International Law vs the Iranian Nuclear Negotiations: Setting a Dangerous Precedent

If any institution is representative of the international community and international law, it is the United Nations (UN). One foundational value of the UN is its ability to hold member states accountable for their actions through establishing international norms, international agreements, and the mandates of the UN Security Council. Surprisingly, no one is discussing the serious legal and political issues that the Iranian nuclear negotiations present.

The five permanent members of the UN Security Council plus Germany (P5+1) recently negotiated the parameters for a Joint Comprehensive Plan of Action (JCPOA). How it is evaluated often depends on one’s political views, as well as regional, national, and international security concerns. Yet the impact that the agreement could have on the UN itself is ignored. Prior to this JCPOA, Iran was prohibited from enriching uranium by Security Council resolutions. Under the agreement, it is free to do so, within certain limitations. Therefore, a threshold question is whether this agreement is appropriate at all. And why is the Obama Administration — generally supportive of the UN — so anxious to legalize Iran’s flouting of Security Council resolutions, which undermines UN credibility?

International law illuminates such issues. The Permanent Court of International Justice decided the SS Lotus case in 1927, pronouncing that states may generally engage in any conduct not expressly prohibited and that states must consent to any restraints on their sovereignty.

Security Council resolutions taken under Chapter VII of the UN Charter are generally viewed as binding international law. Indeed, Article 25 of the Charter notes that all member states “agree to accept and carry out the decisions of the Security Council….” Iran signed the UN Charter and has therefore agreed to be bound by its resolutions.

Resolution 1929, for example, directs that Iran “suspend all enrichment related activities … all reprocessing … [and] shall not begin construction on any new uranium-enrichment…facility.” Since Iran ignored this mandate, one must ask why the P5+1 are so eager to legitimize Iranian noncompliance. Indeed, the JCPOA constitutes an initial legal authorization for Iran to abrogate all existing Security Council resolutions prohibiting it from enriching uranium. Assuming that a deal is finalized, the UN Security Council would then have to follow up with a resolution blessing whatever activity is permitted by the final agreement that is inconsistent with existing resolutions.

The P5 has the greatest stake in ensuring the observance of Security Council resolutions, so why is this happening? What does it portend for the future? At a minimum, it sets a precedent most notable for its glaring disregard of existing Security Council resolutions. Why should any state now follow them? Why not just wait until the time is right and renegotiate?

Coincidentally, the P5 are also the Nuclear Weapon States party to the Non-Proliferation Treaty (NPT). The NPT does not create rights under international law, but only limits them. Iran is a Non-Nuclear Weapon State under the treaty and specifically promises not to “manufacture” nuclear weapons, yet it may lawfully come very close to assembling a nuclear weapon yet remain technically compliant with the NPT. Article IV promises Iran the peaceful uses of nuclear energy, but does not specifically allow enrichment and reprocessing, widely understood to lead to nuclear weapons acquisition. Therefore, the United States has vigorously pursued the “gold standard” in its nuclear negotiations, and has demanded that such states, including many close allies, not engage in enrichment or reprocessing. And yet here is the United States, leading the charge, to provide Iran (of all states) a legally established right to enrichment. Something is amiss. In certain respects, this deal resembles a plea bargain in criminal law, where there is a clear violation of the law (UNSCRs), and the guilty party negotiates a reduced penalty (or in this case agrees to stop or slow down certain activities), and then returns to “normal” status (in the sense that sanctions will be lifted).

Assuming that the parties are able to negotiate a detailed agreement in the next three months (an unlikely scenario), a new Security Council resolution will be required to “bless” the new legal reality in Iran. The Security Council could always modify/rescind prior resolutions, changing the legal obligations of relevant states and eliminating any legal quandary created by the Iran negotiations. But is this any way to do business? Such conduct raises the political question of whether this particular plea bargain is a good idea, whether we can trust Iran, and whether the deal is so sweet that other states will be tempted to follow the Iranian precedent and also violate Security Council resolutions. It does not bode well for the future credibility of the UN.

David S. Jonas is a retired U.S. Marine Corps officer. He is a former General Counsel of the National Nuclear Security Administration and former nuclear nonproliferation planner for the Joint Chiefs of Staff. He teaches Nuclear Nonproliferation Law & Policy at Georgetown and George Washington University Law Schools and has also taught that subject at the U.S. Naval War College.