TO ENSURE IRAN COULD NOT VIOLATE THE JCPOA, THEY MADE SURE IT WAS NON-BINDING

During the agonizing period in 2015 when then-Secretary of State John Kerry toyed with the U.S. Senate about the Joint Comprehensive Program of Action, or JCPOA, Senators still believed that the JCPOA would at least be binding on Iran. It wasn't until March 11, 2015, during a hearing of the Senate Foreign Relations Committee, the Kerry told the Senators, in a fit of pique at the letter written by Members to Iran, that it was not binding on Iran:

"Now, with respect to the talks, we have been clear from the beginning. We are not negotiating a ‘‘legally binding’’ plan. We are negotiating a plan that will have in it a capacity for enforcement. We do not even have diplomatic relations with Iran right now, and the Senators’ letter erroneously asserts that this is a legally binding plan. It is not. That is number one. Number two, it is incorrect when it says that Congress could actually modify the terms of an agreement at any time. That is flat wrong. They do not have the right to modify an agreement reached executive to executive between leaders of the countries." 

Members were stunned. Not only would they not be permitted to perform their constitutional duty of providing advice and consent because the Obama administration asserted that the JCPOA was not a "Treaty," it wasn't even binding. It is easy to see why they were surprised.

After all, the Obama administration's brochure on the JCPOA [wh.gov/iran-deal] asserted that the JCPOA "cuts off all of Iran’s pathways to a nuclear weapon, including a covert pathway," and that the JCPOA achieves what they had asked for: "preventing Iran from obtaining a nuclear weapon."

How can the JCPOA, a "deal" that includes no legal obligations on Iran, prevent Iran from obtaining a nuclear weapon? If Iran chooses not to do what they said in the JCPOA they planned to do, (yes, that is the wording), there isn't a violation, there is just a change of plans. In other words, Iran cannot violate the JCPOA!

Thus, when the White House said the JCPOA "Ensures sanctions can be snapped back into place if Iran violates the deal," they did so knowing that this could never happen.

How did then-Secretary Kerry manage to ensure that this "deal" would not impose legally binding obligations on Iran, and thereby ensure that there could be no violations? He got guidance from the Department of State Legal Adviser's Office. If the following guidance existed during administrations prior to the Kerry tenure at State, I have not been able to find it. However, he following document, produced by Treaty Affairs in the Office of the Legal Adviser, appeared on the Department of State website at some point during the Obama administration: https://2009-2017.state.gov/s/l/treaty/guidance/index.htm

The text is provided below:

Guidance on Non-Binding Documents

Governments frequently wish to record in writing the terms of an understanding or arrangement between them without, by so doing, creating obligations that would be binding under international law. The language, titles, and techniques used for this purpose vary considerably. While not binding under international law, a non-binding instrument may carry significant moral or political weight. Such instruments are often used in our international relations to establish political commitments.

Ambiguity as to whether or not a document is legally binding should be avoided. When negotiating a nonbinding instrument, both/all sides should confirm their understanding that the instrument does not give rise to binding obligations under international law.

Certain formal, stylistic, and linguistic features tend to be associated with agreements binding under international law, while other features tend to reflect an intention on the part of the participants to produce an arrangement of a purely political nature. In order to avoid ambiguity, we offer the following general guidance: 

? With respect to the title of a non-binding document, negotiators should avoid using the terms “treaty” or “agreement.” While the use of a title such as “Memorandum of Understanding” is common for non-binding documents, we caution that simply calling a document a “Memorandum of Understanding” does not automatically denote for the United States that the document is non-binding under international law. The United States has entered into MOU’s that we consider to be binding international agreements. 

? We advise negotiators to avoid using the term “Parties” in non-binding documents. Rather, we encourage the use of other terms such as “Participants.” 

? With respect to the actions to be taken, we advise that negotiators avoid terms such as “shall”, “agree”, or “undertake.” In many cases, we have urged that terms such as “should” or “intend to” or “expect to” be utilized in a non-binding document. 

? We further advise that negotiators avoid use of the term “entry into force” and consider expressing that the document “is to come into operation” or that “activities are to commence” for the “participants.”

? We advise that negotiators avoid jurat clauses that state: “Done at” or “Concluded at”. 

? While non-binding documents may be translated into different language versions, we advise that non-binding documents do not mention or reference the “equal authenticity” of different language versions. 

? Finally, depending on the circumstances, it may be useful for a non-binding document to include a disclaimer in the text of the document expressly providing that it is not legally binding under international law.

United States practice on non-binding documents may differ from that of other countries. For example, the mere fact that a document is called a “Memorandum of Understanding” does not mean that the document automatically is considered non-binding for the United States. Also, for the United States, the use of the verb “will” in the text does not necessarily mean that the commitment at issue is not legally binding under international law. Because the use of the term “will” may lead to confusion as to the intention of the participants, the Office of Treaty Affairs generally recommends that this term be avoided in non-binding documents.

The Office of Treaty Affairs encourages agencies and offices to share the texts of proposed non-binding documents with the office, which is responsible by law for determining whether a particular document is a binding “international agreement” for purposes of reporting to Congress. Our determination is made on the basis of a number of criteria, including the identity and mutual intention of those entities involved, rather than simply the form or title of the document.