Security Council Resolution 2231 and the JCPOA: Next Steps
The International Association of Lawyers Against Nuclear Arms (IALANA) has released a statement entitled "Nuclear Crossroads: The Urgent Need for Action to Prevent Catastrophe". It addresses US-Russian nuclear arms racing, the North Korea situation, US violation of the agreement and Security Council resolution regarding Iran's nuclear program, and ongoing risks of accidents and miscalculations.
The United Nations is now coming to grips with next steps on Iran-related instruments, with a Security Council meeting on the matter scheduled for June 27. Given these discussions, we particularly draw your attention to the following section of the IALANA statement:
The US declaration that it will no longer implement the Joint Common Plan of Action and will reimpose sanctions on Iran inconsistent with the JCPOA is a major blow to international governance and to peace and disarmament in the region and the world.
The JCPOA, para. 28, provides that the parties to it "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." A viable international order requires good-faith execution of agreements whether considered political or legal. Success in international cooperation is not possible if promises and representations cannot be relied upon.
The IAEA has found that Iran is in compliance with the JCPOA, and no extraordinary circumstances otherwise justify the US action. Further, the UN Security Council unanimously endorsed and incorporated the agreement in Resolution 2231 of 2015.
The JCPOA likewise provides for its integration with Security Council action. Under the JCPOA, para. 34(ii), "this JCPOA and the commitments in this JCPOA come into effect" ninety days after endorsement of the JCPOA by the Security Council, as was done by Resolution 2231. The resolution establishes a mechanism linked to Iran's implementation of the JCPOA for the lifting of Security Council imposed sanctions against Iran. The last provision of its preamble "[u]nderscor[es] 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."
In para. 2, Resolution 2231 "calls upon" UN member states to take "actions commensurate with the JCPOA and this resolution" and to refrain from "actions that undermine implementation of commitments under the JCPOA." Paragraph 26 "urges" all states "to cooperate fully with the Security Council in its exercise of the tasks related to this resolution." Though the resolution does not label either paragraph a "decision" of the Security Council, in adopting them the Council without question was acting to fulfil its "primary responsibility for the maintenance of international peace and security" conferred by Article 24 of the UN Charter. In a 1971 advisory opinion
[http://r20.rs6.net/tn.jsp?f=001Thhgx3aQwoNQ7sQrAqWrvt_r6o7g9mqhqnkxt5LDXy32V2jf3nbGe9POTWF2x-s2eBa6DgXEn5P7CSwkSFr24Y7slLJPqgha7L5VgzMWaBDRVeR7oZlO2pO5St_m6CpL9gn368DFnGnKk3OQXwbdUfwrKslJS89KB5z242VQ3_3W1jJ75YTJibbLgtlAtaXXCbufO-wck0EGub7lFO0nLR-D3N2fxtfzXbkTkGoJqlg-B3upO4lMcg==&c=N9blkpMe5v0VAX97IXZT7cKVoS01CsfabmVgHHK8kHI2AFDYFHjVtA==&ch=uolYveQbK61fp6Mv6qo5vaNtKj-hmMLTeEV6dmUmr28ZCiTZ4z2PCg==], the International Court of Justice, taking into account "all circumstances", held legally binding a provision of a Security Council resolution which provision "calls upon all States" to refrain from acts inconsistent with the Council's determination that "the continued presence of the South African authorities in Namibia is illegal."
Similarly here, under all the circumstances, paras. 2 and 26 of Resolution 2231 are legally binding directives of the Security Council.* The US is acting contrary to those directives, thereby undermining the effectiveness of the Security Council in addressing issues of nuclear non-proliferation and disarmament in Iran and generally. We suggest consideration of a UN General Assembly request for an International Court of Justice advisory opinion on the legal consequences of Resolution 2231 and the JCPOA. Such an opinion would provide important guidance, inter alia, regarding US sanctions imposed on non-US enterprises engaged in commercial dealings in Iran and with Iranian enterprises.
The other parties to the JCPOA - Iran, United Kingdom, France, Russia, China, Germany, and European Union - must work to ensure the continued implementation of the agreement. And all nations and global civil society should make clear that US contravention of the JCPOA and Resolution 2231 is unacceptable and dangerous and must be reversed. *Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, has expressed the view to IALANA that both paras. 2 and 26 are legally binding on all UN member states. The German parliamentary research service reached the same conclusion regarding para. 2 in "Völkerrechtliche Bewertung der Aufkündigung des Iran-Nuklearabkommens durch die US-Administration," Wissenschaftliche Dienste, Deutscher Bundestag, WD 2 - 3000 - 074/18, 2018.
The IALANA statement also makes a number of recommendations for actions by civil society actors, among them:
* Support continued full implementation of Security Council Resolution 2231 and the JCPOA by Iran, UK, France, Russia, China, Germany, and European Union, and also urge the US to recommit to their full implementation;
* Urge their governments to condemn the US actions in relation to Resolution 2231 and the JCPOA and to support a resolution to that effect in the General Assembly and its First Committee;
* Ask their governments for an assessment of the legal status of Resolution 2231 and the JCPOA;
* Suggest that their governments consider a UN General Assembly request that the International Court of Justice render an advisory opinion on the legal consequences of Resolution 2231 and the JCPOA.