Our president may bypass all re Iran deal....
Legal ace Jack Goldsmith explains how a president might use Article VII of the UN charter to override/bypass domestic law.
Step One: Enter into a non-binding agreement with Iran.
Step Two: Go to the UN Security Council. Pass a resolution not only (a) incorporating the agreement with Iran, but also mandating (b) that ALL sanctions against Iran currently in effect due to its nuclear program--the cumulative result of six UNSC resolutions, enacted from 9/27/2006 to 6/9/2010--are lifted.
Step Three: Rely on Chapter VII of the United Nations Charter, aimed at stopping "acts of aggression"; focus not on Article 51's "inherent" right of self-defense, but instead on Articles 39 & 41. Goldsmith details:
It is impossible to know what the ultimate legal effect of such a Security Council resolution would be without knowing the precise terms of the resolution. But in general, a Security Council resolution, especially a decision under Chapter VII, can generate significant international legal obligations. “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter,” states Article 25 of the Charter. In addition, Article 39, the first Article of Chapter VII, states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security (my emphasis).” Since the U.N. sanctions against Iran began, they have been authorized under Article 41 (which concerns “measures not involving the use of armed force” that “give effect” to UNSC “decisions”), and they have involved mandatory obligations. For example, one of the earliest resolutions, UNSCR 1737, decides that “all States shall take the necessary measures to prevent the supply, sale or transfer directly or indirectly from their territories, or by their nationals or using their flag vessels or aircraft to, or for the use in or benefit of, Iran, and whether or not originating in their territories, of all items, materials, equipment, goods and technology which could contribute to Iran’s enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems” (my emphasis). Though one can debate the full effect of this provision, it uses the language of obligation and has significant force under international law. . . .
The U.N. Security Council then blesses the non-binding agreement in the form of a resolution under Article 41 that not only lifts U.N. sanctions, but also obligates the nations of the world to not impose certain sanctions on Iran as long as it complies with the deal. At that point, depending on the language of the resolution, the United States could have an international legal obligation not to impose sanctions on a compliant Iran. Importantly, such an international legal obligation can persist far beyond President Obama’s term. In other words, by using the Security Council to “legalize” an otherwise non-binding agreement with Iran, President Obama could skirt Congress altogether (by claiming that his deal with Iran was simply non-binding, thus requiring no first-branch participation), and then (via the Security Council) create an international legal obligation that would bind the nation (and thus the next President) to the terms of the non-binding deal under international law. Depending on the language of the resolution, President Obama’s successor might be able to fulfill this international legal obligation only by exercising presidential discretion to waive the sanctions. In other words, a Security Council resolution could mean that the next President can reimpose congressional sanctions only by violating international law.
This route was taken, JG notes, re the 2013 UN resolution on Syria's chemical weapons. And if a future president restores the sanctions, Obama's play would raise, perhaps substantially, the political costs of so doing. JG expects that all along this route has been the preferred choice of the president.
Mr. McDonough’s letter includes a long list of previous agreements that “do not require congressional approval.” But the examples he cites are either minor accords or have had substantial bipartisan support. There is no precedent in the nuclear era for a President negotiating such a major arms-control accord without Congressional assent.
Bottom Line. A president abysmally shortsighted in matters nuclear, in the grip of a fantasy that a broad rapprochement with Iran is not only possible but achievable, can be counted on to put all other considerations aside. A UN resolution would: (a) validate Iran's formerly illegal, hence clandestine, enrichment of uranium; (b) destroy the Nonproliferation Treaty regime by legitimating a violator, in the process creating a hitherto non-existent right to enrich uranium that other states will be sure to cite as a defense for their own enrichment activities; and (c) ignite a Mideast--and, perhaps, global--nuclear arms race that could see a doubling of nuclear-armed states within a decade.
Obama may toss the Iran nuke arms deal ball over rushing senators, but more likely his play will result in the equivalent of an intercepted pass returned into his team's own end zone rather than a touchdown.
Letter from the Capitol, LFTC, National Security, Foreign Policy, WMD, Nuclear Proliferation, Conservative Politics