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Anti-Joyner: Debunking the Misinterpretation of JCPOA

Monday, November 21, 2016

Kaveh L. Afrasiabi, Ph.D.

    This article seeks to debunk the theoretically-indefensible interpretation of the Iran nuclear accord, known as the Joint Comprehensive Plan of Action (JCPOA), by international law expert Daniel Joyner.  Parroting the US Department of State, Joyner has repeatedly defended the US's interpretation of the JCPOA as merely a political agreement that is "legally non-binding." This has led Joyner to conclude that US under President-elect Donald Trump can defect from the JCPOA "without incurring the legal responsibility," and even going as far as claiming that this would be the case if Trump decides to take "the most extreme legal move" by unilaterally "triggering the snapback procedure (on Iran sanctions -- KA) stipulated in Resolution 2231." 

    This is rather absurd and Joyner stands on untenable legal ground by making such dubious assumptions.  In fact, Joyner amends himself and elsewhere in his writings reluctantly admits that "some of the JCPOA's commitments have legal implications."  He then goes on to cite Iran's "voluntary" adoption of the "voluntary" Additional Protocol under the terms of the JCPOA, without bothering with the legal effects of any US non-commitment, thus betraying his pro-US bias.  Contrary to Joyner, US cannot trigger the snapback procedure (a) without first resorting to the dispute resolution mechanism of the Joint Commission set up by the JCPOA, and (b) would be hard pressed at the Security Council to justify its action short of proving an Iranian non-compliance.  In other words, this legal venue is simply not available to US in the absence of a viable US complaint of Iranian non-compliance, in light of the reports of both the IAEA as well as UN Secretary General and UNSC Resolution 2231 Facilitator confirming Iran's good-faith fulfillment of its JCPOA obligations.  Clearly, the US and (its so many apologist pundits) want to have it both ways, that is,  hold Iran legally accountable while releasing the US of any legal responsibility. 

     Unfortunately, such grave legal errors by Joyner are not limited to his interpretation of the legal consequences of any US departure from its obligations under the JCPOA and, in fact, are symptomatic of a deeper and more troubling misinterpretation rooted in a legally-untenable highly restrictive interpretation of the JCPOA that is not in sync with the evolution of international law.

    Take for instance Joyner's flawed interpretation of the UN Security Council's endorsement of JCPOA as merely "hortatory endorsement."  This is nonsense. Resolution 2231 calls on the UN Member-States to carry out the provisions of the JCPOA and to respect its timetables, e.g., implementation date, conclusion date, and furthermore sets up a facilitator to issue a bi-annual report on the accord's implementation; so far, the UN Facilitator (from Spain) has issued one report in July, 2016 and the next one is due in January, 2017; Italy is scheduled to shoulder the responsibility as the next UN Resolution 2231 Facilitator and may, in fact, adopt an "expansive interpretation" of the Resolution, per the author's interviews with various UN officials.  

    Contrary to Joyner's (mis) interpretation, Resolution 2231 is based on the implicit power of the Security Council, Article 25, which makes it of a mandatory nature, irrespective of the US officials' self-serving interpretations. In other words, Resolution 2231 reflects a substantive decision within the meaning of Article 25 of the UN Charter, typically referenced to as "legally-binding decisions." To elaborate, 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, e.g., Articles 39, 41, and 42. The legal dimension or effects of JCPOA must, therefore, be strictly derived from the UNSC Resolution 2231 pre-figured in the JCPOA.  Although the JCPOA is conceived as a "voluntary agreement," the Resolution 2231 does in fact change "that fact" contrary to Joyner's misleading conclusion, particularly as it pertains to the relationship between the JCPOA obligations and the corresponding (NPT-based) rights, highlighted in the agreement's so-called "sunset clause" on the removal of JCPOA-led restrictions on Iran's civilian nuclear program at the end of the agreement's life-span.

The Legal Effects of Resolution 2231 in Light of ICJ's Jurisprudence

    Indeed, Joyner's untenable position --  that there are virtually no legal consequences to any US defection from the JCPOA -- flies in the face of international law and International Court of Justice's jurisprudence.  Assuming, hypothetically, that Iran and other parties to the JCPOA would seek an advisory opinion from the ICJ on the legal basis of both the JCPOA and Resolution 2231, there is a great likelihood that the ICJ justices would lean on the side of Iran's interpretation, e.g., President Rouhani's recent depiction of the JCPOA as a UN-endorsed "international agreement." 

    In so doing, the ICJ's justices would likely draw insights from their own past rulings and the standards that they have set in evaluating the various UN resolutions and international agreements, whether bilateral or multilateral.  Joyner and other US pundits may want to impose their own 'tyranny of interpretation,' but the ICJ would probably wound up viewing the Resolution-based JCPOA as a hybrid of binding and non-binding obligations, i.e., containing both lex lata and lex ferenda. Again, to reiterate, 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, then 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. 

    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 another opinion, 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.  There is also a consensus among experts that the particular wordings of a resolution "may not be associated with probable legal effects."  Nor, contrary to Joyner, the absence of signature of parties on the JCPOA has any direct bearing on the legal status of the agreement, which is as a result of the UNSC 2231, rendered into a higher level legal meaning or connotation, i.e., the resolution in question has substantive effects, binding, authorizing and (dis) empowering.

    In conclusion, again the Nicaragua case is highly instructive here. In Nicaragua case 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. 

More By Kaveh L. Afrasiabi:
* The Legal Turn in Interpreting the Iran Nuclear Accord: http://www.iranreview.org/content/Documents/The-Legal-Turn-in-Interpreting-the-Iran-Nuclear-Accord.htm
* The Nuclear Accord Is Legally Binding: http://www.iranreview.org/content/Documents/The-Nuclear-Accord-Is-Legally-Binding.htm
*  Time to Expand German-Iran Ties: http://www.iranreview.org/content/Documents/Time-to-Expand-German-Iran-Ties.htm

* Photo Credit: Tasnim News
* These views represent those of the author and are not necessarily Iran Review's viewpoints.

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