U.S. Withdrawal from The Iran Deal – I

(This post is authored by Nikita Garg, a fifth year student of National Law School of India University)

In May 2018, the United States announced its decision to withdraw from the joint Comprehensive Plan of Action (JCPOA), popularly known as the Iran Nuclear Deal. The deal was entered into to restrict Iran’s nuclear weapons-producing capabilities in return for an end to the crippling sanctions imposed on it by the Security Council, the USA and the European Union (EU).  President Donald J. Trump cited Iran’s destabilizing activities in the Middle East and the failure of the JCPOA to contain Iran’s ballistic missile programme as the reasons for withdrawal. This move, however, has been criticized by other States party to the JCPOA as well as Iran. In fact, considering the withdrawal a violation of international law, Iran has even gone on to call the US a ‘rogue state’.

There is a broad consensus among commentators that the Deal is only a legally non-binding political document, and does not constitute a treaty under the Vienna Convention on the Law of Treaties (VCLT). Thus, the question of a direct violation of treaty obligations does not arise. However, the debate around the legality of US’s withdrawal largely centers around the binding status accorded to the JCPOA by the Security Council (SC) through Resolution 2231. Particularly, commentators argue that the binding obligation to implement the JCPOA is rooted in operative paragraph 2 (OP 2) of the Resolution which “calls upon all Members States, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA…” (see here and here). This post examines such an interpretation making OP 2 legally binding on all Member States to determine whether it withstands scrutiny under the rules of interpretation of SC Resolutions.

When is a Security Council Resolution binding?

Security Council Resolutions derive their binding force from Article 25 of the United Nations Charter. Article 25 states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council”. Recognizing that all resolutions by the SC or all parts of a single resolution may not always create binding obligations on the UN Member States, the International Court of Justice (ICJ) has made a distinction between ‘decisions’ and ‘recommendations’. While the former are legally binding, the latter do not have any binding force under international law.

What amounts to a decision was first discussed by the ICJ in its 1971 Advisory Opinion on Namibia. The Court noted that an exercise of the powers under Article 25 by the SC should be determined after examining the “terms of the resolution, the Charter provisions invoked, the discussions leading up to it, and in general, all circumstances that might assist in determining the legal consequences of the resolution”. How these indicators play out with respect to Resolution 2231, and OP 2 specifically, is crucial for ascertaining the validity of USA’s withdrawal.

Determining the binding force of Resolution 2231 

Terms of the resolution, Charter provisions invoked and preceding discussions

 Notably, OP 2 of Resolution 2231 begins with the phrase ‘calls upon’. This is crucial as the phrase is considered to be recommendatory, as opposed to phrases such as ‘demands’ or ‘decides’, which are accepted as reflecting an intention to create binding obligations. In the context of this specific resolution, the recommendatory nature of ‘calls upon’ is supported by Iran’s response to an alleged violation of another provision of the JCPOA beginning with this phrase. In 2016, Iran’s missile tests had been questioned for violating its obligations under paragraph 3 of Annex B to the JCPOA, which “called upon [Iran] not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology”. At that time, Iran had released a statement defending its actions on the ground that the language in this provision was “clearly not mandatory”. This reflects the lack of binding character of ‘calls upon’ as used in the JCPOA. Furthermore, the absence of any reference to Chapter VII, which empowers the SC to create binding obligations for member States, coupled with the discussions leading up to the resolution reaffirm the recommendatory character of OP 2.

However, those arguing for the illegality of the withdrawal rely on two factors to suggest that Resolution 2231 is binding: first, the uniqueness of Resolution 2231 insomuch as its final preambulatory paragraph “underscores the obligation of Member states under Article 25 of the United Nations”; and second, the decision in the Namibia Advisory Opinion where a similarly worded paragraph in Resolution 276 beginning with ‘calls upon’ was held to be binding.

The reliance on the preambulatory paragraph is misplaced as it ignores the contrast of OP 2 with other provisions such as operative paragraph 7 (OP 7). Under this paragraph, the SC “decides, acting under Article 41” to terminate all prior UN sanctions against Iran and requires all States to comply with the provisions governing transfers of arms or missile technology to Iran. The use of a stronger opening phrase and the invocation of Article 41 (which falls under Chapter VII) suggests that the reference to Article 25 in the perambulatory paragraph was only in relation to OP 7. To suggest that OP 2 is also binding by virtue of such a mention would mean that the invocation of Article 25 anywhere in a resolution has the automatic effect of making the entire resolution binding. Any such conclusion would have the unintended effect of expanding legal obligations of States and in the absence of any positive indicators reflecting an intent to make OP 2 binding, such conclusions should be avoided. This is further supported by the discussions leading up to the resolution. Statements by the representatives of Chile, Nigeria, Chad, and Iran with respect to the implementation of the JCPOA by Member States are all couched in hortatory terms such as “encourages” and “urges”. All of these strengthen the case for OP 2 being a recommendation.

As far as the Namibia Advisory Opinion is concerned, as highlighted by the Court itself, the interpretation of resolutions should be on a case-to-case basis. So while in that case, the Court may have found Resolution 276 to be binding despite the use of ‘calls upon’, the holding cannot be transposed to the resolution at hand in complete disregard of its specific context. As highlighted above, the terms of the resolution, the Charter provisions invoked and the discussions leading up to it do not reveal any intention for OP 2 to be a binding legal obligation. Thus, the reliance on the Advisory Opinion should only be limited to the rules of interpretation laid out, and not the specific holding therein.

All other circumstances indicating the legal consequences of the Resolution

In the aftermath of the withdrawal, France, Germany and the United Kingdom released a joint statement stating that Resolution 2231 remained the “binding international legal framework for the resolutions of the dispute.” While these statements may be relied on to make a case for the legally binding nature of the resolution, such a proposition must be dealt with due caution. This is because States are likely to take advantage of ambiguous wording of resolutions by taking a favourable interpretation after an event has taken place. This is the reason why the ICJ has stressed on the statements made at the time of adoption of the resolution, but excluded any subsequent statements made by member States from consideration.

However, as noted in the Advisory Opinion on Kosovo, what is still relevant is the subsequent practice of relevant organs of the UN. In this case, such practice is not suggestive of the withdrawal being in violation of Resolution 2231. On June 12, 2018, the Secretary General released a report on the implementation of Resolution 2231, which was subsequently discussed by the Security Council in its 8297th meeting. While there was an acknowledgment of the withdrawal of the US from the JCPOA in this report, there was no mention or discussion of the illegality of this measure under the Resolution. This further evidences the lack of an intention to make OP 2 binding on Member States.

What does OP 2 mean then?

As discussed, if OP 2 was not intended to be a binding decision, the question of what value should be given to it continues to exist. The answer to this is simple. It is only recommendatory in nature and does not bind the US, rendering its withdrawal from the JCPOA valid. In fact, Resolution 2231 should be understood as another instance of the SC endorsing non-binding legal agreements through its resolutions as was the case with Resolutions 1515, 2268 and 2272.

Therefore, while the US withdrawal from the JCPOA may have been in violation of its political commitments, labelling it as a violation of Resolution 2231 appears to be a wishful attempt at declaring the illegality of the measure under international law.

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