*By Professor Khawar Qureshi QC
It often said that International Law is predominantly a tool for some States to pursue their own aims and justify their actions against others. However, whilst International Law and its institutions are far from perfect, they provide the only viable means through which States can interact with each other on a basis of mutual respect and co-operation.
In this article, an overview is provided of the context for the JCPOA 2015, and why it is not just in Iran’s interest, but also of the international community as a whole to ensure that International Law is observed – whatever the provocation or behaviour of other States.
BACKGROUND
1. In recent years, Iran has been the subject of sanctions (sometimes known as restrictive measures) imposed by each of the USA, the EU and the UN concerning Iran’s nuclear-related activities. Whilst the USA’s nuclear-related sanctions against Iran were imposed as early as 1995 under the Clinton Administration, the UN’s nuclear-related sanctions against Iran were first imposed in 2006 by UN Security Council Resolution 1737. The EU strengthened its own sanctions program concerning Iran in 2012 and afterwards.
2. The overall effect of the collective sanctions regime has caused massive economic damage to Iran, greatly restricting the country’s potential for growth and development. It is not the purpose of this article to analyse the positions being adopted “pro-sanction” or the responses thereto. First and foremost, all States must abide by International Law.
3. The Joint Comprehensive Plan of Action (“JCPOA”) is a detailed agreement reached between Iran and the E3/EU+3 (comprising China, France, Germany, Russia, the UK and the USA, together with the EU) on 14 July 2015. Its Preface shows that it was intended to adequately address the concerns on both sides: whilst Iran envisioned that “the JCPOA will allow it to move forward with an exclusively peaceful, indigenous nuclear programme, in line with scientific and economic considerations…and with a view to building confidence and encouraging international cooperation”, the E3/EU+3 countries envisioned that “the implementation of this JCPOA will progressively allow them to gain confidence in the exclusively peaceful nature of Iran’s programme”.
OBLIGATIONS UNDER THE JCPOA
4. Article (viii) of the Preamble to the JCPOA included the imposition of a ‘good faith’ obligation concerning the performance of the JCPOA commitments:
“The E3/EU+3 and Iran commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation. The E3/EU+3 will refrain from imposing discriminatory regulatory and procedural requirements in lieu of the sanctions and restrictive measures covered by this JCPOA”.
5. On 14 July 2015, Iran began providing the International Atomic Energy Agency (“the IAEA”), the body with responsibility for verifying Iran’s compliance with the nuclear-related provisions of the JCPOA, with information necessary for the IAEA to complete its investigations into previous activities concerning the development of nuclear industry.
6. Whilst the details of the JCPOA, set out in its substantial annexures, are technical and complex, the main requirements of each side are set out in the summary produced which can be viewed at https://www.armscontrol.org/factsheets/JCPOA-at-a-glance[1]:
7. The dispute resolution mechanism under the JCPOA is found in paragraphs 36-47 of its main text. There are some who may criticise the vague nature of the provision, and suggest its dispute resolution mechanism is imbalanced. For better or worse it was agreed to by all the parties.
DEVELOPMENTS AND ALLEGED BREACHES
8. On 18 October 2015, 90 days after the UN Security Council endorsed the JCPOA through its resolution 2231, Iran and the E3/EU+3’s obligations to take steps to meet their commitments to implement the JCPOA fully took effect.
9. On 16 January 2016, known as ‘Implementation Day’, the IAEA certified that Iran had taken the key steps necessary for the restriction of its nuclear program and that increased monitoring had been put in place in that regard. The IAEA certification triggered the relaxation of sanctions (sometimes known as restrictive measures) that had been implemented against Iran by the US, EU and the UN.
10. Notwithstanding that the IAEA had verified Iran’s compliance with the terms of the JCPOA up until that point, the USA unilaterally withdrew from the JCPOA on 8 May 2018. All US sanctions on Iran that had been lifted by the JCPOA were reintroduced. Further, since that date, the USA has terminated almost all designated sanctions waivers for cooperative nuclear projects (the Bushehr nuclear power plant was, in May 2019, the subject of a separate 90-day waiver from the USA).
11. Accordingly, in May 2019, Iran (whilst still remaining a participant in the JCPOA) began to row back on the steps it had previously taken to comply with its terms, justifying its decision to do so on the JCPOA’s failure to deliver the sanctions relief that it originally envisioned. Iran’s position is that the European participants in the JCPOA failed to take sufficient steps to negate, offset or otherwise lessen the effect on the Iran of the reintroduction of US sanctions.
12. Iran has already taken legal action in respect of the USA’s unilateral withdrawal from the JCPOA (announced by the US President on 13 October 2017). On 16 July 2018, Iran filed an application instituting proceedings at the International Court of Justice against the USA concerning the USA’s reintroduction of sanctions against Iran. This case was framed not under the dispute resolution mechanism provided for in the JCPOA itself, but as a breach of the Treaty of Amity, Economic Relations and Consular Rights, which entered into force between Iran and the USA on 16 June 1957. The USA’s jurisdictional objections, including that the case’s subject matter concerns the JCPOA, not the Treaty of Amity, were heard by the International Court of Justice in September 2020, and, at the time of writing, are still awaiting a substantive ruling.
13. Whilst the majority of EU sanctions were lifted in early 2016 under the terms of the JCPOA, some sanctions remained in place. Those that remained were applicable to all EU business and nationals inside and outside of the EU territory as well as to any overseas business and individuals when they are in the EU or doing business within the EU. The remaining sanctions restricted the direct or indirect sale, supply, transfer or export to any individual, entity or body in Iran (or for use in Iran) of the items specified in Regulation 267/2012 and Regulation 359/2011. These items included, but were not limited to, nuclear-related items featuring on the Nuclear Suppliers Group list, various items with the capability to contribute to reprocess or enrichment-related or heavy water-related activities (or other activities inconsistent with the JCPOA). In addition, the provision of various services related to those items, as well as the direct or indirect acceptance of funds or economic resources from targets of financial sanctions against Iran, remained prohibited.
CONCLUDING REMARKS
In the face of the Covid-19 pandemic which some commentators suggest has been exacerbated by globalisation, as well as humanity’s insatiable appetite for devouring what is left in terms of Earth’s natural resources, it is all too clear that any State which adopts a short term view of self-interest ignores the reality – namely that every action often has unforeseen “self-damaging” consequences. The World can ill afford division or disunity at this juncture. We must all hope that 2021 brings greater emphasis upon co-operation and respect for International Law.
*Professor Khawar Qureshi QC specialises in Commercial Litigation, International Arbitration and Public International Law from offices at Serle Court London and McNair Chambers Qatar. He has advised or appeared in complex commercial and international matters involving more than 60 States including the UK as an “A” Panel UK Government Treasury Counsel, the USA, the Russian Federation, India, Pakistan, Italy and Kenya.
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