Dealing with Iran: A Primer on the President’s Options for a Nuclear Agreement

by Duncan Hollis

Without weighing in on the merits of any deal with Iran on nuclear matters, I’ll express some frustration over the rhetoric used in the current firestorm between the White House, 47 Senators (plus Governors Perry and Jindal), Iran’s Foreign Minister, and the 4th Estate on what kind of deal the United States might conclude with Iran and the so-called P5+1 (the UK, France, China, Russia and Germany).  There seems to be a great deal of confusion and conflation of issues in terms of the legal logistics of concluding any deal.  Now, maybe some of that is willful — obfuscation in service of each side’s political goals.  But, on the chance that some of those weighing in are under-informed on the actual issues and options available, I thought I’d offer a (brief) primer on what the actual options are in this case and how those options may limit/shape U.S. behavior.

For starters, it’s critical to differentiate the question of how nation states can reach agreement from the question of how a domestic legal system authorizes a State to enter into agreements (let alone what effect it gives them).  As such, I think the conversation needs to split off the question of (1) what kind of international deal this will be; from asking (2) what authority does the United States have (or will it need) to conclude such a deal as a matter of U.S. law.  Let’s take each angle separately.

International Commitments

When it comes to nation States entering into an agreement (that is, a mutual commitment of shared expectations as to future behavior), there are actually three basic options States can choose: (a) a treaty; (b) a contract; or (c) a political commitment.

(a) a treaty:  The treaty is a (relatively) well understood vehicle that rests on international law for its authority and effects.  Article 2(a) of the Vienna Convention on the Law of Treaties (VCLT) defines a treaty as

an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation

There’s some nuance to this definition, which I’ve explained in the Defining Treaties chapter of my book.  But for our purposes, it suffices to note that the VCLT lays out who has authority to make a treaty (i.e., heads of state and government, foreign ministers and those with full powers) and how they can do so (i.e., by signature, ratification, accession, acceptance, approval or any other agreed means).  Once formed, a treaty is subject to the general (and fundamental) principle of pacta sunt servanda — treaties are “binding upon the parties to it and must be performed by them in good faith.” Domestic legal obligations are not recognized as a basis for breaching treaty commitments, with one exception.  Article 46 provides that

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.

Article 46, however, has proven relatively limited in its availability to States as an exit option; the one time it got raised before the ICJ, the Court suggested that States are not obliged to keep track of other states’ legislative and constitutional regulations on treaty-making and that a violation could not be manifest “unless at least properly publicized.”   Given the varied ways the U.S. authorizes treaties (discussed in more detail below), it’s hard to imagine a later Administration being able to invoke Article 46.  Indeed, if U.S. foreign relations scholars can’t agree on the ground rules for when specific treaty-making procedures are required (or prohibited), I’m hard pressed to say other countries should be able to identify a manifest violation in a case where the Executive branch pursues one specific procedure over others.

(b) a contract:  Interstate commitments can also be contracts instead of treaties. Contracts, like treaties, are considered legally binding, but differ from them in that contracts rely on domestic law as the source of their “bindingness” instead of being governed by international law as treaties are. Still, governments from time to time will do deals (e.g., one State selling helicopters to another) where the agreement specifically indicates its terms are governed by, say, the “law of New York.” This doesn’t seem to be on the table with Iran though, so I’ll reserve to a latter date more detailed analysis of how contracts and treaties differ. 

(c) a political commitment:  The third — and final — option for agreements among States is a “political commitment.”  Some scholars prefer to call it “soft law,” but for reasons Josh Newcomer and I elaborated in our article on political commitments, I think that term is a bit of a misnomer. The basic idea is simple — states can make agreements where the basis of their commitment does not rest on law, but “political” (or perhaps “moral”) forces.  In a political commitment, the fact of the promise itself motivates compliance rather than importing the sanctity of law and its legitimacy to do so. Non-legally binding commitments have now been a feature of international relations for more than a century, and include some pretty high-profile agreements, including the Shanghai Communique, the Helsinki Accords, the recent US-China Deal on Climate Change, and the Comprehensive Joint Plan that started this whole set of negotiations with Iran.  Moreover, as Josh and my article details, these commitments exhibit a tremendous diversity in terms of the form they take, the substantive commitments they contain, the extent to which they establish or implicate institutions, not to mention their varied relationships to other legal and non-legal commitments.

Traditionally, political commitments are seen as distinct from treaties in terms of being (i) more flexible; (ii) less credible because exit options are easier; with (iii) greater opportunities for confidentiality; and (iv) fewer domestic legal hurdles to their formation.  The actual variation in political commitments suggests, however, that these differences may be over-stated — today’s practice suggests that there is some significant overlap in what political commitments and treaties do.  For example, it may have been true at one time that treaties were necessarily less flexible than political commitments, but with the advent of tacit amendment procedures, treaties have gained in flexibility, while some political commitments have become more highly structured and inflexible in terms of the precision or normativity of their contents or the institutional structure in which they operate.  The one area where political commitments appear to hold a distinct advantage (or disadvantage depending on your perspective) is with the relatively weak domestic law attention they receive.  As Josh and I concluded in our article — a point reiterated earlier today by Jack Goldsmith and Marty Lederman, states like the United States have imposed few (if any) legal restrictions on the Executive’s ability to enter into political commitments.

Domestic Authorities to Commit the United States Internationally

In Article II, Section 2, clause 2 of the Constitution, the President has the “power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”  If one were to take up the issue de novo, you might think this text requires that all treaties the United States wishes to conclude under international law have to proceed to the Senate.  In practice, however, Senate Advice and Consent has become one of only four ways the United States may gain authority to enter into a treaty (in the international law sense of that term).  Add in the possibility that the Iran deal might be a political commitment, and there are actually five options for how U.S. law might authorize a deal with Iran: (i) Senate Advice and Consent; (ii) a Congressional-Executive agreement; (iii) via an existing Senate Advice and Consent treaty; (iv) a sole Executive Agreement; or (v) a political commitment.

(i) Senate Advice and Consent Treaty.  If the United States concludes a treaty (in the international law sense of the term) with Iran and the P5+1, President Obama could send that treaty to the Senate for advice and consent, and, assuming the Senate agreed (with or without reservations, understandings or declarations), the President would then clearly have constitutional authority to consent to the deal.  Senate advice and consent is much less used compared to the past (less than 10% of modern treaties go through the Senate), although it should be noted that almost all past arms control agreements have received Senate advice and consent.  Still, given the general stalemate that has pervaded the Senate’s role in treaty-making the last few years, this seems a complete non-starter as a path forward, particularly with 47 Senators on record against virtually any deal involving Iran.

(ii) Congressional-Executive Agreement:  The President could gain authority to conclude a treaty (again, in the international law sense of that term) with Iran and the P5+1 via Congress instead of the Senate alone.  A simply majority vote of both Houses could enact a bill that with the President’s signature would become federal law and thus create legal authority for the United States to conclude (and perform) an Iranian treaty.  As a practical matter, congressional consent can be ex ante or ex post, but again, domestic politics in this case countenances against this being a likely option (even though today the vast, vast majority of U.S. treaty commitments under international law rely on one or more statutory authorities for their formation).

(iii) via an Existing Senate Advice and Consent Treaty:  Article VI of the Constitution treats both statutes and treaties (i.e., those receiving Senate advice and consent) as the “supreme law of the land.” Thus, just as a statute could authorize President Obama to conclude an international agreement with Iran, so too could a pre-existing Senate advice and consent treaty.  So far, I’m not aware of any nominations for an existing U.S. treaty that could do this (but someone might want to carefully parse the 1955 Treaty of Amity and Peace with Iran if it’s still in force (it’s not listed in Treaties in Force)).   Or, this might be a way forward if, as Marty and Jack hint, the Executive branch concluded the deal with Iran as a political commitment, but then had it endorsed by the U.N. Security Council pursuant to its Chapter VII authorities.  In that case, legal authority to conclude the deal might reside in the U.N. Charter itself since the Senate long ago gave consent, subject to a U.S. veto, to Security Council measures to preserve international peace and security.  As such, I don’t think we can dismiss this option as much as it might seem inapplicable at first glance.

(iv) Sole Executive Agreement:  The President may rely on his own Constitutional powers (e.g., as commander in chief) to authorize a U.S. treaty commitment.  In practice, this is rarely done as the State Department will usually try to also locate authority in at least one federal statute (even something as bland as Congress’ authorization of State Department responsibility for foreign affairs).  That said, the Supreme Court has endorsed the President’s ability to conclude certain treaties as sole executive agreements, although often in the face of congressional acquiescence, not outright opposition.  So, one might imagine this option would generate some inter-branch litigation if the Republican-controlled Congress rejects reading the president’s powers to include whatever sort of commitments are contained in any agreement the United States concludes with Iran.  Still, if the deal is to be a treaty under international law, this seems the most likely basis for authorizing it under U.S. law.  As Fred Kaplan noted yesterday, and Secretary Kerry apparently suggested a few hours ago, all the attention on treaties may have been misplaced and an entirely different deal might be at work here, namely a political one.

(v) Political Commitment;  It’s possible that the White House is looking for a political commitment with Iran and the P5+1.  If so, then all the machinations about forming a treaty under international law, and, just as importantly, the relatively robust set of domestic approval options for treaty-making, are inapplicable.  Although Josh and I argued that functional similarities between treaties and political commitments should require a Congressional role in the formation of at least some political commitments, I concede that Marty and Jack are correct that at present it’s hard to say this is the law of the United States.  On the contrary, today, it still appears that political commitments by their very nature do not implicate any of the domestic legal, procedural hurdles associated with treaties and thus may be a path forward for the United States to do a deal with Iran without worrying about the views of either the Senate or Congress as a whole.

That said, if the United States is actually going to argue it is concluding a political commitment with Iran and not a treaty, I want to conclude with two important caveats on the international and domestic aspects of such a deal that I’ve not seen mentioned previously.

First, a political commitment must be a political commitment for all sides, not just one side.  There’s much ambiguity in the U.S. and Iranian statements surrounding some of the negotiations, and it’s possible to read some of yesterday’s press briefing to suggest a deal where the United States would have only a political commitment while Iran was legally bound to perform its promises (see, for example, the carefully worded “verifiable and enforceable commitments” language used). That, however, is not an available option in international law.  Either the agreement is a treaty for all parties or its a political commitment for all participants.  I am unaware of any case where the nature of the agreement varies for the parties to it (that is it was a treaty for one state and a political commitment for everyone else).  Certainly, there have been disputes in the past as to the status of a particular agreement, with the ICJ and international arbiters called upon to weigh in on whether the deal struck gave rise to international legal obligations or not.  And it’s also possible for a treaty to contain not just legally binding commitments but also political ones (see, e.g., Article 1 of the Algiers Accords).  But, a stand-alone political commitment is, by definition, mutually exclusive from the international legal commitment that defines a treaty.  As such, once an agreement contains at least one commitment intended to be governed by international law, it’s a treaty not a political commitment.  Indeed, unlike contracts, treaties do not require consideration.  Thus, a treaty can exist where only one side (e.g., Iran) makes all the promises to do (or not do) certain things. Taken together, this suggests that, unless the United States is making some new, novel move to unsettle the existing forms of international commitment, its suggestion that it is pursuing a political commitment with Iran should mean that none of the commitments will give rise to any international legal obligations in and of themselves (there may be separate estoppel arguments, but let’s save those for another post).

Second, turning to the U.S. domestic context, it may be true that the Constitution does not require any particular approval procedure for political commitments, but it is also true that the Senate retains significant political power to pressure the President to pursue a treaty over a political commitment or even to insist on having a treaty submitted for Senate advice and consent in lieu of simply relying on Executive Power.  For example, before it became the Senate-approved Moscow Treaty, President Bush had apparently considered the possibility of doing the deal with Russia as either a political commitment or a Sole Executive Agreement.  But the Senate objected; and in a bipartisan push succeeded in having the deal submitted for its advice and consent.  Thus, one could imagine that if the Senate (or I suppose Congress as a whole) wanted to deploy their political checks on Executive power (think appropriations or ambassadorial/cabinet approvals), the White House might have to recalculate whether and how it wants to proceed with Iran here.  Nor is this entirely a U.S. problem; reports suggest that when the United States was looking to craft a strategic framework with Iraq a few years back, the Iraqis ended up concluding that the deal had to be done as a treaty (in the international law sense) since their Parliament was insisting on approving it in lieu of going to more streamlined political commitment route.  Simply put, just because there may be no extant constitutional constraints on the President’s ability to conclude a political commitment with Iran does not mean that there won’t be domestic negotiations over whether and how the United States concludes any deal involving Iran and nuclear matters.

So . . . now that I have that all off my chest, I’ll get out of the way and let the various actors continue to negotiate and debate the merits of the appropriate way(s) forward here.  I just hope that folks will do so with more attention to what the existing international and domestic law has to say (or not say) on these questions.

 

http://opiniojuris.org/2015/03/11/dealing-with-iran-a-primer-on-the-presidents-options-for-a-nuclear-agreement/

13 Responses

  1. And a sole executive agreement that is not within the exclusive power of the President and contravenes the provisions of a federal statute will most likely not survive domestically. United States v. Guy W. Capps, Inc., 4th Cir. 1953; Restatement Sec. 115, comment c & RN 5.

  2. A very useful post, Duncan. You’re right that there has been a lot of misunderstanding and conflation of issues going on the past few days. Particularly over on Lawfare.

    It has always been my assumption that, just like the JPOA, the comprehensive agreement between Iran and the P5+1 would be legally nonbinding.

    I don’t think any of the participants wants to jump through the hoops of getting the agreement approved by their respective domestic political bodies. I’m sure Iran doesn’t.

    Of course either side could denounce the agreement at any time, from a legal perspective. That actually would be no different if it were to be concluded as a treaty, as most modern treaties have withdrawal clauses. The US withdrew from the ABM treaty with Russia.

    This is an agreement that is all about political commitment and then verified compliance by all sides with their commitments. I don’t think the legal character of the agreement will have any bearing on how well it is implemented. That will depend solely on the political will of all parties.

    I’m far more concerned about the US not abiding by its commitments relating to sanctions than I am about Iran abiding by its commitments to freeze its nuclear program and agree to an additional protocol with the IAEA.

  3. Setting aside the many, many issues involved in this Senate letter affair, it is interesting to see the complete focus in the larger media debate on American constitutional requirements for treaties, largely with complete disregard to international law. As scholars of international law, we need to add our views.

    I am skeptical of the “political” commitment argument. My concern is that it takes different considerations, conflates them, and then appears as doctrine. As long as the requirements of the VCLT are met, then the agreement is a treaty, and thus binding in law. The “governed by international law” element does not contemplate a test for intent for the agreement to be governed by international law.

    The question of whether certain agreements within the treaty are binding or not is a question of the content of the treaty, not whether the treaty is binding under international law. Essentially I am drawing our attention to the distinction between instrumentum and negotium that our Continental colleagues apply, but that we find uncomfortably formalistic. I think we do not even need to go to functional similarities between political and legal commitments, because that is then relying on the substantive obligations in the agreement to determine whether we have an agreement at all.

    But all of this is independent of domestic constitutional treaty ratification process. International law does not care if we call something a “treaty” or an “executive agreement”, as long as it fulfills the criteria in the VCLT. So unless the US signed an agreement with Iran that was subject to ratification, then ratification would not be necessary for this to be a binding international treaty.

    Perhaps interesting to also add that ratification is actually done by the Executive, having secured Senate “advice and consent”. Even if the agreement with Iran required ratification, the Executive Branch could do that without advice and consent, arguing domestic executive agreement practice. Upon ratification, the agreement would then be an internationally binding treaty under the terms of the VCLT. Of course, then the fall out stateside on ratification without advice and consent, leading to censure, impeachment, etc.

    The executive agreement has only arisen out of US constitutional practice as a pragmatic way to avoid having to submit every single international communication with some normative content for Senate advice and consent. And this practice has been, as you observe, endorsed by the Supreme Court.

    I think characterizing advice and consent or a Congressional-Executive agreement as forming a basis for authority to conclude a treaty within the terms of the VCLT is overstating the domestic obligations. Since the Executive is already empowered under the VCLT, even without advice and consent or a Congressional-Executive agreement, to conclude a treaty (and even ratify it, if necessary), then the failure to have that approval is not enough to undermine the authority to bind state in the terms of the VCLT. I think that the VCLT provisions are considering a situation of much more obvious lack of authority than we have here.

    But all this means that the substantive obligations in any agreement would not necessarily trigger any domestic process. It is the formal status of the agreement, being a treaty, that would trigger the process – and being appears domestic process, the formal definition status were not controlled by the VCLT but rather by executive agreement practice. This leaves it largely in the hands of the Executive, with only Senate political pressure available to get the Executive to determine that the agreement requires advice and consent. That pressure could include, for example, threats to de-fund programs or shut down the government, refusal to confirm judicial nominees, … oh, but wait, those threats have all been used.

  4. Dan — I agree, with Secretary Kerry’s comments, it now seems likely that we’re heading down the political commitment path.

    William — Thanks for your comments. It seems you and I may have a doctrinal disagreement on how treaties are defined. I believe that the VCLT definition accommodates the possibility of States opting to form agreements not governed by international law and thus not subject to the law of treaties (or international law as a whole). I dub these political commitments, although they’ve been termed non-legally binding agreements by others (for work besides my own on this see Oscar Schachter, 71 AJIL 296 (1977), and Michael Bothe, 11 Neth. Y.B. 65 (1980)). I’m aware that some dispute this practice (especially depending on how you read the ICJ’s opinion in Qatar v. Bahrain) and that there are serious theoretical challenges to it (those by my friend Jan Klabbers come to mind first and foremost). Still, at present, most foreign ministries appear to adopt and act on the assumption that political commitments exist distinct from treaties, and it is hard, therefore, to dismiss the distinction entirely given how widely the practice has spread.

    On the domestic authority side, I concur it’s important to separate that out from the international law issues (which was a major reason I wrote this post). And I also believe that given the United States’ status as a federal state where the federal government has only limited and enumerated powers, one cannot simply ascribe treaty-making power to the President whatever international law may say on the matter. Rather his source for that power must be found in some constitutional delegation, which has led as a matter of text and practice to the four options I listed above. At the same time, I agree that there’s no reason one state (e.g., the United States) cannot consent to a treaty pursuant solely to that State’s executive authorities while another State can only consent to the same treaty via ratification (following legislative approval). Given that current events suggest we’re looking more at a Helsinki Accords type situation, however, that possibility does not seem to be on the table in the current case.

  5. What you’ve missed is a more fundamental set of international norms regarding treaties, which is deeper than the Vienna Convention rules.

    The US has repudiated lots and lots of treaties unilaterally, and without repudiation provisions. I believe the most recent was under George W Bush.

    Nothing happened.

    Remember, in domestic law we have a government, we have police, we have courts, we have prisons. In international law, we *don’t*.

    Basically, the question of whether a treaty is “binding” is simply a question of whether the party on the other side is entitled to retaliate.

    If the party on the other side chooses not to retaliate, it doesn’t matter much whether they’re entitled to retaliate. And this is the situation with the vast majority of treaty repudiations. If there’s no retaliation after several years — if the other side doesn’t press its case — then the treaty is considered a dead letter.

    (Worth noting, the Native American tribes in the US have consistently prosecuted the enforcement of their treaties for a solid 200 years in order to prevent their treaties from becoming dead letters. The US government is *still* violating these treaties. But the tribes know that they need to keep demanding, because if they stop, the treaties *will* become dead letters.)

  6. Excellent and very informative piece Duncan. Thank you.

    If the agreement being negotiated is indeed a “political commitment” then why did Iranian Foreign Minister Zarif say, in response to the letter sent by the 47 senators, that if the agreement is revoked by the next (or any) US President “with the stroke of a pen” that they “will have simply committed a blatant violation of international law.” What role, if any, would international law play here?

  7. I found my answer actually. FM Zarif also that “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.” So this is where international law enters the picture…

  8. Duncan,

    Thanks for your thoughts on this.

    I agree completely that nonbinding, political commitments are very well-established in practice – probably centuries of practice – , but I think where I disagree is on why they are nonbinding. I think they are nonbinding because the content does not have any strong normative value. States have different obligations when they say that they “shall” to something versus when they say that they “understand” something. The former obliges them to do something while the latter does not – however, and this is key for my view, the latter (if in a treaty) would impose a good faith obligation. All of this (negotium issue) is a separate question from whether the agreement is a treaty or not (instrumentum). This is obviously closer to the Klabbers view.

    I think that this view helps address the question of needing at least one normative commitment to make the entire instrument binding, although containing mostly nonbinding obligations. I would prefer to say that anything that satisfies the VCLT is binding, albeit those binding obligations can range from hard to soft. This view accords better with ICJ opinions and with the ILC view on the VCLT. (The ILC was rather dismissive of the notion of intent to bind within the element of governed by international law, concluding in the commentaries that “governed by international law” simply meant not subjected to the domestic law of one of the parties.)

    I also thought at first that this might help explain why the US was arguing that any agreement would be nonbinding, whereas Iran was arguing that any agreement would be binding. The negotium/instrumentum distinction could explain the different views. Of course now I have the benefit of Julian Ku’s entry on a UN Security Council Chapter VII resolution which also explains how it could be done. (Not sure if I agree with the “sneaky” label though!)

    So, yes, the VCLT accommodates nonbinding commitments within binding agreements. We might say that a binding agreement devoid of any binding commitment is an absurdity, but I don’t think so. It is by creating an agreement that is governed by international law, that the nonbinding commitments are subjected to international law, and international law accommodates nonbinding commitments. If an MOU says that it does not entail any substantive obligations under international law, then that is true because international law permits states to decide on the normative force of their commitments. I could go on and on, but you see what I mean.

    I will skip any discussion about estoppel, but that is also possible, isn’t it? Promises on lifting sanctions, detrimental reliance by altering nuclear development regime, etc…

    As for the domestic authority issue, I agree that international law cannot authorize treaty-making power to the President contrary to constitutional law, but where I disagree is that the VCLT can authorize the US to enter into treaties that violate US constitutional law, but only for purposes of international law. That is to say, if the Executive complies with the rules of the VCLT, then it has bound the US under international law, regardless of whether US constitutional law has been followed. So if an agreement did not require ratification, then the US would be bound – at least under international law – from the moment of the Executive’s consent. In fact this is basically the same as the UN Security Council option Julian has mentioned – binding under international law, even if not permitted under US constitutional law. It’s just a classic dualist argument!

  9. William – Again, thanks for the thoughtful comments. I don’t disagree with you that a political commitment may be such by lacking normative content (indeed, I spent much of my time at the State Department in an earlier life replacing “shall” with “expects to” to make that very distinction).

    I do disagree, however, based on State practice, that States can’t also produce a political commitment that incorporates normative values but declaims any intention that law forms its governing framework. There are obvious issues with default presumptions when States are silent as to their intentions (and I do think the VCLT provides strong support for defaulting to treaty status). At the same time, however, I think States can, if they are clear in doing so, produce substantive obligations and insist that their substance should rely on moral or political forces for their formation, interpretation, etc., rather than law.

    I guess one benchmark question is whether one thinks the Helsinki Accords (which have a lot of normative commitments but also have a final clause saying none of them were intended to give rise to international legal rights or obligations) qualifies as a treaty or not?

  10. I hope that this exchange does not risk becoming tiresome!

    I agree that an agreement could be devoid of normative content – so all that work replacing “shall” with “expects to” was worth the effort! But I would say that an agreement could be binding (as per the VCLT) and yet completely devoid of normative content. Denying normative force to the content (negotium) of the agreement does not necessarily deprive the package of the agreement (instrumentum) of binding force. But essentially this would result in a binding agreement to do nothing!
    I also agree that an agreement could be non-legally binding (in that it does not satisfy the VCLT) but does contain normative values. Just as the reverse is true: it could be legally binding and not contain any (or only minimal) normative obligations. This is probably one point of difference. If the agreement is binding, then there might be an obligation to “expect” to do something. Compare this to Bolivia’s claims at the ICJ regarding the binding obligation to negotiate. Can you imagine Iran making a similar claim (obviously not at the ICJ) that the US was bound to “understand” or “expect” something?

    As for the Helsinki Accords, I would note that the precise language is that the agreement is “not eligible for registration under Article 102” which is a very unfortunate way of trying to deny an intention to form a treaty. I wish the negotiators had just used clear language on that. Without that clear language, there is a small opening in the door to argue that it is a treaty that was simply not registered with the UNSG, and thus cannot be invoked before UN organs. (And I agree that there is a strong default, even presumption, that an agreement is a treaty.) However, my conclusion – especially based on the subsequent practice of the Accords – is that it was not intended to be legally-binding. And I believe that international law accommodates this.

    So if the US wants to reach a non-binding agreement, with or without normative content, it better make it very clear that it is not intending to create legally-binding obligations. Which might be a bit awkward if the US then takes the MOU to the UNSC for Chapter VII action – surely the US was intending all along to create a legally-binding agreement, albeit using a different normative source!

    In the end, not much space between us I think. Thanks for the great exchange of thoughts. I am happy to give you the last word on this if you wish.

  11. I wrote this piece a little while back questioning Joyner’s interpretation and now I dare think the Iranian statements have exonerated my view:

    Kaveh Afrasiabi

    http://www.iranreview.org/content/Documents/The-Geneva-Deal-as-soft-law-International-Agreement.htm

Trackbacks and Pingbacks

  1. […] exchanges reveal that contrary to almost all past arms control agreements, which have been Senate Advice and Consent Treaties […]

  2. […] exchanges reveal that contrary to almost all past arms control agreements, which have been Senate Advice and Consent Treaties […]