Relatively few well-known legal academics have waded into the debate over the Iran deal. Alan Dershowitz is a notable exception. He has published an e-book against the deal, for one thing. Here, I'm not responding to that but instead his recent oped in USA today http://usat.ly/1UoDhJ4 making the point that, from a constitutional point of view, the Iran deal will not have the status of law in the United States, and thus could be undone politically by future administrations; to have such a status, Dershowitz claims, it should have to be implemented as a "treaty" under the US Constitution. This is an issue that Ruti Teitel and I addressed at Just Security before the current deal was finalized. bit.ly/1aZKYnF I probably wouldn't want to re-litigate it, especially against such an able litigator as Professor Dershowitz.
Normally, Dershowitz argues with great clarity. But the US Today piece is, well, rather obscure. First off, Dershowitz seems to be targeting the Obama Administration, as if the Administration were claiming that the JCPOA could have the binding force of law in the US simply by being signed by the Administration. But the Administration has long acknowledged that many of the commitments under the JCPOA could only be legally effectuated through positive action by Congress. In various places, the JCPOA itself indicates a distinction between what actions are to be taken "pursuant to Presidential authorities" and what actions would involve initiation of legislative action. The Administration and other supporters of the deal accept that its full implementation by the United States must hinge on future actions of Congress. Finally, there is a clause in the JCPOA that accepts that state and local government sanctions cannot simply be invalidated by federal action. In sum, the JCPOA seems to have been drafted in awareness of, and in respect for, constitutional constraints.
But the constitutional argument, though it takes up most of Dershowitz's article, turns out to be largely a red herring (no pun intended). Because Dershowitz's appeal is ultimately not to the US Supreme Court but to the "court of public opinion" (even if the Iran deal were implemented as a "treaty" under the US Constitution, a subsequent act of Congress could trump it). Here Dershowitz's observation, while it might seem trite to those savvy in democratic politics, is valid: the commitment of the US to the Iran deal will depend on how public opinion develops in the months and years ahead, and of course, who the elected representatives are.
Were the Iranians naive, then, or unaware of US political realities,in signing a deal that doesn't have any clause that would punish the US for not living up to its commitments in future? There is no clause in the JCPOA, at least none I've found, that allows Iran to walk away from its end of the deal, if the US doesn't fully implement. The only case in which Iran has reserved its right not to perform in whole or in part, is if UN sanctions are reinstated through snap back. (JCPOA 37)
My sense is that, in fact, the Iranian negotiators were exceedingly shrewd, navigating domestic, US and global political realities adroitly. When Security Council resolution 2231 was passed on July 20, the diplomatic achievement of Obama, Kerry and their Iranian and other counterparts was made secure. By virtue of that resolution, the UN sanctions framework is lifted once the IAEA says that Iran has taken a series of defined steps to modify its nuclear program. On that day, to repeat a point I've made in another recent post here, Iran will be open for business with the world. If the US doesn't lift sanctions, well, it doesn't. Everyone understands the narrow political interests driving the Congressional debate on this issue, and the world admires the leadership of Obama and Kerry to getting to where we are now-for truly opening the path of diplomacy. Apart from punishing our allies and trading partners and their companies for doing business with Iran, largely futile and indeed self-wounding in a world of economic interdependence and multipolarity, Congress can't really do much to close down the path of diplomacy post-Resolution 2231. Of course, in pique at US non-performance of its commitments, Iran could, politically, decide simply to walk away from JCPOA before Implementation Day. But that would be to hand a huge victory to Netanyahu and his backers, and sacrifice the great prize of doing away with the UN sanctions framework. By supporting Resolution 2231, the US has already delivered big-time on the Iran deal, and I bet that informed Iranians appreciate that. Les jeux sont fait.
