Obama Turns to U.N. to Outmaneuver Congress

Washington is working on a new Security Council resolution making the nuclear deal legally binding on the next president.

The United Nations Security Council meets on Ukraine May 2, 2014 at UN headquarters in New York. Russia warned Ukraine of "catastrophic consequences" unless it halted a military operation against pro-Russian gunmen while Western powers rounded on Moscow at emergency UN talks.   AFP PHOTO/Stan HONDA        (Photo credit should read STAN HONDA/AFP/Getty Images)
The United Nations Security Council meets on Ukraine May 2, 2014 at UN headquarters in New York. Russia warned Ukraine of "catastrophic consequences" unless it halted a military operation against pro-Russian gunmen while Western powers rounded on Moscow at emergency UN talks. AFP PHOTO/Stan HONDA (Photo credit should read STAN HONDA/AFP/Getty Images)

Last March, 47 Republicans led by Sen. Tom Cotton of Arkansas wrote a letter warning Iran’s supreme leader, Ayatollah Ali Khamenei, that a future U.S. president could legally revoke any nuclear deal that had been negotiated by Barack Obama’s administration with the stroke of a pen. They clearly didn’t realize that the White House has a way of making that much harder to do.

The U.S. ambassador to the United Nations, Samantha Power, on Monday circulated a legally binding draft to the 15-member U.N. Security Council that, if adopted, would give the body’s backing to the landmark nuclear pact trading billions of dollars in sanctions relief for greater international scrutiny of Iran’s nuclear energy program. It also instructs states to refrain from taking any actions that would undermine the agreement. The 14-page draft resolution, obtained by Foreign Policy, is likely to be put to a vote by early next week.

The decision to take the deal to the Security Council before the U.S. Congress has concluded its own deliberations on the agreement places lawmakers in the uncomfortable position of potentially acting contrary to a resolution that is binding on the administration by voting down the deal. The strategy has infuriated some Republican lawmakers, who see the administration making an end run around Congress.

During a Tuesday phone call to Deputy Secretary of State Tony Blinken, House Foreign Affairs Committee Chairman Ed Royce (R-Calif.) pressed him to put off a Security Council vote. “I urged that the Obama administration not seek action at the U.N. Security Council on the agreement before Congress can review it in detail during the legislatively mandated congressional review period,” Royce said in a statement.

Congress is currently weighing whether to accept or reject the deal brokered by the United States, Iran, and five world powers. Under the terms of a U.S. law passed this year, lawmakers can prevent the president from lifting congressional sanctions on Iran, which would blow up the landmark nuclear deal.

However, if a resolution is approved by the Security Council early next week, any president, Democrat or Republican, would be legally required to comply with many of its key provisions.

“If Congress were to veto the deal, Congress — the United States of America — would be in noncompliance with this agreement and contrary to all of the other countries in the world. I don’t think that’s going to happen,” U.S. Secretary of State John Kerry told reporters Tuesday.

Kerry suggested that the nuclear accord will likely win growing acceptance in Washington if Iran fully implements its obligations and is able to demonstrate “that they’re not able or ready to make a bomb.”

“I am convinced that whoever is our next president will see the wisdom of this agreement and they will leave it in place,” he added.

At issue is the exact power of the new resolution. A U.S. official said the administration believes that the U.N. resolution “would not impose legal obligations” for the United States, Iran, or other negotiating parties to fully implement the landmark nuclear pact.

The question is highly sensitive for the White House because Kerry assured Congress last March that the big-power nuclear pact with Iran would not be “legally binding” on the United States.

Some international legal experts say that the administration is correct to say that the U.N. resolution doesn’t make adhering to the entire nuclear pact obligatory for all parties. At the same time, they said the resolution would require all signatories to the deal — including United States and Iran — to comply with key provisions like the lifting of the U.N. arms embargo and ballistic missile ban in five and eight years, respectively.

“In essence, this allows the Obama administration to say that the Iran agreement in full is not binding on the U.S.,” said Kal Raustiala, a professor of international law at UCLA. “But at the same time some of the critical provisions will be binding if this resolution passes as a matter of international law, binding on the U.S. and binding on every other state in the system.”

The United States maintains that it is necessary to reinforce the nuclear pact with a binding U.N. Security Council resolution to ensure that sanctions continue to be imposed on Iran until it persuades the world that its nuclear program is peaceful. The U.S. official specifically noted that the measure will be crafted to prevent the export of all arms to Iran and to freeze the assets and prevent the travel of certain individuals.

Still, U.S. officials and some outside experts argue that there are enough safeguards written into the nuclear pact that any U.S. president would have the ability to re-impose sanctions on Iran if it violates the terms of the accord. The resolution,  as well as the underlying nuclear deal, provide “lots of opportunities for the United States to block the termination of the sanctions” and “doesn’t bind any future president,” said Steven Ratner, a professor of international law at the University of Michigan law school.

U.S. officials say the resolution would also not require the U.S. Congress to lift its own sanctions on Iran. “Congress still ultimately controls the status and application of the legislative-based sanctions at issue in the [nuclear pact],” the official said. “If Iran abides by the [nuclear pact] Congress will eventually have to act again to lift these sanctions.”

On Capitol Hill, there are currently two schools of thought about the wisdom of taking a resolution to the U.N. Security Council prior to a vote in Congress.

For some Republicans, the move is a dangerous subjugation of U.S. sovereignty and an insult to Congress’s oversight role.

“Given that huge bipartisan majorities in both houses voted for legislation to prevent the president from implementing the agreement before congressional review, I think members from both sides of the aisle will see this tactic as an end run on Congress,” said Jamil Jaffer, a Republican and former chief counsel to the Senate Foreign Relations Committee.

Others, even those skeptical of a deal, prefer that the U.N. take action first so that Congress can better understand the accord it’s approving or rejecting.

“It actually makes sense that we would go second because then we’ll know what we’re voting on,” said a congressional aide who focuses on the Iran nuclear portfolio. “If we went first, we’d be in the uncomfortable position of approving something that could change depending on what’s agreed on at the U.N.”

Indeed, the United States and its negotiating partners have not included some of the most controversial provisions — for instance, a decision to lift an embargo on conventional weaponry in five years and ease restrictions on the development and import of ballistic missile technology in eight years — in the nuclear accord that will be reviewed by Congress. Instead, those provisions are embedded in the new U.N. Security Council resolution, which congressional critics of the deal will have no power to block.

The new draft resolution provides weaker restrictions on Iran’s ballistic missile program than those contained in previous resolutions, which banned Iran from undertaking “any activity related to ballistic missiles capable of delivering nuclear weapons.” The draft under consideration would only “call upon” Iran not to engage in such activities. It also includes no explicit prohibition on Iran’s development or import of conventional missile technology. That means Iran can continue to advance its conventional ballistic missile program without violating the terms set by the U.N. Security Council.

But acquiring foreign supplies for its missile program will still be constrained by the deal. A U.S. administration official familiar with the deliberations noted that the draft requires that any company trying to supply Iran with missile-related technology seek approval from a committee composed of representatives from key powers, including the United States. The official, who spoke on condition of anonymity, said Washington would use its position to “veto” the import of any sensitive missile technology into Iran. “The practical effect” of the new resolution is to preserve the same prohibitions contained in existing resolutions, said the official. “It prohibits effectively any transfer of missile technology, conventional or nuclear.”

According to an individual familiar with the talks, the compromise on the arms embargo and ballistic missile sanctions came at the eleventh hour of negotiations in Vienna. Iran, backed by Russia, insisted that a final deal lift all restrictions on conventional arms and ballistic missiles immediately. Seeking to break the impasse, Kerry “did some maneuvering between the Iranians and Russians and got it to a five-eight compromise,” meaning the conventional-arms embargo would be in effect for another five years and restrictions on ballistic missile technology would extend for eight years rather than lift immediately. “This was a Kerry special,” said the individual.

Prior to the conclusion of the nuclear talks, Republicans such as New Hampshire Sen. Kelly Ayotte grilled Obama administration officials about the dangers of lifting sanctions on Iran that deter it from obtaining conventional weapons or ballistic missiles.

Responding to a question from Ayotte last week, Gen. Martin Dempsey, the outgoing chairman of the Joint Chiefs of Staff, told the Senate Armed Services Committee that “under no circumstances should we relieve pressure on Iran relative to ballistic missile capabilities and arms trafficking.”

When Dempsey’s remarks were raised during a press conference with Obama on Wednesday, the president pushed back, saying, “We are not taking the pressure off Iran with respect to arms and with respect to ballistic missiles.”

Instead, the president asserted, the new resolution would keep those restrictions in place while leaving Washington with a “host of other multilateral and unilateral authorities that allow us to take action where we see Iran engaged in those activities, whether it’s six years from now or 10 years from now,” he said.

Photo credit: Stan Honda/AFP/Getty Images

Correction, July 17, 2015: A previous version of this article said that the Obama administration was crafting a United Nations Security Council resolution that would make its nuclear accord with Iran legally binding on the United States. The resolution would in fact make many of the key individual provisions of the agreement binding on the U.S., but not the pact in full. The story has been updated.

Colum Lynch is a senior staff writer at Foreign Policy. Twitter: @columlynch

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