The "Legally Non-Binding" Flawed Argument
In response to the recent letter by Republican U.S. Senators to Iran, Foreign Minister Javad Zarif has questioned the letter's core argument regarding the future reversibility of any final nuclear deal by stating that any future U.S. move to revoke or modify the deal would be deemed a violation of international law since “it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution.”
John Kerry, the U.S. Secretary of State who has also criticized the above-mentioned letter as utterly "irresponsible," has offered a somewhat different perspective by stating, in his most recent Congressional appearance, that "we are not negotiating a legally binding plan." In other words, the final deal will be a legally non-binding agreement, ostensibly to relieve the onus of parliamentary approval.
But, this is rather absurd and the U.S. and other Western powers need to re-think their approach toward this matter and to align themselves with the rational and prudent approach reflected in Zarif's statement mentioned above. A final, multilateral agreement involving the five permanent members of the UN Security Council will be too important to evade the radar of international law and, indeed, it will be an affront to international law to fathom the idea that such a significant document that would require duties and obligations on the part of both the signing parties as well as, indeed, the international community, e.g., in the realm of lifting sanctions, could be somehow insulated from the strictures of international law.
Unfortunately, the U.S. Senators' letter has once again re-ignited the rather tiresome debate on the "binding" versus "non-binding" agreements, when it is abundantly clear by the very example of the Geneva interim agreement that once the parties commit themselves to a (multilateral) agreement, then it is in effect binding on them, no matter what the semantic acrobatics and peculiar title given to it. Indeed, the name given to an agreement can be on the surface confusing and give the misleading impression that it is "informal" or "non-binding" when, in substantive terms, might be the opposite. The lines between "binding" versus "non-binding" agreements may be blurred in the absence of any general tests, yet it is abundantly clear that a relatively long-term nuclear agreement can only be sustained if the parties interpret it as binding, otherwise it will be easy prey to the machinations of re-interpretation by future government leaders and or politicians. The agreement may include certain "derogatory clauses" such as "withdrawal clauses" that would, for instance, allow Iran to withdraw in case of non-implementation by the other side, but in order to be binding it must have a legal character, for the simple fact is that nothing that operates in a legal vacuum can be possibly binding in any meaningful sense.
From Iran's vantage point, this is certainly an important consideration for a variety of reasons, one of which deals with the nature of important nuclear concessions requested from Iran, which raise the issue of symmetrical reciprocity and good-faith implementation by the other side over time. Yet, this does not comport with the uncertainties and question marks surrounding a "legally non- binding" that is favored by the U.S. and has the downside of eroding confidence in the agreement's sustainability with the change of political leadership in Washington and, to a lesser extent, other Western capitals. Rather, Iran must feel secure about the future prospect of a final deal that would be vulnerable to attacks by its political opponents if it is framed as "legally non-binding." Instead, the final agreement must enjoy a robust character that provides Iran with the necessary confidence that its sacrifices will not be in vain and it will not be subjected to a future case of agreement "betrayal" and the like. Should a future U.S. president adopt a hostile approach toward the nuclear deal and put the U.S. in breach of its obligations under the terms of the final agreement, then little can be done by Iran to protect its interests if the agreement is couched in the framework of a "legally non-binding political agreement," i.e., one that does not tied down or bind the future U.S. president to an agreement signed by the present president. The remedy outlined by Dr. Zarif mentioned above has the distinction of addressing this important issue, which is a sine qua non of its domestic acceptability inside Iran. After all, the Iranian collective memory is still fresh about the partial non-implementation of U.S.'s obligations under the 1981 Algiers Accord, that is, the return of the assets of the former Shah. In order to make sure that history does not repeat itself, the only remedy is to cement the final nuclear agreement with the provisions of international law, even in the absence of agreement's identity as a "treaty."
Drawing on the insights from the vast literature on treaties/international agreements and the Vienna Convention on Law of Treaties, the final nuclear agreement should, at a minimum, be couched as a 'soft law" international agreement, blessed and bestowed with international legitimacy by the UN Security Council, that, in turn, addresses Iran's concerns about its future enforceability and sustained commitment by the contracting parties. Much like the interim agreement, the final agreement will likely possess a specific dispute-resolution mechanism, i.e., a "joint commission," yet it must also feature the additional knots and bolts of a more robust agreement that leaves the door a jar open for a future recourse to the international tribunals in case of an endemic dispute -- that can take several different facets, such as with respect to interpretation of the agreement, the scope of obligations, timeliness and extent of implementations, etc.
A main advantage of the final deal as an international agreement is that it directly or indirectly implicates international law and thus introduces some degree of transparency regarding its future by verifying the enforceable commitment of all parties. Otherwise, it raises the specter of future non-enforceability, alluded to in the U.S. senators letter to Iran. As this author has argued elsewhere, this issue raises an important legal-theoretical challenge that requires in turn switching from a binary view of "legality" to a 'spectral' view that is increasingly in currency in the current discourses on international law. Also, it requires transparent political intent of the parties reflected in the final agreement -- that would remove any doubt now or in the future that the multilateral instrument would not be unilaterally revoked or even modified at any time during the period of the agreement.
But, as stated above, the trouble with a "legally non-binding" approach is that it swims in the opposite direction of a murky future where the wolves of re-interpretation and non-compliance prowl. Clearly, such a self-handicapping approach is not in the interest of either side and, henceforth, it should be shelved in favor of the more prudent Iranian approach articulated by Iran's foreign minister.