The controversial open letter to the leader of Iran has provoked seemly contradictory responses from the State Department and the Iranian government concerning how legally "binding" the eventual nuclear agreement will be. To quickly recap, the open letter purports to put the Iranians on notice that:
We 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.
In this statement Senator Cotton reveals his erroneous understanding of what type agreement is in progress. He recognizes that it will not be a US defined treaty, which would necessarily require the advice and consent of Congress (as an aside, there is no distinction between treaties and binding executive agreements in international law). His statement that it can be revoked with the stroke of a pen suggests he believes it will be an binding executive agreement, but one which could be unbound by the next executive or Congress. Given his assumption about the nature of the pending agreement his statement is technically correct. But please stay with me!
In retort to Cotton's open letter there came a tweet direct from Iranian Foreign Minister, Javad Zarif:
The Iranian Foreign Minister added that "change of administration does not in any way relieve the next administration from international obligations undertaken by its predecessor in a possible agreement about Irans peaceful nuclear program." He continued "I wish to enlighten the authors that if the next administration revokes any agreement with the stroke of a pen, as they boast, it will have simply committed a blatant violation of international law."
He emphasized that if the current negotiation with P5+1 result in a Joint Comprehensive Plan of Action, it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.
Zarif has revealed that his understanding of the nature of this agreement is materially different from Senator Cotton's. He is suggesting that not only is the forthcoming agreement binding on the Obama administration, but that it would also be binding on future administrations and leave them without any unilateral recourse.
I initially took this as an extraordinary claim. It is quite routine for states to exit treaty obligations, often unilaterally. Historically US presidents have withdrawn from treaties with the "stroke of a pen" and without even asking the consent of Congress. There is no international foul here. Like a marriage, treaties are entered voluntarily for a perceived benefit and can be withdrawn from voluntarily when the perceived benefit is no longer present. The reference to an "endorsement" in a "Security Council Resolution" is vague, and the term "resolution" does not have a clear meaning in international law or the UN charter. Zarif's characterization of the permanence of this agreement does not make any sense in the context of international treaties.
There is a process by which all parties to a binding treaty agreement can submit voluntarily to the jurisdiction of the UN International Court of Justice, but the Court itself has no enforcement mechanisms. If the Obama administration entered into a binding executive agreement with Iran, and if they submitted it to the jurisdiction of the International Court, and if the future administration violated the terms of the agreement (beyond simply withdrawing from it) then it would be dependent on the UN Security Council to enforce any verdicts proscribed by the International Court. But because the US holds a veto on the Security Council they can legally block any enforcement.
Then on Thursday things got really weird. Secretary Kerry throws this curveball during a Senate hearing:
We've been clear from the beginning: We're not negotiating a, quote, legally binding plan. We're negotiating a plan that will have in it a capacity for enforcement... The senators letter erroneously asserts that this is a legally binding plan. It's not.
Also on Thursday, State Dept spokesperson
Jen Psaki says:
Historically under many administrations the United States has pursued important international security initiatives through non-binding arrangements... some representative examples include the US-Russia deal to remove chemical weapons from Syria... there's a lot of precedent for this being political commitments made by all sides.
Mass confusion then errupted among the press corps struggling to understand exactly what was meant by "non-binding". Psaki declined to elaborate. Why is it so important that this agreement is "non-binding?" Because if it were binding it then leaves a constitutional opening for the Congress to meddle with it now or in the future.
Given the senatorial drama and especially the strong remarks made by Iran in the preceding days, the characterization of this agreement as "non-binding" might come as a great surprise to anyone not privy to the negotiations. Non-binding agreements are purely political agreements. They have no enforcement under US or international law. They are made executive to executive, and premised on trust. This type of agreement is essentially null and void when Obama leaves office. No pen strokes are even required by the next administration to cancel it.
We have now been presented with three different understandings of the nature of the pending agreement with Iran. Iran suggests, like a Roach Motel, the US can check in but never check out. Cotton insists, that which can be made can be unmade. Kerry suggests this agreement is just a couple of guys sharing a Coca-Cola and none of Congresses business. How do we reconcile all this?
Senator Cotton, and the rest of Congress, has been kept in the dark as it relates to the nature of these negotiations. In the absence of information they have erroneously assumed that these negotiations are leading towards a binding agreement between 5+1 and Iran. It appears Iran has been the most open about the status of negotiations, as has been the case throughout. The administration has been keeping almost silent. But Jen Psaki tipped the administration's hand(perhaps intentionally) when she gave the example of the US-Russia agreement to surrender Syrian chemical weapons as an instance of a non-binding agreement. The terms of that agreement only became binding in the form of a UN Security Council Decision.
A Security Council Decision in this Iran matter will likely legally require that the US lift sanctions on Iran(at the least). The reason Zarif was so confident that the future President and Congress will be bound by this decision is because he knows the end product of negotiations will not be in the form of a new binding agreement between the 5+1 and Iran (as widely expected), but instead in the form of a UN Security Council Decision that could only be legally reversed with the vote of the UN Security Council(a high hurdle). After this UN decision it will be against international law for UN Charter signatories to sanction Iran. The treaty that binds the US in this instance will be the UN Charter itself, which is decidedly more tricky to withdraw from than would be a 5 + 1 treaty with Iran.