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Moderated by Professor David Koplow of the Georgetown University Law Center, the roundtable on the Iran Nuclear Deal explored the Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5, Germany, the EU, and Iran in July 2014.
Koplow first introduced the speakers: Professor Asli Bâli of University of California, Los Angeles School of Law; Newell Highsmith, Office of the Legal Adviser, U.S. Department of State; and Dave Jonas, formerly of the of the Defense Nuclear Facilities Safety Board. He gave each of them a few moments to make introductory remarks before proceeding to a roundtable format. (Kelsey Davenport of the Arms Control Association was unable to attend.)
Bâli highlighted the level of detail in the JCPOA. By resolving as many technical issues as possible, the terms of the agreement lead to decreasing ambiguity regarding implementation and the extent of the parties’ agreement. Highsmith reminded us that these conversations began in 2003 – sanctions began with Security Council resolutions in 2006. Despite elevated sanctions, centrifuge production in Iran went up steadily over that time. Neither bombing nor sanctions would eliminate the knowledge they had gained. Jonas questioned the wisdom of rewarding serial offenders of international law and noted the strongest language of the deal appears in the preface and the preamble.
1) Legal status of this agreement
If Iran doesn’t honor its legally binding agreements, does it really matter whether the agreement is a treaty or not? Highsmith highlighted the consequences of the deal, details of which are not typically reflected in treaties. Non-binding agreements gave the administration greater flexibility to deal with issues of noncompliance. Jonas suggests the agreement was concluded specifically to avoid the ratification requirements in the treaty clause. Highsmith argued there was no advantage of having a legally binding agreement. Bâli adds it could have been concluded as an executive agreement, but more importantly the agreement is backstopped by international law. While subsequent parties can terminate this agreement without consequences, Highsmith noted that a determined administration could as well – regardless of whether it was a treaty or not.
2) Compliance, transparency and enforcement
No issues have come to the commission, but Koplow wondered whether there have been any issues regarding compliance with the terms of the agreement. Highsmith said they have worked with Iran to make sure the commitments are being honored but was unable to give greater detail. Jonas is concerned about a number of minor violations that will test the boundaries of the agreement. Koplow asked: would the US use the snapback mechanism for these small violations? Highsmith replied there are dozens of way to respond (e.g., withholding elements of sanctions relief or approval of specific exports).
3) Should it have contained more?
We’ve seen missile testing and seizure of American vessels but that is outside of the scope of this particular agreement. Highsmith says all of these problems would be greater if Iran was a nuclear state, so the focus has been on eliminating that risk. Sanctions still exist for all other areas.
Final remarks addressed the Security Council. Jonas was pleased the Obama administration did not seek to have the agreement approved as a legally binding resolution from the Security Council. Bâli concluded by highlighting the restraint on the part of veto states in creating this agreement.
Ryan Harrington is the Head of Reference at the Yale Law Library.