On July 14, 2015, President Obama announced that the United States, along with the permanent members of the United Nations Security Council plus Germany, had “achieved” a “comprehensive long-term deal with Iran that will prevent it from obtaining a nuclear weapon.” Under the agreement, the United States committed to suspend nearly all the economic and financial sanctions imposed on the Islamic Republic in exchange for Iran’s commitment to suspend certain nuclear activities for certain periods of time.
This “deal,” as President Obama described it, was not a treaty. It was not even an executive agreement. It was merely a political commitment. From a legal perspective, that made the JCPOA non-binding and subject to change at any time.
In July 2015, just after the JCPOA was established, John Bellinger, the former legal advisor for both the State Department and the National Security Council, wrote:
The next president will have the legal right under both domestic and international law to scrap the JCPOA and reimpose U.S. nuclear sanctions on Iran. Such an action would be inconsistent with political commitments made by the Obama administration, but it would not constitute a violation of international law, because the JCPOA is not legally binding. Nor would it constitute a violation of the new UNSCR.
He also noted that under United Nations Security Council Resolution 2231, which referenced the JCPOA, “the United States would not be legally required to lift U.S. sanctions on Iran.”Indeed, this view was later confirmed by the Obama administration. In a letter from the State Department to then-Representative Mike Pompeo, the administration wrote:
The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JCPOA reflects political commitments between Iran, the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union.
During an appearance before the House Foreign Affairs Committee in late July 2015, then-Secretary of State John Kerry was asked why the JCPOA was not negotiated as a treaty to be submitted to the Senate for ratification. His response: “I spent quite a few years trying to get a lot of treaties through the United States Senate, and it has become physically impossible.”Kerry was not only wrong about the impossibility of the Senate ratifying a treaty (e.g. last year the Senate ratified a non-controversial protocol to the North Atlantic Treaty of 1949 on the accession of Montenegro by a vote of 97-2), he was also wrong about the impossibility of the Senate ratifying the JCPOA – with certain changes. As my FDD colleague Orde Kittrie wrote at the time in the Wall Street Journal:
In the case of treaties, as the Senate website explains, the Senate may “make its approval conditional” by including in the resolution of ratification amendments, reservations, declarations, and understandings (statements that clarify or elaborate agreement provisions but do not alter them). “The president and the other countries involved must then decide whether to accept the conditions . . . in the legislation, renegotiate the provisions, or abandon the treaty.”
Indeed, as Professor Kittrie pointed out, the Senate has used this tool of approving treaties or amendments to treaties with conditions many times, including approval of the Threshold Test Ban Treaty, the Peaceful Nuclear Explosion Treaty, the Chemical Weapons Convention, and a 1997 modification to the Treaty on Conventional Armed Forces in Europe. The Obama administration itself had already successfully renegotiated a nuclear cooperation agreement with the UAE at the request of the House Foreign Affairs Committee chairman in early 2009. By May, Professor Kittrie noted, the UAE made concessions and the agreement was finalized.
While politically expedient at the time, the Obama administration’s decision to pursue the JCPOA as a political commitment rather than a treaty made President Trump’s decision to end America’s participation and re-impose U.S. sanctions on Iran both predictable and legally justified. Indeed, the international community was put on notice that such an event might occur, months before the JCPOA was finalized. In a March 2015 open letter to Iranian leaders, 47 U.S. Senators wrote:
[W]e will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei. The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.