          Whether the Agreement with Iran Can Be Treated
                          as Void in Part
Even assuming the agreem ent with Iran could be regarded as void in its entirety because
  of the threat or 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 THE ATTORNEY GENERAL
   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 Con­
vention 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 prac­
tice.” 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 con­
cluded 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 separa­
tion of the provisions of the treaty is permitted.” The International
    ‘ F or example, A rticle 52 o f the Vienna C onvention on the Law o f Treaties states: “A treaty is void
if its conclusion has been procured by the threat or use o f force in violation o f the principles of
international law em bodied in the C harter o f the U nited N ations.”
   2 W e assume for present purposes that A rticle 52 w ould apply here 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. Year­
book).
   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 repre­
senting 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
o f 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 partici­
pate. 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 oper­
ation 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 determi­
native, 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 “fundamen­
          tal” 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 con­
          sidered by a party to be essential to the effective execu­
          tion of the treaty may have been very material in induc­
          ing 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 agree­
ment, 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 o f 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 h e IC J has said that the rules q u oted are part o f custom ary international law. N am ibia 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 . S im m s
                                Acting Assistant Attorney General
                                     Office o f Legal Counsel




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