By Rohan Jain| firstname.lastname@example.org
On May 8 2018, Donald Trump made public his decision to pull the United States out of the Joint Comprehensive Plan of Action (JCPOA), also known as the Iran Nuclear Deal. The lack of comprehensiveness of the Deal, demonstrated by its alleged failure to restrict Iran’s ability to build ballistic missiles or regulate its acts of aggression and attempts to sponsor terrorism and destabilise the Middle East region through proxy wars, has been cited as one of the primary reasons for United States’ withdrawal. President Trump also took issue with the unqualified lifting of economic sanctions on Iran in exchange for only weak restrictions on its nuclear programme. The final straw for the US was Iran’s alleged attempts to continue its programme while hiding it from the relevant monitoring agencies. With the US’ withdrawal from the Deal, Iran’s nuclear programme is stripped of its right to be treated at par with the nuclear programmes of other non-nuclear weapons states, and the United States’ ability to impose nuclear and economic sanctions on Iran has been reinstated.
Although the sanctions are to resume from November 2018, the decision has already led massive crowds in Iran to the streets to protest, and the Iranian government has been open about its condemnation of the move. As Iran looks to engage in political dialogue on the issue with China and European parties to the Deal, this blog post will seek to explore the legal validity of such a unilateral move by the United States in light of the fact that the JCPOA has been adopted by the UN Security Council (UNSC) and that the resolution itself places certain obligations upon the United States irrespective of its right to withdraw under the JCPOA.
Although there is some debate on the matter, the JCPOA is not an international treaty. While the Deal is a multi-lateral agreement between sovereign states and an agreement between subjects of international law, not all such international agreements are fit to be called treaties under international law. The definition of a treaty under the terms of the Vienna Convention on Law of the Treaties (VCLT) requires an agreement to be ‘governed by international law’. This definition is not only accepted by the United States, but also represents international customary law.[i] The JCPOA, however, precludes its provisions from being interpreted as ‘setting precedents for fundamental principles of international law …, as well as internationally recognized principles and practices’, which shows that the drafters intended to exclude the Deal from the sphere of international law. Therefore, the legality of the United States’ decision to withdraw would not be governed by provisions of the VCLT on the termination of a treaty. The United States must therefore command its right to withdraw primarily from the framework of the Deal itself or, in case the agreement does not exhaustively codify such a right, from its inherent sovereign authority to decide its foreign policy.
One of the prime reasons for the withdrawal has been Iran’s allegedly successful attempts at gulling the monitoring agencies into believing its compliance with the terms of the Deal while discretely continuing plans to develop nuclear weapons. Documented in 55,000 pages of intelligence documents, Iran’s ‘cheating’, as the President so calls it, was exposed by Israel a week before the US’ announcement of its withdrawal. As President Trump has explicitly stated, the United States’ decision to withdraw premises itself on the veracity of these documents. However, such a reason would fail to justify a unilateral withdrawal from the agreement. The JCPOA already establishes a dispute resolution mechanism with respect to compliance disputes and suspicion. The dispute resolution provisions in the agreement vest a Joint Commission with the jurisdiction to settle disputes pertaining to compliance and commitments under the agreement. In fact, under paragraphs 36 and 37 of the Deal, termination as a measure is subject to the UNSC’s approval and is available only after the exhaustion of other enlisted modes of dispute resolution. By the incorporation of such provisions, the United States clearly limits its absolute authority to withdraw unilaterally or for that matter undertakes any other measures inconsistent with the dispute resolution mechanism adopted under the agreement.
This withdrawal falls foul of the structure of the Nuclear Deal. What is rather dubious is the synergy between the right to withdraw from the Deal subject to its terms and the obligation to respect the JCPOA created under the UNSC Resolution 2231. After it was finalised, the JCPOA was adopted by the UNSC through Resolution 2231 (2015). This Resolution not only reiterates the terms and conditions set out in the JCPOA but also creates obligations over and above the agreement. In fact, most of these obligations do not even distinguish between parties and non-parties to the agreement, but rather bind all the member states. For instance, it calls upon all member states to ‘take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and this resolution and by refraining from actions that undermine implementation of commitments under the JCPOA.’ State practice indicates the usage of term ‘calls upon’ in UNSC resolutions as signaling creation of coercive binding obligations[ii] and history is replete with instances where ‘calls upon’ has been used by UNSC as direct or indirect reference to Chapter VII measures. In fact, when UNSC Resolution 1737 involving Iran used that phrase, the American Ambassador noted that the resolution compelled Member States to take measures to deny Iran assistance in Iran’s nuclear weapon delivery programme.
In addition to being a coercive measure, the obligation to co-operate and refrain from actions that undermine the implementation certainly imposes restrictions on the fetterless sovereign right of the US to determine its foreign policy vis-à-vis Iran’s nuclear programme. However, the resolution fails to clarify the precise content of this obligation. Does the obligation to co-operate in effective implementation of JCPOA completely restrict United States’ ability to withdraw from the Deal? One might hesitate to take such an extreme position, but wordings of the UNSC resolution (in particular in paragraph 2) do allow for existence of such a theoretical possibility. A less extreme stance and more imaginable viewpoint would dictate that the content of the co-operation obligation requires the US at least to refrain from imposing the highest level of nuclear sanctions on Iran even if it withdraws from the Deal. The re-imposition of economic sanctions by the United States would only de-incentivise the Iranian government to perform its nuclear obligations under the treaty. In fact, to some, this move may have already started to show its destabilising effect on the Deal. In his recent comments, the Iranian Supreme Leader pronounced that Iran would not stand the United States’ bullying on the issue. Rather, Iran would reconsider if the Deal still remains favourable to its interests. European states have diverged from and have even been critical of the Trump administration’s foreign policy on the issue, and, as Iran intensifies its political dialogue, the European Union, China and Russia are desperately attempting to prevent the Deal from falling apart.
However, it would be rather naive to take any definitive position on the content of this obligation posed by the UNSC resolution. Such ambiguous obligations created under UN resolutions are often governed more by state reaction and international politics than strict terms of international law. A recent example can be seen in the instance of Syrian strikes of April 14, 2018. The majority of States and scholars were like-minded in understanding the gross illegality of the attacks, and yet only three votes (out of a total of 15) were recorded in favor of a draft UNSC resolution condemning the attacks. Therefore, a blind positivist approach towards such dynamic questions of international law would be incomplete and oblivious to the true nature of this branch of law.
What remains to be understood therefore is that the UNSC through its resolution has transformed the success of JCPOA from a foreign policy issue of eight nations into a global obligation on all its member states. These obligations have an unclear, yet serious and direct impact on any decision to withdraw from the Deals. However, the clarity and significance of these obligations in practice will only be realised when States accept and react to them.
[i] Mark Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, page 83
[ii] James Fry, Legal Resolution of Nuclear Non-Proliferation Disputes, page 84.
Rohan Jain is a third-year undergraduate student from India, studying at the National University of Juridical Sciences, Kolkata. His areas of interest include Public International Law, International Criminal Law, International Humanitarian Law and International Human Rights Law. He was also a member of the team that was awarded the prize of First Runners Up at the World Rounds of the recently concluded International Criminal Court Moot Court Competition, English Edition in 2018.