The New Deal Between the P5+1 and Iran

Dan Joyner is Professor of Law at the University of Alabama School of Law in the U.S.  He is the author of two books on nuclear non-proliferation law, and of a monograph currently under contract with Oxford University Press, entitled Iran’s Nuclear Program and International Law. He blogs regularly at www.armscontrollaw.com

Like many, I stayed up late Saturday night following the Twitter updates of what was developing in the Geneva negotiations between Iran and the P5+1.  And like most, I was thrilled to hear that an initial accord had been reached. A historic agreement that potentially signals a thawing in relations between Iran and the West – the best such indication since 1979. It was a night of high drama.

I’ve now had a chance to read over the product of this agreement – a four page document entitled Simply “Joint Plan of Action.”

I would observe first of all that I agree with Duncan Hollis in his assessment over at Opinio Juris that this agreement is intended by the parties to be non-legally-binding. Duncan provides a review of the reasons for this conclusion. As I noted in a comment to his post, I think the diplomats in Geneva had enough trouble reaching agreement on a text in this politically binding form, and would have shuddered at the thought of having to get it approved by their respective legislatures.

However, legally non-binding international agreements can still have significant legal, as well as political, implications.

The document lays out in detail Iran’s commitments under the accord. They comprise a very significant list of concessions, cumulatively limiting Iran’s nuclear program and preventing any further development of the program for the six month duration of the agreement. I think it is worth noting that all of these steps together comprise a more significant list of concessions than was expected by most observers. Nevertheless, it is also important to note that none of them, and not even their sum, is beyond what Iran had already offered in past negotiations, going back at least to 2005. See this summary of official negotiation proposals going back to 2003.  This observation provides support for Hossein Mousavian’s observation in his recent FT piece that:

[T]he idea that it is sanctions that have brought Tehran to the table is wrong. The real cause is the desire of new President Hassan Rouhani to reach a rapprochement with the US, the EU, its neighbours and other world powers, alongside the fact that the US red line has changed from “no enrichment of uranium” to “no nuclear bomb”.

With all of these concessions, one might wonder what’s in this new deal for Iran? Roughly $7 billion in sanctions relief? Yes. That’s certainly useful, particularly for newly elected Iranian President Rouhani’s domestic audience, which is looking to hold him to his campaign promises of sanctions relief.

But much more important than the immediate sanctions relief for Iran, is the fact that this agreement not only sets forth commitments undertaken by both sides during the agreed six month term, but it also sets forth a common vision of an end state, pursuant to a future comprehensive agreement, towards which this initial agreement is just the first step.  This has long been what Iranian nuclear negotiators have wanted – a negotiating framework with the West that includes an agreed understanding that once the negotiated commitments have all been satisfactorily fulfilled, all sanctions on Iran (both multilateral and unilateral) will be lifted; Iran’s noncompliance case with the IAEA will be closed; and Iran will be able to retain its indigenous full front-end nuclear fuel cycle, including uranium enrichment. This agreement provides for exactly such a commonly agreed vision of an end state.  Because of this, Iran was willing to make the significant concessions that it did.  Note these provisions from the agreement:

This comprehensive solution would involve a reciprocal, step-by-step process, and would produce the comprehensive lifting of all UN Security Council sanctions, as well as multilateral and national sanctions related to Iran’s nuclear programme.

and

Following successful implementation of the final step of the comprehensive solution for its full duration, the Iranian nuclear programme will be treated in the same manner as that of any non–nuclear weapon state party to the NPT.

Treating Iran’s nuclear program “in the same manner as that of any non-nuclear weapon state party to the NPT” means at least implicitly recognizing that, like many other NPT NNWS, Iran will have enduring full front end nuclear fuel cycle capabilities, including uranium enrichment.

Also when considering what Iran gets out of this agreement, it’s important to note what is not mentioned in the new agreement. There is no mention in the agreement whatsoever of the IAEA’s allegations of possible military dimensions (PMD) of Iran’s nuclear program. There was similarly no mention of this issue in Iran’s most recent agreement with the IAEA a couple of weeks ago. This is very significant, as it leaves out of the initial agreement any requirement for Iran to acknowledge these allegations, or to do any more to address them than it already has done. I have argued before on a number of occasions that the PMD allegations against Iran by the IAEA are both insubstantial, and irrelevant to Iran’s international legal obligations.

Iran also in this agreement undertakes no commitment either to suspend its uranium enrichment program, even temporarily, or to dismantle it. All serious observers agree at this point that Iran will have a uranium enrichment program on the other side of any comprehensive solution worked out with the West. This longstanding demand of the West and of Israel – that Iran give up its uranium enrichment capacity entirely – is not included in this agreement or in the negotiating framework it envisions.

What about all the fuss regarding Iran’s right to enrichment under NPT Article IV? As many will know, the inclusion in the new agreement of an explicit recognition of Iran’s right to enrich uranium was one of Iran’s key demands leading up to the Geneva negotiations. The week before the negotiations, however, Iranian Foreign Minister Mohammad Javad Zarif seemed to back away from this demand, focusing on the independent existence of the right to peaceful nuclear energy, including enrichment, in international law. As he stated in a November 20 video posted on Youtube :

Rights are not granted, and since they are not granted, they cannot be ceased.

During the Geneva negotiations, Iran was apparently unable to get into the agreed text the explicit recognition of its right that it long sought. However, after the agreement was signed, Zarif has maintained the position that such recognition was not necessary, because the right to peaceful use and enrichment is independently established in international law. As he stated in a Tweet on November 24:

The right to enrichment emanates from the inalienable right in NPT, defined by 2010 NPT Review Conference to include fuel cycle activities.

I have written about the right to peaceful nuclear energy recognized in Article IV(1) of the NPT quite extensively, including in a few online pieces over the past couple of weeks – see here and here. In these pieces, I’ve argued that Zarif is essentially correct that the NPT does provide for a right of peaceful nuclear energy research, production and use, that includes the right to enrich uranium.  I’ve further argued that this right has juridical implications for other states and international organizations, including the UN Security Council.

As I wrote a couple of weeks ago:

In my view, the recognition by over 190 states parties to the NPT that all states have such an inalienable right, which I interpret to include all elements of the full nuclear fuel cycle including uranium enrichment, strongly suggests that the right to peaceful nuclear energy research, production and use is one of the fundamental rights of states in international law. In my view, both fundamental and acquired rights of states should be understood to create in third parties, both states and international organizations, a legal obligation to respect those rights. This means that other states and international organizations are under an international legal obligation not to act in serious prejudice of states’ rights. In the case of fundamental rights, this reciprocal obligation is of a jus cogens order, meaning that all states and international organizations are under a jus cogens order legal obligation not to act to seriously prejudice the fundamental rights of other states. When states or international organization do act in serious prejudice of a state’s fundamental rights, that action is an internationally wrongful act, and implicates the international responsibility of the acting state or international organization.

According to this analysis, UN Security Council Resolution 1696, which commands Iran to cease uranium enrichment, constitutes a violation of international law, at least as to this particular command, and is void of legal effect (See Article 25 of the UN Charter).

Note that the often heard rebuttal to this argument, which references Article 103 of the UN Charter, is in fact erroneous and inapplicable. Article 103 of the UN Charter provides that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”  My analysis, which is based on the recognition of a fundamental right of states in international law, and the juridical implication of an obligation in other states and international organizations to respect that right, is unaffected and unanswered by this provision, which merely recognizes that in the case of a conflict between UN member states’ international legal obligations under the Charter, and their obligations deriving from other sources, the Charter obligations trump.  It does not speak to the legal obligations of the Security Council as an organ of an international organization. Nor does it speak at all to conflicts between the obligations of the UN Charter, and the rights of states in international law. So again, Article 103 of the UN Charter is inapposite and inapplicable to this question.

I would recommend this analysis particularly to Kevin Jon Heller over at Opinio Juris, and to Ryan Goodman over at Just Security.  In my opinion, both are incorrect in their analysis of the juridical dynamic between the NPT Article IV(1) right on the one hand, and the decisions of the Security Council on the other.  Both give insufficient consideration to the juridical meaning of a right in international law, and rely on erroneous readings of Article 103 of the UN Charter, in drawing their conclusions.

I do think that, in light of the new agreement between Iran and the P5+1, there is now dissonance of an exponentially higher degree than before between what the P5 in particular have now agreed to with Iran directly (which implicitly recognizes that Iran will continue to enrich uranium), and the commands of the P5 in Security Council resolutions including 1696 and 1737 (which inter alia require Iran to cease uranium enrichment).  The fairly obvious implication of this dissonance is that, in order for the agreed framework of negotiations between the P5+1 and Iran to proceed, the Security Council will need to withdraw these commands and, as Marko Milanovic wrote in a comment to Heller’s post, “bless” the new agreement.

In closing, after reading the text of the new agreement, I am still thrilled that it has been accomplished. This is a mutually beneficial deal for all parties, and an important step in securing international peace and security. It sets forth an agreed vision of an enduring peace between Iran and world powers regarding Iran’s nuclear program. This first diplomatic step raises hopes of a broader normalization of relations between Iran and the West, higher than at any time in the past thirty-four years.