The great flaw in the Iran nuclear deal: The U.S. says it is not legally binding

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Posted By: The Observer July 2, 2015

Developing

See

Felicia Schwartz, “Iran Nuclear Deal, If Reached, Wouldn’t Be ‘Legally Binding,’ Kerry Says; But an Iran deal would have enforcement mechanisms, the secretary of state says,” Wall Street Journal, March 11, 2015 (Updated 9:39 p.m. ET).

Stephen Collinson, “Iran deal: A treaty or not a treaty, that is the question,” CNN, March 12, 2015 (Updated 6:13 AM ET).

Adam B. Lerner, “State Department: Iran deal ‘nonbinding’,” Politico, March 15, 2015 (Updated )1:40 PM ET).

The most bizarre aspect of the hoped-for nuclear deal with Iran is that, according to the U.S., it will be a “political deal” only, and not be legally binding under International Law.

If the Start I and Start II arms control treaties were full of incredible detail and mutual obligations, and were legally binding, why should the Iran nuclear deal not be legally binding as well?

The answer may have to do with Barack Obama’s assessment of whether he could secure Senate ratification of the Iran nuclear deal by the United States Senate.

Whether the other parties to the potential agreement (Iran, France, U.K., Russia, China and Germany) view the potential agreement as legally binding or not is not clear. Moreover, it is difficult to comprehend how the obligations of the International Atomic Energy Agency (IAEA) under the “agreement” and the Non-Proliferation Treaty (NPT) on which it is partly based can be formalized without what is known as a “treaty” under the 1961 Vienna Convention on the Law of Treaties.

Furthermore, whatever the U.S. view, the nuclear agreement with Iran itself is likely to fulfill all of the requirements for a treaty under the Vienna Convention, unless the parties specifically stipulate in its text that it is their intent not to be legally bound by the agreement.

Why would any of them want to do that?

Unfortunately, it appears that Obama’s end-run around the Senate’s constitutional authority to give its “advice and consent” to a formal treaty –and arms control agreements have traditionally be regarded as treaties requiring Senate ratification — will deprive the Iran nuclear agreement of the most important kind of commitment that might ensure its full and complete performance — its binding nature under international law.

If it is a treaty in the sense of the Vienna Convention, there are a number of legal rules that define violations and their consequences.  The concept of “material breach” found in domestic law is highly significant here, and is also found in the Vienna Convention, which lays down the rules for the interpretation of treaties. If the agreement is not legally binding and only a “political” agreement, there are no guidelines for interpretation or on what to do in the event of a violation.

One suspects that the lawyers in the State Department’s Office of the Legal Adviser were not fully consulted, or that their advice was not heeded, on the question of whether or not to treat the Iran agreement as legally binding or merely as a “political agreement”.

It sounds more like a White House decision made on the basis of purely domestic political considerations.

We need clarification on the issues raised above. Do the other parties consider the agreement to be legally binding under International Law?

What will happen if some parties view it one way and other parties view it differently?

Will the agreement explicitly express the intent of the parties that the agreement not be legally binding under International Law?

One further possibilty may exist. Technically, it may be possible for President Obama to treat the agreement as an Executive Agreement with Congressional approval. This would require the approval of only a majority of the House and of the Senate, instead of two-thirds of the Senate.

It seems clear that the agreement would be more “binding” on Iran if it were legally binding as a “treaty” under International Law and the Vienna Convention. Such a “treaty” in the International Law sense could be either a treaty (in the domestic law sense) approved by two-thirds of the Senate or an Executive Agreement approved by both houses of Congress.

Perhaps President Obama’s general lack of interest in International Law can account for the curious situation the U.S. finds itself in, asserting that the Iran nuclear deal will not be legally binding but only a “political agreement”.

In ant event, the President owes us a full explanation of this anomaly.

For those who are concerned about whether Iran will fully implement the agreements’ provisions, it may not be too late to insist that the final agreement assume legally binding form under International Law.

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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