The Iran Agreement in International Law and U.S. Law: Contradictions

U.S. entry into the new Iran agreement expressly violates American law.

Prof. Louis René Beres,

OpEds Prof. Louis Rene Beres
Prof. Louis Rene Beres
israelnewsphoto: R. B.

From the particular standpoints of national and international law, there are notably major contradictions within the new Iran agreement that have yet to be recognized. Of these, the most egregious example has to do with core provisions of the agreement that allow Iran to enrich uranium - or effectively "go nuclear" - after 15 years.

These provisions, prima facie, are in stark violation of the 1968 Non Proliferation Treaty, or NPT, notably those treaty portions that already obligate Iran, and all other non-nuclear member states, to remain non-nuclear for the Treaty's "indefinite duration."

Correspondingly, it also follows, according to Article 6 of the U.S. Constitution, or the "Supremacy Clause," that U.S. entry into the new Iran agreement expressly violates American law, specifically, the "supreme law of the land." This country, of course, is a nuclear-weapon state party to the NPT.

A second relevant legal contradiction concerns the Obama administration's declared unwillingness to base its negotiations with Iran upon a prior or contingent expectation that the country's leadership renounce its genocidal statements about Israel. This contradiction, too, represents a flagrant U.S. violation of both international and national law, in this case, because the 1948 Genocide Convention criminalizes not only genocide per se, but also "Conspiracy to commit genocide," and "Direct and public incitement to commit genocide."


It is certain that the U.S. failed to consider a number of utterly fundamental principles of law in forging its recent Iran nuclear agreement.
Does the United States have any specific "contractual" obligation to enforce such criminalization in its separate nuclear dealings with Iran? Although the precise language of the Genocide Convention does not explicitly require such enforcement, all treaties are premised upon the "peremptory" doctrine of pacta sunt servanda (Latin for "agreements must be honored"). Moreover, a U.S. obligation here is clearly deducible from Article V of the Convention, which calls for international cooperation in providing "effective penalties" for those who have engaged in "incitement to commit genocide," and from Article VIII, which urges "any contracting party" to bring unlawful behavior before "competent organs of the United Nations."

Again, there exists a binding intersection of U.S. Constitutional law, and international law. Because of the Supremacy Clause, and also assorted Supreme Court decisions, especially the Paquete Habana (1900), this country's conspicuous failure to properly enforce anti-genocide norms in its recent nuclear agreement with Iran constitutes a violation of U.S. domestic law. On purely moral grounds, of course, this failure is similarly serious.

A third problem with the new agreement is less a matter of evident jurisprudential contradictions, than it is one of "naive legalism," of automatically assuming that realistic compliance is simply built into the codifying language. Here, legal philosophy has pride of place, and it is fully appropriate to recall the cautionary words of seventeenth-century English thinker, Thomas Hobbes, a figure whose Leviathan was well-known to Thomas Jefferson, and thereby important to drafting the Declaration of Independence:  "And Covenants, without the Sword, are but Words, and of no strength to secure a man at all."

To be sure, the new "Covenant" with Iran is "but Words," and can never expectedly override Tehran's irremediable preference for creating military nuclear options. Over time, Iran's cadre of international lawyers will plausibly embark, more-or-less openly, on a  calculated strategy of unilateral "treaty" termination. Further to the governing "treaty on treaties," the Vienna Convention on the Law of Treaties (1969), these Iranian lawyers will settle upon a useful number of "permissible exceptions" to pacta sunt servanda.

These allegedly lawful exceptions will likely include the doctrine of rebus sic stantibus ("so long as conditions remain the same"), a principle stating that the obligations of the nuclear agreement may be terminated whenever a change occurs in those circumstances that existed at the time the agreement had first been executed.

Will such a qualified change actually have taken place? Probably not.

There are other strategies of unilateral termination that Iran could and most likely will invoke, going forward. One of these grounds, identified at Article 48 of the Vienna Convention, says that "A State may invoke an error ....as invalidating its consent...." Another, codified at Article 52, indicates that a formal international agreement is void "if its conclusion has been procured by the threat or use of force...." Still another predictable ground for future Iranian legal manipulation can be found at Article 53, the so-called "Jus Cogens" or peremptory norm section of the Vienna Convention. This article states that "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law." In this case, Iran could claim, several years hence, that the agreement had improperly impaired its sovereignty - incontestably, a peremptory norm of general international law - and is therefore no longer legally binding.

On its face, any such rationale would appear to contradict elementary logic. After all, Iran had already acknowledged this effect at the time of its initial agreement. Nonetheless, a case could conceivably be fashioned by Iran that would combine this particular rationale with an argument of rebus sic stantibus - that is, that the foreseeable circumstances that had obtained originally, no longer obtain.

Alternatively, at least in the closing years of this agreement, Iran could decide that it would be better to remain in the pact, at least in principle, but to simultaneously quit the NPT. The rationale of such a contrary strategy would be that the newer pact will allow full nuclearization after the fifteen year duration, while the NPT could never make such an allowance. Per Article X of the NPT, Iran's withdrawal could rest on the permissible argument that continued membership would jeopardize its "supreme interests."

It could do this by giving "three-months notice."

Since the seventeenth century and the Peace of Westphalia in 1648, our system of international law has been based more-or-less effectively upon a balance of power. Today, this steadily shifting foundation is essentially unchanged, and all international legal expectations must be regularly examined as part of a much broader political universe. It is certain that the U.S. failed to consider a number of utterly fundamental principles of law in forging its recent Iran nuclear agreement. Equally unassailable is that Iran will eventually pay little heed to this agreement's core requirements.

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971), and is Emeritus Professor of International Law at Purdue.  His tenth book, Israel's Nuclear Strategy: Surviving amid Chaos (Rowman and Littlefield) will be published later this year. Dr. Beres was born in Zürich, Switzerland, at the end of World War II.




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