Zarif & Kerry

The nuclear accord is legally binding

Iran Review|Kaveh L. Afrasiabi: The Iran nuclear agreement, known as the Joint Comprehensive Plan of Action (JCPOA), is a legally-binding international agreement that cannot be unilaterally revoked, as threatened by the US president-elect, Donald Trump.  As a result, there are serious legal implications for the US and or any other power trying to dismantle the JCPOA. 

To elaborate, the JCPOA, reached after marathon negotiations between Iran and the “5 +1” nations, i.e., US, Russia, France, England, China, and Germany, in July, 2015 received its UN seal of approval a few days later in the form of UN Security Council Resolution 2231, adopted by a consensus vote of all the permanent and non-permanent members of the Council.  This Resolution endorses the JCPOA in all its aspects and to agrees to the commitments made by the parties. Also, it sets up a UN facilitator to issue bi-annual reports on the implementation of the JCPOA and calls on the UN Secretary General to issue an annual report on the status of the JCPOA; so far, both the UN Facilitator for UNSC Resolution 2231 and the Secretary General have issued their reports confirming Iran’s good-faith fulfillment of its obligations.

As is well-known, the UN Security Council resolutions are binding on all member states, who are obligated, per Article 25 of the UN Charter, to carry out the Council’s decisions.  Article 25 states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council.”  This is a legal obligation, enforceable under international law, which has a broad and evolving scope encompassing the decisions of Security Council increasingly acting as a fount of international law.(1)

Consequently, although the JCPOA is not a treaty and has been termed as a “political agreement” among the parties, this does not mean that that the JCPOA is “legally non-binding.” This is a mischaracterization of the JCPOA that omits the simple yet profound fact that the JCPOA should not and cannot be interpreted in isolation from its UN dimension that, in effect, deepens its significance and content as a binding international agreement.

In fact, the JCPOA’s “UN dimension” is an integral aspect of the accord, that calls for UN Security Council intervention in the event of a non-fulfillment of obligations by any country that is party to the agreement, e.g., in Paragraph 37 pertaining to the dispute resolution mechanisms.  The JCPOA has set up a Joint Commission and clearly states that if a party is not complying with its commitments, then the complaining party can complaint to the Joint Commission and if after a certain period of time there is no resolution, then the complaining party should notify the Security Council of the alleged non-compliance and demand action.  Although this aspect of the JCPOA has been widely cited in reference to the so-called “snapback” sanctions, it extends to any potential Iranian complaint, which would definitely be forthcoming in the event that the next US administration chooses to renege on its commitments under the JCPOA.

In terms of Iran’s available options in the face of a negative US turnaround on the JCPOA, there are basically three venues for an Iranian countermeasure:

First, Iran can raise the matter at the JCPOA’s Joint Commission and even call for an emergency meeting with the representatives of the “5 +1” nations to discuss the matter. Second, Iran can simultaneously complain to the UN Secretary General and request immediate action to intervene in order to prevent the collapse of the JCPOA.  This initiative would be a part and parcel of Iran’s UN action that, as stated above, must initially go through the Joint Commission.  Hypothetically speaking, under the initiative of the (new) UN Secretary General, the Security Council could hold a hearing on Iran’s complaint and then take proper action, such as by reiterating the importance of abiding by the terms of the JCPOA.

The third venue available to Iran is the International Atomic Energy Agency (IAEA), which is a party to the JCPOA by virtue of being mandated to verify Iran’s compliance with the agreement, as well as by the related “road map” for Iran-IAEA cooperation, which has resulted in the successful resolution of the so-called “Possible Military Dimension” questions.  Indeed, the IAEA Director General’s recent reports on Iran are quite explicit in stating that Iran’s obligations are “binding” and, in light of the new uncertainties introduced by Trump’s anti-JCPOA stance, similar statements by the IAEA and its Board of Governors with respect to the binding obligation of other parties to the JCPOA is clearly called for.

In addition to the above-stated remedies, Iran should also explore the option of complaining against the US to the world court in Hague, which takes up cases only by the consent of both parties.  But even if the US refuses to consent to the Hague Court’s ‘jurisdiction,’ such an Iranian initiative has the distinct advantage of bolstering Iran’s position in the international community, which has enthusiastically backed the nuclear agreement.

Notwithstanding the global consensus that the Iran nuclear agreement is a sound agreement that has put to rest a vexing nuclear crisis, the Trump administration would be facing a major international backlash against it if it turns against the JCPOA and seeks to dismantle it one way or another, such as by cancelling President Obama’s executive orders that pertain to the JCPOA, including on the sale of commercial airplanes to Iran.  There is a possibility that in view of the unwillingness of US’s western allies to go along with any such decision by the Trump administration, the latter would at least think twice about any hasty on this matter, that in fact serves US’s own (non-proliferation) interests and concerns.

While we await the ascendancy of the Trump administration and its chosen path on Iran, what is abundantly clear however is that the legal status of the JCPOA as a UN-endorsed international agreement is transparent and, in turn, acts as a major barrier to any sinister US attempt to destroy the JCPOA.

(1) For more on the connections between the nuclear agreement and “international soft law,” see the author’s book, Iran Nuclear Negotiatons: Accord and Détente Since the Geneva Agreement of 2013 (Rowman & Littlefield, 2015).