Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear ProgramPosted: July 27, 2015 Filed under: Nuclear 14 Comments
Note: Cross posted from EJIL:Talk!
Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.
The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.
I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.
The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations. And so I compliment all of the diplomats and lawyers involved.
The purpose of Security Council Resolution 2231 is primarily to endorse the JCPOA, which is itself a legally non-binding agreement, and to implement the actions of the Security Council which were agreed to in the JCPOA. Specifically, the Security Council decides in Resolution 2231 that on Implementation Day, as defined in the JCPOA, the previous resolutions of the Security Council regarding Iran’s nuclear program will be terminated. Implementation Day is scheduled to occur when a number of essential actions are taken by Iran, and by the U.S. and the E.U., as spelled out in Annex V of the JCPOA. Practically speaking, Implementation Day is likely to occur within the next 6-8 months.
So again, within the next 8 months, according to Resolution 2231, all of the Security Council’s previous resolutions on Iran regarding its nuclear program, inclusive of sanctions applied pursuant to those resolutions, will be terminated. This is subject, however, to a “snapback” procedure, described in operative paragraphs 11-13 of Resolution 2231. According to this “snapback procedure,” any party to the JCPOA, including Iran, can lodge a complaint with the Security Council at any time alleging substantial noncompliance with the JCPOA’s terms by any other party. If no resolution can be achieved on the matter, the Security Council will vote on whether to continue in effect the termination of its previous resolutions. If this vote by the Security Council fails – e.g. if one of the permanent members votes against it – all of the Security Council’s previous resolutions, including the sanctions implemented thereby, will come back into effect. This process was particularly sought for inclusion by the United States, so that U.S. officials could truthfully say to a skeptical Congress that the U.S., acting alone (i.e. as complainer, and as a permanent member of the Security Council), could if it wished cause the re-application of Security Council sanctions in the event that Iran substantially failed to comply with the terms of the JCPOA.
Assuming the “snapback” procedure is not implemented, however, after the termination of previous Security Council resolutions occurs on Implementation Day, Resolution 2231 puts in their place a more limited, continuing set of restrictions on trade with Iran, which are to continue until UNSCR Termination Day. UNSCR Termination Day is scheduled in the JCPOA to occur in 10 years from Adoption Day. This interim set of restrictions is outlined in Annex B to Resolution 2231, and includes restrictions on trade with Iran, primarily in items and technologies related to Iran’s nuclear program. It does, however, allow for some exceptions for permissible trade in technologies necessary to support the 6,000 uranium enrichment centrifuges which Iran is allowed to maintain in operation throughout the term of the JCPOA.
The restrictions also, notably, include the continuation for five-years of the conventional arms embargo which was a part of previous Security Council resolutions on Iran. The continuation of this arms embargo was one of the more contentious points of the JCPOA negotiations between the parties, and this five-year extension is the resultant agreed compromise.
Importantly, from the perspective of Iran, if all sides abide by their commitments under the JCPOA, Resolution 2231 provides that:
[O]n the date ten years after the JCPOA Adoption Day, as defined in the JCPOA, all the provisions of this resolution shall be terminated, and none of the previous resolutions described in paragraph 7 (a) shall be applied, the Security Council will have concluded its consideration of the Iranian nuclear issue, and the item “Non-proliferation” will be removed from the list of matters of which the Council is seized;
For Iran, this promise represents its ultimate aspiration on this issue – the full removal of international sanctions related to its nuclear program, and its treatment as a lawful possessor of peaceful nuclear energy capabilities.
There would appear to be no “poison pills,” or impossible, or even unreasonable commitments for any party in the text of the JCPOA or in Resolution 2231. Optimism is therefore warranted that this aspiration will be achieved.
I don’t know what the magical and secret agreement between Iran and Amano has been, but the involvement of IAEA seems like the weakest point of the deal. Of course, not getting them to play would make the agency irrelevant for good.
Given the horrible history of IAEA in dealing with Iran, especially since Amano took the helm, and specifically, IAEA’s request at times for Iran to disprove claims without showing them the evidence–most likely, American and Israeli fabricated evidence–and a chance to rebut the claims, how should one read Q-75?
Quoted from the document:
75. In furtherance of implementation of the JCPOA, if the IAEA has concerns regarding undeclared nuclear materials or activities, or activities inconsistent with the JCPOA, at locations that have not been declared under the comprehensive safeguards agreement or Additional Protocol, the IAEA will provide Iran the basis for such concerns and request clarification….
How should this be understood?
Do you think this means a change of policy and something Iran can actually rely on and sue for? If not, I am afraid, we may be just sitting for a new round of tricks once the political will from the White House disappears in 2017–maybe sooner.
Hi Ali, have a look at what I wrote about the dispute mechanism in paragraph 37 in my earlier piece: https://armscontrollaw.com/2015/07/15/much-much-more-on-the-jcpoa/
I see that I was vague. Here is the question: do you think in the above quoted paragraph, there is a real promise to actually provide access to the evidence that causes suspicion?
If another “laptop” fall from the sky, are they promising to show it to the Iranians?
Oh I see what you’re asking, and its a good question. How much of the actual evidence supporting their “concerns” would the IAEA have to share with Iran. Again, that is a good question and I don’t know the answer. No matter how detailed the agreements are, there is still going to be a healthy chunk of having to depend on at least some good will and cooperation among the parties. If that’s not there, the whole thing will break down. The whole side deal with the IAEA – the Road Map – as its being called, will have to function the same way. For the IAEA to really conclude the PMD issue by December, there’s going to have to be some real good faith and cooperation on both sides.
So that’s a long way of saying I dont know the answer to your question 🙂
Well, if you look at that quoted section of article 75 you’ll see that it doesn’t commit Iran to do anything, but it does require the IAEA to do something.
As in: the IAEA can’t produce another one of its reports wherein it simply expresses “concern”, and then leaves that “concern” hanging there like a bad smell.
If the IAEA wants to be “concerned” then Article 75 requires Amano to provide to Iran “the basis for such concerns”, and even then the IAEA is only allowed to “request” a “clarification”.
So I’d suggest that article would, indeed, require the IAEA to let Iran poke around a Laptop Of Death Mk2.
Which is probably another way of saying that the IAEA will have no interest in taking possession of a Laptop Of Death Mk2 even if it is dropped into Amano’s lap.
Unfortunately this also gives the pro-war faction 10 years to ruin the deal if they can. Look forward to 10 more years of revelations, leaks and discoveries of Iranian perfidy, not just in the nuclear area either.
“There would appear to be no ‘poison pills,'”
Dan, that seems to be a rather optimistic, and perhaps misleading judgment.
Isn’t the “snapback” procedure a poison pill after all?
If Uncle Sam has no political will to uphold the deal,
then U.S. can lodge a complaint, on a false pretext, with the Security Council–
probably six months before the Termination Day.
That will start the snap back procedure, and the U.S. will be in the
driver’s seat. How can Iran stop it??
I think you are being wonderfully optimistic about this deal. Knowing the realities of domestic American politics, do you really think there is a snowball’s chance in Nagasaki that this agreement is going to be seen through in good faith? If we’re being generous, it’s a kick the can down the road scenario in the guise of a legacy project for Obama.
There is a principle here that is completely new to me, that I was wondering if you could comment on. When the UNSC established the Special Tribunal for Lebanon, under chapter 7 of the UN charter, I believe there was some debate over weather it was proper for the UNSC to form an ad hoc judicial body and delegate to it Chapter 7 authority that was originally envisioned for the UNSC alone.
This JCPOA does something similar, except rather than delegating chapter 7 authority to a putatively judicial tribunal, it delegates that authority to, I believe Iran and the EU/E3+3(and maybe the IAEA? I really don’t know), modulo some convoluted, and likely hollow, ad hoc arbitration processes. This really seems to me to be quite a striking innovation in international law.
Also, it really did seem strange to me that the EU/E3+3 struck a deal with Iran on the implementation of Iran’s safeguards agreement, including things like the number of inspectors that would be assigned to Iran, and other specific measures about storing centrifuges and inspection mechanisms, and the IAEA was never actually a part of this agreement. My question really isn’t “how is this possible”, since clearly it just happened, but rather don’t any of these negotiators or lawyers representing the IAEA have any sense of shame? I assume they at least like to maintain the working fiction that the IAEA is an independent entity that makes it’s own decisions and determinations. Are we entering some new era were even that pretense is put aside, and a cabal of the P5+odds and ends formally police the commitments of smaller countries to the NPT?
Hi Masoud, I may be overly optimistic. But things like this do sometimes work out, once they are established and become de facto. I think if we can get through the political battles to actual implementation, there is a good chance that everyone will essentially keep their commitments. I think its in everyone’s individual interests to do so. This of course depends on political will, which is why it will be important to keep a republican – and maybe Hillary Clinton too – out of the presidency in the US.
WRT the dispute resolution mechanism established by 2231, yes there were battles in the 90’s over whether the UNSC had the authority to create particularly the ad hoc international criminal tribunals in Yugoslavia and Rwanda. The challenge was considered by the ICTY itself (no bias there) and dismissed. I personally think it was a big stretch of the UNSC’s power to create a standing international criminal court as in those instances. But I don’t see anything in the 2231 dispute resolution process that makes me concerned about the UNSC going too far.
There is some talk going on regarding how “legally binding” Security Council’s Resolution 2231 is vis-a-vis Iran’s *domestic* R&D, design, testing and manufacture of ballistic missiles “capable of delivering nuclear war heads”. So my question is to get your opinion regarding how legally binding the following paragraph in Resolution 2231 is:
“Iran is called upon not to undertake any activity related to ballistic missiles
designed to be capable of delivering nuclear weapons, including launches
using such ballistic missile technology, until the date eight years after the
JCPOA Adoption Day or until the date on which the IAEA submits a report
confirming the Broader Conclusion, whichever is earlier.”
I ask this question mainly because pretty much all of Iran’s current and future missiles which could be of any use for the delivery of a heavy satellite, could also be classified as “nuclear capable”. So if this paragraph is legally binding, essentially it will mean a halt to Iran’s space program for at least 8 years.
I think the ‘call upon’ formulation is not generally considered as a legally binding edict when it comes to unsc resolutions.
This is a very interesting question and I had to look closely at the text. OP 7(b) of 2231 provides that:
“All States shall comply with paragraphs 1, 2, 4, and 5 and the provisions in subparagraphs (a)-(f) of paragraph 6 of Annex B for the duration specified in each paragraph or subparagraph, and are called upon to comply with paragraphs 3 and 7 of Annex B;”
The paragraph that you quoted from Annex B is paragraph 3. So that paragraph is not included in the mandatory “All states shall” reference in the text of 2231, but rather contains actions which Iran is only “called upon” to comply with. So as a formal matter this paragraph on ballistic missile missile activity is not legally binding on Iran.
I think its also important to note that Zarif has already expressed an interpretation of this provision that I’m guessing is at odds with the US interpretation. See from this article: http://www.bloomberg.com/news/articles/2015-08-05/iran-deal-weakens-arms-embargo-enforcement-with-experts-removal
This is “a non-binding” restriction, Iran’s Foreign Minister, Mohammad Javad Zarif, told the country’s parliament on July 21.
“This paragraph speaks about missiles with nuclear-warhead capability, and since we don’t design any of our missiles for carrying nuclear weapons, this paragraph is not related to us at all,” Zarif said, according to the semi-official Fars news agency.
That view was reinforced by Ali Larijani, the speaker of the parliament, who said Iran will pay no mind to the resolution on non-ballistic missiles.
Back to DJ:
I guess the interpretive difference would come down to the meaning of the provision “designed to be capable of delivering nuclear weapons.” Zarif apparently thinks that means only missiles designed for the express purpose of carrying a nuclear weapon. I don’t have the technical background to assess how persuasive an interpretation that is. My guess is that the US interpretation would be considerably broader, including missiles that, while they may not have been designed with NW in mind, are nevertheless still capable, with minor accommodations made, of doing the job. But again, we’re beyond my technical knowledge here.
Greatly appreciated Prof. Joyner. Many thanks.