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Colum Lynch and John Hudson have an article in Foreign Policy provocatively entitled “Obama Turns to U.N. to Outmaneuver Congress” in which they suggest that the new U.N. Security Council Resolution likely to be adopted next week will tie the hands of future Presidents and that the United States would violate the Resolution if Congress votes down the Iran nuclear deal. That is not my reading of the draft UNSCR that has been leaked to the press. Although some provisions of the draft UNSCR would be legally binding on the U.S. (and all U.N. Member States) under the U.N. Charter, these are provisions that effectively continue the existing arms and missile technology embargoes on Iran. If the draft UNSCR is adopted, the United States would not be legally required to lift U.S. sanctions on Iran. If Congress prevents President Obama from lifting U.S. sanctions, the United States would certainly act inconsistently with the Administration’s political commitments under the JCPOA, but the U.S. would not violate the new UNSCR.
The draft resolution (dated July 14) includes a 7-page resolution and a separate 7-page “Statement” by the P-5 members and the EU, which is incorporated by reference in Annex B. (The full JCPOA would be attached as Annex A.) The draft resolution itself consists of 14 non-binding preambular paragraphs (PPs) and 30 operative paragraphs (OPs), of which 12 are legally binding “decisions” of the Security Council. Nine of these 12 decisions pointedly state that the Council is acting under Article 41 of the Charter, which governs measures the Security Council may take, other than the use of armed force, to maintain international peace and security. The last preambular paragraph specifically “underscor[es]” that “Member States are obligated under Article 25 of the United Nations Charter to accept and carry out the Security Council’s decisions.”
The draft resolution appears to have been carefully crafted by Administration lawyers to avoid imposing binding legal obligations on the United States before Congress considers the JCPOA, or with which the United States might be unable to comply if Congress disapproves the JCPOA. (When I was NSC Legal Adviser, I was, together with then UN Ambassador John Negroponte, one of the principal negotiators of UNSCR 1441 (2002), which imposed a final arms inspection regime on Iraq. UNSCRs adopted under Chapter VII are very difficult to negotiate with Russia and China, and even more so after the Iraq and Libya conflicts.) Although the leaked draft is dated July 14, and complex UNSCRs often go through multiple drafts as they are considered by the full Security Council, the fact that the P-5 have apparently agreed on this draft may suggest that the draft will not change substantially when it is considered by the Security Council next week.
OP2 “Calls upon all Members [sic] States… to take such actions as may be appropriate to support implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA…and by refraining from actions that undermine implementation of commitments under the JCPOA.” This OP (which does not use the verb “decides” and is not adopted under Article 41) has the effect of urging the US to carry out its commitments in the JCPOA, including the lifting of sanctions, but it does not require the US to do so as a matter of international law.
In contrast, in OP7(a), the Security Council “Decides, acting under Article 41” that the six prior UNSCRs relating to Iran’s nuclear program shall be terminated when the Security Council receives a report from the IAEA that Iran has fulfilled its relevant nuclear obligations set forth in the JCPOA. OP7(b) provides further that “All States” must comply with the provisions in the Statement of the P5+EU governing transfers of arms or missile technology to Iran. The provisions of OP7 are binding on all Member States, including the United States. As my fellow Lawfare colleague Matt Weybrecht has explained, these provisions ostensibly permit Member States to sell or transfer arms or missile technology to Iran, but only with Security Council approval (for periods of five years and eight years, respectively). Because the United States (and probably France and the United Kingdom) will not permit sales of arms or missile technology to Iran, the Security Council will not be able to approve any such sales for the specified time periods. Thus, while it is true that this provision of the draft UNSCR would legally bind the United States, it only prevents the United States (and future Presidents) from taking actions they would not take anyway. (In theory, if the USG dramatically reversed course and wanted to sell arms to Iran, any of the other P-5 members could prevent the US from doing so. But this scenario is unlikely to happen.)
If Congress passes legislation prohibiting President Obama from lifting statutory sanctions on Iran (by voting to disapprove the JCPOA and then overriding a Presidential veto of its resolution of disapproval), the U.S. would act inconsistently with the hortatory (“Calls upon”) language of OP2 and the U.S. political commitments in the JCPOA, but it would not violate the new UNSCR, as it is presently drafted. If the United States does not waive statutory sanctions, Iran would then be forced with the choice whether to proceed with its JCPOA nuclear commitments anyway (and thus benefit from the lift of U.N. and EU sanctions, and potentially from the return of frozen Iranian assets). Alternatively, Iran could refuse to comply with its nuclear commitments, in which case previous U.N. sanctions could be re-imposed (assuming that the Obama Administration did not vote to continue the termination).