The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a recent letter written by Assistant Secretary for Legislative Affairs Julia Frifield, the State Department indicates that the nuclear deal with Iran is not legally binding. It is, the letter claims, merely a set of "political commitments between Iran and the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union."
The Obama administration has taken this position at least in part to avoid rendering the deal unconstitutional. If it were a legally binding international agreement, it would require ratification by the Senate, or at least some form of congressional approval, which it currently does not have and is unlikely to get in the future. But, as legal scholar Michael Ramsey and Matthew Weybrecht of Lawfare point out, if the agreement is not legally binding, that means that a future president could repudiate it any time, without violating either domestic or international law.
Ramsey further emphasizes that, if the administration's view of the agreement is accurate, defenders of the deal can no longer attack Republican advocates of repudiation as lawless or indifferent to the America's legal commitments. Virtually all the GOP presidential candidates are in fact committed to repudiating the deal if they win. IF the agreement has no legal force, then they can easily act on that intention without getting the approval of the other parties to the deal, or even that of Congress.
Furthermore, if the deal is not legally binding on the United States, it also does not bind Iran either. If the Iranians cheat or renege on the agreement, the administration cannot claim that they violated international law. The Iranian regime, of course, is unlikely to be much influenced by considerations of legal propriety. But such considerations do matter to elite and public opinion in Europe, whose support is necessary for any effective "snapback" of sanctions in the event of Iranian violations. It seems unlikely that many European governments will forego significant business opportunities in Iran merely to punish violations of a deal that isn't even legally binding. The snapback provisions—which are the key enforcement mechanisms for the deal— have other significant weaknesses, as well.