President Donald Trump has repeatedly voiced his belief that the Iran nuclear deal is flawed and if it is not amended to cure those flaws, the United States should abandon it. On January 12th of this year, he informed the American public that his administration is working with “key European allies” to reach a “new supplemental agreement that would impose new multilateral sanctions if Iran develops or tests long-range missiles, thwarts inspections, or makes progress toward a nuclear weapon.”
As a political document, there is no legal prohibition on the president from withdrawing from the plan of action. The president has given his negotiators until May 12th to reach that agreement; the date upon which he is next required under Section 1245(d) of the National Defense Authorization Act for Fiscal Year 2012, codified at 22 U.S.C. § 8513a, to decide whether to renew the waiver of certain sanctions targeting the financial sector of Iran.
If a satisfactory supplemental agreement cannot be reached by May 12th, is the president empowered to abandon or withdraw the United States from the Iran nuclear deal? To answer that question, we have to look at what the Iran nuclear deal is, whether the Constitution provides the president with authority to abandon the deal, if so, may – and has the Congress placed limits on that authority?
The Iran nuclear deal is set forth in the July 14, 2015, “Joint Comprehensive Plan of Action” or “JCPOA,” that was accepted by the “E3/EU + 3” and the Islamic Republic of Iran. The E3/EU + 3 is the terminology used in the JCPOA itself and in the United States and comprises France, Germany, and the United Kingdom (the “E3”), the High Representative of the European Union for Foreign Affairs and Security Policy (the “EU”), and China, the Russian Federation, and the United States (the “+ 3”). U.S. law uses the identifier “P5 + 1” rather than E3/EU + 3.
Is the JCPOA a legally binding treat or international agreement other than a treaty, or something else that is not legally binding?
The JCPOA cannot constitute a treaty of the United States because it has not been presented to the Senate for advice and consent as required in Article II of the Constitution. This is important because the U. S. Supreme Court has not resolved whether the president is empowered unilaterally to withdraw the United States from a treaty that has been ratified by the Senate. The president has the authority to withdraw the United States from an international agreement other than a treaty unless a Federal statute provides otherwise.
Both the Obama and Trump Administrations have taken the position that the JCPOA is not an international agreement other than a treaty. In a November 19, 2015, letter, the State Department informed then-Representative Mike Pompeo, R-Ks., that the JCPOA “is not a treaty or an executive agreement, and is not a signed document; it reflects political commitments between” the E3/EU +3 and Iran.
In March of this year, Senior Policy Adviser to the Secretary of State, and Director of the Secretary’s Policy Planning Staff, Brian Hook characterized the JCPOA as a sui generis nonproliferation plan of action that’s a political document. As a political document, the president has the authority to withdraw from it.
Not everyone agrees, however, that it is a political document. Some note the JCPOA appears to meet the State Departments’s own definition of an international agreement other than a treaty, and others argue that regardless of its intended legal status, language in the United Nations Security Council Resolution (UNSCR) 2231 of July 20, 2015, makes it legally binding under international law.
Although the United States has rejected both arguments, there is no need to take a position on this issue for purposes of U.S. domestic law because regardless which position would prevail, the president’s authority to withdraw from either an international agreement other than a treaty or a political document can be restricted by statute. For purposes of U.S. domestic law, the question then is whether there is a statute that does so. The international law argument is discussed at the end of this article.
In May 2015, Congress passed and the president signed into law the ‘‘Iran Nuclear Agreement Review Act of 2015,’’ Public Law No. 114-17, codified at 42 U.S.C. § 2060e (“the Act”), that, among other things, limits the president’s authority to take certain actions for any “agreement related to the nuclear program of Iran that includes the United States, commits the United States to take action, or pursuant to which the United States commits or otherwise agrees to take action, regardless of the form it takes, whether a political commitment or otherwise, and regardless of whether it is legally binding or not, including any joint comprehensive plan of action entered into or made between Iran and any other parties.” § 2060e(h)(1)(emphasis added).
The Act contains several provisions that might affect the president’s ability to withdraw the United States from the JCPOA. The article will not discuss limitations in § 2060e(b) because those limitations applied only to presidential action only during a period of time that has now passed.
The Act contains two general provisions regarding its meaning that might be relevant. First, in § 2060e(c)(1), it expresses “the sense of Congress that this section provides for congressional review, including, as appropriate, for approval, disapproval, or no action on statutory sanctions relief under an agreement.”
Whether the “disapproval” could be interpreted including withdrawal from the JCPOA does not need to be decided because a sense of Congress provision does not have the force of law. Second, in § 2060e(g), the Act provides that nothing in it “shall be construed as ... allowing any new waiver, suspension, reduction, or other relief from statutory sanctions with respect to Iran under any provision of law, or allowing the president to refrain from applying any such sanctions pursuant to an agreement [such as the JCPOA], “or revoking or terminating any statutory sanctions imposed on Iran.”
This language does not limit the president’s authority to withdraw from the JCPOA because a withdrawal would not have the effect of revoking, terminating, waiving, suspending, reducing, or providing any relief from statutory sanctions. If anything, it would have the opposite effect. Thus, neither general provision limits the president’s authority.
The Act does contain provisions to ensure that the appropriate congressional committees and leadership[1] (“designated members”) will be aware of the president’s views regarding Iran’s compliance with the JCPOA. It requires the president to ensure the designated members are kept current on Iran’s compliance with the JCPOA. The Act requires the president to:
- Keep the designated members “fully and currently informed of all aspects of Iranian compliance with” the JCPOA, including in a written report he must submit at least every 180 calendar days.
- Provide the designated members with any credible and accurate information relating to a potentially significant breach or compliance incident by Iran within 10 days of receiving the information and, within 30 days after doing so, determine whether Iran has committed a material breach of the JCPOA and, if so, provide a report of Iran’s action or failure to act that led to the material breach, actions necessary for Iran to cure the breach, and the status of Iran's efforts to cure the breach. The Act defines a meaningful breach as one that “substantially benefits Iran's nuclear program; decreases the amount of time required by Iran to achieve a nuclear weapon; or deviates from or undermines the purposes of” the JCPOA.
- Certify not less often than every 90 calendar days, that Iran is transparently, verifiably, and fully implementing the JCPOA, and that Iran either has not committed a material breach of the JCPOA or, if it has, that it has cured that breach.
While these provisions ensure Congress is fully informed, they do not directly or by implication limit the president’s ability to withdraw from the JCPOA. If the president does not provide the certification described above, or determines he is unable to provide the certification, as Trump did in October 2017, the Act provides only that proposed legislation introduced within 60 calendar days to reinstate statutory sanctions waived as a result of JCPOA and prohibit U.S. Government actions to facilitate the release of Iranian funds or assets shall be given expedited consideration.
U.S. domestic law does not limit the president’s authority unilaterally to withdraw the United States from the JCPOA.
With respect to international law, some commenters argue that virtue of United Nations Charter Article 25’s statement that “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter,” issuance of UNSCR 2231 made at least some provisions in the JCPOA legally binding obligations of the United States.
Commenters usually reference the language in paragraph 2 of UNSCR 2231 that “Calls upon all Members States . . . to take such actions as may be appropriate to support the implementation of the JCPOA . . .and by refraining from actions that undermine implementation of commitments under the JCPOA.”
Withdrawing from the JCPOA would undermine implementation of its commitments. When the UN Security Council “calls upon” members states to do something, however, it is generally seen as not requiring the members states to take that action. Rather, the Security Council uses directive language such as “shall” to create mandatory requirements.
Member states with such an understanding, such as the United States, do not interpret paragraph 2 of UNSCR 2231 as creating a binding obligation. As a permanent member of the UN Security Council, the United States would have voted for the UNSCR with that understanding and not have entered into a legally binding obligation.
To close this article, although the president can unilaterally withdraw the United States from the Iran nuclear deal, he is not compelled to. He can seek an agreement by other members of the E3/UE +3, or seek specific legislation from Congress if he so choses.
Bob Eatinger is the founding Principal of SpyLaw Consulting for Business, LLC. Previously, Bob was the Senior Deputy General Counsel of the Central Intelligence Agency. He served as CIA’s Acting General Counsel from October 2013 to March 2014.
[1] The term "appropriate congressional committees and leadership" means the Committee on Finance, the Committee on Banking, Housing, and Urban Affairs, the Select Committee on Intelligence, and the Committee on Foreign Relations, and the Majority and Minority Leaders of the Senate and the Committee on Ways and Means, the Committee on Financial Services, the Permanent Select Committee on Intelligence, and the Committee on Foreign Affairs, and the Speaker, Majority Leader, and Minority Leader of the House of Representatives. § 2060e(h)(3).
