The Trump adminsitration has repeatedly signalled its willingness to scuttle the Iran nuclear deal despite all indicators that Tehran is in compliance. Here, Kaveh L. Afrasiabi argues that between the legal hurdles and likely damage to U.S. reputation, pulling out now may be too costly for the Trump administration despite rhetoric to the contrary.
The future of Iran nuclear accord is uncertain following President Trump's latest ultimatum that unless the accord's “terrible flaws” are fixed, the United States will withdraw from the multilateral agreement -- one that has been endorsed by the UN Security Council and yet constantly vilified by Trump as a “disaster.” Iran has categorically rejected the US's bid to renegotiate the deal, known as the Joint Comprehensive Plan of Action (JCPOA), and Iranian officials have warned that they may resume full-scale nuclear work and reduce their cooperation with the UN's atomic agency in response to U.S. non-compliance with the JCPOA. Under U.S. law, the president must reauthorise the waiver of sanctions included in the agreement every four months. This means that there is a realistic possibility that come May 2018, President Trump could deliver on his ultimatum and announce a unilateral exit from the Iran nuclear accord.
This article seeks to explore the legal ramifications of such a move by the US government, arguing that this is not a simple matter of decision-making by the executive branch and requires the consent of the US Congress, due to the Iran Nuclear Agreement Review Act, which essentially turned the subject into a joint executive-legislative issue. Perhaps more importantly, the JCPOA is an international agreement that is legally binding under international law and any decision to renege on obligations under the agreement may hypothetically implicate an adverse opinion by the International Court of Justice (ICJ) at the Hague. In turn, these twin legal hurdles act as brakes on Trump's omnibus of derailing the JCPOA and, therefore, it's probable that these would deter an internally divided Trump administration, from scuttling it. All of this follows a host of other political and diplomatic factors, such as the likely transatlantic rift with the U.S.'s European allies and backlashes against the US at the International Atomic Energy Agency (IAEA), which has repeatedly confirmed Iran's full compliance with its rather onerous obligations under the JCPOA. Limiting myself to the legal dimension, the central theme here is that the above-mentioned twin legal hurdles facing the Trump administration are quite formidable and tilt the scales in favor of the resilience of the JCPOA for the remainder of the Trump presidency.
The JCPOA and US Domestic Law
With respect to U.S. domestic laws, this author concurs with a number of other authors that dismantling the JCPOA is legally “complicated” and requires the consent of Congress. Lest we forget, the legislative initiative of the Iran Nuclear Agreement Review Act was meant to prevent a “bad deal” by the Obama administration and gave Congress a window to review the JCPOA before approving the deal. Since then, the IAEA, which is mandated by UN Security Council Resolution 2231 to monitor Iran's compliance with the agreement, has issued 9 reports confirming Iran's full compliance. Without evidence of Iran's non-compliance, there would likely be a congressional uproar and perhaps even a backlash against the Trump administration if it withdraws from the deal via alternative explanations, such as the deal's consequences in strengthening Iran's conventional might or regional clout; the latter refer to non-nuclear and extra-JCPOA matters that should not be conflated with the merits sui generis of the agreement.
Interestingly, the JCPOA in fact fits the description of an “international agreement” by the US's own standards irrespective of the opposite view presented by US's own negotiators. The accord meets the criteria set by the U.S. Department of State's Directive on International Agreements. The U.S. Directive admits that “forms as such are not normally an important factor.” It states: “International agreements require precision and specificity in the language setting forth the undertaking of the parties." Undoubtedly, the JCPOA meets this standard in light of its comprehensive details about the obligations of both sides. Also, the U.S. Directive's emphasis on the “identity” of the parties, that is, “state parties,” is met by the JCPOA as the byproduct of diplomatic agreement among seven states, which was then turned international through its adoption by the UN. Another important criterion is the “absence of any provision in the arrangement with respect to governing law,” in which case “it will be presumed that it is governed by international law.” Similarly, there is no explicit discussion in the JCPOA with respect to “governing law,” save references to UN and the NPT, as a result of which the presumption that the accord is governed by international law becomes applicable. Consequently, irrespective of the self-understanding of U.S. nuclear negotiators, claiming that they were negotiating a legally non-binding political agreement, the actual result crystalized in a UN-incorporated international agreement is a legal species of a different kind. The JCPOA must therefore be placed on the contiuum of legality from the prism of (UN-based) international law, demanding attention as a serious international document embraced by the UN, which is the usual practice with international treaties.
The JCOPA and International Law
To reiterate, the US's departure from the JCPOA may land the U.S. on the wrong side of international law and thus give the U.S. a 'rogue' character with debilitating consequences for its global image. This would particularly be the case if Iran resorts to the ICJ for an advisory opinion on the legal status of the JCPOA. Per various conversations with Iranian foreign ministry officials, Tehran is contemplating this move but only after exhausting the “internal venue” for dispute resolution set up by the JCPOA in the form of a Joint Commission. Essentially, this means that if both the Joint Commission as well as the UN Security Council fail to take action on a U.S. withdrawal, then Iran may appeal to the ICJ, which takes up cases on the consent of both parties. Assuming that the US would consent to ICJ's intervention for one reason or another, one being due to the erosion of international legitimacy if it opts to shun the world court, then it must present a compelling case that the JCPOA is not a legally enforceable “international agreement,” which is the stated opinion of other parties to the deal. The likelihood of US losing at the Hague is quite high, for the following reasons:
First, the ICJ would likely reject the argument, advanced by some US lawmakers, that the JCPOA is not legally-binding because it is not signed by either Iran or the other parties known as the “5 +1” i.e., US, China, Russia, France, England, and Germany. But, this overlooks that signatures on international agreements is not a prerequisite and such an agreement does not have to be signed. The important criterion in this respect is the formal commitment to an agreement by the appropriate officials of a state. It can be safely then stated that Iran and the “5 +1” nations conducted negotiations and have “signed onto” the agreement by reaching it.
Second, the ICJ would likely focus on the legal ramification(s) of the JCPOA's adoption by the UNSC Resolution 2231, which calls upon all the member states to faithfully implement the JCPOA. To elaborate, prefigured in the JCPOA, Resolution 2231 was adopted exactly one week after the JCPOA was finalized as a result of the intense negotiations in Vienna. The resolution provides for the termination of the provisions of previous (seven) Security Council resolutions on the Iranian nuclear issue, retains a temporary arms embargo and ballistic missile technology ban, codifies the sanctions "snapback" mechanism, under which all Security Council sanctions will be automatically reimposed if Iran breaches the deal, and assigns to the IAEA the necessary verification and monitoring of Iran’s nuclear-related commitments under the JCPOA for their full duration. Also, the resolution calls on the UN Secretary General to report to the Security Council on the JCPOA's implementation and also sets up a Security Council Facilitator to provide a brief on the JCPOA's implementation parallel to the efforts of the Secretary General. It is noteworthy that this resolution is invoked under Article 41 of Chapter VII of the UN Charter, which authorizes it to adopt measures necessary to maintain international peace and security; all the other previous Iran resolutions, i.e., Resolutions 1737, 1747, 1803, and 1929, which imposed sanctions on Iran, invoked Article 41 of Chapter VII as well. Article 41 states:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
According to Oscar Schachter and other international law experts, the language in Article 41 is broad enough to cover any type of action not involving the use of force, which is addressed in Article 42. A Security Council resolution is 'binding' when it is capable of creating obligations on its addressees. The starting point in interpreting a resolution should be the natural and ordinary meaning of the terms used by the Security Council and the weight and importance attached to its “demands” and or “requests” by the Council. Resolution 2231 “affirms” that the JCPOA's adoption “marks a fundamental shift in its consideration of the issue,” urrges all member-states to fully comply with the terms of the JCPOA, and “decides under Article 41” that “states shall comply” with the various provisions of the resolution. It “underscores” that “that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions” and then goes on to call for the agreement's adoption by the Member-States. Indeed, the “binding” nature of the resolution can be confirmed by the resolution's own explicit reliance on Article 25. 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.
Given that Article 25 is placed in the Charter's sections dealing with the general powers and functions of the Security Council, it clearly indicates the applicability of Article 25 for any of the Security Council's actions, and not just those taken pursuant to other articles, e.g., Articles 39, 41, and 42. Resolution 2231, with its detailed innovation of new tasks for the UN Secretary General and the IAEA Director General, “snapback” mechanism, timetable for arms embargo removal, “Termination Day” and, above all, its call on member-states to adopt and implement the provisions of the JCPOA, clearly meets the standards of a “substantive” rather than merely “hortatory” decision; substantive decisions within the meaning of Article 25 of the Charter are typically referrenced to as “legally binding decisions.” To elaborate, historically speaking the Security Council has adopted two 'types' of resolutions: recommendations of a hortatory nature, and decisions of a mandatory nature. The scope of Council's decisions and their legal nature or effects has been a subject of scholarly debate for sometime. With respect to Resolution 2231, the implications of this debate are not merely scholastic, but affect the extent to which the JCPOA was legally protected and became Ergo Omnes, i.e. valid for the world, rather than an ordinary traité contrat.
Another misconception regarding the JCPOA is that the UN Resolution 2231 is not binding because it uses the terms “decides” or “calls upon” instead of stronger words such as “mandate.” According to Jon Bellinger, “the UNSC 'calls on' all UN member states to support implementation of the JCPOA, but it does not obligate the United States to do so as a matter of international law.” This is patently incorrect. First, every UN Security Council (adopted) resolution which contains a request is, indeed, binding. Second, as stated earlier, the Resolution 2231 deliberately invokes Article 25, which in turn makes it mandatory for the U.S. and other UN member-states to carry out its decisions with respect to the JCPOA. This Resolution's choice of words is, on the other hand, a rather weak barometer to gauge its significance. Although different tones must be recognized among these terms, it is not always easy to ascertain the legal force of a resolution from the choice of wording in its formulation. Words “may not be associated with probable legal effects.” Heinze and Fitzmaurice have rightly stated: “Words such as “urges” or “calls upon” are not necessarily of a purely hortatory nature. As will all documents that come under legal analysis, the totality of the document, rather than any particular words, must be given its overall import.” Taking the totality of the Security Council Resolution 2231 into consideration means, first of all, it not only endorses the JCPOA but also supplements it through important new provisions that are not in the JCPOA, such as the “snapback” mechanism and arms and missile-technology embargoes, i.e., well beyond a mere hortatory modality simply urging or encouraging compliance. This issue becomes clearer when we put the JCPOA under the prism of international law as viewed by its chief interpreter, namely, the International Court of Justice (ICJ).
The JCPOA and the ICJ's Standards
In reaching an opinion on the legal status of the JCPOA, the ICJ's own standards of interpretation reflected in other pertinent cases would be highly relevant. As is well-known, the legal effects operate on general international law and are based on customary law. In the Nicaragua v. US case (1982), the Court confirmed that the UN resolutions may have an impact on customary law. In the Nuclear Weapons case, the ICJ identified its standard of review of any resolution/agreement: “It is necessary to look at its content and the conditions of its adoption; it is also necessary to see when an opinion juris exists as to its normative character.” Similarly, in the Namibia case, the ICJ takes a holistic approach that mentions “the Charter provisions invoked” as one of the yardsticks for its evaluation. Various international law experts have recognized that the Security Council rarely makes explicit references to the legal basis for which it adopts a resolution.
To conclude, the ICJ would likely view the UN-based JCPOA as a hybrid of binding and non-binding obligations, i.e., containing both lex lata and lex ferenda. A resolution is ‘binding’ when it is capable of creating obligations on its addressees, which happens to be the case with Resolution 2231 as stated above. In the event that the US has defected from the JCPOA, the Court may find that the US has “controverted” the UN resolution, recalling the ICJ’s finding that Israel had “contravened” a number of UN resolutions, in the case on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), even though none of those resolutions were adopted under Chapter VII, unlike the Iran resolutions. Only obligations, of course, can be contravened. Again, the Nicaragua case is highly instructive here. In Nicaragua, the court ultimately disregarded a US statement — that the declarations contained in a General Assembly resolution (2131) “was only a statement of political intentions and not a formulation of law” — because the similar principles in GA Resolution 2625 had met with no such US statement.” This applies to UN Resolution 2231, mutatis mutandis, which was adopted with the unanimous consent of all permanent and non-permanent members and without any such similar qualifications.
Ultimately, the JCPOA's status as an international agreement affects the facility with which it could be overturned by U.S. Government and or any other government, in light of Article 103 of the UN Charter, which states: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
Kaveh L. Afrasiabi, Ph.D is a co-author of Iran Nuclear Accord and the Remaking of the Middle East (2018) and Iran Nuclear Negotiations: Accord and Detente Since the Geneva Agreement of 2013 (2015) and a former adviser to Iran's nuclear negotiation team (2004-2006).