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