Much, Much More on the JCPOAPosted: July 15, 2015 Filed under: Nuclear 18 Comments
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.
I have seen much moaning and belly-aching from critics that the agreement “only” lasts 10 years, after which Iran will – surely! – then make their Dash For A Nuke.
But such logic requires a degree of cognitive dissonance that borders on laughable i.e. if Iran really is able to restrain its murderous impulse for a full decade then it must surely be agreed that….. it’s not that much of an “impulse”, is it?
Or, put another way: if Iran really can keep its nose clean for 10 years then, honestly, it has earned the right to be treated just like everyone else, precisely because it will have demonstrated that it can, indeed, be trusted to act like everyone else.
Otherwise it’ll be a case of a murderous, fanatical regime that just so happens to be able to restrain itself for 10 years.
That doesn’t actually sound all that fanatical nor all that homicidal, does it….
Well said. So much about Western policy is founded on this completely speculative notion that Iran wants to build nuclear weapons, and unless we actively “shut down all the pathways” to them making a bomb, that’s exactly what they’ll do. There’s just no basis for this belief. Reminds very much of the 2002-2003 baseless ramp up to Iraq.
As far as the arms control community is concerned the nadir has to be Jeffrey Lewis’ recent article: “Sorry, Fareed: Saudi Arabia Can Build a Bomb Any Damn Time It Wants To”.
An article which was utterly breathtaking in its lack of self-awareness of its own tunnel-vision. Because in it Lewis pooh-poohed the notion that a country like Saudi Arabia would have any problem building a nuke.
It’s just too easy, a piece of cake, ergo, the demonstrable fact that Saudi Arabia *doesn’t* have nukes is all the proof you need that it doesn’t *want* nukes.
There simply can’t be any other explanation, so let’s stop all this scare-mongering, OK, Fareed?
Let’s run that same Lewis-logic over another country like Saudi Arabia.
1) It can make nukes any damn time it wants to. Check.
2) It has been accused of “wanting to” for 30+ years. Check.
3) It hasn’t built a single nuke in all those decades. Check.
QED: according to Lewis-logic the only possible explanation is that the accusations are false.
That is axiomatic, since both Jeffrey Lewis and I would agree that “Sorry, Jeffrey: Iran Can Build a Bomb Any Damn Time It Wants To”.
Yet Iran hasn’t built a bomb – at any time – and so the only possible explanation is that it damn well doesn’t want to.
Which means that all these sanctions, all these hardships, are being done for one purpose only: to placate those who insist on having their paranoia pandered to.
Again, very well said. What I can’t stand about Lewis has less to do with the merit of his work, but his attitude. His friends find his smug, snarky demeanor charming. The rest of us know that he’s just a dick who likes being condescending and nasty.
Can you comment on this article in NYT regarding the 5 year extension of snapback, after the 10 year period has expired. This seems to me a bit odd and open to some potential disagreements on year 11 and beyond, regarding what Iran can and cannot do.
Thanks for bringing this up, Nick. It’s news to me. And I suspect it’s news to the Iranians. I don’t really know how to explain it. Its not technically incompatible with the JCPOA I guess, in that after the deal is executed, the parties are back at status quo ante, and the UNSC could theoretically re-apply sanctions. Although significantly in that situation, both Russia and China would have to positively vote for sanctions re-imposition, which I think they are very unlikely to do unless something radically changes regarding their relationship with Iran. Maybe that’s why they went along with the letter – as some kind of sop to the Americans, but knowing it will never happen? I don’t know. Just my first reactions. Interested in others.
Senior nuclear negotiator and Deputy Foreign Minister Abbas Araqchi said on Wednesday Tehran will never accept any extension of restrictions on Iran’s nuclear program beyond the ten years’ time agreed in the recent deal struck between the Islamic Republic and six major world powers. Araqchi said in a televised conference that any effort to re-impose sanctions after ten 10 years would breach the deal. “This is out of question. What the United Nations Security Council resolution approved two days ago was totally clear,” he stressed, adding, “There is no ambiguity over that.
Nick, it’s nonsense.
If this agreement survives to the end of Year 10 then that means that Iran will have complied with its decade-long undertakings to the very public satisfaction of all concerned.
That is axiomatic.
Which will mean that at THAT point in time anyone who bleats “let’s reimpose the sanctions!” is going to be met by a wall of puzzled faces and a chorus of “why on earth would we want to do that?”.
After all, sanctions are simply a means to an end, they are not an end unto themselves.
I’m intrigued by the provisions regarding “automatic snapback” of UN sanctions if a complaint of non-compliance makes its way to the UNSC and the council is unable to adopt a position to resolve it.
Everyone assumes that this is a trigger to be used by a US Administration against Iran.
But here’s a question: can you think of any circumstances where Iran might be tempted to take a complaint all the way to the UNSC?
Something like, say, a US violation that is so blatant that its only purpose is to goad Iran into tearing up the agreement, allowing Washington to then lay the blame on Iran.
Under those circumstances Iran might be tempted to take this to the UNSC and dare the USA to blow up the agreement by vetoing any action by the Council.
Same result either way – the UNSC sanctions are re-imposed. Sure.
But with one big difference: the USA will be to blame for the agreement unravelling, which makes it hard for everyone else to be all that enthusiastic about policing the resulting “snap-backed” sanctions.
But, basically, the reason I ask is because everyone – and I mean everyone – sees that “snapback” provision purely in terms of a club that the USA can use against the Iranians.
But maybe not.
Maybe the Iranians will surprise us all by using it as a last-ditch double-dog-dare to the Americans in a game of brinkmanship.
And maybe – just maybe – that’s why they agreed to it.
That’s a fascinating thought that had never occurred to me. You’re right that it’s counterintuitive, but I can indeed see its possible usefulness in an extreme case. What I was thinking when reading your comment was that after some years of having EU and other national sanctions effectively terminated, and Iran being re-integrated into the international markets, just reinstating the UNSC sanctions actually wouldn’t necessarily change alot. It’s really been the unilateral sanctions by the EU and the US, and other states following their lead, that have caused the most economic hardship for Iran. And once the EU sanctions, and other non-US unilateral sanctions are effectively lifted, I don’t see any way they would be re-applied, even if the UNSC re-applied its sanctions. Especially, as you say, if its the US that is to blame for it.
Dan: “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.”
I would imagine that this was the quid pro quo demanded by the Iranians before they would agree to “snap-back” of sanctions.
Otherwise it would be possible for an unscrupulous US Administration (No! Surely not!) to pull a swift one on Iran i.e. wait until Iran has ratified the AP (and, therefore, be perpetually bound by it) and then send a vexatious complaint to the UN Security Council, thereby triggering the “snap-back” of sanctions.
I would suspect that someone in the Iranian team pointed out that possibility, and they refused to accept any private assurances that “no, no, of course we would never do that”…..
Note the 1 question that goes unasked and is never to be discussed in all the media spin on this deal: Could the US have essentially gotten the same or better deal, many years ago, and avoided the last decade of pointless tension? http://www.nytimes.com/2006/04/05/opinion/05iht-edzarif.html?_r=0
Of course this assumes that the US policy of sanctions and hostility with respect to Iran was actually motivated by the nuclear issue, rather than the nuclear issue simply presenting a convenient pretext for a policy of sanctions intended to lead up to the forcible displacement of the regime in Iran.
The simple answer is this: there was once a dumb-as-shit President who had not the slightest interest in striking a deal with Iran, precisely because the only thing he was interested in was manufacturing a war with Iran.
Because (have I mentioned this before?) he was dumb-as-shit, and therefore lacked the ability to understand that the people who surrounded him and told him what to do and what to think were duplicitous, venal war criminals.
Now we have a deal. And the reason why is because the USA now has a President who isn’t as-dumb-as-shit, and therefore has the wit and the wisdom (and it doesn’t actually take much) to understand that when you are dealing with *real* countries like Iran then jaw-jaw is much better than war-war.
And the reason why this has take so long is because – even now – this President has had to deal with the poisonous legacy of that dumb-ass President and the venal, duplicitous war criminals that still infest Washington to this very day.
So my hat goes off to him.
It’s taken him nearly 8 years, but he has finally earned that Nobel Peace Prize.
Better late that never, I suppose…..
Totally. What really gets me is all this commentary to the effect that removing these sanctions will empower the regime’s funding of proxy groups, breaching of human rights etc. Besides ignoring the fact that sanctions relating to these other issues will remain in place under the JCPOA, it seems like all these commentators are totally fine with the idea of sanctions that purport to be nuclear-related being used for other purposes, as if we didn’t live within in a system of equally sovereign states.
Of course, when you remember that the US remains the only state to have ever used nuclear weapons against another, and that they’re actively funding and militarizing a state that actually DOES have nuclear weapons in the region, you can see why they’d rather draw attention to these other issues.
Oh I don’t think we can put it all at the feet of Bush. Lets remember that it was under Clinton that over 500,000 Iraqi children died as a result of sanctions, which our then-Sec of State Albright said was “Worth it” https://www.youtube.com/watch?v=RM0uvgHKZe8
But indeed Obama did change the approach when they dropped the “Not one spinning centrifuge” or Zero Enrichment demand that had always been inserted as a poison pill, ensuring that no deal would be reached.
Note however that Obama could only do so in his second term, and once Dennis Ross, a Bush legacy operative of AIPAC and WINEP, was replaced
I agree with those who scratch their heads at the “it’s only 10 years” criticism. It’s like they think history freezes for 10 years, that nothing is going to happen and before you know it, the decade is over and it was all for naught, as though 10 years = 10 minutes. The general view that treaties are only the end of negotiations, and not the beginning of something new, always grates me. The next decade, like the last one, will bring new realities to the Middle East; I would prefer that decade kick off with this agreement than without it.
[…] implementation” doesn’t really have a fixed meaning within the JCPOA, an agreement that is voluntary and non-binding. And according to an Associated Press analysis out Monday, the IAEA’s investigation is likely […]