Whether the Agreement with Iran Can Be Treated

as Void in Part

E ven assuming the agreem ent w ith Iran could be regarded as void in its entirety because

o f the threat o r use o f coercion in its procurem ent, under international law the United

States may not choose to honor some o f its provisions and not others.

February 5, 1981

MEMORANDUM OPINION FOR TH E ATTORNEY G ENERAL

This responds to your request for our views whether the United 

States could choose, consistent with international law, to implement 

some parts of the agreement and not others, assuming, arguendo, that 

the agreement were to be regarded as void under international law .1 

We conclude that the provisions are not separable.

The primary source for international treaty law is the Vienna Convention on the Law of Treaties, which entered into force in 1980. It has 

been signed by both the United States and Iran, but neither has yet 

become a party. Ex. L., 92d Cong., 1st Sess. 1 (1971), reproduced at 8 

I.L.M. 679. It is frequently cited by nonparties, however, as a statement 

of customary international law. At the time that the Secretary of State 

sent the Convention to the President for transmittal to the Senate, he 

said: “Although not yet in force, the Convention is already generally 

recognized as the authoritative guide to current treaty law and practice.” Ex. L., 92d Cong., 1st Sess. 1 (1971).

At the outset, we would observe that the agreement concluded with 

Iran is a “treaty” within the meaning of the Convention even though it 

is designated as an executive agreement for purposes of domestic law. 

The Convention applies to any written international agreement concluded between states which is governed by international law. Art. 

2(1 )(a).

Under the Vienna Convention, specifically Article 44(5), treaties 

which are void under Article 52 2 may be maintained by the state to 

which coercion was applied in violation of that Article but “no separation of the provisions of the treaty is permitted.” The International

‘ F o r exam ple, A rticle 52 o f the V ienna C onvention on the L aw o f T reaties states: “ A treaty is void 

if its conclusion has been procured by the threat o r use o f force in violation o f the principles o f 

international law em bodied in the C h arter o f th e U nited N ations.”

2 W e assum e for present purposes that A rticle 52 w ould apply h ere to void the agreem ent w ith Iran.

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Law Commission said that such an approach would be necessary to be 

consistent with its position on coercion in Article 52:

Only thus, in the opinion of the Commission, would it be 

possible to ensure that the coerced State, when deciding 

upon its future treaty relations with the State which had 

coerced it, would be able to do so in a position of full 

freedom from the coercion.

[1966] 2 Y.B. Int’l L. Comm’n 169, 239 (hereafter 1966 I.L.C. Yearbook).

An argument could be made that the flat rule of Article 44(b) 

represents progressive development rather than existing international 

law and that at least in some cases separation should be permitted. See

1966 I.L.C. Yearbook at 238; T. O. Elias, The Modern Law of Treaties 

137 ff. (1974); McNair, The Law of Treaties 474 ff. (1961). It would be 

difficult, however, to separate the principle of Article 52, which has 

been recognized by the International Court of Justice (ICJ) as representing contemporary international law,3 and that in Article 44(5) of the 

Convention. Thus, if the United States honors the agreement, it has a 

legal duty under international law to honor all of it, and if it is void, all 

of it is void.

If the United States affirms the agreement but fails to implement part 

of the agreement, such as that relating to the estate of the Shah, Iran 

has several options:

(1) Iran might choose to secure a determination of this matter from 

the Iran-United States Claims Tribunal, as established under the Claims 

Settlement Agreement. The Tribunal is given jurisdiction “over any 

dispute as to the interpretation or performance of any provision” of the 

Declaration. Iran may not be able to prove damages if the United 

States does not intervene in Iran’s suit against the Shah’s estate. The 

Government is committed to argue that sovereign immunity and the act 

of state doctrine do not preclude the suit. A domestic court may decide 

these issues in Iran’s favor even if the United States does not participate. Conversely, if Iran loses it would only be conjecture as to how 

the Government’s failure to follow the agreement affected the result.

(2) Iran may invoke the breach as a ground for terminating the 

agreement. This right is independent of any claim for reparation against 

the United States. T.O. Elias, supra, at 114; Restatement of Foreign 

Relations Law of the United States (Revised), tentative draft No. 1, 

§ 345, comment e (1980).

Article 60 of the Vienna Convention provides: “A material breach of 

a bilateral treaty by one of the parties entitles the other to invoke the 

breach as a ground for terminating the treaty or suspending its operation in whole or in part.” A material breach involves “the violation of

9 Fisheries Jurisdiction Case, 1973 I.C.J. 1 at H 24.

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a provision essential to the accomplishment of the object or purpose of 

the treaty.” 4 For example, the fact that the United States might regard 

the commitments made by us regarding the assets of the Shah as 

peripheral rather than essential to the agreement would not be determinative, since Iran quite clearly considered these commitments as vital to 

any agreement. The International Law Commission spelled this out in 

its commentary on this article:

Some authorities have in the past seemed to assume that 

any breach of any provision would suffice to justify the 

denunciation of the treaty. The Commission, however, 

was unanimous that the right to terminate or suspend 

must be limited to cases where the breach is of a serious 

character. It preferred the term “material” to “fundamental” to express the kind of breach which is required. The 

word “fundamental” might be understood as meaning that 

only the violation of a provision directly touching the 

central purposes of the treaty can ever justify the other 

party in terminating the treaty. But other provisions considered by a party to be essential to the effective execution of the treaty may have been very material in inducing it to enter into the treaty at all, even though these 

provisions may be of an ancillary character.

1966 I.L.C. Yearbook at 255 (emphasis in original).

An argument could be made that since Article 11(3) of the Claims 

Settlement Agreement provides the Iran-United States Claims Tribunal 

with jurisdiction to hear claims concerning “performance” of the agreement, Iran’s remedy should be limited to the Tribunal. The agreement 

does not, however, purport to make arbitration the exclusive remedy 

and normally a provision for arbitration does not preclude retaliation or 

termination. Case concerning the Air Services Agreement of 27 March

1946 ( United States v. France), 54 I.L.R. 304 (1979); Restatement, supra,

§ 345, comment e; Damrosch, Retaliation or Arbitration—or Both? The

1978 United States-France Aviation Dispute, 74 Am. J. Int’l L. 785 

(1980). If we believed that there had been no material breach and that 

Iran had arbitrarily repudiated the agreement we could, of course, 

bring that issue to the Tribunal if Iran had not already done so.

(3) Independent of its right to suspend or terminate the agreement, 

Iran could invoke some other form of reprisal not involving force, 1966 

I.L.C. Yearbook at 253-54, 255, proportional to the breach of the 

United States.. L. Oppenheim, 2 International Law 115 (6th ed. H. 

Lauterpracht 1944).

4 T he ICJ has said that the rules quoted are part o f custom ary international law. Namibia Case, 1971 

I.C.J. 16, 46-7.

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In conclusion, we note that any breach of the agreement could set in 

motion a serious train of consequences. Great care should thus be taken 

in considering any options to be pursued.

L a r r y L. Sim m s 

Acting Assistant Attorney General

Office o f Legal Counsel

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