The Volokh Conspiracy

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Volokh Conspiracy

President Obama has 'unilateral authority to conclude the impending Iran deal'


… because "it will (likely) be a nonbinding agreement under international law," reason Profs. Jack Goldsmith (Harvard) and Marty Lederman (Georgetown) in a very interesting post at Just Security. I'm not an expert on the subject, but Goldsmith and Lederman certainly are, and their analysis struck me as worth passing along. An excerpt:

There is little doubt that the President can agree to such nonbinding arrangements without congressional or Senate approval. It has happened very frequently in our history, on matters both large and small…. An example of a legally binding executive agreement is the Algiers Accords; an example of a non-legally binding executive agreement is the recent U.S.-China Joint Announcement on Climate Change. Both types of agreement can express commitments and induce compliance based upon the logic of the agreement and the traditional, expected incentives associated with mutually agreed-upon diplomatic arrangements. By definition, however, the United States, Iran and the other five signatories would have international obligations to comply with a legally binding agreement, and no such legal obligations to comply with a non-binding agreement.

So, will the Iran deal, if finalized, be such a nonbinding agreement among the seven parties-with incentives for compliance but no obligations enforceable under international law?

It appears that it will be, at least if the U.S's expectations are borne out. In yesterday's press briefing, State Department spokesperson Jen Psaki repeatedly referred to the parties negotiating "political commitments," and described the prospective deal as "a nonbinding international arrangement, to be signed (if it is signed) by the United States, the United Kingdom, France, China, Russia, Germany, and Iran," in which Iran will make "verifiable and enforceable commitments to adhere to … limits." …

There may be tricky questions about the sources and proper scope of the President's power to make sole Executive agreements that bind the United States under international law. But if, in fact, the "P5+1" and Iran conclude a nonbinding "political" agreement, there is little doubt about the President's constitutional authority to make the deal on his own.