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Nature and Legal Impact of John Kerry’s Letter to Zarif

Tuesday, December 29, 2015

Reza Nasri
Law Expert at Geneva's Graduate Institute of International and Development Studies (HEI)

In international law, countries have a number of ways to undertake binding legal obligations. One of those ways – which is known to most people – is to sign treaties or accede to international conventions. Another way, which is less discussed by unspecialized media, is to issue “unilateral declarations.” In fact, unilateral declarations are those “promises,” which are given by a competent official of a country on behalf of the country’s government and in a public manner addressed to a specific audience, or to international community in general, with the goal and intention of creating “obligations” as to the future performance of the government in question.

Naturally, in accordance with the International Court of Justice’s ruling (in the case of France’s nuclear tests in 1974) and as confirmed by the International Law Commission (in its 2006 report), promises with such clear specifications will be legally followed by obligations and are “binding” for that given country and also naturally, promises characterized by such specifications cannot be easily repealed or taken back and their violation will be followed with legal consequences at international level. It must be noted that some of these unilateral declarations have played a major role and had great influence in contemporary history of international relations. Of mention here is the unilateral declaration released by the French government announcing a halt on the country’s atmospheric nuclear testing over the Pacific Ocean in 1974, which was issued through a letter by the office of the then French president.

Other cases to the point, which can be mentioned here, include the unilateral declaration issued by the Egyptian government on the situation of the Suez Canal in 1957, or the unilateral declaration about “permanent neutrality” of Austria at the end of World War 2, both of which had remarkable legal influence and importance.

Now, after this introduction, the recent letter written by US Secretary of State John Kerry to his Iranian counterpart, Mohammad Javad Zarif, in which he stressed the United States’ commitment to the Joint Comprehensive Program of Action (JCPOA) and assured Zarif about adapting the implementation of the “Visa Waiver Program” with the nuclear deal, must be assessed within framework of “unilateral declarations.”

In fact, Kerry’s letter, both in form and content, enjoys all the specifications and coordinates of a “binding unilateral declaration” – as defined by the Hague Tribunal and the International Law Commission. This is true as the letter has been issued by a competent authority (which in this case is the secretary of state of the United States) in a public manner addressed to the representative of another government with the intention and promise of creating commitment, and is also about the future performance of the United States of America.

As a result, this letter can be considered as a binding unilateral declaration, which can be cited by Iran’s diplomatic apparatus in various stages of the implementation of JCPOA, if the need arises, in order to protect Iran’s legal and political interests.
In the meantime, this letter can have, at least, two more important effects:

1. US secretary of state has addressed his Iranian counterpart in this letter saying, “I want to confirm to you that we remain fully committed to the sanctions lifting provided for under the JCPOA. We will adhere to the full measure of our commitments, per the agreement.”

In fact, by expressing these sentences within framework of a unilateral declaration, the US secretary of state has practically toned down the “political commitment” that American officials used to apply to the implementation of JCPOA and has instead highlighted the “legal” aspect of this international agreement. There is no doubt that given the status of its writer and the process that is usually taken to write such letters, inclusion of these sentences at the beginning of an official letter is far beyond a usual “political pleasantry.” In the meantime, describing JCPOA as an “agreement” by using a legal formula (in the phrase “per the agreement”) and in an official letter between two governments is not a simple issue without legal effects.

2. In another part of his letter, John Kerry says, “I am also confident that the recent changes in visa requirements passed in Congress, which the Administration has the authority to waive, will not in any way prevent us from meeting our JCPOA commitments, and that we will implement them so as not to interfere with legitimate business interests of Iran.”

Here, US secretary of state is practically promising that the government of the United States considers its commitment to JCPOA as taking precedence over implementation of a law, which may be at odds with it. By doing so, Kerry not only commits himself to thwarting possible untoward effects of the Visa Waiver Program, but also elevates status of JCPOA to that of a “treaty” – which has been described as the “supreme law of the land” in the US Constitution and takes precedence over domestic laws. It also sends a positive signal to Iran that from now on, the US government will prefer JCPOA over similar enactments by the US Congress.

As a result, the importance of this letter must not be underestimated and its impact and nature must not be intentionally reduced to an ordinary note. From legal viewpoint, it would be to Iran’s benefit if the letter written by the US secretary of state to Iran’s Foreign Minister Zarif is recognized by international circles and among world politicians as a “binding unilateral declaration,” which would lead to serious and considerable obligations for the United States in the face of current and future stonewalling by the Congress. On the other hand, instead of trying to prevent implementation of JCPOA on the pretext of the approval of the new Visa Waiver Program by US Congress, the critics of the Iranian government must try to highlight this special reading of Kerry’s letter.

Key WordsJohn Kerry, Letter, Mohammad Javad Zarif, Nature, Legal Impact, unilateral Declarations, Commitment, Joint Comprehensive Program of Action (JCPOA), Implementation, Visa Waiver Program, Hague Tribunal, International Law Commission, US Congress, Nasri

Source: Shargh Daily
http://www.sharghdaily.ir/
Translated By: Iran Review.Org

More By Reza Nasri:

*From “Nuclear Crisis” to “Nuclear Agreement”: http://www.iranreview.org/content/Documents/From-Nuclear-Crisis-to-Nuclear-Agreement-.htm

*Hawks Misread the Nuclear Talk “Extension”: http://www.iranreview.org/content/Documents/Hawks-Misread-the-Nuclear-Talk-Extension-.htm

*Extension of Iran Emergency State Undermines Nuclear Talks, Harms Region: http://www.iranreview.org/content/Documents/Extension-of-Iran-Emergency-State-Undermines-Nuclear-Talks-Harms-Region.htm

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