Report: Legality of Withdrawing from Nuclear Deal

April 5, 2018

President Donald Trump has warned that he would withdraw from the nuclear deal if the United States and European partners cannot agree on ways to fix its alleged flaws. The administration is aiming to sign a supplemental agreement that deals with the sunset clauses and Iran’s missile program. Trump will have to decide if the United States will continue to implement the deal by May 12. If Trump does not waive sanctions then, the United States will be in violation of the Joint Comprehensive Plan of Action (JCPOA).

The legal status, however, of the agreement is debated. Although the Obama and Trump administrations have treated the deal as a political commitment that is not legally binding, the endorsement of it by the U.N. Security Council may have converted some voluntary commitments into legal obligations. The following are excerpts from a Congressional Research Service report on the legality of withdrawing from international agreements, including the Iran deal.

 

Withdrawal from International Agreements:

Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement

Stephen P. Mulligan
Legislative Attorney

February 9, 2017

Summary

The legal procedure through which the United States withdraws from treaties and other international agreements has been the subject of long-standing debate between the legislative and executive branches. Recently, questions concerning the role of Congress in the withdrawal process have arisen in response to statements made by President Donald J. Trump that he may consider withdrawing the United States from certain high-profile international commitments. This report outlines the legal framework for withdrawal from international agreements under domestic and international law, and it examines legal issues related to the potential termination of two agreements that may be of significance to the 115th Congress: the Paris Agreement on climate change and the Joint Comprehensive Plan of Action (JCPOA) related to Iran’s nuclear program.

The Obama Administration treated the JCPOA as a political commitment that is not legally binding. To the extent this understanding is correct, there is no legal prohibition on the President from withdrawing from the plan of action. It is worth noting that the JCPOA was “endorsed” by U.N. Security Council Resolution 2231, and there is disagreement among observers as to whether this resolution may have converted at least some of the voluntary commitments in the JCPOA into obligations that are binding under international law. Both the JCPOA and Resolution 2231 contain what has been called a “snapback” mechanism that may allow the United States to cause the Security Council to reinstate its prior sanctions that had been imposed on Iran.

Withdrawal from the Joint Comprehensive Plan of Action

Prompted by statements by President Donald J. Trump during the 2016 presidential race, some media outlets have reported that the President may seek to withdraw the United States from the Joint Comprehensive Plan of Action (JCPOA) related to Iran’s nuclear program. On July 14, 2015, Iran and six nations (the United States, the United Kingdom, France, Russia, China, and Germany—collectively known as the P5+1) finalized a “plan of action” placing limitations on the development of Iran’s nuclear program. The JCPOA identifies a series of “voluntary measures” in which the P5+1 provides relief from sanctions imposed on Iran through U.S. law, EU law, and U.N. Security Council resolutions in exchange for Iranian implementation of certain nuclear-related measures. The JCPOA was not signed by any party, and it does not contain any provisions for ratification or entry into force, but the bulk of the sanctions at issue were lifted on January 16, 2016, the date referred to as “Implementation Day.”

Legal Considerations Related to Withdrawal from the JCPOA

As an unsigned document that purports to rely on “voluntary measures” rather than binding obligations, the executive branch has treated the JCPOA as a political commitment. Many commentators agree with this assessment, but there is some debate over the classification of the plan of action, and its legal status may have been affected by a subsequent U.N. Security Council resolution (discussed below). To the extent the JCPOA is correctly understood as a nonbinding political commitment, international law would not prohibit President Trump from withdrawing from the plan of action and reinstating certain sanctions that had been previously imposed under U.S. law, but there may be political consequences for this course of action. It is also unlikely that the President would require congressional or senatorial approval for withdrawal in light of the Obama Administration’s treatment of the JCPOA as a nonbinding commitment.

The JCPOA states that the United States will, among other things, withdraw certain “secondary sanctions” imposed under U.S. law that are related to foreign entities and countries that conduct specified transactions with Iran. “Secondary” sanctions are distinguished from “primary” sanctions in that primary sanctions prohibit economic activity with Iran involving U.S. persons or goods, and secondary sanctions seek to discourage non-U.S. parties from doing business with Iran. On Implementation Day, President Obama issued an executive order revoking all or portions of five prior executive orders that imposed secondary sanctions on Iran. These executive orders generally may be revoked or modified at the will of the President, and therefore nothing in domestic law would prevent the President from reinstating these sanctions through his own executive order, provided he complies with the requirements of the underlying statutes that authorize the President to sanction Iran via executive order.

Other secondary sanctions addressed in the JCPOA were imposed on Iran by statute rather than through executive order. These statutes gave the President or a delegate in the executive branch authority to waive sanctions under certain conditions, and the waiver remains effective for a period ranging from 120 days to one year, depending on the statute. The Obama Administration first exercised this waiver authority on Implementation Day, and it issued its most recent notice of waivers on December 15, 2016. When those waivers expire, the Trump Administration could choose not to renew them, thereby reinstating sanctions imposed on Iran by statute. Whether the Trump Administration could unilaterally rescind the Obama Administration’s waivers before their expiration is not clear as the governing statutes do not address whether the Executive may revoke waivers that have already been issued.

U.N. Security Council Resolution 2231 In addition to U.S. withdrawal of secondary sanctions, the JCPOA calls for the “comprehensive lifting of all U.N. Security Council sanctions ... related to Iran’s nuclear programme,” and it specifies a set of resolutions to be terminated through a future act of the Security Council. On July 20, 2015, the Security Council unanimously voted to approve Resolution 2231, which, as of Implementation Day, terminated the prior sanctions-imposing Security Council resolutions subject to certain terms in Resolution 2231 and the JCPOA. Resolution 2231 references and annexes the JCPOA, and it states that the Security Council “[w]elcom[es] diplomatic efforts by [the P5+1] and Iran to reach a comprehensive, long-term and proper solution to the Iranian nuclear issue, culminating in the [JCPOA].” Although the text of the JCPOA appears to rely on “voluntary measures,” some observers have stated that Resolution 2231 may have converted some voluntary political commitments in the JCPOA into legal obligations that are binding under U.N. Charter.

Whether a U.N. Security Council resolution imposes legal obligations on U.N. Member States depends on the nature of the provisions in the resolution. As a matter of international law, many observers agree that “decisions” of the Security Council are generally binding pursuant to Article 25 of the U.N. Charter, but the Security Council’s “recommendations,” in most cases, lack binding force. Whether a provision is understood as a nonbinding “recommendation” or a binding “decision” frequently depends on the precise language in the resolution. Commentators have noted that the Security Council’s use of certain affirmative language, such as “shall” as opposed to “should,” or “demand” as opposed to “recommend,” may indicate that a resolution is intended to establish legally binding duties upon U.N. Member States.

Resolution 2231 appears to contain a combination of nonbinding recommendations and binding decisions. It seems clear that the Security Council intended the provisions that lifted its prior sanctions to be binding as these paragraphs begin with the statement that the Security Council “Decides, acting under Article 41 of the Charter of the United Nations” that its prior resolutions are terminated subject to certain conditions. Article 41 authorizes the Security Council to “decide” what measures “not involving the use of armed force are to be employed to give effect to its decisions,” and it is understood to allow the Security Council to issue resolutions that are binding on U.N. Member States.

Whether Resolution 2231 creates an obligation under international law for the United States to continue to withhold its domestic secondary sanctions or to comply with the JCPOA more broadly is a more complex question. Paragraph 2 of Resolution 2231 states that the Security Council

Calls upon all Members States ... to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and this resolution and by refraining from actions that undermine implementation of commitments under the JCPOA[.]

While this provision arguably seeks general compliance with the JCPOA, the phrase “calls upon” is understood by some commentators as a hortatory, nonbinding expression in Security Council parlance. Others have interpreted the phrase to create an obligation under international law to comply, and a third group falls in between, describing the phrase as purposefully ambiguous. Historically, U.N. Member States have ascribed varying levels of significance to the phrase “calls upon” in Security Council resolutions. As a consequence, there is likely no definitive answer as to whether Resolution 2231 creates a binding international legal obligation for the United States to “support the implementation of the JCPOA” or whether the JCPOA remains a nonbinding political commitment that the United States may withdraw from without violating international law.

As a matter of domestic law, U.N. Security Council Resolutions are frequently seen to be nonself-executing, and therefore their legal effect is dependent on their relationship with existing authorizing or implementing legislation. In certain cases, existing statutory enactments may authorize the Executive to implement the provisions of a resolution through economic and communication-related sanctions. But, to the extent Resolution 2331 is not self-executing, domestic law would not, on its own accord, mandate that the President comply with the terms of the resolution.

The “Snapback” Mechanism

While it seems clear Resolution 2231 has the legal effect of lifting the sanctions imposed on Iran through prior Security Council resolutions, Resolution 2231 also contains a mechanism that may reinstate—or “snapback”—those sanctions under certain conditions. If a party to the JCPOA notifies the Security Council of an issue it believes “constitutes significant non-performance of commitments under the JCPOA,” the Security Council must vote on a draft resolution addressing whether it should continue to withhold the sanctions imposed on Iran through its earlier resolutions. Unless the Security Council votes to continue to lift those sanctions within 30 days of receiving a complaint of nonperformance, the prior Security Council resolutions “shall apply in the same manner as they applied before the adoption of” Resolution 2231. The “snapback” mechanism thus places the onus on the Security Council to vote affirmatively to continue to lift its sanctions by stating that those sanctions will be implemented automatically unless the Security Council votes otherwise. As a permanent member of the Security Council, the United States would possess the power to veto any such vote and effectively force the reinstatement of the Security Council’s sanctions on Iran. Stated another way, the United States may possess a unilateral ability to “snapback” the Security Council’s sanctions regime even without the agreement of the other members of the P5+1 by (1) notifying the Security Council of an issue of significant nonperformance and (2) vetoing the subsequent resolution to continue to withhold sanctions on Iran.

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