Whether JCPOA is a Treaty?

Whether Iran Nuclear Deal is A Treaty and What are international ramifications of U.S. withdrawal ?

1) INTRODUCTION: NEED FOR NUCLEAR REGIME
Post-Hiroshima-Nagasaki bombings, after World War II, number of States like the United States of America, Russia, UK, France and China acquired nuclear weapons capabilities. That was a time when nuclear armaments overshadowed peace and endangered existence of humans on the planet. The need to regulate acquisition, transfer, development and trade of nuclear technology and control over fissionable material was imperative; along with the requirement of a framework to put the control in the hands of those who will know how to strip its military casing and adapt it to the arts of peace. There was a need not only of a Safeguard System as prescribed by IAEA to cover Individual Nuclear Plants or supplies of fuel but also an urgent International requirement to stop further spread of nuclear weapons and eventually towards its elimination; which led to the approval of Treaty on the Non-Proliferation of Nuclear Weapons (Referred to as ‘NPT’ Hereinafter) in 1970. NPT mandated member states to restrict their Nuclear Program to peaceful uses while preventing nuclear enrichment beyond a threshold and subjecting their facilities to inspection by independent third party agency (IAEA). After NPT various Treaties came to signed by states to prevent testing of Nuclear Weapons to atmospheric pollution through radiation and saving Aquatic life, for example, The Comprehensive Test Ban Treaty in 1996.
The Chernobyl Accident and the Three Mile Island nuclear accident in Pennsylvania in 1979 required the world to adopt a safeguard system for operating power plant consequently causing expansion of Nuclear Safety Standard Program (NUSS) and Global Reporting System of accidents and sharing of technological breakthroughs by the states. Technology sharing between nations include design, operation and control mechanism of reactors to mitigate the risks associated with nuclear fuel cycle, radiation safety and Waste management. Prevention of nuclear proliferation and promotion of safe and beneficial use of Nuclear technology required a comprehensive International nuclear regime to be in place.
This paper discusses the legal status of Joint comprehensive Plan of Action (JCPOA) in International law. JCPOA was entered by P5 (Five Permanent Members of UN Security Council being China, US, UK, France, Russia), Germany and European Union (EU) with Iran, with the object to arrest the convergence of Iran towards its stockpile of low- enriched Uranium by 98% which is a step to acquiring Nuclear Weapons and diverging it into enriched uranium up to 3.67% for the use of nuclear technology for peaceful means beneficial for its citizen and mankind in general by adherence to IAEA Safeguard System. Given the instability of political regime in the Middle East and particularly Iran, it was necessary to devise a strategy under International law to denuclearize the Middle East not only to prevent an arms race but also to avert the possibility of nuclear arms falling in the hands of Terrorist Organizations. It successfully puts the Nuclear Genie Back in The Bottle.
2) HISTORY OF NUCLEAR REGIME AND SHORTCOMINGS OF NPT
The Cradle of Nuclear Regime is, The President Mr Dwight D. Eisenhower’s a speech famously known as ‘Atoms of Peace’ to the United Nations General Assembly on Tuesday, 8 December 1953; where he invented the idea of International Atomic Energy Agency in the following words:
The governments principally involved to the extent permitted by elementary prudence, should being now and continue to make joint contributions from their stockpiles of normal uranium and fissionable materials to an international atomic energy agency. We would expect that such an agency would be set up under the aegis of the United Nations. The ratios of contributions, the procedures and other details would properly be within the scope of the “private conversations” I referred earlier.
The Statute of International Atomic Energy Agency (IAEA) which opened for signature on 26 October 1956 came into force after nine months thereafter, on 29 July 1957, when 26 states had deposited their instruments of ratification. The Statute of IAEA is a framework Convention, to impose International Control on acquisition, trade and owning of Nuclear Fissionable Material and Technology by conferring on IAEA, the power of impounding and siphoning off the stock of fissionable material and regulating its stock and supply. The IAEA introduced the regime of Inspection, Investigation and Control to ensure that Nuclear Technology is used only for peaceful means beneficial to mankind and not for military purposes of acquiring nuclear weapons. IAEA also created Nuclear Safety Standard Programme (NUSS) and carried out numerous research and safeguards system (INFCIRC/26) for safe use of Nuclear Technology. Statute of IAEA was not sufficient to prevent the proliferation of nuclear weapons, with this aim Non-proliferation of Nuclear Weapons treaty (NPT) was opened for Signature in 1969 and entered into force in 1970. NPT was attractive for developing nations or those nations who did not achieve advancements for the use of Nuclear Technology (Non-nuclear Weapons State) but were wanting to make Beneficial use of it. Today 191 countries have signed NPT, which is a multilateral treaty with the only sole obstacle to universal adherence to NPT being India, Pakistan and Israel. Whereas India and Pakistan have demonstrated Nuclear capabilities, Israel is also likely to be nuclear-capable. India and Pakistan cannot join NPT as NWS list is closed (Article IX) unless they agree to disarm themselves of all nuclear capability. No non-NPT state has any obligation under NPT except sole exception of the obligation of safeguards of some installations. NPT is a multilateral treaty between Nuclear Weapons State (NWS) and Non-nuclear Weapons State (NNWS), and Article IX defines NWS as that State which has manufactured and exploded a nuclear weapon or nuclear explosion device prior to 1 January 1967. Since India carried out Pokhran test 1st on 18, May 1974 and Second test on 11 and 13 May 1998 it is neither treated as NWS nor NNWS and NPT will not apply to it unless amended or until additional protocol to NPT is adopted.
Iran signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in 1968 as non-nuclear weapons state and ratified the NPT in 1970. In April 2006 President of Iran Ahmadinejad announced that Iran had nuclear technology. This highlights a serious shortcoming in the working of NPT where Iran though an NPT member state does not honour the IAEA safeguard regime fully and shows no regard to Non-proliferation principles in NPT and goes ahead with enriching Uranium. Another instance is where Pakistan admits that its scientists (Dr.A.Q.Khan) have supplied to other non-NPT states, sensitive nuclear technologies; thus Pakistan was involved in International Nuclear Trafficking which led to growing support for a new regime and amending article I of NPT by deleting words ‘Nuclear Weapons State’ and ‘Non-Nuclear Weapons State’ to include India, Pakistan and Israel to prevent the illicit sale of nuclear technology and supply of fissionable material. U.N. Security Council Passed resolution 1696 demanding Iran to stop uranium enrichment in 2006. After a change of regime in 2013 numerous meetings between parties led to authenticating the text and Consent to be bound by all P5 + 1 countries and Iran of Joint Comprehensive Plan of action which is now an International Multilateral Agreement defining a distinct regime to extend and enforce the obligations under NPT by a Non-Nuclear Weapon State.
3) OUTLINE OF JCPOA
The Treaty on Non-Proliferation of Nuclear Weapons (NPT) does not create enforcement mechanism in the circumstances if a Non-Nuclear State begins with a Nuclear Weapons Program. Since Iran substantially progressed in enriching Uranium and importing Nuclear Technology which could have led it to make Weapons of Mass Destruction; an International Instrument with an enforcement mechanism to resolve the issue of Proliferation was the need of the world, given the fact that entire region is unstable. The Joint Comprehensive Plan of Action just achieves and covers this shortcoming of NPT.
The Object and Purpose of the agreement is to ensure that Iran is effectively prevented from developing nuclear weapons program and to pave the way for Iran to use Nuclear Technology for scientific and economic purposes in a peaceful manner. In return, JCPOA ensures comprehensive lifting of all U.N. Security Council sanctions in addition to multilateral and national sanctions allowing Iran to reap the benefits of International Trade, Banking Services etc. The Joint Comprehensive Plan of Action comprises of Preamble and General Provisions, Substantial Specific Provisions are contained in (Part A), and Five annexures provide Technical working details of substantial Provisions. Annexure 1 is relating to Nuclear Measures to be taken by Iran, Annexure-II relates to commitments of EU and United States for lifting Sanctions, Annexure-II is concerning Civil Nuclear Cooperations, Annexure IV concerns Constitution, Functioning and procedure of Joint Commission for resolution of the dispute as well as the constitution of Working group for the lifting of sanctions and Annexure V is the Implementation Plan.
4) NATURE OF INSTRUMENT: WHETHER BINDING OR NON-BINDING
Whether JCPOA is a Treaty, Executive Agreement, or Political Agreement is a complex question and is much debated? It is argued that JCPOA is not a treaty but a political agreement on account of limits of competences of domestic institutions and manner in which legal system of Iran was complied with, while on the other hand it is claimed that there is not much difference between International Treaty and Executive Agreement at least as regards its legal authority, but not complying with domestic ratification process undermines democratic legitimacy of International law. However Calling an agreement an executive or political agreement is a fragile attempt to enter into binding international obligation, particularly when upon change of presidents and political guard, the agreement will be called-back as easily as it was entered into, as was done by Trump in Iran Nuclear Deal. Obama administration in no uncertain terms indicated that JCPOA is a non-binding political agreement.
From a legal perspective Binding Registrable Instruments (BRI) are distinguished from Non-Binding Instruments (NBI) by analysing the intention of signatories to the instruments and primary evidence of intention is the language used in the instrument . The General Provision of JCPOA refers to the terms of the plan of action as reciprocal commitments and not as binding legal obligations or agreement. Clause VIII in General Provision and Clause 28 explicitly states that parties are to perform the terms of JCPOA in good faith and not out of legal obligation created in International law and the most important indicator which violates the definition of Treaty under Section 2 of VCLT is in clause xi which states that provisions are not be treated as part of international law. The use of word co-operation as distinguished from obligation or legally binding right or duty in clause xiii is also a strong indicator to demonstrate that participants to the instrument did not intend it to be a treaty.
Clause 26 in JCPOA clearly states that “United States will make best efforts in good faith to sustain this JCPOA”, which is indicative of the non-obligatory character of commitments in the JCPOA. Clause 34 refers to the provisions of JCPOA as Iran’s commitment as against words having legally mandatory taxonomy like legally obliged or reference to provisions as Article or use of words like duty, right and consideration.
Mark Scully and others in Binding and Non-Binding Instruments in International Relations has stated that:
It is furthermore significant that governments have devised alternative expressions such as “take effect” or “enter into operation “as a mean to avoid an expression that has an obvious connotation of a legal obligation
The use of the term “force” to describe an instrument taking effect can also be taken as another significant indicator that an an instrument intends to create rights and obligations governed by international law
Clause 34 of JCPOA uses the phrase “come into effect” in the context of commitments under JCPOA, which conclusively indicates that JCPOA is not a treaty in International law. Throughout the body of JCPOA instead of obligations the word used is “commitment” referring to political understanding or friendly cooperation but not legally binding obligation, which strongly indicates the intention of parties not to accord it the status of Treaty. Section 5.6 of U.N.Treaty Handbook states that a treaty can be registered only after it has entered into force . JCPOA does not indicate when instruments enter into force, but in contrast, it states when it comes into effect. A depository is almost always appointed in the case of multilateral BRI’s, as is implied by Part VII of the VCLT. By contrast, NBI’s do not name a depository, for example, OSCE Charter and Paris MoU. Article 80 of VCLT uses a mandatory language requiring registration of treaties, and hence the designation of depository acquires an assuming character of instrument that it will be registered . JCPOA does not appoint a depository and parties in the body of its text has not expressed the intention that it shall be registered; the further subsequent conduct of parties also indicates that no attempt was made by any side to register it as a treaty.
JCPOA does not provide for a mechanism for enforcement of rights or obligation under JCPOA like Provision for Binding arbitration of disputes. On the contrary clause 36 providing for dispute resolution mechanism seeks reference to the joint commission, ministers of foreign affairs and the advisory board appointed by parties themselves. Thus an attempt is to prescribe a method of an amicable solution to differences and not settlement of disputes by invoking legal machinery under international law. A provision which stipulates that signatories will engage in amicable consultation and negotiations as the only means of settling disputes raises the inference that instrument is not a treaty .
The Specific Instructions issued by the Foreign and Commonwealth Office of the United Kingdom (UKFCO) on the matter of distinction between BRI’s and mere commitments (NBI’s) states that use of word ‘paragraph’ instead of the word ‘article’ to refer the provisions of the instrument ; use of words accept, approve, decide in place of the word ‘agree’; use of words arrangement or understanding instead of agreement or undertaking; use of word benefits instead of rights; use of the word ‘continues to have the effect’ instead of ‘continue in force’ are all strong indicators that Instrument is not a treaty but a political agreement or MOU indicting mutual understanding . The Department of States (U.S) guidance on drafting non-binding instruments states that certain stylistic and linguistic features tend to be associated with agreement binding under international law and suggests to avoid using the word “treaty” or “agreement”; avoid using the word ‘parties’, ‘shall’, ‘undertake’, ‘entry into force’. When these words are not used, it is indicative of an instrument being not a treaty .
The travaux around the formation of JCPOA also does not express the intent that it was to be an International treaty.The language and text of JCPOA is evincing an intent that the clauses of the agreement are crafted towards the performance of the obligation in good faith and not as an absolute requirement of law. The above analysis of provisions of JCPOA unequivocally leads to a singular inference of it being not a Treaty.
On the other hand, some critics have argued that JCPOA does create a binding legal effect for two reasons, firstly UN Security Council passed resolution 2231 in endorsing the JCPOA and secondly, the terms of the JCPOA and the circumstances surrounding its conclusion lead to one single inference that parties treated it as creating International rights and obligations which were binding in International Law. The intention to create binding obligations under International Law distinguishes a treaty from an agreement between states governed by domestic law. As one cannot judge a book by its cover, the designation of an instrument has no bearing on its nature and status. Thus name JCPOA is, therefore, neither illustrative of it being a treaty nor that it is not a Treaty. JCPOA provisions contain a rule-based system of Non-proliferation regime under the Non-Proliferation Treaty and Inspection, Investigation and Safeguard System of IAEA. Thus it seeks to comply with NPT which is the International law on Non-proliferation of Nuclear Weapons. Interim Agreement called Joint Plan of Action was agreed between Iran and P5+1 on 24 November 2013 where Iran agreed to withdraw a certain nuclear program in exchange of relief from some sanctions. JCPOA contains mutual obligation of limiting uranium enrichment by Iran along with detailed monitoring and inspection regime by IAEA while on other hand P5+1 undertaking a duty to remove sanctions. However, merely because an instrument seeks to adhere to and commits compliance of an International Treaty like NPT will not confer it the status of a treaty.
The United Nations Security Council adopted resolution 2231 on 20 July 2015 endorsing JCPOA. It lifted the sanctions imposed in terms of JCPOA which were imposed in 2006 while requesting IAEA to undertake verification and monitoring of Iran’s Compliance . Iran passed a bill called as Iranian Governments Reciprocal and Proportional Action in Implementing the JCPOA Act on 15 October 2015 which was approved by Guardian Council, which is the supreme body comprising of theologians and legal experts, as consistent with Constitution and Islamic law. This can be seen as a procedure under the internal law of the Iran to seek consent to the terms of JCPOA. The European Council endorsed the JCPOA and resolved to remain committed and abide by its terms and to follow agreed implementation plan . There is no precedent that a procedure under internal law complied for the purpose of the approval of its text, confers on the instrument anything more than legitimacy by signatories. Compliance of Internal law per se is not the standard adopted to conclude an instrument as a treaty as it is not indicative of an intention to create an obligation in international law.
On 9 March 2015, Senator Tom Cotton wrote an open letter to Iranian Leadership signed by 47 of 54 senators stating that agreement signed by President of United States is at best executive agreement since not approved by congress and with a change in president in January 2017 the incoming President could revoke it. The Iranian Leadership raised the letter with US counterparts in negotiation. The State Department responded by saying that “Congress does not have the power to alter the terms of an international agreement negotiated by the executive”. Under Article II of Section 2 of the United States constitution, two-third senate majority is required for an agreement to become treaty. However, in practise since many decades the United States has travelled away from senate approval on account of the impossibility of the process and has executed a number of agreements signed by the President. On 22 May 2015, President Obama signed Iran Nuclear Agreement Review Act, 2015 amending Atomic Energy Act 1954 with the addition of Section 135, which is significant of United States agreeing to lifting sanctions under JCPOA. Under the aforesaid act, President Obama transmitted to Congress, the copy of JCPOA for verification and assessment on 19 July 2015. Under Section 135(c) of Atomic Energy Act, 1954 if no joint resolution is adopted by congress either favouring or dis-favouring the agreement during the review period as provided than action can be taken as regards statutory sanctions within the framework of existing statutory requirements. Since during review period no resolution favouring or disfavouring agreement could be passed, the JCPOA went into effect with the result that lifting of sanctions agreed by Obama Administration became possible by the compliance of internal mechanism under domestic law. At best, this can be seen as the government’s obligation under its domestic law to perform commitment under JCPOA as distinguished from intention to be bound by international legal obligation.
Clause xiv in the preamble of the JCPOA requiring European Union to Adopt JCPOA in Council and forward the resolution to the U.N. Security Council is at best at conferring legitimacy of political understanding. Under Clause 23 U.S. undertakes to bring legislation to end sanction in Annexure-II and the 2015 amendment by Obama administration and forwarding of JCPOA to Congress for approval can be seen a U.S. complying with requirements of JCPOA to lift certain sanctions. President Obama also signed a Presidential Memorandum on 18 October 2015 in compliance of Section 11 of Annexure V to JCPOA to remove U.S. Sanctions on and from Implementation day partially and further directed Secretary of State to carry out all such functions in compliance with U.S. law for fulfilling U.S commitments to JCPOA; the memorandum was directed to be registered with Federal Register. Thus JCPOA is a political Agreement and not a Treaty under International Law.
5) EFFECT OF WITHDRAWAL BY UNITED STATES
On 8 May 2018, President Donald Trump announced withdrawal from JCPOA and on 5 November 2011 United States fully reimposed sanctions which were waived or lifted. U.S. withdrawal from JCPOA will have two immediate effects, and firstly the U.S. commitment was born after compliance with domestic law; hence United States is bound to honor the commitments in JCPOA as regards lifting of sanctions, and second Iran could withdraw from the deal considering its breach of commitments by the U.S., thereby de-railing non-proliferation process as it would make it hard for President Rouhani to protect all aspects of the Compliance in Nuclear deal with hardliners getting encouraged by the fact that Russia, China and EU are not likely to slap the sanctions and are likely to blame Trump Administration for disrupting increasingly flourishing trade with Tehran. United Nations Security Council endorsing JCPOA by way of Resolution 2231 and subsequent U.S. Withdrawal from JCPOA will not affect the legal status or binding obligation under the Resolution 2231. European Union has however passed blocking legislation in 2018 to U.S. Sanctions which means that EU companies will not be affected by US sanctions and that any loss sustained on account of US Sanctions will be recoverable. Iran has continued honoring its commitments pursuant to EU, China and Russia Commitment to adhere and honor the commitments under the deal. The United States in withdrawing from the deal has undone years of diplomatic efforts in reaching the deal, only to get isolated with other members of the European Union and Security Council and without any substantial gain. The U.S. President could not have withdrawn from the JCPOA without resorting to dispute resolution process under JCPOA. Therefore withdrawal by the U.S. without resorting to the procedure under JCPOA renders withdrawal illegitimate though without any international legal liability.
6) CONCLUSION
JCPOA being not a treaty and most of the provisions are limited to a certain time, the future of non-proliferation appears uncertain by employing of this temporary measure. This temporary solution may not be answer to a permanent malady. The JCPOA ensures non-proliferation of Nuclear Weapons program by Iran but falls short of addressing the strategic interest of the world in the region and particularly support to certain terrorist groups in the region by Iran as alleged. That most terms of JCPOA being limited to 15 years also poses the question of future of Nuclear-proliferation after that period when Iran is economically empowered after lifting of sanctions. Thus Serious limitation of JCPOA is that it does not permanently create an obligation on Iran to discontinue its enrichment program and does not provide for the safeguarding of foreign investments in the event of a breach of JCPOA making economic and financial investments by EU and other countries subject to the dictates of the Iranian regime and at the peril of countries. Whether the deal empowers Iran to gain superior bargaining ground after 15 years to dominate the terms of proliferation after 15 years remains to be seen.
That it would be impossible to win the war on proliferation of nuclear weapons without bringing nuclear weapons state like India, Pakistan and Israel under the regime and control of NPT, to design measurable standard of political accountability of states in the world, legitimacy of regime and stability of political order without sacrificing the right of self-determination of people.

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Library of Congress, Law on Nuclear Agreement Approved by Guardian Council of Iran. https://www.loc.gov/law/foreign-news/article/iran-law-on-nuclear-agreement-approved-by-guardian-council/. Accessed on 21 March 2020.
Paul K.Kerr. Iran Nuclear Agreement and U.S. Exit. Congressional Research Services. https://fas.org/sgp/crs/nuke/R43333.pdf. Accessed 20 March 2020.
Peake, Jeffrey S., The Decline of Treaties? Obama, Trump, and the Politics of International Agreements (April 6, 2018). Available at SSRN: https://ssrn.com/abstract=3153840 or http://dx.doi.org/10.2139/ssrn.3153840
Psaki, Jen. Daily Press Briefing, U.S. DEP’T OF STATE (Mar. 9, 2015). https://2009-2017.state.gov/r/pa/prs/dpb/2015/03/238679.htm. Accessed 22 March 2020.
REZAEI, FARHAD. “Iran’s Nuclear Agreement: The Three Specific Clusters of Concerns.” Insight Turkey 20, no. 2 (2018): 167-200. Accessed March 24, 2020. http://www.jstor.org/stable/26390313.
Scully Mark, Roberto Rodriguez and Laurent Cleenewerck. Binding and Non-Binding Instruments in Intergovernmental Relations. United States: Euclid University, 2011.