The New Iran Deal Doesn’t Look Legally Binding. Does it Matter?

by Duncan Hollis

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 . . .

(emphasis added)

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.]

Political Commitments: A Response to Professor Ramsey

by Joshua Newcomer

As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward.

We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How we define political commitments goes a long way toward resolving the differences between our analysis and Professor Ramsey’s. To the extent that Professor Ramsey suggests that we are re-packaging “non-binding personal pledges by the President” as political commitments, we emphasize that the nation, not the President, incurs the obligation. Political commitments came out of the late nineteenth and early twentieth century practice of entering into gentlemen’s agreement, but that was a much more personal phenomenon—binding its makers, not the state. As the practice developed, it became more of a vehicle for encompassing state commitments. The Newfoundland Fishery Agreement and Horseshoe Reef Agreement were hardly the stuff of personal promises, and political commitments now include the Helsinki Accords, the NATO-Russia Founding Act, and the London Guidelines. All of these implicate national credibility, not that of an individual President. Personal promises by the President and other heads of state, of course, remain, but we wanted to analyze the distinct concept of political commitments that purport to represent the agreement of a state or its agencies. With that clarification in mind, I hope to answer Professor Ramsey’s more substantive comments.

1. Political commitments as a constitutional work-around.
Professor Ramsey situates political commitments in relation to other executive acts by noting that they are one tool at the President’s disposal to avoid the rigidity of the treaty-making process. We do not disagree that political commitments offer a useful, flexible tool to avoid the Constitution’s rigidity in making treaties. But, the ability to substitute this tool in place of a treaty is all the more reason to place some constitutional checks on their use. In this way, Professor Ramsey’s critique partially answers Professor Swaine’s observation that we “need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated).” If unregulated, political commitments may sometimes facilitate end-runs around constitutional mechanisms, distorting democratic processes and the rule of law (for example, FDR completed the Atlantic Charter as a political commitment in part to avoid any need for Senate approval).

Political Commitments and Executive Power

by Michael Ramsey

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).]

Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges by the President) are a distinct and crucial form of diplomacy, and that we need to understand how political commitments fit into the Constitution’s foreign affairs framework.

The article inspires two reactions. The first is that political commitments are a constitutional work-around. Arguably the Constitution’s framers erred in making international agreements too hard to undertake (by requiring two-thirds of the Senate to approve) and too inflexible once undertaken (by giving them automatic status as domestic law). In any event, the framers imposed a rigid international agreement process that the executive branch has found unsatisfactory. Over time, executive agreements and non-self-executing treaties emerged as ways to work around the framers’ formalistic diplomatic system to make it more flexible and more suited to executive branch desires. Political commitments similarly seem to respond to the Constitution’s inflexibility in international agreement-making. They are, in this sense, akin to executive agreements and non-self-executing treaties, with similar benefits to the executive branch.

My second reaction is that, unlike executive agreements and non-self-executing treaties, political commitments fit relatively easily into the Constitution’s text and original meaning. Duncan and Joshua don’t seem to agree, because they spend a good part of their article straining to give political commitments a constitutional defense. It’s true, of course, that the Constitution’s text doesn’t expressly mention political commitments and that the framers didn’t seem to have had them in mind. But the Constitution was designed to provide general principles that could encompass specifics not directly contemplated.

Political Commitments: A Response to Professor Swaine

by Duncan Hollis

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide responses to each of his five questions below.

1. What is the international significance of political commitments? Our research produced lots of anecdotal evidence on the widespread use of political commitments. Add to that the experience that one of us (Hollis) had in the State Department Treaty Office, where he spent as much time working on political commitments as actual treaty-making, and we’re hard pressed to deny that this is a pretty regular tool of international relations (a point on which Tony Aust, a former legal official in the British Foreign Office, readily concurs). That said, we take Ed’s point that there are no comprehensive surveys of the political commitment practice. Nor are there collections of these instruments; indeed, no mechanism exists for states to record or publicize them. By placing political commitments under the Constitution, however, we hope to generate information-forcing actions from Congress and the executive branch to develop a better picture of when, how, and with whom the United States concludes political commitments.

In any case, although we resist the notion that political commitments are rare (at least for the United States), we readily concede that some of them may comprise “cheap talk.” At the same time, however, our article emphasizes that other political commitments have provided significant constraints on state behavior (e.g., the Helsinki Accords or the FATF regime). Thus, our article reveals a political commitment practice far more diverse than previously acknowledged. And, as discussed below, we devised our typology to figure out what criteria distinguish “cheap talk” political commitments from those that are meaningful. To get at the domestic constitutional question, we wanted to show not only that this instrument has become a significant tool of U.S. foreign relations, but also that it can be employed to perform an array of functions that vary widely in terms of implications for U.S. credibility, reputation, flexibility, and foreign relations more generally. Moreover, whatever the breadth and depth of the political commitment practice, we need not concede that these instruments have international legal effect. While sometimes they might, we aimed to illustrate that, whatever their legal effect, the potential political significance of these instruments alone warrants constitutional scrutiny.

Questioning Political Commitments

by Edward Swaine

Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article.

Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing like an old hand) have written an important article on an underappreciated phenomenon. On the theory that if it’s good enough for Derek, it’s good enough for me, I will structure my comments in a series of questions. The questions may seem critical, but they really pale in comparison to the article’s obvious strengths.

1. What is the international significance of political commitments?

Hollis and Newcomer (HN) begin their article by noting prominent examples of political commitments (PCs) (pp. 510-11), and add “[t]he popularity of political commitments reflects their utility to nation-states.” The ambiguity of that observation reflects a problem common to the understanding of international agreements. On the one hand, if such a device is used often, that might signal that it is useful – no activity is wholly costless, so it must be worth something. On the other hand, it may be inexpensive relative to its alternatives; employing a special sense of “utility,” we might say that the popularity of PCs reflects their utility in the same way that cheap talk does. In either event, I’m not confident that we have a robust sense of popularity. If every member of the UN struck one and only one bilateral arrangement with every other member, we should see over 18,000 of them; we could just as easily be struck by how rare PCs really are. And we do not know, of course, how significant they are in shaping state conduct. Forced to guess, one might hazard that PCs do much less than treaties that attach formal legal consequences, and that this is all by design.

There’s something else going on in the article’s argument that’s worth observing. HN clearly regard PCs as having international political significance – that is the premise for regarding them as having domestic legal significance. But they essentially dismiss, or at least decided not to resolve, the international legal significance of these arrangements. Because they duck the whole “soft law” depiction of PCs (while indicating doubts about it, see p. 520), we are left in the unusual posture of deeming something to have domestic legal significance – to our Constitution, no less – without any international legal significance, under CIL or otherwise. This is the polar opposite of most incorporation problems, in which dualist states fail to reflect completely in their domestic schemes the legal force of rules on the international plane. Offhand, I cannot think of many other issues in foreign relations law that fit that profile, and none with the constitutional attributes they give PCs (essentially, a defeasible executive branch authority). I bet there are some, though, and reflecting on those examples might help in thinking about the class of problem they address here.

“Political” Commitments & the Constitution

by Duncan Hollis

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] 

We would like to start by expressing our thanks to the editors of the Virginia Journal of International Law, the (other) hosts of Opinio Juris, and especially Professors Edward Swaine and Michael Ramsey for commenting on our article.

“Political” Commitments and the Constitution (available on SSRN here) explores the constitutional validity of the executive branch’s use of political commitments in international relations.  The recent controversy surrounding the formation of a U.S. security relationship with Iraq served as the impetus for our piece.  Although most of that controversy focused on the Bush Administration’s ability to conclude a status of force agreement (SOFA) with Iraq as a sole executive agreement, we became interested in the Bush Administration’s position on the related Strategic Framework Agreement (SFA).  Rather than suggest that the President could conclude the SFA as a sole executive agreement, the executive branch initially insisted that this instrument would merely be a “political”–or, non-legally binding–commitment in which the legislature could have no interest.  We wanted to explore this claim because, while the United States has long used political commitments as alternatives to treaty-making, the constitutional authority to do so has gone mostly unexamined among academics and government officials alike.  And, although international law and international relations scholars have studied political commitments, in both arenas, the conventional wisdom holds that because these commitments are not international “law”, they are irrelevant to domestic “law” as well.

Our article, in contrast, seeks to situate political commitments within the Constitution.  Specifically, we contend that the Constitution affords the President a discrete power to make political commitments, which is not plenary, but instead may be subject to legislative oversight or control.  Our argument comes in four parts.