Legal Experts: Future U.S. President Could Revoke Bad Nuke Deal With Iran

State Department seems to agree, now says potential agreement would be ‘nonbinding’

John Kerry / AP

Legal experts are refuting a claim by Iran’s foreign minister that revoking a potential deal on the country’s nuclear program would violate international law, amid confusion Wednesday regarding whether or not the deal the State Department is negotiating will be in any way legally binding.

Javad Zarif, Tehran’s chief representative in the ongoing nuclear talks among the United States, Iran, and five other world powers, criticized on Tuesday an open letter sent by 47 Republican senators concerning the negotiations. While the lawmakers said in their missive that a future president or Congress could revoke or substantially alter a nuclear pact, Zarif responded that such changes would be illegal under international statutes.

"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 said, according to Iran’s Ministry of Foreign Affairs.

However, the U.S. State Department asserted on Tuesday that a prospective nuclear agreement with Iran would be "nonbinding." Secretary of State John Kerry also confirmed in congressional testimony on Wednesday that the Obama administration is "not negotiating a legally binding plan" but one from "executive to executive," Politico reported. Kerry insisted such a deal would still "have a capacity of enforcement."

Jeremy Rabkin, a law professor at George Mason University and an expert in international law and Constitutional history, said in an email that "nonbinding" by definition means that the United States "will not violate international law if we don't adhere to its terms"—contrary to Zarif’s assertion.

"In other words we're saying it is NOT an international obligation, just a statement of intent," he said.

The legal nature of a potential nuclear agreement remains a matter of dispute.

The GOP senators wrote about the necessity of congressional oversight for "binding international agreements" in their letter. But on Wednesday, Kerry rejected that  characterization as "absolutely incorrect," because the plan would not be legally binding.

The potential deal’s executive and nonbinding nature means Congress could not amend it, Kerry said.

Rabkin said the question of whether a U.S. president can institute a binding international agreement without congressional approval is disputed among legal scholars, but the State Department’s declaration that an Iran deal would be nonbinding places it in a different category.

"What Kerry seemed to say was not that his Iran deal would be in the same category but that it would not be legally binding in any sense, just a kind of memorandum of understanding," Rabkin said. "I wonder whether he understood what he was saying. It was more or less conceding that what Cotton's letter said was the administration's own view—that the ‘agreement’ with Iran would not be legally binding, so (presumably) not something that could bind Obama's successor."

Sen. Tom Cotton (R., Ark.), one of the lead authors of the GOP’s letter to Iran, expressed confusion on Wednesday about the State Department’s classification of a nuclear deal with Tehran.

"Important question: if deal with Iran isn't legally binding, then what's to keep Iran from breaking said deal and developing a bomb?" Cotton tweeted.

John Yoo, a law professor at University of California, Berkeley and a former Justice Department official in the George W. Bush administration, wrote on Wednesday that Cotton and his fellow senators had it "exactly right" in their letter on matters of Constitutional law.

"The Cotton letter is right, because if President Obama strikes a nuclear deal with Iran using only [an executive agreement], he is only committing to refrain from exercising his executive power—i.e., by not attacking Iran or by lifting sanctions under power delegated by Congress," Yoo wrote on National Review Online. "Not only could the next president terminate the agreement; Obama himself could terminate the deal."

Additionally, Yoo said that under the Constitution’s Foreign Commerce Clause, Congress could still apply financial pressure on Iran regardless of an executive agreement.

"Obama’s executive agreement cannot prevent Congress from imposing mandatory, severe sanctions on Iran without the possibility of presidential waiver (my preferred solution for handling the Iranian nuclear crisis right now)," he said. "Obama can agree to allow Iran to keep a nuclear-processing capability; Congress can cut Iran out of the world trading and financial system."

"As a matter of constitutional law, the Cotton letter should be no more controversial than a letter that simply enclosed a copy of the U.S. Constitution (without President Obama’s editing)," he added.