Germany finally comes clean about the legal status of the JCPoA: no more than soft law

Published: 24 March 2020 Author: Stefan Talmon

On 14 July 2015, Iran, the P5+1 countries – the United States, the United Kingdom, France, Russia, China, and Germany – and the European Union (EU) agreed on a Joint Comprehensive Plan of Action (JCPoA) that sought to ensure that Iran’s nuclear programme would be exclusively peaceful. Under the JCPoA, Iran agreed to eliminate its stockpile of medium-enriched uranium, cut its stockpile of low-enriched uranium by 98%, and reduce by about two-thirds the number of its gas centrifuges for 13 years. For the next 15 years, Iran was to enrich uranium only up to 3.67%. Iran also agreed not to build any new heavy-water facilities for the same period of time. Uranium-enrichment activities were to be limited to a single facility using first-generation centrifuges for 10 years. Other facilities were to be converted to avoid proliferation risks. To monitor and verify Iran’s compliance with the agreement, the International Atomic Energy Agency (IAEA) was to have regular access to all Iranian nuclear facilities. The JCPoA provided that, in return for Iran verifiably abiding by its commitments, the nuclear-related economic sanctions imposed by the UN Security Council, the EU and the United States would be lifted. In its resolution 2231 (2015) the UN Security Council endorsed the JCPoA and lifted all nuclear-related sanctions. As a result of the JCPoA, on 16 January 2016 the EU and the United States lifted some of their unilateral nuclear-related economic sanctions on Iran.

When U.S. President Donald Trump assumed office in January 2017, the United States changed its policy towards Iran. The new policy of exerting “maximum pressure” on Iran sought to squeeze the Iranian economy in order to force Iran to end its destabilizing activities in the Middle East and to permanently halt any missile and nuclear weapons programme. As part of this new policy, U.S. President Trump on 8 May 2018 decided to end United States participation in the JCPoA and to re-impose all United States sanctions lifted or waived in connection with the JCPoA, including the secondary sanctions targeting non-U.S. natural and legal persons trading with Iran. This change of U.S. policy towards Iran affected major German companies such as Volkswagen, Daimler and Siemens, which had returned to Iran in the wake of the JCPoA.

The other participants of the JCPoA expressed their concern about the unilateral move by the United States and emphasised their continuing commitment to the JCPoA. Germany was particularly critical of U.S. unilateralism and rejected the new U.S. policy of maximum pressure. For Germany, the JCPoA constituted “a milestone in non-proliferation diplomacy.” In a speech on 11 May 2018, the German Chancellor Angela Merkel stated:

“The termination of the nuclear agreement with Iran is therefore a matter of great concern, and also a cause of regret. This agreement has been negotiated over a period of twelve years; it was a long diplomatic process and was far from ideal. I also agree that with regard to Iran there are many other issues of great concern: the fight against Israel, the ballistic missile programme, the role that Iran is playing in Syria. Nonetheless, I believe that it is not right to unilaterally terminate an agreement that has been agreed upon, that has been voted on in the UN Security Council, that has been unanimously approved. This undermines confidence in the international order.”

In order to castigate the United States for walking away from the JCPoA and to better hold Iran to its commitments under the document, the Federal Government tried to portray the JCPoA as a binding international treaty which the United States had unilaterally – and illegally – terminated.  For example, in his opening remarks at a conference on U.S. Foreign Policy under the Trump Administration on 19 February 2019, the Minister of State at the Federal Foreign Office Niels Annen declared:

“[U]nder President Trump, U.S. Foreign Policy is characterized by transactional and unilateral approaches which knowingly accept damage to partners’ interests and multilateral agreements.

The unilateral decision to leave the JCPoA in May 2018 is one example. The United States chose to withdraw from an international treaty which had been negotiated by the U.S., together with its partners and Iran. The agreement was an unprecedented – and successful – diplomatic effort, because, for the first time in 13 years, it opened up the possibility for dialogue and limited cooperation!

I don’t want to discuss the legitimacy of Washington’s withdrawal from the JCPoA.

But it worries us that the U.S. decided to abandon an agreed diplomatic solution that effectively prevents Iran from acquiring a nuclear weapon for as long as the agreement stands. The call of the JCPoA is to strengthen the international non-proliferation regime. It is therefore an asset for regional security.

The U.S. decision damaged a diplomatic solution which enjoyed the highest legitimacy, because of the actors that negotiated it. It was also unanimously endorsed by the UN Security Council, through which it became international law.”

The language used by the Federal Government in connection with the JCPoA is an excellent example of the manipulation of language in order to create a certain impression with the general public and to send a political message.

The Federal Government used several terms which are usually used in connection with international treaties. First, it regularly referred to the JCPoA as the “Vienna nuclear agreement”, the “nuclear Agreement”, or just the “agreement”.

Second, it regretted that the United States had decided “to withdraw from the JCPoA”, or that it “withdrew from the nuclear agreement”. It also criticised the withdrawal from the JCPoA in the same breath as the withdrawal from genuine international treaties such as the Paris Climate Accord. The United States, however, did not withdraw from the JCPoA, but ceased its participation in the JCPoA.

Third, the Federal Government spoke misleadingly about “parties to the JCPoA”, although there were only “participants” in the JCPoA. This was acknowledged on other occasion when, for example, Federal Foreign Minster Maas stated that “all participants reaffirmed their commitment to continued implementation of the JCPoA.”

Fourth, when Iran began to roll back the implementation of the JCPoA, the Federal Government stated that Iran was “violating further obligations under the JCPoA”, and that it was essential that “Iran must continue to meet its obligations under the agreement”. However, the JCPoA speaks of obligations only with regard to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and Iran’s “other non-proliferation and safeguards obligations”. Otherwise, the document speaks of “commitments”. This distinction was also made in the E3-/EU-Statement on the JCPoA of 4 May 2019, where the High Representative of the European Union and the Foreign Ministers of France, Germany and the United Kingdom called upon “Iran to continue implementing in full its commitments under the JCPoA as well as its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons.”

Fifth, the Federal Government used the term “Articles” which is usually associated with treaties and other legal documents. For example, in an information note on the JCPoA, the Federal Foreign Office wrote:

“Iran has begun to roll back the implementation of its obligations under the JCPoA […] Article 36 of the JCPoA states that, in the event of conflicts between the participants, for example in the case of suspected non-compliance with the obligations under the JCPoA, what is known as a Dispute Resolution Mechanism may be triggered.”

However, there are no “Articles” in the JCPoA. The only reference to Articles made in the document is in connection with the NPT, the Additional Protocol to Iran’s Comprehensive Safeguards Agreement with the IAEA and various EU Council Regulations and Decisions. Unlike an international treaty, the various paragraphs of the JCPoA are simply numbered.

Sixth, the Federal Foreign Office on several occasions highlighted that the JCPoA had been “signed” by the participating States. However, the signatures on the JCPoA must not be confused with treaty signatures. The difference is shown by the fact that a treaty is signed at the end of the document, while the JCPoA document was signed by the negotiators on its cover page. Rather than constituting signatures legally binding States parties, the signatures of the negotiators of the JCPoA symbolized the political endorsement of the text contained in the document.

Finally, the Federal Government made a lot of the fact that the JCPoA had been “unanimously endorsed” by the UN Security Council. According to the Minister of State at the Federal Foreign Office, through the endorsement the JCPoA “became international law”. This statement may have led the Scientific Research Services of the Federal Parliament to conclude that the JCPoA was made “legally binding” by endorsement of the document in Security Council resolution 2231 (2015). On other occasions, however, the Federal Government treated the Security Council resolution, rather than the JCPoA, as the “binding international legal framework for the resolution of the dispute about the Iranian nuclear programme.” However, neither the endorsement by the Security Council nor resolution 2231 (2015) made the JCPoA legally binding for the participants. In the resolution, the Security Council “endorse[d] the JCPoA, and urge[d] its full implementation” and “calle[d] upon all Members States, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPoA”. While the Council underscored in the last preambular paragraph of the resolution that “Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions”, it carefully distinguished in the operative paragraphs between decisions and other pronouncements. Twelve of the 30 operative paragraphs of the resolution, which concerned the lifting of the UN sanctions imposed on Iran, expressly employed the term “decides” or “decides, acting under Article 41 of the Charter of the United Nations”. The paragraph where the Council endorsed the JCPoA, however, did not.

After Iran announced on 5 January 2020 that it would no longer abide by the limits for uranium enrichment set under the JCPoA, the Federal Government increasingly faced questions about how both the United States and Iran could simply walk away from what the Federal Government had portrayed to be a binding international agreement. When asked during the regular government press conference on 15 January 2020 whether the U.S. action constituted a “legitimate denunciation” or a “breach of treaty”, the spokesperson for the Federal Foreign Office was forced to admit that the JCPoA was not at all a treaty. He stated:

“The Joint Comprehensive Plan of Action, as the JCPoA is officially called, is not a treaty under international law, but an action plan. In this spirit, it was not intended that a party withdraw from the action plan, so there is no regulation in the JCPoA on how the withdrawal of a party is to be effected. International law criteria which you may have been referring to earlier – breach of treaty, etc. – are thus not relevant here.”

On the same day, the Minister of State at the Federal Foreign Office, Michael Roth, was also forced to put the record straight on the legal status of the JCPoA. In response to an oral question in the Federal Parliament, he stated:

“First of all, I would like to point out that the JCPoA, the so-called nuclear agreement, is a political agreement between several States which has been endorsed by the United Nations Security Council, but it is not a treaty in terms of international law. That is why we are talking about political, not legal consequences when interpreting the nuclear agreement.”

Four and a half years after the adoption of the JCPoA, it was about time for the Federal Government to come clean about the legal status of the JCPoA and admit that the document was not an international treaty but a record of mutual political commitments of the various participants; that is, an example of so-called “soft law”. It is for that reason that the document speaks of participants rather than parties, commitments rather than obligations, and performance rather than compliance. The policy of the Federal Government to portray the JCPoA as something which it is not has raised false expectations on the part of the general public which the document could never fulfil. Playing fast and loose with legal categories and terminology is in the end counterproductive and undermines the credibility of international law.

Category: Sources of international law

 

Prof. Dr. Stefan Talmon LL.M. M.A

Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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