Here's what Kerry means when he says a nuclear deal with Iran will be 'nonbinding'

KerryREUTERS/Kevin LamarqueU.S. Secretary of State John Kerry (R) speaks during a Senate Foreign Relations Committee hearing on ‘The President’s Request for Authorization to Use Force Against ISIS: Military and Diplomatic Efforts’ on Capitol Hill in Washington March 11, 2015.

Secretary of State John Kerry clarified to the Senate Foreign Relations Committee that a possible nuclear agreement with Iran would not be legally binding.

“We’ve been clear from the beginning we’re not negotiating a legally binding plan,” Kerry told the committee, according to ABC News. “We’re negotiating a plan that will have a capacity for enforcement.”

This wasn’t the only instance this week in which a State Department official restated the administration’s position on the sides’ technical obligations under a potential nuclear accord. On March 10, State Department spokesperson Jen Psaki told reporters: “Historically, under many administrations, the United States has pursued important international security initiatives through nonbinding arrangements where that has been in our national interest,” according to Politico.

Politico noted that Psaki “did not elaborate on the implications” of signing a “nonbinding” agreement. But the “nonbinding” modifier has a specific meaning here: As 47 Republican senators pointed out in a controversial open letter to Iran’s leadership, any agreement not put to a Congressional vote is considered an “executive agreement” under the US’s constitutional system.

In an October 2014 blog post, Harvard Law School professor Jack Goldsmith explained the practical impact of the president evading Congress on an Iran deal: An executive deal would lack the legal grounding and prestige of a treaty, and show that the president didn’t find an agreement important enough to warrant congressional affirmation.

“Any deal struck by President Obama with Iran will probably appear to the Iranians to be, at best, short-term and tenuous,” Goldsmith wrote. “And so we can probably expect, at best, only a short-term and tenuous commitment from Iran in return.”

Kerry zarifREUTERS/Rick WilkingU.S. Secretary of State John Kerry shakes hands with Iranian Foreign Minister Mohammad Javad Zarif before a meeting in Geneva January 14, 2015. Zarif said on Wednesday that his meeting with Kerry was important to see if progress could be made in narrowing differences on his country’s disputed nuclear program.

The US wouldn’t have a firm legal obligation to uphold the agreement, so Iran would have a built-in reason to assume American bad faith and push the limits of a future deal. In other words, without a legal guarantee on the US side, compliance with an agreement is potentially diluted Tehran’s side as well — and remember, this is a regime that hid the existence of two secret nuclear facilities and operated 20,000 uranium enrichment centrifuges in defiance of repeated UN Security Council resolutions.

Nevertheless, neither Iran nor the Obama administration believes that legal guarantees are necessary to resolve the nuclear issue, or else they wouldn’t be negotiating in the first place.

The acceptance of this negotiating premise might actually be a sign of growing mutual trust between two countries that haven’t had diplomatic relations for over 30 years. Confidence between the two might be so implicit by now that neither believes legality is that significant an obstacle to resolving the nuclear standoff.

It could also be that Iran believes that agreement commitments from the US’s 5 negotiating partners — the other 5 permanent members of the UN Security Council and Germany — would obligate the US to adhere to an agreement even it didn’t have any binding legal status in the US.

Kerry zarif iran nukeREUTERS/Leonhard FoegerJohn Kerry, Britain’s Foreign Secretary Philip Hammond, Russian Foreign Minister Sergei Lavrov, Iranian Foreign Minister Javad Zarif and German Foreign Minister Frank-Walter Steinmeier (LtoR) pose for photographers before a meeting in Vienna November 24, 2014.

“The UN nature of it adds a level of legality that makes it different from just an agreement between the United States and Iran,” Mark Fitzpatrick of London’s International Institute for Strategic Studies told The New York Times. “A Security Council resolution will give it standing that makes it even more concrete and harder for a successor to simply undo.”

And it could be that even the Iranians believe that the word of the President of the United States is a credible enough guarantee on its own.

The Obama administration’s tradeoff might just as easily be aimed at preventing a Republican Congress from scuttling a deal.

The Republicans understand that they have no current ability to veto an agreement — something that formed a crucial subtext to the Senate letter. But in exchange for this advantage, the Obama administration is settling for an agreement without a legal backstop.

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