The UN angle [updated] [with comment by Paul]

Reuters has broken an important story on the conniving to convert President Obama’s deal in process with Iran from an executive agreement into some compulsory form of international law. Reuters reports:

Major world powers have begun talks about a United Nations Security Council resolution to lift U.N. sanctions on Iran if a nuclear agreement is struck with Tehran, a step that could make it harder for the U.S. Congress to undo a deal, Western officials said.

The talks between Britain, China, France, Russia and the United States — the five permanent members of the Security Council — plus Germany and Iran, are taking place ahead of difficult negotiations that resume next week over constricting Iran’s nuclear ability.

Some eight U.N. resolutions – four of them imposing sanctions – ban Iran from uranium enrichment and other sensitive atomic work and bar it from buying and selling atomic technology and anything linked to ballistic missiles. There is also a U.N. arms embargo.

Iran sees their removal as crucial as U.N. measures are a legal basis for more stringent U.S. and European Union measures to be enforced. The U.S. and EU often cite violations of the U.N. ban on enrichment and other sensitive nuclear work as justification for imposing additional penalties on Iran.

U.S. Secretary of State John Kerry told Congress on Wednesday that an Iran nuclear deal would not be legally binding, meaning future U.S. presidents could decide not to implement it. That point was emphasized in an open letter by 47 Republican senators sent on Monday to Iran’s leaders asserting any deal could be discarded once President Barack Obama leaves office in January 2017.

But a Security Council resolution on a nuclear deal with Iran could be legally binding, say Western diplomatic officials. That could complicate and possibly undercut future attempts by Republicans in Washington to unravel an agreement.

Can an executive agreement of limited constitutional status under American law be converted into something higher by the United Nations? This would in any event represent the perfect coda to President Obama’s depreciation of Congress. Giving the members of the UN Security Council the right to weigh in on the agreement while cutting Congress out and leaving a future president to sort out the consequences…hey, insofar as President Obama is concerned, we’d be in the bonus round. We’ll have to keep our eyes open for more on this.

UPDATE: I have sought the advice of my friend Michael Stokes Paulsen, Distinguished University Chair and Professor of Law at the University of St. Thomas School of Law. Professor Paulsen is a prominent scholar of constitutional law. He has responded to my inquiry this morning as follows:

NOTHING in international law can alter U.S. law, except to the extent it is made part of U.S. law, by virtue of being lawfully adopted as a treaty or U.S. statute. The president may make “executive agreement” deals with foreign nations, and these may have some status as international law, but they only possess the U.S. law status of a presidential deal — they are not part of the binding “Law of the Land” for the USA.

Nothing in international law — not made part of U.S. domestic law — can prevail over US federal law. An international law determination — by whatever body — cannot trump the U.S. Constitution, a U.S. statute, or a U.S. treaty.

I have a big, fat long law review article on the topic of the status of international law as U.S. domestic law: “The Constitutional Power to Interpret International Law,” 118 Yale L.J. 1762 (2009). Its core thesis is that, for the USA, the Constitution is supreme over international law — US domestic law (which is what US officials are sworn to support) ALWAYS prevails over inconsistent international law.

In connection with his pending deal, Obama can therefore only undermine and complicate the resumption of a sanctions regime on Iran. That will be accomplishment enough for him.

PAUL ADDS: John Yoo agrees that President Obama cannot use the U.N. to validate a deal with Iran that the Senate does not approve. But, as Scott suggests and I argued here, a non-binding nuclear deal with Obama would serve Iran’s purposes very nicely.

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