Can Trump Legally Withdraw from the Iran Deal?

Photo: Alex Brandon/AP

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).

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2 Replies to “Can Trump Legally Withdraw from the Iran Deal?”
  1. The UN has been trying to destroy our nation’s sovereignty for many years, and we know it, so why would anyone think we care one whit what the UN thinks about anything that we choose to do. And, any country involved with the UN Security Council has the right to dissent anyway, and can choose to do whatever they will. If other countries have that right then they cannot expect us to do otherwise if we so choose. Further, we can tank the economy of many of the nations in this world by simply cutting off all foreign aid, which we should do anyway, and the UN knows this. If they want to make different rules for us then we can sink most of them overnight. So, under our laws, President Trump can pull us out of this very bad deal if he wants to, and the rest of the world be damned.

  2. Interesting timing for this considering Netanyahu’s presentation. Just the fact that Iran kept the blueprints, and drawings for a bomb is a direct violation of the agreement. This now merits revisiting the limits on where inspectors can search. Military sites should not be off limits. Iran should not be allowed to develop ballistic missiles to deliver nukes. Thats the hardest part of the process, and they are free to do that while they wait for the JCPOA to expire. no to mention the ability to master better centrifuges. Iranian Govt. was just boasting about how much faster they can enrich now. Recognize its a terrible deal, and make a better one that actually works as intended. Interesting food for thought on non compliance:

    Iran’s Clause 14 problem
    The requirement for Iran to “address past and present issues of concern relating to its nuclear program,” which is specified in Clause 14 of the agreement, was not optional but a clear condition for the deal to take effect. Under the provisions of the deal, Iran was obligated to answer outstanding questions, and only once the IAEA certified Iran’s compliance with this requirement, in December of 2015, could the deal move ahead.

    At the time, the IAEA reported that it found that “a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003.”

    These activities “did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities,” the Vienna-based watchdog stated.

    The agency went on to state that it knew of no illicit Iranian activities after 2009. “The Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear program,” its report concluded.

    And thus the agreement moved forward and came into force.

    As is now evident in the wake of the Mossad’s remarkable intelligence haul from Iran’s own archive, however, Iran lied all along about its secret nuclear weapons program — in public statements, in which Iranian leaders professed and profess to reject atomic bombs for ideological reasons, as well in its JCPOA-required report to the IAEA. Thus, as Netanyahu put it on Monday night, the agreement was a product of “Iranian deception.”

    Had the IAEA known then what it will see for itself when its experts study the material Israel obtained and is making available to the agency, the deal might have never gone into effect.

    And that’s not all.

    A further breach?
    Clause T82 of the JCPOA’s Annex I (about nuclear-related measures) states that Iran will not engage in “activities which could contribute to the development of a nuclear explosive device.” These include “designing, developing, acquiring, or using computer models to simulate nuclear explosive devices.”

    Israel’s Hadashot news on Tuesday evening quoted US officials arguing that Iran’s retention of such models after the deal was signed, which the files obtained by Israel show — and particularly its reported transfer of its nuclear weapons files between different locations as it sought to keep them hidden — could also very well be seen as a breach of the terms of the deal.

    Backers of the deal are likely to contend that this is an incorrect interpretation of Clause T82, arguing that the wording outlaws Iran taking new actions but does not require Iran to destroy already existing documents. They will also likely note that the JCPOA did not explicitly obligate Iran to eliminate its nuclear archives.

    But, opponents of the deal will note, Iran was not allowed to have a secret nuclear weapons archive in the first place.

    Moreover, the Islamic Republic committed to implement the agreement “in good faith and in a constructive atmosphere… and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA.”

    It is not hard to argue that hiding documents about an illicit secret nuclear weapons program is emphatically inconsistent with the spirit of the deal and can hardly be considered acting “in good faith.”

    The deal’s preamble states that “Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons.” Why then, Israeli officials ask pointedly, echoing Netanyahu in his Monday night presentation of the documentation, did Iran in 2017 hide its vast nuclear archive in a top secret location — a dilapidated warehouse in the south of Tehran?

    Israeli and US officials contend that Iran was hiding these files so as to be able to resume its nuclear weapons program at a time of its choosing.

    “Archives are kept for future reference — in Iran’s case for when the deal expires,” Deputy Minister for Diplomacy Michael Oren stated Tuesday. “And the archive’s blueprints flagrantly violate the deal which prohibits Iran from retaining any aspect of a bomb.”

    If the agreement was working as it should, the thinking in Jerusalem goes, Iran would have destroyed or at least reported its archive a long time ago. Since that didn’t happen, Israel believes Monday’s revelation was one more indication that the deal fails to properly address Iran’s nuclear shenanigans.