Kamran Adil
On 8th May, 2018, the US President Donald Trump made the following statement while announcing the exit of the US from the Iran Nuclear Deal: “After these consultations it is clear to me that we cannot prevent an Iranian nuclear bomb under the decaying, rotten structure of the current agreement”. While he specifically used the word ‘agreement’ in one of his latest statements on the subject, international law experts do not agree on the legally binding effect of the Iran Nuclear Deal. The question of the legal status of the Deal becomes more significant given the fact that the Joint Comprehensive Plan of Action (JCPOA) was endorsed through a United Nations Security Council Resolution. The question is not purely academic but is likely to shape the future politics and diplomatic efforts in international affairs. In the context of non-proliferation of nuclear weapons, it will have profound effect as the diplomats and politicians will have limited means of guaranteeing their conduct, which was hitherto done through legal agreements.
In the near future, any arrangements between the US and North Korea on nuclear non-proliferation will have to be guaranteed through some mechanism. It may also, ultimately, be critical in deciding the collective weightage of the United Nations Security Council that had adopted the JCPOA and had integrated the International Atomic Energy Agency (IAEA) into the deal.
The Deal
The Iran Nuclear Deal is a shorthand for the UN-backed Joint Comprehensive Plan of Action (UN-JCPOA). On 14th July, 2015, five permanent members of the Security Council of the UN, Germany, the EU and Iran agreed on a Joint Comprehensive Plan of Action (JCPOA). The JCPOA was adopted by the UN’s Security Council on 20th July, 2015 unanimously through Resolution 2231 (2015). The UNSC Resolution 2231 (2015) is a long document comprising over hundred pages and having two annexes. The second recital of the Resolution links the JCPOA to the Treaty on the Non-Proliferation of Nuclear Weapons by referring to the international obligation of the states to negotiate non-proliferation in good faith. Another recital of the UNSC Resolution referred to the International Atomic Energy Agency (IAEA) and the Framework for Cooperation agreed between Iran and the IAEA on 11th November, 2013.
The recitals refer to IAEA and regional organizations. The operative part of the Resolution is then further divided into five parts, which are: (a) terminations, (b) application of provisions of previous Resolutions, (c) JCPOA Implementation, (d) exemptions, and (e) other matters. It has two annexes: Annex A adds the JCPOA to the Resolution; Annex B adds a statement of (P5+1) i.e. permanent five and Germany in which different reporting and monitoring devices have been incorporated. Annex A of the Resolution spells out the JCPOA and integrates it into the legal framework of the UNSC Resolution.
Legality of the UN Backed JCPOA
The pre-dominant view in the West led by American lawyers and academics about the legality of the UN backed JCPOA is that it is not a legally binding agreement. The proponents of this view are people like Professor Jack Goldsmith of the Harvard Law School who noted: “Such agreements are not treaties and thus need not be approved by 2/3 of the Senate, and are not congressional-executive agreements that require bicameralism and presentment. They aren’t even “pure” executive agreements—at least not ones legally binding under international law.” His view is based on a letter issued by Julia Frifield, Assistant Secretary, Legislative Affairs, State Department addressed to Mike Pompeo (the US Secretary of State) The letter stated: “The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JCPOA reflects political commitments between Iran, the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China), and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.”
It is, however, difficult to agree with the view and following points need to be considered in this regard:
First, the UN-backed JCPOA’s legal status has to be ascertained on the basis of the international law and not on the basis of the US constitutional and public law. Most of the American lawyers determine the legal status of the UN-backed JCPOA on the basis of the typology of international agreements in the US public and constitutional law where the treaties are different from international agreements on the basis of the checks and balances system ingrained in the US constitutional law where state organs are dependent on each other for international decision and policy making. Besides, the above stated letter by Julia Frifield that forms the basis of the American lawyers on the point was written by an American to another fellow American within their own constitutional context. For a foreigner, the UN backed JCPOA has all the elements of an international agreement as required by the Vienna Convention on the Law of Treaties, 1969 (VCLT, 1969). The definition of ‘treaty’ under the VCLT, 1969 clearly provides: “(a) “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.”
Applying the above stated definition of the treaty under international law to the UN-backed JCPOA evinces that it squarely qualifies to be treated as a treaty; signing or non-signing, as argued by Julia Frifield is not any issue. The bundling or coupling effect of treaty into different instruments and its adoption through the UNSC resolution does not affect the legal status of the treaty; it adds to the legal value of the instruments rather than diminishing their legal value.
Secondly, one of the pivotal issues at the time of negotiations of the JCPOA was the removal of the sanctions imposed by the UN on Iran. How could the UN sanctions be unilaterally withdrawn? Obviously, the arrangement was legal and backed by international hard as well as international soft law.
Thirdly, the UN-backed JCPOA envisaged an arrangement in which legal and textual relationship with the Non-Proliferation Treaty, 1968 (NPT), the Statute of the International Atomic Energy Agency, 1956, and regional organization like the EU was affected. How could the IAEA be bound to report on a matter that was part of the ‘political commitment’ of states and how the UNSC chose to pass resolution 2231 (2015) under Chapter VII when it was not legal is not easy to digest having regard to earlier practices of international organizations and laws.
International System and the UN-backed JCPOA
All the consequential debates about the implications of the implementation/non-implementation of the UN-backed JCPOA have to flow from its legal status. The conduct of the US and other states in the West will show how far they follow the principle of pacta sunt servanda (agreements must be kept) that was also codified by the VCLT, 1969. The unilateral termination on the pretext of implementing a national law i.e. the Iran Nuclear Agreement Review Act, 2015 is not supported. VCLT specifically prohibits invoking internal law to circumvent implementation of a treaty. As noted in the foregoing introduction, the fate of the UN-backed JCPOA has implications for the international system, which most of the time hinges upon the agreements between the states. The diplomatic and political relations are now woven in and around the established principles of international law. The propensity of the US to downgrade international instruments can have serious consequences for the international system, which though is not rule-based, but surely it is based on treaties.
Pakistan and the UN-Backed JCPOA
On 10th May, the Ministry of Foreign Affairs of Pakistan in its statement noted the following about the UN-backed JCPOA:
“Pakistan believes that the Joint Comprehensive Plan of Action (JCPOA) represents a very good example of a negotiated settlement of complex issues, through dialogue and diplomacy. We had welcomed the JCPOA when it was concluded and hope that all parties will find a way for its continuation, especially when the International Atomic Energy Agency (IAEA) has repeatedly verified Iran’s compliance. We have noted the willingness of the parties to the Agreement to work together on upholding their respective commitments as stipulated in the JCPOA, despite US decision to withdraw from it. Pakistan believes that International Treaties and Agreements concluded through painstaking negotiations are sacrosanct. Arbitrarily rescinding such agreements will undermine confidence in the value of dialogue and diplomacy in the conduct of international relations.”
The analysis of the statement reveals that Pakistan treats the UN backed JCPOA as an international agreement (treaty). It also shows that Pakistan treats it as a device for cooperation and as an example of ‘negotiated settlement’ of an international complex issue.
The UN-backed JCPOA set a good example of international cooperation to settle complex and thorny international issues. Its legal status has to be guarded to keep the moral compass right and balanced for posterity to decide on the impact of the US decision to unilaterally rescind the agreement. For the international community, the acts of the US administration will set the tone for the future international system and will provide them with a moment of truth to decide whether they need a system based on anarchy or a system based on international cooperation backed by international agreements.
Kamran Adil is an independent researcher and has done his BCL from the University of Oxford.