Hon. Stephen Rademaker
Realclearworld, July 14, 2021
“U.N. devotees undoubtedly believe that such a mechanism would make it illegal under international law for any future U.S. administration to withdraw without Security Council approval. But in America the Constitution is the supreme law of the land, and such a mechanism would not be considered binding by any administration.”
The Islamic Republic of Iran likes to argue that the United States is not a reliable diplomatic partner. It is therefore no surprise that after hardliner Ebrahim Raisi was elected as the country’s next president, Iran added a new precondition to rejoining the Joint Comprehensive Plan of Action. “We need guarantees that . . . a repeat of these sanctions and exiting the nuclear deal, as the past U.S. government did, won’t happen again,” declared Iran’s lead negotiator, Seyed Abbas Araqchi.
How does Iran hope to achieve that guarantee? Tehran wants to require the United States to obtain the consent of the United Nations before it could withdraw again. So far the Biden Administration hasn’t agreed, but it is under considerable pressure to do so. This new “red line” is so important that one senior Iranian official recently warned that Iran will not return to the negotiating table until Washington makes a “tough political decision.”
Iran argues, with considerable justification, that it will be unable to realize the economic benefits of the removal of U.S. sanctions if potential business partners in Europe and elsewhere suspect sanctions relief is temporary and will be reversed by the next U.S. administration. But under U.S. law, there is nothing the Biden Administration can do to prevent a future administration from again withdrawing from the deal.
The original JCPOA was adopted as a “politically binding” executive agreement, which made it easy for the Trump administration to rip it up. Senate ratification of the agreement, which the Obama Administration chose to avoid, would have made it legally binding — but not even that would have prevented President Trump from withdrawing. Presidents withdraw from treaties all the time.
Hence the proposal to superimpose a U.N. veto over America’s right to withdraw. In theory, the Security Council could — if the Biden Administration’s went along — adopt a resolution prohibiting the United States from withdrawing from the agreement without the Security Council’s affirmative consent. Under the Security Council’s procedures, such a mechanism would purportedly give countries like Russia and China a veto over any U.S. decision to withdraw.
U.N. devotees undoubtedly believe that such a mechanism would make it illegal under international law for any future U.S. administration to withdraw without Security Council approval. But in America the Constitution is the supreme law of the land, and such a mechanism would not be considered binding by any administration.
There are multiple examples of U.S. willingness to defy “binding” Security Council resolutions. Then-Senator Biden actually led one such effort in 1995 to enact legislation violating the U.N. arms embargo of Bosnia. And certainly Iran hasn’t forgotten its claim that Trump’s withdrawal from the JCPOA violated the Security Council resolution endorsing that agreement.
These examples show that a U.N. veto mechanism would not actually work for Iran. It would, however, raise serious constitutional concerns. Imagine the congressional reaction were the Biden administration to contrive with Iran, Russia, China and others to limit U.S. flexibility to withdraw from an international agreement. Particularly if the Biden Administration chooses not to submit that same agreement to the Senate for approval as a treaty, as he seems almost certain to do.
The constitutionally prescribed mechanism for converting international agreements from politically binding to legally binding instruments is by obtaining Senate advice and consent to their ratification. Intentionally bypassing the Senate in favor of proclaiming to the rest of the world that an agreement has been made legally binding on the United States by action of the U.N. Security Council would make a mockery of the Senate’s constitutional role.
In reality, the only way to guarantee that any nuclear agreement with Iran will be respected by future U.S. administrations is by ensuring that the agreement is seen as politically legitimate across the U.S. political spectrum. That emphatically was not the case with the JCPOA. When that agreement was submitted to Congress under a law providing for congressional review of nuclear agreements with Iran, strong majorities of both houses cast ultimately futile votes to reject it. Indeed, every single Republican in both houses voted no on the JCPOA, as did four Democrats in the Senate and 25 Democrats in the House.
House Republicans are urging the Biden administration to comply with that same law should a new deal be reached with Iran, but the administration has made no promises. Should the administration decide to bypass Congress in implementing a new deal with Iran, it will lay the groundwork for opponents to claim not only that the deal is bad policy, but also that it was brought into force illegally.
Shortcuts like seeking ratification by the United Nations rather than the U.S. Senate, or bypassing Congress entirely, risk backfiring on any new deal with Iran, further diminishing its durability. What Biden and Iran need to do instead is negotiate an agreement that the administration is unafraid to submit to Congress because it is sure to command strong bipartisan support. Only then will Iran and its potential business partners be able to relax about what the next U.S. president may do.
Stephen Rademaker is senior of counsel at Covington & Burling, a Senior Advisor to JINSA’s Gemunder Center, and a former assistant secretary of state. The views expressed are the author’s own.
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