Anti-Joyner
Posted: November 21, 2016 Filed under: Nuclear 20 CommentsThis little pearl of a blog post over at Iran Review was brought to my attention today. Its actual title is “Anti-Joyner: Debunking the Misinterpretation of the JCPOA.” In it the author, Kaveh Afrasiabi, who is a political science PhD, argues that I have a pro-U.S. bias and that I’m just parroting the arguments of the U.S. State Department.
I have to say that’s a new one! In all the criticism I’ve received in the past, I’ve never been argued to be a USG shill. In fact it’s usually exactly the opposite. I think the U.S. government would be just as surprised and amused as I am to hear that allegation! This, to me, just means that Afrasiabi has no idea who I am and probably just assumed that anyone making the argument that the JCPOA is legally non-binding must be acting on behalf of the U.S. government.
Anyway, Afrasiabi goes on to argue at some length that I am incorrect in my determination that Security Council Resolution 2231 did not have the effect of making the JCPOA legally binding on the states parties to it.
As an aside, it never ceases to amaze me how confident non-lawyers often are – particularly in the nonproliferation area – in engaging in international legal analysis on complex legal questions. Do you think these people are just as confident in giving medical diagnoses? Maybe Afrasiabi should take a shift at his local emergency room and give the poor medical doctors a break.
I’m not going to dignify his post any further by serious substantive engagement with it here.
Incidentally, though, in my response to a question posed in the comments to my recent post over at Ejil:Talk I give a basic guide to UNSCR interpretation that Afrasiabi would do well to consult if he wants to understand the errors in his analysis.
Arms Control Law 
My comment , posted yesterday , not yet appearing . I guess that this is due to : too many links there that been put by me . So here as a whole , and links spread in new comments , here :
” The respectable author of the external post presented (Afrasiabi ) may be persuaded that Dan Joyner is not really ” affiliated ” with the state department , simply by having a glance , in other posts of international experts of law , and reveal how spread and common it may be ( the idea that not binding one ) here ahead , before trump elected :
http://opiniojuris.org/2013/11/24/new-us-iran-deal-doesnt-look-legally-binding-matter/
( other links will be put ahead in new comments )
Beyond it , his post , does many thinks , yet :
Doesn’t explain, to what extent the wording or phrasing of the agreement itself is binding or not ( which is not less important than the rests ) . And , how can the SC resolution , be binding ,on parties which are not at first place , the violators of any international norm or commitment in this regard ( The US , EU , Russia …) but , a sort of ” middle men ” or agents of the UN , or the world or the IAEA .
Thanks
Although Mr. Joyner has mocked me, I am happy to see others support my view. See the article in Yale Journal of International Law by Julia E Padeanu, “Is the Trump Administration Bound by the Iran Deal?” (December 1, 2016). According to Padeanu, “As an international treaty, the Iran Deal is governed by the paramount principle of international law pacta sunt servanda—the notion that that treaties must be kept.” http://campuspress.yale.edu/yjil/is-the-trump-administration-bound-by-the-iran-deal/. Joyner’s untenable stance is alos rebuffed by the EU that has labeled it as a binding international agreement.
Dr Kaveh Afrasiabi
1. That piece is not published in the YJIL. It is just in the journal’s online forum.
2. The author is a law student.
3. Her analysis is incorrect.
4. You started this, not me.
I started what? scholarly disagreement? I’m really surprised about your low level of tolerance. FYI I have leveled same criticisms in the 2015 book Iran nuclear negotiations (rowman & littlefield). I suggest you read it. Is EU’s Mogheirini also a student? or China, all saying it’s binding international agreement?
we have also repeatedly quoted you in favor so please don’t think it’s black and white and we have acknowledged you as a leading authority but on this particular issue and all its political ramifications affecting Iran’s interests the latter has priority hope you understand nothing personal.
The tone and title of your original essay was pretty aggressively critical of me, so perhaps it shouldn’t surprise you that I have reacted defensively. I also genuinely think that people who have not been formally trained as lawyers are simply not qualified to do complex legal analysis. And responding to legal analysis done by non-lawyers is quite tiresome because I have to do a lot of explaining of basic legal principles in order to make my points clear. I just don’t want to have to take the time to explain in detail why I think your analysis is incorrect. I have written my analysis of the non-binding nature of the JCPOA, even taking into consideration Resolution 2231. You disagree with that analysis. Fine. That is your right. In order to help you to understand why my analysis is correct I would need to sit down with you and have the documents in front of us for at least an hour, and I just don’t have time to do that. Let’s just agree to disagree on this point.
I am sorry about the tone sometimes words take on their own independent life. Again both Dr Entessar and I have very high regard for you and your works and my disagreement on the legal issue is closely connected to concerns about Trump.regardskaveh
I appreciate your outreach. Perhaps we can discuss this in person on the conference circuit at some point over coffee.
sure.
From: Arms Control Law To: kavehafrasiabi@yahoo.com Sent: Monday, January 9, 2017 8:53 AM Subject: [New comment] Anti-Joyner #yiv2358073014 a:hover {color:red;}#yiv2358073014 a {text-decoration:none;color:#0088cc;}#yiv2358073014 a.yiv2358073014primaryactionlink:link, #yiv2358073014 a.yiv2358073014primaryactionlink:visited {background-color:#2585B2;color:#fff;}#yiv2358073014 a.yiv2358073014primaryactionlink:hover, #yiv2358073014 a.yiv2358073014primaryactionlink:active {background-color:#11729E;color:#fff;}#yiv2358073014 WordPress.com Dan Joyner commented: “I appreciate your outreach. Perhaps we can discuss this in person on the conference circuit at some point over coffee.” | |
Another link before trump elected :
http://opiniojuris.org/2015/07/14/those-snap-back-sanctions-in-the-iran-deal-have-a-pretty-big-loophole/
And last one , after being elected :
http://opiniojuris.org/2016/11/09/why-president-obama-gave-president-elect-trump-the-power-to-undo-the-iran-deal-and-paris-agreement/
Thanks
Dan , just go and read it , it is hard to believe it :
http://www.cbc.ca/news/canada/british-columbia/ufo-lost-cold-war-nuclear-weapon-canada-s-navy-to-investigate-object-found-off-b-c-coast-1.3835542
Apparently that’s not what it was after all:
https://www.google.com/amp/www.telegraph.co.uk/news/2016/11/26/missing-cold-war-nuclear-bomb-remains-mystery-canadian-navy/amp/?client=safari
And wherever it is it’s not actually a nuclear explosive device, according to the article.
Dan, I didn’t know about that story at first place. I just don’t get it , if the whole event actually happened and confirmed , how authorities in US or Canada , could leave such hell of bomb in the bottom of the ocean , without tracing it up to that day ? What I know for sure , is that when a commercial flight or passenger flight is crashed , even to the ocean , aviation authorities , are doing whatever it takes to pick the wreckages of the plane , and decipher whatever had caused the accident . They never give up almost ! So a nuclear bomb ?? They claim : it was not capable of a nuclear explosion because it did not contain plutonium. Well , I know that plutonium is a short cut for skipping enriching Uranium process , how do they know that it wasn’t Uranium one ??
Thanks
I hear you. It seems incredible. But it’s not the only example:
http://mentalfloss.com/article/17483/8-nuclear-weapons-us-has-lost
Thanks Dan for those interesting links , really astonishing …..
Nice article, well I think lawyers are the one who deals with all the legal issues and gives the best legal advise which is very helpful
My colleague and I have now published a second book on the Iran nuclear issue, titled Iran Nuclear Accord and the Remaking of the Middle East (Rowman & Littlefield, 2018), devoting a chapter to the legal status of the JCPOA and international law. We are happy that the EU’s representative has recently echoed our view by calling the JCPOA an international agreement backed by international law. I hope at this crucial point when Trump is on the verge of a dreadful historical mistake of scrapping the JCPOA, professor Joyner and other like-minded scholars realize the importance of couching the defense of JCPOA in the framework of international law.
FWIW it is worth now, the VCLT defines treaties as written agreements between states intended to be subject to international law regardless of what they’re called – and the JCPOA meets that definition perfectly. Words such as “treaty” or “ratification” do not mean the same thing under US domestic law as international law. Whether the UNSC res is “binding” or not is irrelevant; as a general matter no UNSC treaties are required to make an agreement binding anyway, so if anything the UNSC resolution is simply further evidence of US consent to be bound by the deal (which per ICJ jurisprudence is judged objectively) and for the deal to be governed by intl law (there is no other body of law applicable anyway.)That the measures taken are “voluntary” has no relevance either; all treaties are voluntary & there simply is no such thing as an involuntary treaty. And the title of the agreement “Joint Plan…” is also totally irrelevant according to the explicit text of the VCLT (which btw also says that even oral agreements that fall outside of the VCLT can be valid.) Signatures are not required to make a treaty binding, and even if the JCPOA had been signed it would not have become binding by virtue of that signature (a “simple signature” vs. a “definitive signature”) so that’s also an irrelevant issue. Finally, treaties are not particularly “binding” under US domestic law anyway: Congress can repeal a treaty explicitly or implicitly by simply passing contrary legislation (see Head Money cases) and the President can unilaterally withdraw from the most formal of treaties approved by the Senate (see Goldwater v Carter.)
In any case treaties and international law has not exactly posed a signficant constraint on US actions with respect to Iran anyway & there is a distinct element in the US govt that are deliberately out to undermine international law (John Bolton)
It is just highly amusing that people tend to think that somehow the JCPAO was binding on Iran but not the US.
‘Great injustice’ | US govt records 33k calls of US-Iranian author charged as foreign agent
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