Is the Trump Administration Bound by the Iran Deal?
The Joint Comprehensive Plan of Action (“JCPOA”)—also often referred to as the Iran Deal or the Iran Agreement—marked a significant shift in the relationship between the United States and Europe, and the Islamic Republic of Iran. Under this Agreement, Iran agreed to eliminate its stockpile of medium-enriched uranium, cut its existing stockpiles of low-enriched uranium, and reduce the number of its centrifuges in exchange for the lifting of a number of sanctions imposed by the United States, the European Union, and the United Nations Security Council. Iran also agreed to restrict the amount of nuclear fuel it will keep over the next fifteen years.
The Deal, signed in Vienna on July 14, 2015, ended decades of animosity between the United States—and the West more broadly—and Iran. After years of tough sanctions from the US and Europe, Iran agreed to come to the negotiating table. The JCPOA, which has brought together six different world powers (China, France, Russia, United Kingdom, United States, Germany) and the EU, will significantly stall Iran’s nuclear development program.
But can the Iran Deal withstand challenge from the next US administration? Can the next president legally and unilaterally dismantle the Agreement? In 2015, during his campaign, Donald Trump called the Iran Deal a “disaster” and “the worst deal ever negotiated.” It is not unlikely that, despite loud calls from all sides not to undo it, the new Administration will look for ways to quickly withdraw from or dismantle the Agreement. But can President Trump legally dismantle the Agreement, or is he bound to abide by its terms? This post suggests that, although President Trump has the power to legally dismantle the Agreement (as both an international and domestic matter), it would be extremely unwise to do so.
Over the past year and a half, a lot of work has already been done to set up a meaningful relationship between Iran and the United States and its partners. This has included the lifting of sanctions, the monitoring of Iranian nuclear activity, and engaging in economic partnerships—all of which will make it very difficult to undo the Deal unilaterally. However, nothing in the JCPOA, or in the domestic legislation supporting it, formally binds the United States to the Agreement. While international expectations that the United States will abide by the Agreement will serve as a strong incentive not to withdraw, the structures of the Deal also don’t formally prevent the United States from walking away. And yet, although the legal option to withdraw from the Agreement exists, it would be extremely imprudent for the Trump Administration do so. Remaining a party to the JCPOA would serve the United States’ interests, protect the United States and its allies, and contribute to a stronger and more cooperative international order.
What is the Iran Deal?
Whether the Trump Administration can withdraw or dismantle the JCPOA rests in part on what the Agreement actually is.
What type of agreement is it domestically?
Traditionally, there have been three kinds of agreements concluded under U.S. law: 1) Article II treaties (signed by the president with the advice and consent of the Senate); 2) sole executive agreements (concluded by the president acting solely and within his independent constitutional authority and without any input from Congress); and 3) congressional-executive agreements (which involve a Congressional statute, passed either before or after an agreement has been made, which grants the President authority to conclude the). On occasion, the executive has also entered into non-binding political agreements.
Although the Deal may have begun as a series of talks, the Iran Nuclear Agreement Review Act of 2015 (“Review Act”) re-framed what type of agreement the Iran Deal is. What was originally intended to be a way to curb the President’s power may have actually been the very thing that transformed “what would have been a constitutionally dubious exercise of unilateral executive authority (a ‘sole executive agreement’) into a constitutionally unimpeachable exercise of joint legislative and executive power (a ‘congressional-executive agreement’).” It was ultimately this Review Act that gave President Obama the authority to conclude a “legally binding nuclear agreement, [and] not just an informal political pact.” Along with the “constitutional text, democratic principles, and entrenched practice,” the Review Act adopted in May 2015 supports the binding character of the Agreement and “grants the Administration authority to negotiate and implement binding legal commitments with Iran.”
What type of agreement is it internationally?
Internationally, the Iran Deal is a treaty. The distinction that exists under domestic U.S. law regarding the type of agreement the Iran Deal may or may not be isn’t replicated on the international level. The Vienna Convention established the definition of a treaty without prejudice to differing uses of the term ‘‘treaty’’ in the domestic laws of various states. Article 2, Section 1(a) of the Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Treaties have been used consistently throughout the twentieth century, to establish durable relationships and aid in international governance. They consistently serve “as an intrinsic part of our global order and have been considered legally binding.” International agreements are transformed from a piece of paper, or most likely a sum of papers, meetings, phone calls, and other communications, into a binding law is the formal agreement made by countries through an act of consent. The Iran Deal has all the characteristics of an international treaty: written document, buy-in from a number of states, and firm commitments. As such, under international law, the Agreement is presumptively legally binding.
Can the Trump Administration Dismantle the Iran Deal?
President Trump can dismantle the deal in two ways: 1) he can either re-impose sanctions against Iran, reneging on its own promises and likely encouraging Iran to withdraw and thus undo the Agreement, or 2) he can formally withdraw the United States from the Agreement.
Can the Trump Administration Legally Dismantle the Deal under U.S. Law?
This post argues that the JCPOA is a congressional-executive agreement, and as such, it would ordinarily be challenging for any future administration to dismantle or withdraw from it. When an administration inherits a congressional-executive agreement, it may not unilaterally and without cause withdraw from such agreement. Although this area of the law remains fraught with debate and controversy, as Oona Hathaway argues, congressional oversight over withdrawal from a congressional-executive treaty may be even stronger than control over treaty withdrawal.
In this case, the congressional act that gave the Executive the power to make the Agreement, also gave the Executive discretion to walk away from it. The Review Act specifically grants the ability to re-impose sanctions—in effect sanctioning an executive decision to renege on its commitments and signal the end of the Deal. Section (C) of Review Act states:
(2) In general–Notwithstanding any other provision of law, action involving any measure of statutory sanctions relief by the United States pursuant to an agreement subject to subsection (a) of the Joint Plan of Action—
(A) may be taken, consistent with existing statutory requirements for such action, if, during the period for review provided in subsection (b), there is enacted a joint resolution stating in substance that the Congress does favor the agreement;
(B) may not be taken if, during the period for review provided in subsection (b), there is enacted a joint resolution stating in substance that the Congress does not favor the agreement; or
(C) may be taken, consistent with existing statutory requirements for such action, if, following the period for review provided in subsection (b), there is not enacted any such joint resolution.
This provision suggests two things. Firstly, sanction relief may be granted if Congress either enacts a resolution favoring the agreement, or fails to enact a resolution not favoring the agreement. Congress was unable to muster enough votes to enact a resolution stating it did not favor the Iran Deal (at least not enough votes to withstand a presidential veto, which Obama was ready to use). As such, sanction relief was possible. The second important thing the statute provides is that the relief is discretionary—that an action may be taken suggests the same action may also not be taken. Thus, sanction relief enacted by President Obama may be withdrawn, consistent with the Review Act, by President Trump. And re-imposing sanctions will, in effect, be the death knell of the Deal. Iran would likely refuse to continue to abide by the terms of the Agreement if the United States re-imposes sanctions, and has already suggested it is unhappy about the contributions the United States and its allies have made.
It is worth noting that, the JCPOA lifted only some of the US sanctions against Iran. Since the last 1970s the US has leveled a number of sanctions against Iran, “ranging from weapons proliferation to human rights abuses within Iran to state sponsorship of terrorism and fomenting instability abroad.” Under the JCPOA, the United States promised to lift mostly nuclear-related, “secondary sanctions.” These sanctions had not been leveled directly at Iran; rather they were directed towards third party, non-US persons doing business in Iran. After the Deal came into effect, the US also removed hundreds of individuals from the Office of Foreign Asset Control’s (“OFAC”) list of blocked persons. As a result, individuals and businesses conducting transactions with these listed individuals would no longer be sanctioned. Most of the primary sanctions (those leveled directly at Iran) continue to apply.
President Obama enacted sanction relief both through executive order and congressional statute (see also a discussion of this here). Come January 2017, President Trump will be able to easily re-impose those sanctions lifted by executive order, and will likely also dispose of those waivers enacted through statue. The President has the ability to waive statute-based sanctions, but the current waivers rely in large part on a determination by John Kerry, in his capacity as Secretary of State, that it is “vital to the national security of the United States” to waive certain sanctions—that determination can, and most likely will be, withdrawn by the next Secretary of State serving under a Trump Administration. Additionally, such waivers only last a short period time, which will elapse early in Trump’s administration, even if President Obama was to extend them at the end of his term.
Domestically, it seems, President Trump will have an easy, if not seamless path to re-imposing sanctions and effectively dismantling the agreement.
Can the Trump Administration Legally Withdraw from the Deal under International Law?
As an international treaty, the Iran Deal is governed by the paramount principle of international law pacta sunt servanda—the notion that that treaties must be kept. As such, without cause or justification, the United States would be in breach of international law if it simply walks away from the Agreement. However, as laid out in the United National Security Council Resolution blessing the deal, the Agreement provides the parties with a possibility to withdraw from the agreement through a “snapback” mechanism. This allows any of the six parties to the Agreement to flag significant non-compliance and, if concerns remain unresolved, snap back all sanctions previously leveled against Iran. Nowhere in the Agreement is “significant non-compliance” defined, leaving the definition and scope up to each individual member.
Lifting of UN and EU sanctions, along with some of those imposed by the United States, was a central component to the Iran Deal. The “snapback” mechanism would re-impose the status-quo as it existed before the Agreement—in effect forcing the United Nations and the European Union to re-impose all the sanctions it has lifted over the past year. Before the mechanism is triggered, the United States would have to abide by several procedures, including referring the issue to the Joint Commission (a body consisting of members from all parties established to monitor the implementation of the deal), and further to Ministers of Foreign Affairs, if the Joint Commission is unable to resolve the issue. If the United States continues to have concerns over Iran’s compliance at the end of this process, it can force the re-imposition of sanctions within 30 days.
Lawful but Awful
As laid out above, both domestically and internationally, President Trump has a legal and legitimate way to withdraw from the Agreement. This blog post joins a chorus of voices calling on President Trump to consider the awful implications of tearing up this Agreement, and argues it would be much more prudent for the Trump Administration to continue to abide by the Agreement and waive sanctions in return for international monitoring, limiting nuclear development, and cooperation with Iran.
For those who worry Iran has gotten the better side of the deal and that the Agreement was not enough to deter Iran from developing nuclear weapons, it is worth noting where Iran was before the deal was struck. In 2013, at the start of negotiations, Iran’s breakout time— the time it would take Iran to create enough material for one nuclear bomb—was about two months. As a result of the Agreement, Iran will be forced to slow down its enrichment and development program for the next fifteen years, giving the international world at least that much time to prepare for a possible nuclear Iran. Many U.S. allies joined President Obama’s call for sanctions in 2009, in part because they were convinced absent a diplomatic path, “the result could be war, with major disruptions to the global economy, and even greater instability in the Middle East.” Sanctions, thus, were the tool employed by the U.S. and its allies to force Iran to engage in a diplomatic solution.
Additionally, what previously made sanctions effective was the unified approach of the United States, the European Union, and the EU members and the multilateral sanctions leveled against Iran. Without support from our allies, the United States will either have to employ drastic and wide-ranging sanctions that will significantly impact the Iranian economy, which would be very unlikely and extremely difficult, or the United States will have to implement a plan that will force European nations to join it (i.e. enact sanctions against Europe to force members to bring back their own sanctions). Recently, the EU reaffirmed their commitment to continue the deal, and other powerful states like China and Russia seem unlikely to agree to re-impose sanctions. Even if the United States is successful in imposing the snapback mechanism described above, there is nothing that would force them to do so.
Even if President Trump is able to impose sufficiently harsh unilateral sanctions on Iran or gain support from European allies and re-instate the concerted effort in place before, sanctions alone are not enough. Even with the support of our allies, concerted sanctions proved unable to deter Iran from slowing down its production of uranium. In fact, over the past few years, Iran increased its production—despite sanctions and pressure from the US “Iran’s nuclear program advanced steadily through the 1990s” and by the time President Obama took office, “Iran had installed several thousand centrifuges, and showed no inclination to slow — much less halt — its program.”
More broadly, reneging on an agreement the US has championed, would weaken the United States’ position as a negotiator and steady partner in world affairs. As President Obama argued, “America’s credibility is the anchor of the international system.” The United States will face much tougher negotiations in the future, if its international partners worry that changes in the administration can lead to significant and unforeseen shifts in US policy. President Trump should capitalize on the United States’ power and influence to make international agreements and not jeopardize the US’ credibility and leadership.
In such a politically divisive and internationally important question, the legal analysis is inevitably interlinked with the political considerations. Although most likely a congressional-executive agreement, which ordinarily would make it much more difficult to withdraw from, by the terms of the Review Act, the next administration may legally re-impose sanctions against Iran, effectively dismantling the Agreement. Internationally, nothing in the JCPOA binds the signatories to the agreement, and the United States is free to walk away if Iran fails to meet any of the obligations laid out—which could re-impose multilateral sanctions. However, reneging on the Iran Deal would be politically awful both domestically and internationally. The United States would be left on very precarious ground, damaging our international reputation for upholding our promises, weakening our future negotiating positions, and driving a wedge between America, the rest of our partners, and Iran. Instead, the United States should continue to act as a leader in international collaboration and pursue vigorously a path that stalls Iran’s nuclear plans.
 This is what some have considered the Iran Deal to be. Critics have a justifiable basis for arguing this. In March of 2015, before the Agreement was final, Sectary of State John Kerry was adamant that the Administration was not negotiating a “legally binding plan.”
 Louis Henkin, Foreign Affairs and the United States Constitution 230 (2nd ed. 1996).
 Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L. J. 1236, 1239 (2008).
 See Hathaway, supra note 4 (discussing the difficulty future administrations face when attempting to withdraw from congressional-executive agreements).
 The complex discussion surrounding the power of withdraw from such a treaty is beyond the scope of this post, and for the purposes of assessing whether President Trump needs Congressional authorization to withdraw, the debate need not be fully settled.
Although I agree with the author’s interpretation of the JCPOA, which corresponds with my own writings on this subject, I find the conclusions on the legitimacy of a Trump dismantling of the JCPOA rather problematic. The author cannot have it both ways, on the one hand argue that the JCPOA is “legally binding” and in the same breath defend the legality of a Trump-initiated destruction of the JCPOA. Of course, as a US president, he can take a stance against the JCPOA and so on, but from the prism of international law that would constitute ‘rogue behavior’ just as the EU officials have reiterated the international nature of the JCPOA that cannot be unilaterally abrogated.
Kaveh Afrasiabi, Ph.D.
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