The Geneva Deal as ‘soft law’ International Agreement-Reply to Jenkins-Joyner

by Kaveh Afrasiabi (source: Iran review)
Monday, December 15, 2014

One of the ironies of the Iran nuclear negotiations is the stark contrast between the serious international attention paid to the Geneva “interim” agreement known as ‘Joint Plan of Action’ and the relatively casual, or better said insignificant, legal importance attached to it. The time to bridge this huge gap has come and that requires debunking the indefensible and faulty interpretations of the agreement.

Case in point, in his response to this author's criticisms, Peter Jenkins has elicited the views of international law expert Dan Joyner, worth quoting: "I’ve read Dr. Afrasiabi’s piece, and his legal conclusions are largely erroneous. He appears to think that the deal will be done in a legally binding way – i.e. in the form of a treaty. This will certainly not happen. If the deal is done it will be, like the JPOA, memorialized in a legally non-binding manner, in order to avoid the necessity of having it approved by the legislatures in each respective country. So there will be no international legal assurances upon which private parties can rely."

In this reply, I shall concentrate on Joyner's view, which has been embraced by Jenkins, reflecting a ‘groupthink’ in the expert community – that has adopted the interpretation of the Geneva agreement as a mere 'joint statement" or pledge that is not a treaty and or legally binding. This author has raised questions regarding this interpretation in a previous article. ("Opening the 'Black Box" of Geneva Agreement's Legal Status"). To elaborate further on the alternative interpretation of the JPOA as an international agreement within the purview of international law, we need to avoid a rigid binary view in favor of a ‘spectral’ notion of legality that is in currency in discourses on international law, which provide a more fruitful insight on the complexity and heterogeneity of legal issues, with the help of such distinctions as 'hard' and 'soft' law. Unfortunately, some commentators on JPOA such as Joyner give the impression of a greater degree of parsimony in international law than is actually the case. This aside, I refer readers to the U.S. Department of State's regulation regarding "international agreements", dated July 1981. (1) The Geneva accord meets four of the five criteria set by the US government. Specifically,

(a) The first criterion on the identity and intention of parties is the most important. The Geneva JPOA was reached by multiple "state parties," so the first prong of this criterion is clearly met. The US regulation further states: "In the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law." There is no provision in the Geneva agreement with respect to "governing law" and therefore the presumption that it is governed by international law stands.

(b) The second criterion, dealing with the "significance of the arrangement," is also clearly met by the Geneva agreement. The US regulation states: "Minor or trivial undertakings, even if couched in legal language and form, are not considered international agreements within the meaning of the Act or of 1 U.S.C. 112a. In deciding what level of significance must be reached before a particular arrangement becomes an international agreement, the entire context of the transaction and the expectations and intent of the parties must be taken into account."

Clearly, the Geneva JPOA was neither minor nor trivial and, on the contrary, was, and still is, an important international non-proliferation document, i.e., a “deep” agreement allowing limited ex post flexibility, the purpose of which has been stated to ensure the peaceful nature of Iran's nuclear program, i.e., an issue that has triggered (rightly or wrongly) UN Security Council action under Chapter IIV on international peace and security. The JPOA is not a mere pledge either; as professor Kal Raustiala has noted, “pledges avoid a prominent public commitment.” Yet, that is exactly what the JPOA has triggered.

(c) The Geneva agreement also meets the third criterion on the “specificity" and "objective criteria." The regulation states: "International agreements require precision and specificity in the language setting forth the undertakings of the parties." The Geneva accord sets out specific obligations by the parties in terms of nuclear undertakings by Iran and the reciprocal action of the US and Europeans, who subsequently amended (in January, 2014) their Iran sanctions laws in conformity with the Geneva agreement. It is therefore not an “informal agreement,” a conclusion logically deduced from the (European) legal action flowing from it. 

(d) Also, the fourth criterion on the necessity of "two or more parties" is met by the Geneva agreement between seven parties, i.e., Iran and the “5 +1” states.

(e) Regarding the agreement’s ‘form’. True, the Geneva agreement does not possess the formal (stylistic) appearance of an international agreement and has been issued as a "joint statement." But, even the US regulation admits that "forms as such are not normally an important factor." What matters is the content and substance of the agreement.

Unfortunately, Mr. Joyner has rushed to label the Geneva JPOA as "legally non-binding" thus closing an issue that ought to remain open, in light of the 1965 American Law Institute's ‘Restatement’ that states: "The distinction between an agreement that results in a binding commitment under international law and one that does not is not always clear, and there is no absolute tests for determining whether an agreement constitutes a binding commitment." Joyner conflates the issue of agreement's substantive status as an international agreement with the subjective political intent of some of the "Iran six" nations. His reliance on the procedural issue of enforceability as a criterion of legality is indeed problematic. In the absence of public record of the negotiations culminating in the Geneva JPOA, the verdict on the latter can have only a provisional character and must await further information. It has been noted by law experts that as a matter of international law “an agreement remains a contract regardless of how it has been approved internally.

We can safely assume, however, that every word of the Geneva agreement was carefully considered, even fought over. The existing international sanctions on Iran are partially overtaken by this international agreement, which sets out new limits of possible, albeit temporary ones, such as the lifting of sanctions on Iran's petrochemical industry and the trade in precious metals. Furthermore, as various law experts such as Anthony Aust have correctly stated, the name given to an agreement is not necessarily indicative of its legal status. Nor is the absence of signature on Geneva deal 'fatal’ with respect to the alternative interpretation that it is operates within the broad understanding of an international agreement. The mere intent of its drafters to dodge the onus of parliamentary approval is not terribly taxing either, since the primary weight should be given to the four criteria above-mentioned, met by the Geneva 'proto-treaty' governed by international law. A concluding word and that is, to maintain that international law is irrelevant to an international agreement that sets out clear obligations on the part of all the permanent members of the UN Security Council and modifies the scope of international sanctions, etc., is indeed an affront to international law, which needs to be viewed from an evolutionary perspective. If and when the US lawmakers introduce new sanctions despite the JPOA, then the full glare of international law should cast questions on the legitimacy of their action.  

Notes:

(1) 22 CFR 181.2 - Criteria. | LII / Legal Information Institute


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