A legal turn in interpreting the Iran nuclear accord is necessary as a timely antidote to the avalanche of negative re-interpretations of this agreement in the US in the aftermath of November elections that yielded victory for Donald Trump, who is on record repeatedly vilifying the nuclear agreement and pledging to tear it up if elected as the next US president. As expected, a growing chorus of right-wing voices in American politics and media have called on Trump to deliver on his campaign rhetoric and dismantle the nuclear deal known as the Joint Comprehensive Plan of Action (JCPOA).
But, these calls often transpire in a legal vacuum and without any proper understanding of the JCPOA as a multilateral, i.e., international, agreement that has become legally binding as a result of its endorsement by the UN Security Council (Resolution 2231). As this author has argued in a previous article, “The Iran Nuclear Accord is Legally Binding,” there is a widespread misperception of the JCPOA in both policy and academic circles as “legally non-binding” political agreement, which must be debunked and deconstructed with the help of sound leqal, theoretical and methodological insights. A major vulnerability of such interpretations of the JCPOA is that they often evaluate the agreement from the prism of its authors, some of whom like the US Secretary of State John Kerry have gone on record portraying the accord as “legally non-binding.” Others, such as international law expert Daniel Joyner, have reached the same conclusion, but only by examining the JCPOA independent of its UN dimension, reflected in Resolution 2231, which agrees to the commitments made by the parties and calls on them to observe the various timetable of the accord, such as the implementation day, the conclusion day, etc. Joyner pays lip service to the so-called “soft law” and omits mentioning the relevance of UN Security Council for (customary) international law, thus succumbing to the distorted interpretation of JCPOA as legally non-binding, in his otherwise thoughtful book on Iran’s Nuclear Program and International Law.Joyner’s main weakness, however, is his traditional and non-dynamic interpretation of international law, which evolution since WWII parallel to the growth of the United Nations has given rise to increasing variations in forms, instruments, meanings and standards of measurement of international law, encompassing newer areas of “soft laws” that often denote “soft obligations.” As a result, instead of evolving on ‘straight lines,’ international law has acquired a somewhat circular character, thus calling for a new interpretation of the JCPOA along the continuum which lies between the hard and soft international law, instead of privileging the traditional perspective that lacks sufficient conceptual rigor. Unfortunately, the tyranny of this (mis) interpretation has led to the premature closure of questions that ought to remain open, such as whether or not the obligations of the parties under the JCPOA is correlative of a legal duty? (1)
Undoubtedly, part of the difficulty in proper understanding of the JCPOA stems from the semantic nearness of the agreement to a mere political agreement, which can be and has been rather deceiving, in light of the fact that treaties and declarations often “reflect a deliberate ambiguity between actual and desired practice to stretch the consensus on the text as far as possible.” Certainly, the JCPOA is no exception and there is a dynamic (and complex) interplay between form and substance that needs to be scrutinized, otherwise we risk failing the achievement of a deeper understanding of the JCPOA — as a duty-based agreement, principally as a result of UN Security Council’s binding measures prescribed by Resolution 2231. Lest we forget, UNSC Resolution 2231 was effectively passed unanimously on July 2015 under Chapter VII of the UN Charter. This in turn raises the issue of Resolution’s “enforcement.” The only use of the term “enforcement” in the UN Charter occurs in relation to the enforcement under Chapter VII of decisions of Security Council (Article 45). With respect to the JCPOA, enforcement would be comprising of all measures intended and proper to induce respect for the nuclear agreement. A unilateral defection from the JCPOA, such as by the US, inevitably raises the question of enforcement under the UN Charter, e.g., Article 25 obligating the member states to carry out the Security Council’s decisions.
Undoubtedly, Iran’s resort to a legalist turn in interpreting the JCPOA will go a long way in defending Iran’s interests and adding a legal layer to the protective shield for the international agreement that is potentially jeopardized by the rise of anti-JCPOA Trump. Trump and his chorus of Iranophobic advisers are, however, on weak legal ground, giving the impression that US can willfully withdraw from the JCPOA without facing any backlashes. Their perverse interpretation of the JCPOA, which is a win-win for the parties and the international community, requires timely debunking with the help of new legalistic interpretations of the JCPOA that are fully immersed in international law and the primary responsibility of states under the binding decisions of the UN Security Council. For sure, as a long-term agreement, JCPOA must rest upon a certain flexibility and room for development if it is to survive changes in the circumstances and relations between parties, above all by strengthening its perception as a legally-binding agreement. The ‘will to interpret’ here, steeped in international law and an evolutionary perspective on the role of UN, requires dispensing with the troublesome misinterpretations of the JCPOA and comprehending it through the prism of international law, otherwise the JCPOA will soon be in a sealed coffin.
This article was published at Iran Review.
(1) For an alternative interpretation that relies on a ‘spectral’ view of law and legality, see Nader Entessar and Kaveh Afrasiabi, Iran Nuclear Negotiations: Accord and Detente Since the Geneva Agreement of 2013 (Rowman & Littlefield, 2015).
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