OPINION 

Point One of the U.S.-Iran MOU purports to restrict Israel's defensive operations and eliminate Israel's buffer zone against the Hezbollah terror organization in Lebanon. The MOU preamble and Point One state:

"The United States of America and the Islamic Republic of Iran have jointly agreed in good faith on such-and-such a date on the following:

"1. The United States of America and the Islamic Republic of Iran and their allies in the current war by signing this MOU declare the immediate and permanent termination of military operations on all fronts, including in Lebanon, and undertake from now on not to initiate any war or any military operation against each other, and to refrain from the threat or use of force against each other and ensuring the territorial integrity and sovereignty of Lebanon.

"The final deal will confirm the permanent termination of the war on all fronts, including in Lebanon, and other provisions of this paragraph."

If the provision is valid and adhered to or enforced, this extremely dangerous provision could leave Israel unable to combat Hezbollah’s non-stop rocket and drone barrages, which decimated and depopulated Israel's northern towns and communities, destroying tens of thousands of Israelis' homes.

Hezbollah's missiles, drones and IEDs continue to kill and injure Israelis and terrorize northern Israel virtually every hour – including killing Ukrainian immigrant to Israel, reserve officer Alexander Filin and wounding at least seven other Israelis, several of them severely, on June 17, two days after President Donald Trump and Vice President JD Vance signed the MOU (June 15).

Israeli Ambassador to the U.S. Yechiel Leiter posted early on Thursday evening:

"Here’s your reminder of how Hezbollah is 'upholding the ceasefire' in the last couple of days:

June 17:

• 10:15 - 1 IED.
• 10:57 - 2 Explosive UAVs.
• 12:35 - 9 Rockets.
• 12:37 - 2 Rockets.
• 12:51 - 1 Missile .
• 12:56 - 2 Rockets.
• 13:04 - 6 Rockets.
• 16:53 - 2 Rockets.
• 17:31 - 3 Rockets.
• 17:38 - 1 Rocket.
• 18:24 - 2 Rockets.
• 18:39 - 5 Rockets.
• 18:50 - 5 Rockets.
• 18:54 - 2 Rockets.
• 19:12 - 5 Rockets.
• 19:21 - 4 Rockets.
• 19:37 - 3 Rockets.
• 19:46 - 6 Rockets.
• 20:56 - 6 Rockets.

June 18:

• 01:00 - 5 terrorists approached forward defense line.
• 06:57 - 1 Explosive UAV.
• 07:28 - 1 Explosive UAV.
• 08:16 - 2 Explosive UAVs.
• 08:23 - 1 Explosive UAV.
• 08:51 - IED explosion."

The language of the Preamble and Point One — and several other key U.S. commitments — appears designed to create binding obligations on the U.S.

U.S. State Department guidance cautions that simply labeling an agreement as a memorandum of understanding (MOU) "does not automatically denote for the United States that the document is non-binding under international law."

State Department guidance further advises negotiators seeking to avoid legally binding commitments to refrain from using terms such as "undertakes" and "agrees" — the very terms employed in the U.S.-Iran MOU's Preamble and Point One.

By contrast, Point One omits non-binding formulations such as "intends to" or "expects to."

The MOU also lacks another safeguard recommended by the State Department: an express disclaimer stating that the document is not intended to be legally binding under international law.

But despite the U.S.-Iranian effort to use binding language, does the MOU bind Israel, a non-party to the MOU?

The answer is no.

Under the most basic, long-established international law, a treaty cannot bind a non-party such as Israel who does not agree to be bound.

The Georgetown University Law Center’s Guide to the Basics of International Law (2019) succinctly explains that “a treaty cannot bind a non-party or non-participating state. . . . Treaties are only binding upon states that choose to ratify the treaty."

Likewise, the Restatement (Third) of Foreign Relations Law of the United States, § 324 reiterates that “An international agreement does not create either obligations or rights for a third state without its consent."

This basic rule that obligations cannot be imposed on nations that have not consented to them is rooted in sovereign equality – the fundamental principle that sovereign nation-states are each independent, legally equal, and entitled to exercise authority over their own affairs. (Sovereign equality is also affirmed in UN Charter, Article 2.1.)

The U.S. adheres to this principle whenever it is the non-party.

For instance, the U.S. consistently opposes the imposition of ICC jurisdiction on the U.S. and U.S. service members because the U.S. was not a party to the relevant agreement, the Rome Statute.

The Vienna Convention on the Law of Treaties (1969) (the "VCLT"), which is widely recognized as codifying customary international law, also upholds the same concept.

(The VCLT was signed and ratified by 119 countries and signed by another 15 countries without ratification, including Iran and the U.S. The U.S. State Department confirmed that the U.S. nonetheless follows many VCLT rules. VCLT Article 1(a)’s broad definition of "treaty" applies to international agreements regardless of the name given to an agreement.)

VCLT Articles 34 and 35, affirm that:

"A treaty does not create either obligations or rights for a third State without its consent."

"An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing."

Israel has clearly not accepted any MOU obligations in writing, and cannot be bound by the MOU. Moreover, Israel correctly explicitly rejected being bound by the MOU.

Israeli Defense Minister Israel set forth his and Prime Minister Netanyahu's "clear policy" that the IDF would remain in southern Lebanon security zones "to protect the border and Israeli communities from there against jihadist elements."

PM Netanyahu made similar statements on Thursday.

Moreover, Israel was not given any role in the negotiations, or even a draft of the agreement.

Breaches by the other side also warrant suspension or termination of a treaty. (VCLT Article 60.) As Ambassador Leiter set forth, Hezbollah has been breaching the MOU virtually every hour since it was signed.

Further, even if the U.S. browbeats, threatens or otherwise coerces Israel into consenting to or complying with the MOU, that consent would be legally void.

The VCLT sets forth the basic principle that a state’s consent to be bound by a treaty is invalid and void when: the state's representative was coerced through acts or threats against him (Article 51); the state was coerced by the threat or use of force (Article 52); or the state’s representative procured consent through corruption (Article 50).

In recent days, Vice President Vance and President Trump have unleashed a barrage of coercive invective and implied threats against Israel.

Vance called Israeli's well-warranted concerns "a freakout in Israel" and attacked Israel for daring to defend her people against Hezbollah, saying, "You can’t just kill your way out of solving every single national security problem that you have."

At the G7 conference, Trump similarly attacked Israel for defending her citizens from Hezbollah's attacks, saying "Israel is fighting Hezbollah too long, and too many people are being killed. . . And you don't have to knock down an apartment house every time you're looking for somebody.

"Because there are a lot of people in those apartment houses. And they’re not all Hezbollah, that I can tell you. . . . I'm not happy with the way Israel has handled themselves with Lebanon and with Hezbollah.

"They should have been able to do the job faster. It just goes on forever."

Trump also demanded, "You don’t have to knock down a building every time someone walks into it.”

Vance also impliedly threatened further loss of U.S. support, saying, "Donald J. Trump is the only head of state in the entire world who is sympathetic to the nation of Israel at this moment in time. . .

"If I was in the cabinet of the Israeli government, I might not be attacking the only powerful ally that I have anywhere left in the entire world."

Vance also claimed that two-thirds of the defensive weapons that have protected Israel "have been built by American hands and paid for by American tax dollars" – a potential implicit threat to cut off aid and/or weapons sales.

Vance also warned "anybody in Israel" who thinks that Trump is a problem "to wake up and smell the reality."

President Trump also repeatedly ordered Israel to stand down, stop military operations and halt airstrikes in Lebanon, including ordering "no more attacks anywhere in Lebanon" on June 14, and demanding that Israel turn back from attacks on Hezbollah in Beirut earlier in June.

It all seems aimed at coercing Israel to comply with an illegal agreement negotiated and signed without Israel's consent. 

Morton A. Klein is the National President of the Zionist Organization of America (ZOA) founded in 1897, and is widely known as a leading Jewish activist. Elizabeth Berney is an attorney and serves as the National Director of Research and Special Projects for the ZOA.