The State of Play on the Form and Effect of the (Possible) Iran Deal

By Jack Goldsmith
Friday, March 13, 2015, 9:34 AM

Every day brings a new and different story about the Obama administration’s plans with regard to a possible deal with Iran as it relates to domestic and international law.  One can understand why the administration might not have wanted to talk about any of this publicly.  It might have wanted to hold back on these issues in order to be able to use its various options for blessing the agreement as part of the negotiation with Iran.  One effect of the Senators’ letter has been to draw the administration out on these matters much earlier than it wanted.  In any event, here is the state of play as I understand it from the newspapers, with a bit of analysis at the end.

Yesterday Senator Corker, the head of the Senate Foreign relations Committee, sent a letter to the President that asked about administration statements that the deal with Iran would “take effect without congressional approval,” and would be submitted “to the United Nations Security Council for a vote.”  He concluded his letter with this request: "Please advise us as to whether you are considering going to the United Nations Security Council without coming to Congress first.”

Bernadette Meehan, a spokeswoman for the National Security Council, responded for the administration.   In an email yesterday to BuzzFeed she said that the United States would not be “converting U.S. political commitments under a deal with Iran into legally binding obligations through a UN Security Council resolution.”  She added that any UN Resolution on this matter “would not change the nature of our commitments under such a deal, which would be wholly contained in the text of that deal.”  She also said: “Even if the Iran nuclear deal was blessed by the Security Council operating under Chapter VII of the Charter, … it wouldn’t … impede the ability of any parties to the deal to reach its own judgments about compliance by other parties or conclude that the deal no longer served their interests and withdraw from it.”  And this morning in the NYT she is quoted as follows:

Asked for comment on Mr. Corker’s letter, Bernadette Meehan, a spokeswoman for the National Security Council, said that Congress would not be excluded from considering the accord because it would eventually be asked to vote on lifting sanctions once it had become clear that Iran had been in compliance “for a considerable period of time.”

Such a vote, however, might not occur for years. In the meantime, Mr. Obama plans to use his executive authority to suspend punishing economic sanctions.

Ms. Meehan added that the White House expected the Security Council to endorse any deal with Iran. But such a move, she said, would not change the legal status of the agreement under United States law. And since the Security Council has also imposed sanctions on Iran, she noted, it will need to decide when to lift them, though when it would take such a step remains unclear.

Putting all this together, this is where I think things stand:

-- The Obama administration, acting through the P5+1, plans for any possible deal with Iran to be a non-binding agreement (i.e. it will impose no obligations under international law).

-- If the deal is reached, the President can suspend most if not all U.S. sanctions on his own authority pursuant to waivers and exceptions that Congress embedded in its various statutory sanctions. (But the details of the President’s authority here are complicated.  As this CRS report says, “The regime of economic sanctions against Iran is arguably the most complex the United States and the international community have ever imposed on a rogue state.”  It adds that the President “retains, in varying degrees, the authority to tighten and relax restrictions,” and it explains his various statutory authorities in detail.)

-- The administration does not plan to submit the deal to Congress anytime soon. It sounds like Congress will be formally asked to vote only if Iran is compliant for a “considerable period of time,” and then only in order to lift all of the sanctions on a permanent basis.  (It is not clear why a President must ever submit the deal to Congress – why can’t future presidents simply continue waiving the sanctions, to the maximum extent of their authority, indefinitely on an annual basis?  The right way to think about this, I think, is that any future President who desires to continue waiving the sanctions within presidential discretion need not submit the Iran deal to Congress, and won’t do so until he or she is assured of congressional approval for a permanent lifting of sanctions.)

-- Part of any deal with Iran will involve lifting U.N. sanctions, and that requires a vote from the U.N. Security Council.

-- But, according to Meehan, any U.N. Security Council resolution “would not change the nature of our commitments under such a deal” and “would not change the legal status of the [non-binding] agreement under United States law.” Meehan appears to be saying that a future President or Congress would not violate international law by reimposing sanctions on Iran.

I have three general reactions.

First, the accuracy of Meehan's representations about the effect of a Security Council resolution depends entirely on the language of the resolution.  It is impossible to assess what she says until we see precisely what the Security Council resolution says.

Second, since the President has statutory authority to waive most if not all of the sanctions, and since the Iran deal (considered alone) would be a non-binding agreement, the President will be well within his legal authority in not submitting the deal to Congress.  This is especially so if, as Meehan insists, the Security Council blessing will in no way affect U.S. obligations under international or domestic law.

Third, even if Meehan is right about the effect of a Security Council resolution, and even if there is a very good reason why the Iran deal must go through the Security Council (there is), the domestic political optics of the President arranging a Security Council vote on the issue without giving Congress a vote on the issue are terrible.