On January 20, 2017 a new President of the United States was officially inaugurated. As far as the public can tell based on what Mr. Trump has said and promised on the campaign trail and during the transition, President Trump will differ from his predecessor in many ways. One matter in particular that should be of some concern to the international legal community is Mr. Trump’s many suggestions that the United States may choose to ignore, secede from, or otherwise fail to fully realize its international treaty obligations. In the past Mr. Trump has sent mixed signals about America’s continued commitment to NATO, has said he is keeping an, “open mind,” to the Paris Agreement on climate change, and has vocally supported a paradigm shift in the way the U.S. makes trade deals, even going so far as to withdraw from the TPP and indicate that he would seek to renegotiate NAFTA. Most concerning for some, Mr. Trump has called the Joint Comprehensive Plan of Action (“JCPOA”), colloquially known as the Iran deal, an accord between the United States, United Kingdom, European Union, Germany, France, Russia, China and Iran to prevent Iran from using its nuclear program for non-peaceful purposes in exchange for sanctions relief, the, “worst deal ever negotiated.” Now that Mr. Trump has taken office, the future of this deal is very much up in the air.
The first thing that must be noted about the JCPOA is that it was never formally submitted to the Senate for its advice and consent to ratification pursuant to the executive’s treaty power under Art. II § 2 of the U.S. Constitution. This states that the President shall have the power to make treaties, “provided two thirds of the Senators present concur.” This means that the JCPOA is not in fact a formal treaty accompanied by stringent legal protections against its modification or renouncement but an Executive Agreement that may carry little legal weight beyond that with which the Executive chooses to imbue it.
Although made increasingly commonplace in recent years, such agreements can be dangerous as they are often easily undone by the next administration. For instance Jack Goldsmith, a conservative legal scholar, wrote that the Obama administration, “cleverly stitched together the president’s authority to lift domestic sanctions, his authority to make political agreements, and his authority to vote for the United States (sic) in the Security Council, in order to make sure the Iran Deal would stick.” That much may be true. Indeed, in order to implement the agreement, President Obama signed an executive order removing economic sanctions against Iran, a concession that was the cornerstone of Iran’s own willingness to enter into the agreement. However, as Congress has yet to vote to permanently remove those sanctions, President Trump could arguably just as easily sign an executive order reinstating them.
The European Council has indicated as recently as November 14, 2016 that it is still committed to pursuing a relationship with Iran that is wholly consistent with the JCPOA, and emphasized the importance of the need for its, “full and effective implementation.” Coming so soon on the heels of the U.S. presidential election this announcement cannot help but be understood as a firm message intended for the then president-elect. However, if the U.S. does choose to reinstate sanctions, Iran could point to this as a clear violation of the JCPOA and use this to repudiate the deal in its entirety, regardless of what the Council has said.
Ultimately the one legal avenue that supporters of the deal may have to prevent its swift demise is to argue that the deal was made with implicit congressional approval and thus cannot be revoked without congressional say-so. This kind of congressional-executive agreement has long been used to commit the U.S. to institutions such as NAFTA, the IMF, and the WTO, and is considered to be of stronger legal standing than an agreement negotiated solely on the executive’s own authority. Proponents of this view point to the Iran Nuclear Agreement Review Act, which granted Congress the authority to review, and reject if it so chose, any agreement negotiated with Iran regarding its nuclear program within sixty days. Due to President Obama’s promise of a veto, supermajorities in both houses of Congress would have to have voted against the deal in order to reject it. These scholars suggest that, having failed to reach the necessary number to reject the deal, the congressional review process impliedly approved it, despite the lack of an actual vote expressing that approval. If that were the case, the President could not repudiate the agreement, “without strictly following the procedures laid out by Congress in its original authorizing legislation.” Of course, even if Congress or a judge could be convinced that this was the proper interpretation of the JCPOA’s legal status, it may pose no real practical barrier if the President and the Republican controlled Congress that has expressed a great deal of hostility towards the deal ultimately decide they want to get rid of it. Congress could simply push through additional legislation making it possible.
Ultimately the global community will have to wait and see how this administration decides to proceed. For all of his rhetoric on the campaign trail it is as yet unclear to many precisely how President Trump will govern. In recent days there has been some pushback, even from presumably friendly corners, against the scrapping of the deal, notably reports that the Israeli intelligence community has advised Benjamin Netanyahu not to push Trump towards that course of action. However, in general, the future of the Iran nuclear deal under the Trump Administration does not look particularly bright.
Joe Folds is a second year law student at Columbia Law School and staff member of the Journal of Transnational Law. He received a degree in Foreign Affairs with Distinction from the University of Virginia.