Any nuclear deal with Iran is going to have this one huge inherent flaw

REUTERS/Rick Wilking

Iranian Foreign Minister Mohammad Javad Zarif talks with reporters before meeting with U.S. Secretary of State John Kerry in Geneva January 14, 2015.

This week, lawmakers in both parties continued to debate a possible nuclear deal with Iran, with some leading Senators proposing several legislative options to scuttle or alter any agreement.

But opponents of the deal may be faced with a more fundamental issue since any agreement won't be legally binding, according to legal scholars.

A bill proposed by Senator Bob Corker (R-TN) would require the president to submit a nuclear deal with Iran to the chamber for approval. And although Senate majority leader Mitch McConnell decided not to force a vote on the bill this week, the measure is just one of several weapons the Republican-held Senate could wield against a possible deal.

The Senate could pass additional sanctions that would come into effect if Iran ever cheated on the agreement, or it could hold a nonbinding "sense of the Senate" vote forcing lawmakers to put their stance on the deal on record. And as former US ambassador to Iraq James Jeffrey recently argued, the Senate could even preemptively authorize military force to be used in the event that Iran was ever caught developing a nuclear weapons capability.

But the body doesn't have an actual veto over an agreement, despite the premise of Corker's bill. Its power in halting or even complicating an agreement is fairly limited. And that's because of one of the more curious yet least commented-upon aspects of the Obama administration's negotiating position: the P5+1 (the five permanent members of the UN Security Council and Germany) and Iran are not negotiating a legally binding agreement. In fact, the agreement being discussed right now is specifically structured to sidestep the issue of its US domestic legal status.

In October, the New York Times reported that the Obama administration was pursuing a nuclear deal with Iran that would avoid the Senate altogether. That means that the deal would technically be an "executive agreement" in which the president reaches an understanding with a foreign government that doesn't require any changes in US law - rather than a treaty, which requires a 2/3 majority in the Senate and could supersede certain laws.

The trouble is that Congress has passed numerous sanctions bills relating to Iran. And while Obama has the right to grant sanctions waivers under certain circumstances, he doesn't have the power to just take them off the books by decree.

"An executive agreement never overrides inconsistent legislation and is incapable of overriding any of the sanctions legislation," says David Rivkin, a partner at Baker Hostetler LLP, who served in the Department of Justice and White House Counsel Office under Ronald Reagan and George H.W. Bush. "A treaty that has been submitted for Senate's advise and consent and if it's self-executing could do that."

An agreement would have the same vague status under US domestic law as an executive order. The US wouldn't be legally compelled to actually do anything. And according to Thomas Moore, a former nonproliferation advisor for the Senate Foreign Relations Committee and Proliferation Prevention Program director at the Center for Strategic and International Studies, none of the obligations that an agreement would place on Iran would be legally binding, either (Tyler Cullis, a legal affairs associate with the pro-engagement National Iranian American Council, tweeted something to this effect as well).

As Moore explained to Business Insider by email, "The only things Iran is legally obligated to uphold are contained in its safeguards agreement and additional protocol with the IAEA and its binding [Non-Proliferation Treaty] obligations." Any other safeguards are "all matters of political agreement with the P5+1, period."

Raheb Homavandi/REUTERS

A security official stands in front of the Bushehr nuclear reactor, 1,200 km (746 miles) south of Tehran, August 21, 2010.

This means a nuclear deal would be structured as a series of understandings in which Iran would agree to certain limits on its nuclear program in exchange for a commitment from the other signatories to stop enforcing various sanctions against Tehran. But the applicable international law wouldn't change.

"What we'll see this month is merely going to be another recitation of agreed frameworks for approaches to duration, inspections and etc. What we won't see from Iran is any assessment of the degree to which any of it would or should be considered binding on the Islamic Republic's nuclear program, now, 10 years from now, or in perpetuity," Moore told Business Insider. "The deal and its various and rather vague public descriptions will all rest on Iran's political willingness to accept the agreements it makes."

The US has signed executive agreements on nuclear-disarmament-related matters before. In 1994, the Clinton administration entered into its Agreed Framework with North Korea, in which Pyongyang ceased certain nuclear activities and accepted a intensified verification regime in exchange for economic and humanitarian aid from the US. The deal - which did not require suspending the enforcement of existing US statutes, as an Iranian nuclear agreement would - collapsed within a decade, and North Korea tested a nuclear weapon in 2006.

Weakening a nuclear agreement's legal bite may well be the price of reaching a final deal. Other major arms control agreements, including the 2010 New START treaty with Russia, have been submitted to the Senate for ratification. But the current Republican-held Senate is unlikely to give Obama the constitutional 2/3 majority needed to ratify the Iran agreement as a treaty.

From the administration's perspective, the choice may be between an executive agreement and no agreement whatsoever.

But that agreement will come at a cost. As Rivkin notes, Tehran may interpret the US's failure to lift sanctions statutes as an immediate sign of bad faith. "What if early in the life of this deal it turns out that the president cannot deliver on his commitments relating to sanctions and the US is branded as the agreement's violator?," he wondered. "The Iranians wouldn't have to worry about their obligations. That's the ultimate nightmare scenario."

REUTERS/Denis Balibouse

And a political agreement lacks the specificity and legal rigor of a binding treaty.

An agreement might sow confusion as to the actual obligation of each side towards the other. And it also means that the sides might not be obligated to publicly divulge the entire content of the deal - after all, the actual text of the implementation agreement of the Joint Plan of Action, the interim nuclear agreement signed in Geneva in November of 2013, can only be viewed by individuals who possess a secret-level federal security clearance.

As Moore puts it, "Non-binding nuclear nonproliferation agreements end in non-ending compliance fights among nations that should enforce sanctions when in doubt."

So it could be that a non-binding deal is the best that the Obama administration can reasonably get. But in being nonbinding, that agreement might not be capable of erasing the uncertainty around Iran's nuclear program that a deal was supposed to resolve in the first place.