Much, Much More on the JCPOA

This is a long one, folks. So settle in if you really want to get into some legal wonkery.

I published the below introductory piece on the JCPOA over at Opinio Juris. Here I’d like to go into a lot more detail about some of the the legal issues that I see associated with the JCPOA.

To start out with, overall I think this is a very good deal for Iran. They apparently got basically everything they wanted, and certainly the most important things. They get to keep a full front-end nuclear fuel cycle complete with 6,000 operating centrifuges. They get to carry on with centrifuge R&D. Over time they get to upgrade and increase their capabilities all around. The deal stipulates that the end game is for Iran to be considered a nuclear normal state, on par with other NNWS, implicitly recognizing Iran’s right to have enrichment capability and all the other elements of a front-end nuclear fuel cycle. There’s a pathway in the deal for all multilateral and unilateral sanctions to be lifted. These things are all Iran really ever wanted out of the deal.

I think it’s also a good deal for the West and the IAEA. It ratchets down unnecessary tensions between the West and Iran, which is – like it or not – a major regional player now and going forward. It keeps Iran in the NPT and in the IAEA, and lets the IAEA get out of the PMD hole they’ve dug themselves into.

Basically it gives everyone the most important things they’ve said they wanted, creates compromises everyone can live with, and allows everyone to declare victory and save face, which are the hallmarks of a good diplomatic deal.

The JCPOA text creates a serious normative framework that the negotiators have come up with, with a Joint Commission for implementation, a dispute resolution mechanisms, and an agreed implementation program that is very specific on timing and on when everyone has to do things. As I said in my previous post, I think it’s an impressively well crafted and well organized set of documents, so kudos to the lawyers from all sides.

I’d like to comment on a few of the legal issues that the JCPOA raises. Some of this will be overlap from my previous post, but a lot of it will be new.

First, it can’t be overemphasized that the JCPOA is not a treaty. Lest there be any doubt, the drafters say this explicitly on Pg. 6 of the JCPOA, when the text refers to all of the subsequently detailed commitments as “voluntary measures.” This fact of course has important implications for both international law and the domestic law of the parties. From a domestic law perspective, it of course means that the JCPOA doesn’t need the approval of the respective domestic legislative bodies. It’s just a diplomatic agreement representing political and not legal commitments.

Significantly from an international law perspective, it means that neither Iran’s legal obligations, nor the legal authority of the IAEA, are affected by the terms of the JCPOA itself. This is an important point to bear in mind going forward. The terms of the JCPOA will be implemented separately from the actual implementation of Iran’s and the IAEA’s legal rights and obligations under applicable treaties. That being said, the implementation of the JCPOA will in some cases have legal effects. Iran has agreed under its terms, for example, to provisionally apply the Additional Protocol for the next 8 years. If Iran does declare that it is provisionally applying the AP, this action will have legal implications, which I’ll return to later. And of course if the Security Council acts to supersede/remove its prior decisions on Iran, this will also certainly have legal effects. But one has to keep these actions of implementation of the JCPOA in a different category in one’s mind from the actual terms of the JCPOA itself, which are not legally binding.

This includes the expanded access for IAEA inspectors in Iran which is provided for in Annex 1, Section Q of the JCPOA. This is one of the really interesting sections of the JCPOA. I admit I was surprised to see this in there. Interestingly, what they’ve done here is to agree, as a political commitment, to a process through which IAEA requests for access to undeclared – meaning not a part of Iran’s CSA and AP declarations – can be handled. Specifically, it provides that the IAEA has to express its concerns “regarding undeclared nuclear materials or activities, or activities inconsistent with the JCPOA” at non-declared sites to Iran. The two sides will then try to work out some way to address the IAEA’s concerns. Ultimately, the IAEA can ask the Joint Commission – made up of the P5+1, Iran, and the EU – for its decision on whether the IAEA’s access request is necessary, and if the Joint Commission – note how it’s stacked against Iran and its allies Russia and China – decides by majority that it is necessary, Iran has committed to allow it.

I think the negotiators and drafters overall did a good job trying to make this process as collaborative and as respectful of Iran’s sovereignty as possible. And I would hope that through the collaborative process, access issues can be solved in a way that doesn’t impinge on Iran’s reasonable concerns about sensitivity of sites. Here I think that the fact that this enhanced access system is only a political commitment, should hopefully incentivize all sides to be reasonable in their approach to any disputes, as excessively aggressive or unreasonable demands made by either side – such as unreasonable requests by the IAEA to visit Iranian military facilities – could result in the collapse of the entire JCPOA framework. But again, I’m hopeful that this facility will be used prudently and collaboratively and that it will operate smoothly and without significant dispute.

I would note one possible point on which there could be some substantial disagreement on interpretation. What exactly are “activities inconsistent with the JCPOA”? Seems a very potentially fraught standard about which the parties could reasonably disagree. I’m assuming that what this is really aimed at is the weaponization provisions, found in Annex 1, Section T. These are actually really interesting. If you look at them, they basically provide, again as a political commitment only, an Iranian commitment beyond what it is under a legal obligation to do regarding weaponization pursuant to NPT Article II, which only prohibits the “manufacture” of a nuclear explosive device. I guess this was something the West wanted as proof of the pudding of the nuclear weapons Fatwa by the Supreme Leader. And to their credit Iran has agreed to it.

But back to the access provisions, it seems to me that what they are geared toward is future suspicions that Iran is engaging in the weaponization R&D that it commits in Section T not to engage in. So it in essence gives the IAEA at least a basis in political commitment, to ask for access to undeclared sites in order to verify that no weaponization work is going on. That’s of course a subject the IAEA has struggled with, as I and others have pointed out time and again that there is no actual legal authority in the IAEA Statute or safeguards agreements on which the IAEA can base its investigations or assessments of weaponization issues.

Now, notice I said future suspicions about weaponization work. That’s because I do not read the access provisions of Section Q to be applicable to the past weaponization allegations we all know and love as the PMD issue. That’s because the PMD issue is explicitly handled in JCPOA Section C paragraph 14, which references the “Roadmap” agreed between Iran and the IAEA on the same day as the JCPOA, and says that the PMD issue is supposed to be resolved by December 15, 2015, and that the BOG at that point is supposed to act “with a view to closing the issue.” So I do not see the Annex 1 Section Q enhanced access provisions to be geared toward PMD, but rather toward future weaponization suspicions.

Another thing that is complicated about the JCPOA is keeping up with which provisions and commitments expire when. There’s all kinds of dates and timelines in there, running from 90 days to 25 years. It’s difficult to keep up with which parts of the JCPOA are fulfilled, or expire, at which times. My reading of the JCPOA text, Section C, paragraph 15 is that the enhanced access provisions of Annex 1 Section Q will expire after 15 years. As paragraph 15 says:

Iran will allow the IAEA to monitor the implementation of the voluntary measures for their respective durations . . . . as set out in this JCPOA and its Annexes. These measures include: . . . a reliable mechanism to ensure speedy resolution of IAEA access concerns for 15 years, as defined in Annex 1.

I think that a lot of commentators have so far missed this provision, and have asserted that the JCPOA’s enhanced access provisions are to continue indefinitely.

So this is interesting if you think about it in conjunction with the JCPOA’s provisions concerning the Additional Protocol. Iran agrees in the JCPOA to provisionally apply the AP for the next 8 years – 8 years from “Adoption Day” to be specific. Only then will Iran “Seek, consistent with the Constitutional roles of President and Parliament, ratification of the Additional Protocol.”

So what this means is that Iran will apply the AP provisionally for 8 years, during which time it will also allow the enhanced access provided for in Annex 1 Section Q. Then there will be seven years during which the AP will actually be ratified and in force, along with the enhanced access provisions of the JCPOA. After that, the IAEA’s access will be limited indefinitely to the access provided is under Iran’s CSA and its AP.

So let’s talk about this provisional application thing. I’ve read some observers bemoaning that what this means is Iran will only be voluntarily implementing the AP during this period. That’s not quite correct in its nuance. Provisional application of treaties is a legal category of treaty application. You can find it explained in Article 25 of the Vienna Convention on the Law of Treaties. It’s also been the subject of an ongoing study by the International Law Commission. Basically, when a state formally declares that it is provisionally applying a treaty (and if the treaty has a clause recognizing this), the state is from that moment legally bound to implement the treaty’s terms in their entirety. So if Iran does indeed declare its provisional application of the AP, until it revokes that declaration it is legally bound to implement the full terms of the AP. Now, it is true that a state’s declaration of provisional application of a treaty can be withdrawn at its discretion. VCLT Article 25 provides that:

[T]he provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty

So it is true that Iran could at any time revoke its declaration of provisional application, and it would at that point no longer be bound by the treaty’s terms. Some have brought up the fact that Iran already voluntarily implemented the AP from 2003 to 2006. That is correct, but I can’t find any source that confirms that Iran actually formally declared at any point during that time that it was provisionally applying the treaty during those years. I think that Iran only ever said that it was voluntarily applying the treaty, though I could be factually corrected on this. You might say that’s just semantics, but again provisional application of a treaty is a recognized category of treaty application, and I think it does make a difference that the JCPOA calls for a formal declaration to this effect by Iran.

Why does the JCPOA allow Iran this 8 year window of provisional application? I think it’s all about Iran keeping some leverage over the IAEA. Iran knows that once it ratifies the AP it is legally bound by its terms indefinitely, because the AP doesn’t have a withdrawal clause. So it wants to be able to keep the option of revoking its provisional implementation, and not ratifying the AP, as leverage to make sure that all the other parties keep their ends of the bargain.

A lot of commentary has focused on the “snapback” feature of U.N. Security Council sanctions, which is provided for in JCPOA paragraph 37. Assuming that this process is actually adopted by the Security Council as part of its resolution endorsing the JCPOA, what it appears to provide for is that, in the event any of the JCPOA parties complains that another party is significantly failing to comply with the JCPOA, the Security Council will take a vote to continue the suspension of its sanctions. If the resolution fails – which any of the Permanent 5 can cause to happen – then the sanctions will come back on line. This is a creative mechanism that was engineered to allow the U.S. to say that it, on its own, can bring Security Council sanction on Iran back into force in the event of Iranian noncompliance with the JCPOA.

Julian Ku posted an interesting observation over at Opinio Juris yesterday, noting that even if this process were to be followed and Security Council sanctions were to be re-applied, paragraph 37 does go on to provide that:

In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

As Julian notes:

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions. The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating. So even if “snapback” works legally, it would have pretty limited impact practically.

I would add to this insightful observation that, even if the Security Council were to “reapply” its sanctions against Iran, there is no guarantee that the E.U. in particular would follow the Council’s lead and reapply its own unilateral sanctions which, along with U.S. unilateral sanctions, are currently far more harmful to the Iranian economy than are the Security Council sanctions themselves. I suspect that once the E.U. sanctions on Iran are suspended, they won’t be reapplied in the absence of some spectacular instance of noncompliance by Iran, which I don’t anticipate.

So I would join Julian in positing that even with the snapback procedure in place, there’s really no way for the U.S. on its own to claw back the substantial sanctions lifting that will occur once the JCPOA is implemented.

Finally, I would note that the JCPOA itself does not, as far as I’ve seen, have a general “sunset clause” or agreed point at which the entire agreement is no longer applicable. In fact, Annex V, Section F, paragraph 26 seems to provide for just the opposite effect, stating that:

The terminations described in this Annex V are without prejudice to other JCPOA commitments that would continue beyond such termination dates.

I suspect that the U.S. delegation was keen to not have a general sunset clause in the JCPOA, so that it could truthfully tell Congress that the deal and at least some of its limitations on Iran’s nuclear program were permanent.

But really, if you look through Annex V you’ll see that once “Transition Day” and “UNSCR Termination Day” have passed, in roughly 10 years from the present time, all of the sanctions on Iran both multilateral and unilateral will have been formally terminated, and Iran will be at liberty to maintain a mature, full front-end nuclear fuel cycle. A few relatively insignificant limitations on Iran’s nuclear program will remain for another 5 years, with even fewer and less significant ones carrying on for another 15 years. But realistically, once the sanctions are lifted, the West won’t have much leverage left to force Iran to do much. Not that I think Iran won’t abide by its commitments. I fully anticipate that it will. I just think that what we have here is essentially a ten year agreement, at the end of which time by far the most important commitments will have been implemented on all sides, and what we’ll be left with is a new status quo, in which Iran is out from under all nuclear related sanctions, is likely deeply integrated into the international economy, is on good terms with most countries in Europe and Asia, and merely has a few lingering political commitments to limit aspects of its nuclear program that it really doesn’t mind limiting anyway.

Again, I think this is a good deal all around, so I’m not being critical. Just critiquing some of the misstatements and half-truths I’ve heard.