It is now clear that any deal with Iran will by its terms be a non-binding agreement. That means the United States will have no international law obligation to comply with the agreement, considered in isolation, and that only diplomatic and political considerations – which might not be trivial – will stand in the way of the next President backing out of the deal and reimposing U.S. sanctions. This is why I concluded yesterday that “in comparison with a binding executive agreement under international law, a non-binding agreement with Iran is easier to make (because the President can clearly do it on his own) and easier to break (because there is no domestic or international legal obstacle to breaking it).”
However, in my post with Marty Lederman, I also noted that “an entirely different set of arguments and concerns might come into play if the parties were to sign a non-binding agreement that becomes the basis for a legally binding Security Council Resolution.” Recall that Iranian Foreign Minister Javad Zarif said the following in his statement about the Republicans’ letter: “if the current negotiation with P5+1 result [sic] in a Joint Comprehensive Plan of Action, it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.” The P5 are the Permanent Five members of the U.N. Security Council – i.e. the ones with the veto. (The “+1” is Germany.) Any deal that all five accept would thus also be a deal that could receive U.N. Security Council approval to eliminate U.N. sanctions on Iran. Indeed, though not emphasized in the United States, this appears to be the plan. The negotiations are in large part over lifting current U.N. sanctions; that is why the P5 are involved. Thus there is every reason to think that “a nuclear agreement between Iran the major powers would include the removal of all sanctions imposed by the UN Security Council,” as former Iranian nuclear negotiator Sirous Nasseri saidyesterday in the Tehran Times. (By contrast, when asked about a Security Council resolution endorsement of the nonbinding agreement, State Department spokesperson Jen Psaki said on Tuesday: “I’m just not going to get ahead of how this would be implemented at this point in time.”)
It is impossible to know what the ultimate legal effect of such a Security Council resolution would be without knowing the precise terms of the resolution. But in general, a Security Council resolution, especially a decision under Chapter VII, can generate significant international legal obligations. “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter,” states Article 25 of the Charter. In addition, Article 39, the first Article of Chapter VII, states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security (my emphasis).” Since the U.N. sanctions against Iran began, they have been authorized under Article 41 (which concerns “measures not involving the use of armed force” that “give effect” to UNSC “decisions”), and they have involved mandatory obligations. For example, one of the earliest resolutions, UNSCR 1737, decides that “all States shall take the necessary measures to prevent the supply, sale or transfer directly or indirectly from their territories, or by their nationals or using their flag vessels or aircraft to, or for the use in or benefit of, Iran, and whether or not originating in their territories, of all items, materials, equipment, goods and technology which could contribute to Iran’s enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems” (my emphasis). Though one can debate the full effect of this provision, it uses the language of obligation and has significant force under international law.
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This article was written by Jack Goldsmith for Lawfare on March 13, 2015. Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, where he teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and conflict of laws.