanimous UNSC under Article 41 of the UN Charter”? I am merely summarizing what the previous commenters have stated. If there are two different valid opinions as to the legality of something, I don’t think we can hold anyone liable for violating it, for no opinion has been promulgated as the deciding one.

  5. (Qualification to above) In fact there are more than two at least reasonable opinions.

  6. Indeed I did not even mention the UNSC resolution just to keep the discussion more focused. I think we can have a good debate over whether the addition of the UNSC Res “legal-ized” the JCPOA – and it is maybe not as clear as might be on first glance. But whether it is a legally binding instrument under the VCLT without the UNSC is itself an interesting issue.

  7. The VCLT does not address all forms of international agreements. For example, unlike the U.S. Restatement, it does not address oral agreements. Additionally, the VCLT does not address agreements between “nations,” “peoples,” “belligerents,” which have the status of international agreements under customary international law — even when such entities have agreements with “states.”

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