US withdraws from the JCPAO (Iranian Nuclear Deal): Comments and future possibilities

  • by Charalee Graydon
  • 1. July 2018
  • 2 Comments

Once on a time from all the Circles seven

Between the steadfast Earth and Rolling Heaven

The Birds, of all Note, Plumage, and Degree,

That float in Air, and roost upon the Tree;

And they that from the Waters snatch their meat,

And they that scour the Desert with long Feet:

Birds of all Natures, known or not known to Man,

Flock’d from all Quarters into the full Divan,

This was the Grievance – this the solemn Thing

On which the scatter’d Commonwealth of Wing,

From all the four Winds, flying like to Cloud

That met and blacken’d Heav’n and Thunder-loud

With sound of whirring Wings and Beaks that clash’d,

Down like a Torrent on the Desert dash’d

Till by Degrees, the Hubbub and the Pell-mell

Into some Order and Precedence fell,

And, Proclamation made of Silence, each

In special Accent, but in general Speech

That all should understand, as seem’d him best,

The Congregation of all Wings addrest. [1]

Prelude from The Conference of Birds – Persian Poet Attar, circa 1100-1200, from the Bird Parliament, translated by Edward Fitzgerald

1)   Introduction

Formal negotiations to address the framework on international security relating to Iran’s nuclear program commenced in 2013. Following twenty months of intense negotiations, an agreement was reached on July, 2015, titled the Joint Comprehensive Plan of Action (JCPOA). The JCPOA was between the Islamic Republic of Iran, the five permanent members of the United Nations Security Council, China, Russia, France, the United Kingdom, and the United States (US) as well as Germany and the European Union. The JCPOA was endorsed by the United Nations Security Council and incorporated into international law by the Council’s Resolution 2231. On May 8, 2018, less than three years after his predecessor had signed the agreement, the President of the US announced that the US was withdrawing from the agreement and that steps would be taken to reimpose US sanctions on Iran.

This paper will review the response to the US announcement by the United Nations (UN), the remaining JCPOA parties and other States following withdrawal of the US. As this paper focuses on international negotiations, it will not review US domestic, or International law apart from how legal questions affect the type of agreement created by JCPOA negotiators and its impacts on the negotiated agreement. The paper will look at provisions of the JCPOA to show intended commitments for the plan and will review Iran’s options after the US Withdrawal from the JCPOA. Finally, the paper looks at management of the JCPOA and continuing negotiations taking place between Iran and remaining JCPOA parties and changes in the alignment of world powers and international law commitments that may result from US withdrawal.

2)   What is the JCPOA?

The JCPOA is an agreement negotiated under the direction of the United Nations (UN) relating to the non-proliferation of nuclear weapons.[2] Although negotiations relating to Iran’s nuclear program started in the early 2000’s, formal negotiations relating to a framework agreement titled the Joint Plan of Action (JPA) started in 2013 and after several rounds of negotiations, the final JCPOA agreement was completed on July 14, 2015.[3] It was adopted on October 18, 2015 and the implementation date was January 16, 2016.[4]

The JCPOA is a complicated document with detailed provisions and five annexes.[5] Parts of the JCPOA and Resolution 2231 will be reviewed in this paper which relate to the negotiated JCPOA.

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3)   The JCPOA as a Multilateral Negotiation

Material in the book, Multilateral Negotiations by Fen Osler Hampson and Michael Hart (Hampson and Hart) provides information about different approaches to multilateral negotiations such as the JCPOA. The conclusions and lessons section of their book, as well as material dealing with multilateral arms control negotiations, show the difference between “old” and “new” multilateralism with new roles being played by international organizations such as the United Nations, mobilized interest groups and non-governmental agencies. These new players are part of the negotiation process in areas, amongst others, of coordinating research, raising public awareness and playing roles in bridging, brokering, and mediation [6]

The authors conclude there are recurring themes in multilateral negotiations whether the negotiations are for arms control, trade or the environment. These themes are identified as crisis, consensual knowledge (the need for experts), verification and compliance, bridging and bargaining strategies, issue decomposition and leadership.[7] Review of the Iran nuclear situation shows the issue of Iran’s nuclear project to be the crisis that brought the issue to the negotiating table in the early 2000’s and which forms the background of the JCPOA.[8]

The authors write that issues of compliance and defection are important for security multilateral negotiations. [9] The unilateral defection of the United States in leaving the JCPOA supports this hypothesis. It is also recognized that changes of political administrations can have an impact on the situation. In the present situation, there was a leadership change: from US President Obama, when the agreement was negotiated, to President Trump, who withdrew from the agreement. President Trump’s approach in dealing with Iran is recognized as different to that of the previous President. Following President Trump’s announcement this difference is shown by comments of Secretary of State, John Kerry, who had negotiated the JCPOA agreement on behalf of the US during the Obama administration:

No rhetoric is required. The facts speak for themselves. Instead of building on unprecedented nonproliferation verification measures, this decision risks throwing them away and dragging the world back to the brink we faced a few years ago.

The extent of the damage will depend on what Europe can do to hold the nuclear agreement together, and it will depend on Iran’s reaction.[10]

Kerry’s comment shows he considers the issue cannot be resolved by the present administration of the United States and recognizes that other countries, such as European countries, may have to take the lead to ensure the JCPOA agreement can be implemented. It also shows his style of working with multilateral negotiations to be different to that President Trump and the current Secretary of State, Mike Pompeo.[11]

This different style of leadership and negotiation is also clear from the US President’s announcement when leaving the JCPOA, identifying his reasoning that Iran is a threat rather than a partner working toward the goal of non-proliferation of nuclear weapons:

The Iranian regime the leading state sponsor of terror. It exports dangerous missiles, fuels conflicts across the Middle East and supports terrorist proxies and militias such as Hezbollah, Hamas, the Taliban, and al-Qaeda. [12]

The President’s message, both prior to and after his election, was that he would leave the JCPOA.[13] Review of his inaugural announcement, and his announcement when leaving the JCPOA convey the same message,

We will reinforce old alliances and form new ones and unite the civilized world against radical Islamic terrorism, which we will eradicate completely from the face of the earth.[14]

This raises the question why the U.S. President has followed this direction? One suggestion has been made by academic, Alexander Nikoleav, who  wrote an analysis of the Iranian arms control situation. He indicated that the situation of weapons of mass destruction in Iraq was repeating itself. He wrote  that the propaganda machine was at work.[15]

Publications in the New York Times, following the appointment of John Bolten as US National Security Advisor, supports his analysis as do comments by President Trump to a New York Times journalist. The journalist reported that President Trump, in response to information that Iran would not renegotiate the JCPOA, stated, “[b]ut they will negotiate, or something will happen…[a]nd hopefully that will not be the case”[16] Further comment suggesting a regime change to be the objective of the US is shown by articles written as to demands on Iran made by the present US Secretary of State, Mike Pompeo.[17]

The President’s comment also emphasizes factors set out by Hampson and Hart as having an impact on multilateral negotiations, leadership and leadership style. [18] To illustrate this, the authors provide the example of leaders at the Stockholm Conference on Confidence and Security Building Measures and Disarmament in Europe. They indicate that leader Ronald Reagan illustrated an approach of openness to confidence building and leader, Mikel Gorbacov illustrated the approach of co-operation.[19] The different styles of leadership of Presidents Obama and Trump in dealing with Iran and the JCPOA have been commented on.[20]

Connected to leadership is the matter of power. A comment pertinent to the analysis of the United States leaving the JCPOA is made by Hampson and Hart when writing that while complicated issues and the great number of players in multilateral negotiations is not an insurmountable barrier to international agreements, the absence of negotiation results in “…little or no international cooperation or international regimes produced by great-power fiat…”[21] An article in the USA Spectator shows that Trump’s decision of dealing with Iran and the JCPOA may be an example of this type of great power fiat.[22] The article indicates that president Trump does not have an Iranian  plan B but his rhetoric indicated it to be time to “ … go on the offensive against the terror regime in Tehran that has held the Iranian people hostage for four decades.”[23].

In addition to leadership and power, one of the factors found by authors Hampson and Hart to be important to multilateral negotiations, is that of the role of experts for matters of verification and compliance.[24] These matters are dealt with in the preamble and general provisions of the JCPOA which provide:

[t]he International Atomic Energy Agency (IAEA) will be requested to monitor and verify the voluntary nuclear related measures as detailed in the JCPOA. The IAEA will be requested to provide regular updates to the Board of Governors, and as provided for in this JCPOA, to the UN Security Council. All relevant rules and regulations of the IAEA regarding the protection of information will be fully observed by all parties involved.[25]

Authors Hampson and Hart write that additional important for multilateral negotiations are bridging, issue decomposition and strategy. Review of the JCPOA shows each of these variables have been addressed.[26] For example, the JCPOA preface provides:

The E3/EU + 3 envisage that the implementation of this JCPOA will progressively allow them to gain confidence in the exclusively peaceful nature of Iran’s programme. The JCPOA reflects mutually determined parameters, consistent with practical needs, with agreed limits on the scope of Iran’s nuclear programme, including enrichment activities and R & D. The JCPOA addresses the E3/EU + 3’s concerns, including through comprehensive measures providing for transparency and verification.

The JCPOA will produce the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear programme, including steps on access in areas of trade, technology, finance and energy.[27]

Another factor considered important in multilateral negotiations is that of compliance. In this regard, the JCPOA includes a dispute resolution mechanism for Iran and other parties to the agreement. For example, Iran has the right to refer an issue of any alleged non-compliance by any of the members of the E3/ EU + 3, to the Joint Commission for resolution.[28] An article indicates this to be an option available to Iran given the US withdrawal from the JCPOA. [29] Research, at the time this paper is written, shows no referral has been made by Iran to the Joint Commission.

Also relevant to the US withdrawal, is academic writing about negotiation practice and procedure. Authors Fisher, Ury and Patton and Lewicki, Saunders and Minton, in their books on negotiation, write about positional, principled, distributive and integrative bargaining styles and set out information showing how these styles are used.[30] From review of their work, the JCPOA negotiations involved principled and integrative models of negotiation. This analysis is supported by articles written about the JCPOA negotiations.[31]

The Fisher, Ury and Platton’s book also provides information about a bargaining approach known as “hardball tactics” which adopted by the US President when announcing withdrawal from the JCPOA. [32] The same approach has been adopted by Secretary of State, Mike Pompeo. [33] It can be argued that this approach can be explained as do it our way for that is the only way.

4)   The JCPOA on an international plane

The nature of the JCPOA is summarized by the comments of the US negotiator, Secretary of State, John Kelly in a CNN video in where he stated that the JCPOA is a non-binding commitment.[34] Stephen P. Mulligan, in a document prepared for members and committees of the US Congress, writes that when the US Obama administration completed negotiations in July, 2015, it treated the plan of action as a nonbinding political commitment.[35] Mulligan indicates that a party can withdraw from the agreement without breaking international law given the commitments are non-binding. He goes on to write, however, that this withdrawal may have other consequences, indicating that,

[a]lthough such withdrawal may not constitute a legal infraction; the withdrawing party still may face the possibility of political consequences and responsive actions from its international counterparts.[36]

According, newspaper articles following the US withdrawal from the JCPOA shows Iran no longer trusts dealing with the US.[37]

Mulligan indicated that not all agree with his characterization of the JCPOA as a non-binding political agreement. He refers to legal academic, Julia Padeanu, who espouses that the JCPOA is more.[38] In her article, entitled, Is the Trump Administration Bound by the Iran Deal?, she advances the position that the JCPOA is a congressional executive agreement which meets the international law requirements for a treaty and as such is binding in international law. She writes, internationally, the Iran Deal is a treaty. The distinction that exists under domestic U.S. law regarding the type of agreement the Iran Deal may or may not be isn’t replicated on the international level. The Vienna Convention established the definition of a treaty without prejudice to differing uses of the term ‘‘treaty’’ in the domestic laws of various states. Article 2, Section 1(a) of the Vienna Convention defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” Treaties have been used consistently throughout the twentieth century, to establish durable relationships and aid in international governance. They consistently serve “as an intrinsic part of our global order and have been considered legally binding. (…) The Iran Deal has all the characteristics of an international treaty: written document, buy-in from a number of states, and firm commitments. As such, under international law, the Agreement is presumptively legally binding.[39]

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She concludes, however, that as the JCPOA relies on voluntary measures, President Trump had the right to withdraw from the agreement. Similar to Mulligan’s position, she indicates this to be unwise from an international perspective.[40]

Mulligan’s work also indicates legal actions may arise from the US withdrawal from the JCPOA. He refers to Security Resolution 2231, writing that some of the provisions of the agreement may have been converted into binding obligations under international law.[41] He writes that this may result in debate over the JCPOA’s status in international law.[42] From responses to President Trump’s withdrawal and academic material reviewed, the JCPOA has been treated as a non-binding agreement. Research has not been conducted to determine if legal actions have been commenced regarding Security Resolution 2231 provisions or other JCPOA provisions given that the focus of this paper is on the impacts of the JCPOA negotiated agreement given US withdrawal.

Based on information reviewed as to the parties’ intention when negotiating the JCPOA agreement, it is concluded that the JCPOA agreement is a non-binding commitment.[43] Despite Julia Padeanu’s conclusion that the JCPOA is an international treaty, she recognizes the parties’ intention that it be non-binding.

A matter of International law that does affect the JCPOA negotiation relates to unilateral acts by States. The writer has reviewed statements by the President and US government officials regarding the intention of the US federal government is to seek a regime change in Iran. In particular, the Secretary of State, Mike Pompeo, in responding to questions posed at a Senate hearing as to whether the US government is seeking a regime change in Iran, stated that it was not seeking a regime change.[44] International law relating to unilateral acts of State representatives given the legal precedent of the Nuclear Tests Case of 1974 dealing with unilateral statements is important should the statement of the Secretary of State be false and Iranian people suffer damage.[45]

5)   International Reaction and Reactions of Parties to the US Withdrawal from the JCPOA

The statement of the UN Secretary General, following announcement of The U.S. President, was one of concern with a call to other JCPOA parties to continue support for the deal.[46] Regarding these parties, a joint announcement of continued support for the JCPOA was made by leaders of France, Great Britain and Germany.[47] In this announcement the countries committed to work with Iran to save the JCPOA. In addition to the reaction of the UN and the JCPOA parties, international support for the JCPOA is shown in a report published by the Arms Control Association. [48] The report shows that countries around the world consider the plan to be an important security measure. The Arms Control newsletter also indicates that remaining JCPOA parties are considering measures to deal with the withdrawal of the United States and methods to block sanctions to be imposed by the US.[49]

In response to the US withdrawal, the JCPOA Joint Commission met on May 25, 2018 in Vienna to discuss mechanisms to be put in place to continue JCPOA activities. The Director General of the International Atomic Energy Commission (IAEA) attended the meeting and reported that Iran has complied with the agreement. Reports from this meeting also indicate that the Iranian Foreign Minister, Abbas Araqchi, held bi-lateral meetings with the Secretary General of the European External Action Service who chaired the meeting as well as with the head of the Russian delegation.[50] These actions show discussion and negotiation are taking place to keep the JCPOA in place and fulfill the 2231 Security Council Resolution. Relevant to the profile of the JCPOA are news reports showing that the JCPOA multilateral negotiation has received international support for its peacekeeping model and cooperation.[51]

Other efforts to keep the agreement in place are illustrated by bilateral meetings that have taken place in response to the US announcement. In these meetings, China, France, Russia, the European Union and Germany have indicated their continued support for the JCPOA.[52] French President, Emile Macron, has met with Russia’s leader  to discuss ways in which the two countries can support the JCPOA.[53] Russian authorities has met with Iranian representatives to discuss how to handle the US withdrawal.[54] One article indicates that Russia has confirmed diplomatic support for Iran but that it remains cautious regarding investment. In addition, bilateral discussions between Iran and China show China’s continued interest in supporting the agreement.[55] Material reviewed in news reports of these bi-lateral discussions between the remaining parties show a mixture of diplomatic, political and economic interests in dealing with Iran that has resulted from the US decision to leave the JCPOA. Time is required to assess how negotiations between Iran and these countries unfold.

Research shows the European Union has taken steps to block strict sanctions imposed on Iran by the United States.[56] The EU is reported to be putting plans in place to block US measures by August 6th, 2018, this being the same day scheduled for some US sanctions to be implemented. It has also been suggested that if the EU, China, Russia and other States continue to do business with Iran, the US would unlikely be able to press Iran to start new negotiations.[57] Information obtained when writing this paper shows that Federica Mojherini, the representative for EU foreign policy, has expressed that while guarantees cannot be provided, the EU will work in accordance with its economic and security interests to preserve the JCPOA.[58]

Activities taking place in response to the US decision to leave the JCPOA show the US President’s decision has been a trigger for discussions at the Joint Commission about how to deal with the US withdrawal. Thus, the material previously reviewed by Hampson and Hart dealing with how multilateral negotiations are put on the table, as a result of crisis, is correct. Furthermore, information shows bi-lateral discussions between Iran and the remaining JCPOA members show that Iran and the remaining JCPOA parties are seeking options to carry out the JCPOA.

6)   The provisions of the JCPOA and Security Resolution 2231

The JCPOA provisions and annexes,[59] as well Security Council Regulation 2231 and its attachments,[60] deal with complicated matters in a user-friendly way. Major areas covered in the JCPOA show how negotiators have dealt with detailed, scientific, economic, political, and cultural matters. This brief review outlines the tenor of the JCPOA, indicates areas covered and lists appendices to the document illustrating that drafters of the document incorporated provisions to acknowledge the need for experts for verification and compliance and, methods to decompose issues which had been indicated by authors Hampson and Hart as important variables for multilateral negotiations.[61] Review of the JCPOA makes it clear the negotiators recognized the threat of nuclear war and were seeking to advance the treaty of non-proliferation of nuclear weapons.[62] It is noted that Iran has ratified the treaty.

In this light, the preface of the JCPOA indicates that Iran will move forward with a peaceful nuclear program to meet international non-proliferation norms and that there will be both transparency and verification. It provides that there will be lifting of UN sanctions related to Iran’s nuclear program.[63] The JCPOA preface, preamble and general provisions indicate the peaceful nature of Iran’s nuclear program and contain a commitment that Iran will not seek, develop or acquire nuclear weapons. Commitments are made by Iran and by the E3/EU+3 to this peaceful nuclear program and it is indicated that the nuclear Non-Proliferation Treaty is the cornerstone of the nuclear non-proliferation regime. The Preamble also sets out that all parties have committed to implementing the JCPOA in good faith and in a constructive atmosphere based on mutual respect. The parties commit to refrain from any action inconsistent with the letter, spirt and intent of the agreement and that they will not impose regulatory or procedural requirements to take the place of the sanctions that are to be lifted.[64] To address verification and compliance, the role of the International Atomic Energy Agency (IAEA) is outlined in the JCPOA, indicating it will oversee, monitor and verify, the measures undertaken and report that material to the UN Security Council on a regular basis in accordance with the agreement.[65]

The preamble and conditions also refer to Implementation Day for termination of resolutions that had been made in relation the Iran nuclear issue, indicating this will be done for ten years after Adoption Day. The provisions also indicate there will be meetings at the ministerial level every two years to review and assess the progress of the agreement and adopt appropriate decisions which are to be made based on consensus. [66]

Areas covered in the annexes of the JCPOA are Nuclear Related Commitments, Sanctions Related Commitments, Attachments, Civil Nuclear Cooperation, Joint Commission, Implementation Plan. These categories show how matters have been decomposed and provide details for each section illustrating the results of skillful negotiators.[67] Relating to UN Security Council Resolution 2231, passed unanimously on July 20, 2015,the same attention has been paid to detail. It can be concluded the essential factors regarding multilateral negotiations have been effected by the JCPOA agreement and Security Council Resolution.[68]

7)   Iran’s, the UN and JCPOA parties’ Responses to the US Withdrawal Announcement

This paper is written less than a month after the US President’s announcement of the US withdrawing from the agreement. News reports show that Iran sent its Foreign Minister, Mohammed Jarad Zarif, (Zarif) to meet the remaining parties of the JCPOA to discuss the situation and proposed reinstatement of sanctions by the US. In a national response by the Islamic Republic, the Islamic News Agency has reported that Iranian lawmakers have submitted a bill to their parliament seeking binding assurances of support for matters covered in the JCPOA.[69]

As well, news reports indicate that remaining JCPOA parties have taken steps to facilitate the JCPOA agreement. For example, news reports show the European Union is considering paying for oil in Euros rather than American dollars.[70] As well, parties to the JCPOA may form alliances and coalitions or enter bi-lateral agreements to achieve the objectives of the JCPOA and there is always a possibility that other members of the UN Security Council will be asked to take the place of the US.

Meetings have taken place between the remaining parties and Iran showing the desire to move forward with the negotiated JCPOA.[71] It has been suggested, for example, that China may be able to play the role of broker by creating a common platform for  discussions on the future of the Iranian nuclear deal.[72] Remaining JCPOA parties may create options to employ the negotiated agreement for the world’s benefit without the need for the political and financial uncertainties exhibited by the US during the present US government’s mandate. This will depend on Iran’s actions and those of the other JCPOA parties in setting up economic avenues for investment and banking and methods to buffer US sanctions.

Iran has announced it remains committed to the JCPOA deal, however is seeking assurances from other members of the JCPOA that they will follow through with commitments outlined in the agreement.[73] On June 5, 2018, a news report, published as this paper was being concluded, set out that Iran’s Supreme leader announced a call for Iran to prepare preliminaries for 190,000 SWU enrichment.[74] This step remains within the terms of the JCPOA agreement but the action can be said to provide a warning that Iran can leave the JCPOA. Days earlier, however, the Iranian President and Iran´s Foreign Minister sought assurances from remaining JCPOA members to save the Iran nuclear agreement. One must now wait to see what will take place in the Middle East and the world.

In response to US withdrawal from the JCPOA, the material of academics Fisher, Ury and Patton as to how negotiators can deal with situations where a negotiator does not respect the norms of negotiation and uses dirty tricks.[75] Their writing is relevant to the present situation. For example, the US, a party to the JCPOA in 2015 has withdrawn from the agreement without paying respect to the terms of its Preface or Preamble and General Conditions or Security Resolution 2231 which it voted for. On withdrawal it has called for re-negotiation and made demands on Iran to enter a new agreement.[76] An article written relating to these demands has mirrored the situation to put the hypothetical demands on the US to show the unreasonableness of demands made by the US on Iran.[77]

It needs to be remembered that the US engaged in the negotiation of the JCPOA and was one of  the security council parties providing its vote of approval for UN Security Council Resolution 2231. The about face of the US position is in direct conflict with the preamble and general provisions of the JCPOA and the clause of the agreement indicating that,

[a]ll parties committed to implementing the JCPOA in good faith and in a constructive atmosphere based on mutual respect. [78]

In this type of situation, one alternative for the negotiating party is to refuse to negotiate, but, of importance to the present situation as there are several parties to the negotiation, is for the aggrieved negotiators to look for alternatives to achieve the objectives and terms of the negotiated agreement. There is the possibility that their defection or that of Iran is not considered the best alternative to the JCPOA agreement that has been negotiated and to which they have committed.[79] Thus, reports show that Iran and the other parties to the JCPOA recognize the US has not followed the terms of the JCPOA and are looking for ways to carry the JCOPOA negotiated agreement forward. [80]

8)   The Future

There are two sides to every story and the future of the JCPOA illustrates this to be the case. One view is that the JCPOA is a flawed document and that the US action to withdraw from the agreement is likely to result in new negotiations between the US, Iran and the other JCPOA parties.[81] Others consider the JCPOA to be a model for multilateral negotiations and seek to use diplomacy and new agreements between the remaining parties to preserve the JCPOA. Both options are possible. One must wait to see whether Iran and the remaining parties can keep the agreement in place or how it may be reshaped to deal with the absence of the US. Of interest is a conference between Iran and Europe in Brussels on June 21and 22¸2018, exploring economic and technological cooperation. The report in the Mehr News Agency provides a comment by Iranian representative and head of the Center for International Interactions in Science and Technology indicating one of the objectives of this 2nd conference is to counter the Iranophobia following US withdrawal from the JCPOA. His comments are reported to be to stand against the US that has violated JCPOA policies. [82]

In the context of international negotiation, what can be learned from the situation? First, if the conclusion is that the JCPOA is not a binding international agreement, this may be a lesson for the UN, as an international organization, to recognize that certain types of agreements require more strength in binding the parties or in responding to defection. Nuclear agreements may be one of those types of agreement. Second, in future agreements, some provisions of the agreement could be voluntary and others obligatory with penalties attached for their breach. Third, agreements that  provide a mixture of soft and hard law need to be created to respond to each situation, however, different provisions can be drafted to address both binding and registerable provisions that others to allow voluntary and non-binding provisions, providing negotiators with templates they can work with to build their agreements.

This matter has been written about by international law academics, Shaffer and Pollack in their 2010 article, where they look at the role power can play in choosing whether to use hard law or soft law alternatives. Their article indicates,

…studies of international law, regulation, and governance acknowledge [the significance of power in shaping international regulatory regimes and compliance with their requirements. Put bluntly, assessing the role of power and its significance is no longer (if  it  ever  was) the exclusive province of realist theory in international relations. Rather, assessments of power in international governance is increasingly an element in other approaches to international relations and international law that examine the various ways in which power (in its material, institutional, and discursive forms) is manifested. Indeed, the emerging picture of international regulatory cooperation is  one in which differences in power matter greatly in the adoption and implementation of international legal rules.[83]

The article’s recognition of the importance of power in the adoption and implementation of international legal rules does not mean that the loss of financially and militarily powerful US from the JCPOA means the agreement cannot be implemented. As pointed out by the authors, regulatory cooperation plays an important role. Cooperation by the remaining JCPOA parties, also a powerful group may have the affect of shifting world order as part of developing the objectives of the JCPOA and the Non-Proliferation Treaty. If the remaining parties and other States determine the JCPOA to be of value, it is likely to be preserved. As has already taken place, the remaining parties and Iran are using the JCPOA’s Joint Commission body to seek methods to deal with US withdrawal.[84] Thus, negotiations continue, now intra-JCPOA negotiations to proceed to implement the agreement with accompanying bi-lateral negotiations between parties to facilitate the implementation of strategies to preserve the agreement. A call has been made by the Foreign Minister of Iran to ask the world to help save the JCPOA agreement.[85] This may provide a multilateral negotiation opportunity.

9)   Conclusion

This paper has reviewed the US announcement to leave the JCPOA framework dealing with Iran’s nuclear program and comments on the nature and style of the JCPOA multilateral agreement. It provides responses to the May 8, 2018 US unilateral decision to withdraw from the JCPOA agreement. Review is made of reactions by representative of the UN and comments by the remaining JCPOA parties and other countries. I

Iran’s alternatives in face of the US decision to withdraw from the agreement and discussions and negotiations now taking place to save the JCPOA agreement are reviewed. It is shown that options are being canvassed with the remaining parties and bi-lateral discussions taking place to continue the JCPOA with necessary adjustments to recognize the void created by loss of the US.

The recent announcement of the Supreme Leader of Iran responding to the situation presented due to US withdrawal from the JCPOA is presented with acknowledgement that Iran continues to respect the norms of the JCPOA agreement. The paper reviews steps being taken by Iran and the remaining JCPOA parties to engage in economic, political and diplomatic activities to determine how the JCPOA can be preserved.

It will take time for the dust caused by the announcement of the US to settle and allow parties to regain their equilibrium to manage or change the direction of the JCPOA. Given the short period between the US announcement and writing this paper, the author has decided to provide comments on this situation given that conclusions as to the fate of the JCPOA cannot yet be reached.

A poetic conclusion by English writer, Chaucer:  [86]

Then he told him, since Earth is so slight,

And full of torment and so little grace,

That he should never in this world delight.

And then he said, that in a certain space

Of time, return the stars would to their place

Where they had been at first, and out of mind

Pass all things in this world done by mankind.

____________________________

And with the cries, when their song was done,

That the fowls made as they flew away …

 

10)    Works Cited – Bibliography

*Given the US decision to leave the JCPOA occurred on May 8, 2018 and information is being updated daily, this paper includes references to newspaper articles and on-line material despite the instruction in Turabian, Kate (8th ed.) that this material need not be included in works cited/bibliography section. Given the diversity of sources, the writer apologizes that the format is not always in accordance with Turabian’s rules.

Adams, Gordon, Twelve Demands for the US: An Unreasonable Proposal? lobelog.com, accessed on June 16, 2018, https://lobelog.com/twelve-demands-for-the-us-an-unreasonable-proposal/.

Arbery, A.J. (ed), Persian Poems, Tehran, Payassavoli Publications, 2005, 2015.

Arms Control Newsletter, “The P4+1 and Iran Nuclear Deal Alert”, May 30, 2018, https://www.armscontrol.org/blogs/P5-plus-Iran-nuclear-talks-and-deal-alerts.

Ashlock, Jason Allen, “The Frontier Project, What the Iran Nuclear Deal Can Teach you about Negotiation”, https://www.inc.com/jason-ashlock/what-the-iran-nuclear-deal-can-teach-us-about-negotiation.html.

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US WITHDRAWS FROM IRANIAN NUCLEAR DEAL ( JCPOA) – Charalee Graydon.docx

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[3] Laub Zachery, The Impact of the Iran Nuclear Agreement, accessed on May 29, 2018, https://www.cfr.org/backgrounder/impact-iran-nuclear-agreement.

[4] Wikipedia, Joint Comprehensive Plan of Action, Part of a series on the nuclear program of Iran, accessed on May 29, 2018, https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action, 1.

[5] U.S. Department of State, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/ (full text and annexes).

[6] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, 1995, Baltimore, John Hopkins University Press, 349.

[7] Ibid., 6-7.

[8] Wikipedia, Joint Comprehensive Plan of Action, Part of a series on the nuclear program of Iran, accessed on May 29, 2018, https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action and , Alexander G. Nikoleav, International Negotiations. Theory, Practice and the Connection with Domestic Politics, 2007, Lexington Books, A Division of Bowman & Littlefield Publishers Inc., 214-222.

[9] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, 1995, Baltimore, John Hopkins University Press, 6-7.

[10] Hassan Rouhani, “World Leaders React to US Withdrawal from Iranian Nuclear Deal”, accessed on May .29, 2018, https://www.aljazeera.com/news/2018/05/world-leawers-react-withdrawl-iranian-nuclear-deal-180508184130931.html.

[11] Middle East Monitor, “US Seeking Regime Change make 12 demands on Iran, experts say”, accessed on May 28, 2018, https://www.middleeastmonitor.com/20180522-us-seeking-regime-change-with-12-demands-on-iran-experts-say/.

[12] Lena Felton, “ Read Trump’s Speech Withdrawing From the Iran Deal”, The Atlantic, accessed on May 26, 2018, https://www.theatlantic.com/politics/archive/2018/05/full-transcript-iran-deal-trump/559892/ (full transcript).

[13] Ben Riley-Smith, U.S. ed. And Rob Crilly, accessed on May 27, 2018, https://www.telegraph.co.uk/news/2017/10/13/donald-trump-expected-promise-tough-action-iran-landmark-speech/ and https://eu.usatoday.com/story/news/politics/2018/05/08/trump-set-announce-his-iran-nuclear-deal-decision-blasts-kerry/589417002/.

[14] Toi, “It’s Going to be America First: Full Test of President Trump’s Inaugural Speech”, Times of Israel, 20 Jan., 2017, accessed on May 26, 2018, https://www.timesofisrael.com/its-going-to-be-only-america-first-full-text-of-president-trumps-inaugural-speech/.

[15] Alexander G. Nikoleav, International Negotiations. Theory, Practice and the Connection with Domestic Politics, 2007, Lexington Books, A Division of Bowman & Littlefield Publishers Inc, 239.

[16] David E. Sager, “Trump Bets Sanctions will force Iran to Bargain. There is no Plan B”, The New York Times, accessed on May 26, 2018,  http://www.nytimes.com/2018/05/09/us/politics/trump-sanctions-iran.html.

[17] The Real News Network, You Tube, Watch, accessed on June 2, 2018,  https://www.youtube.com/watch?v=AITBetlc7TE, https://www.youtube.com/watch?v=AITBetlc7TE, and Charles Darnay, News Watch, accessed on June 4, 2018, Giuliani, “No Doubt, US Will Seek Regime Change”, accessed on June 2, 2018. https://www.newsmax.com/newsfront/regime-change-john-bolton-nuclear-deal-sanctions/2018/05/28/id/862808/ and Middle East Monitor, May 22, 2018, accessed on June, 2, 2018, “US Seeking Regime Change make 12 demands on Iran, experts say”, accessed on June 2, 2018, https://www.middleeastmonitor.com/20180522-us-seeking-regime-change-with-12-demands-on-iran-experts-say/.

[18] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, 1995, Baltimore, John Hopkins University Press, 6-7.

[19] Ibid, 89.

[20] Eric Cortellossa, “From Obama to Trump: A Whole New Style of American Leadership”, accessed on May 29, 2018, Times of Israel, https://www.timesofisrael.com/from-obama-to-trump-a-new-style-of-american-leadership/.

[21] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, 1995, Baltimore, John Hopkins University Press, 358-359.

[22] Jacob Heilbrunn, “Sorry Europe, President Trump doesn’t have an Iran Plan”, accessed on May 30, 2018, https://usa.spectator.co.uk/2018/05/sorry-europe-president-trump-doesnt-have-an-iran-plan/.

[23] Ibid.

[24] Fen Osler Hampson and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, 1995, Baltimore, John Hopkins University Press, 75-77.

[25] U.S. Department of State, Diplomacy in Action, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/, Full text of the Joint Comprehensive Plan of Action, 4.

[26] Ibid, 2-18.

[27] U.S. Department of State, Diplomacy in Action, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/, Full text of the Joint Comprehensive Plan of Action, Preface.

[28] Ibid, Dispute Resolution Mechanism, 17-18.

[29] Forbes, published for Stratfor.com, by Stratfor contributor, accessed on May 30, 2018, https://www.forbes.com/sites/stratfor/2018/04/25/iran-deals-with-the-jcpoa/#35d8f2a62ae9.

[30] Fisher, Roger, Ury, William and Patton, Bruce, Getting to Yes: Negotiating Agreement without Giving In. (2nd) ed., New York, Penguin Books, 1991, 41 and Lewinski Roy J., Saunders, David M. and Minton, John W., Essentials of Negotiation (2nd ed.), McGraw-Hill Irwin, 2001, 55 and 91-100.

[31] Milar Junker, Huff Post, Blog Jan. 16, 2017,  accessed on May 30, 2018,.https://www.huffingtonpost.com/milad-jokar/iran-nuclear-deal-success_b_9001742.html?guccounter=1 and Jason Allen Ashlock, “The Frontier Project, What the Iran Nuclear Deal can Teach Us about Negotiation”, accessed on May 30, 2018, https://www.inc.com/jason-ashlock/what-the-iran-nuclear-deal-can-teach-us-about-negotiation.html and George Perkovich, Arms Control Association, “Looking Back: Compliance versus bargaining: An implication of the Iran Nuclear Deal”, accessed on May 30, 2018, https://www.armscontrol.org/ACT/2016_10/Looking-Back/Compliance-Versus-Bargaining-An-Implication-of-the-Iran-Nuclear-Deal.

[32] Lewinski Roy J., Saunders, David M. and Minton, John W., Essentials of Negotiation (2nd ed.), McGraw-Hill Irwin, 2001, 79-81.

[33] Joyce Karam, “Pompeo puts 12 demands on Iran: “Carte Blanche » in the Middle East is over, accessed on June 2, 2018, https://www.thenational.ae/world/mena/pompeo-puts-12-demands-on-iran-carte-blanche-in-the-middle-east-is-over-1.732714 o.

[34] CNN, accessed on June 2, 2018,  https://edition.cnn.com/2015/03/12/politics/iran-nuclear-deal-treaty-obama-administration/index.html.

[35] Stephen P. Mulligan, “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, Congressional Research Service, May 4, 2018, accessed on May 29, 2018, chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://fas.org/sgp/crs/row/R44761, pdf, 2.

[36] Ibid, 5.

[37] Narges, Bajoghli, “Foreign Policy Dispatch, Iran will never trust America again”, accessed on May 8, 2018, http://foreignpolicy.com/2018/05/08/iran-will-never-trust-america-again/, and James Hobbler, accessed on May 31, 2018, Rand org, blog, https://www.rand.org/blog/2018/05/assessing-transatlantic-fallout-after-the-us-withdrawal.html.

[38] Stephen P. Mulligan, “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement, Congressional Research Service, May 4, 2018, accessed on May 29, 2018, chome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://fas.org/sgp/crs/row/R44761.pdf., 21.

[39] Julia, Padeanu, Is the Trump Administration Bound by the Iranian Deal?, Dec. 1, 2016, Yale Journal of International Law, accessed on May 29, 2018, http://www.yjil.yale.edu/is-the-trump-administration-bound-by-the-iran-deal/.

[40] Ibid.

[41] Narges, Bajoghli, Foreign Policy Dispatch, Iran will never trust America again, accessed on May 8, 2018, http://foreignpolicy.com/2018/05/08/iran-will-never-trust-america-again/.

[42] Ibid.

[43] CNN, accessed on June 2, 2018, https://edition.cnn.com/2015/03/12/politics/iran-nuclear-deal-treaty-obama-administration/index.html.

[44] Reuters staff, “Pompeo: Regime Change is not US objective in dealing with Iran”, accessed on June 2, 2018, https://www.reuters.com/article/us-usa-pompeo-iran/pompeo-regime-change-not-u-s-objective-in-dealings-with-iran-idUSKCN1IP2KX.

[45] Casebriefs, Nuclear Tests Case (Australia & New Zealand v. France), accessed on June 2, 2018, https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-4/nuclear-tests-case-australia-new-zealand-v-france/2/.

[46] United Nations Secretary General, accessed on June 1, 2018, https://www.un.org/sg/en/content/sg/statement/2018-05-08/statement-secretary-general-joint-comprehensive-plan-action-jcpoa.

[47] Joint Statement of France, the United Kingdom and Germany, accessed on June 2, 2018, https://www.diplomatie.gouv.fr/en/french-foreign-policy/disarmament-and-non-proliferation/events/article/jcpoa-joint-statement-by-france-the-united-kingdom-and-germany-08-05-18.

[48] Samantha Pitz and Ryan Fedasiuk, Arms Control Association, “International Support for the Iran Nuclear Deal”, accessed on May 26, 2018, https://www.armscontrol.org/blog/2018-05-09/international-support-iran-nuclear-deal.

[49] Arms Control Newsletter, “The P4+1 and Iran Nuclear Deal Alert, accessed on May 30, 2018, https://www.armscontrol.org/blogs/P5-plus-Iran-nuclear-talks-and-deal-alerts.

[50] Islamic Republic News Agency, accessed on June 4, 2018, http://www.irna.ir/en/News/82925470.

[51] Samantha Pitz, and Ryan Fedasiuk, “International Support for the Nuclear Deal”, accessed on June 1, 2018, Arms Control Association, https://www.armscontrol.org/blog and Mojherini, Federica, on behalf of the EU following the US announcement.

[52] Hassan, Rouhanin, “World Leaders React to US Withdrawal from Iranian Nuclear Deal, accessed on May 29, 2018, https://www.aljazeera.com/news/2018/05/world-leawers-react-withdrawal-iranian-nuclear-deal-180508184130931.html.

[53]Xinjau, “Putin, Macron meet to discuss US withdrawal from Iranian Nuclear Deal”, China Daily, mail, accessed on May 29, 2018, http://www.chinadaily.com.cn/a/201805/25/WS5b076999a31001b82571c3af.html.

[54] Nikolay Kozhanov, “Russia and Iran after the US withdrawal from the JCPOA, Alsharg Forum, accessed on June 1, 2018, http://www.sharqforum.org/2018/05/30/russia-and-iran-after-the-u-s-withdrawal-f”rom-the-jcpo/.

[55] Shahnaz Natees, VOA, “China to Host Rouhani Afer US Withdrawal from Iranian Nuclear Deal”, accessed on May 30, 2018, https://www.voanews.com/a/china-to-host-rouhani-after-us-withdrawal-iranian-nuclear-deal/4417302.html.

[56] Kelsey Davenport, Arms Control Association, June 2018, accessed on June 1, 2018, https://www.armscontrol.org/act/2018-06/news/eu-moves-block-us-iran-sanctions.

[57] Ibid.

[58] Parisa Hafezi, John Irish, Robin Mammott, Europe offers no guarantees but vows to keep Iran deal alive, Reuters, accessed on June 2, 2018, https://af.reuters.com/article/worldNews/idAFKCN1IG1HD.

[59] U.S. Department of State, Diplomacy in Action, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/, Full text of the Joint Comprehensive Plan of Action.

[60] UN Security Council, Resolution 2231, accessed on May 29, 2018, chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2231.pdf.

[61] Fen Osler Hampson, and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, Baltimore, John Hopkins University Press, 1995, 6-7.

[62] Encyclopedia Britannica, written by Lawrence Freedman, accessed on May 29, 2018, https://www.britannica.com/event/Treaty-on-the-Non-proliferation-of-Nuclear-Weapons.

[63] U.S. Department of State, Diplomacy in Action, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/, Full text of the Joint Comprehensive Plan of Action, . Full text of the Joint Comprehensive Plan of Action, Preface.

[64] Ibid., Full text of the Joint Comprehensive Plan of Action, Preface and Preamble and General Provisions, v-viii.

[65] Ibid. Preamble and General Provisions, x.

[66] Wikipedia, Joint Comprehensive Plan of Action, Part of a series on the nuclear program of Iran, accessed on May 29, 2018, https://en.wikipedia.org/wiki/Joint_Comprehensive_Plan_of_Action, 1.

[67] U.S. Department of State, Diplomacy in Action, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/, Full text of the Joint Comprehensive Plan of Action, and Annexes and Fen Osler Hampson, and Michael Hart, Multilateral Negotiations: Lessons from Arms Control, Trade and the Environment, Baltimore, John Hopkins University Press, 1995, 6-7.

[68] UN Security Resolution, 2231, July 20, 2015, accessed on May 29, 2018, http://unscr.com/en/resolutions/2231,

[69] Islamic Republic News Agency, accessed on June 5, 2018, http://www.irna.ir/en/News/82932009.

[70] Tsvetana Parashova, “EU Could Switch to Euros in Oil Trade with Iran”, accessed on June 2, 2018, https://oilprice.com/Geopolitics/Europe/EU-Could-Switch-To-Euros-In-Oil-Trade-With-Iran.html.

[71]Xinjau, “Putin, Macron meet to discuss US withdrawal from Iranian Nuclear Deal”, China Daily mail, accessed on May 29, 2018, http://www.chinadaily.com.cn/a/201805/25/WS5b076999a31001b82571c3af.html.

[72] Sputnik International, June 3, 2018, Iranian Deal, China has experience in circumventing US Sanctions-Academic, accessed on June 1, 2018, https://sputniknews.com/analysis/201805121064374251-iran-us-china.

[73] Saeed Kamal Dehglan, and Daniel Boffey, “Iran vows to stick to the deal after “pesky” Trumps departure”, accessed on May 29, 2018, https://www.theguardian.com/us-news/2018/may/08/europe-denounces-trumps-us-withdrawal-from-iran-nuclear-deal.

[74] Islamic Republic News, Supreme Leader orders makeup Preliminaries for 190,000 SWU Enrichment, accessed on June 5, 2018, http://www.irna.ir/en/News/82934663.

[75] Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In. (2nd) ed., New York, Penguin Books, 1991, 130-132.

[76] Michel Kellemen, , “Secretary of State Mike Pompeo has 12 new demands for a New Deal to Counter Iran”, accessed on June 1, 2018, https://www.npr.org/2018/05/21/613117506/secretary-of-state-mike-pompeo-has-12-demands-for-a-new-deal-to-counter-iran.

[77] Gordon Adams, Twelve Demands for the US: An Unreasonable Proposal?, lobelog.com, accessed on June 16, 2018, https://lobelog.com/twelve-demands-for-the-us-an-unreasonable-proposal/.

[78] U.S. Department of State, accessed on May 29, 2018, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/ (full text and annexes), Preamble and General Conditions, viii.

[79] Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In. (2nd) ed., New York, Penguin Books, 1991, 130-132.

[80] M. Javad Zarif, , US Foreign Policy in Crisis, Mehr News Agency, accessed on June 25, 2018,. Mehr News Agency. Accessed on June 25, 2018,  https://en.mehrnews.com/news/134989/US-Foreign-Policy-in-Crisis.

 [81] Ray Takeyk, “Trump Pulled out of the Iran Deal, What Now?”, accessed on May 29, 2018, https://www.cfr.org/article/trump-pulled-out-iran-deal-what-now.

[82] Technology, Mehr News Agency, Brussels to Host 2nd Iran Europe economic, technological coop conference, accessed on June 25, 2018, accessed on June 25, 2018, https://en.mehrnews.com/news/134914/Brussels-to-host-2nd-Iran-Europe-economic-technological-coop.

 

[83] Gregory Shaffer,  and Mark A. Pollack, “Hard vs. Soft Law: Alternatives in International Governance, .accessed on June 2, 2018Minnesota Law Review,2010, 729.

[84] You Tube, Salvaging the Iran Deal, accessed on June 1, 2018, , https://www.youtube.com/watch?v=QZXgj1xozwo and EU Anger Against Trump, accessed on June 1,018 https://www.youtube.com/watch?v=sz6iMIaXeG8.

[85] Reuters Staff, Iran Calls on the World to stand up to Trump, save the nuclear deal, June 3, 2018, https://ca.reuters.com/article/topNews/idCAKCN1IZ0U4-OCATP.

[86] Liberirius.com, “Extracts of translation to Middle English of Chaucer’s Parliament of Fowls”, accessed on May 25, 2018, http://www.librarius.com/parliamentfs.htm -translation to middle English.

 

2 Comments on US withdraws from the JCPAO (Iranian Nuclear Deal): Comments and future possibilities

JCPOA has a dispute resolution mechanism for Iran and other parties to the agreement. It had created an opportunity to resolve dispute and dis-agreement among the parties. The Trump administration of USA has withdrawn from JCPOA but other western allies still in JCPOA. There is no alternate to mediation in such dispute since all the parties are in mistrust on each other. This may overcome by mediated negotiation among the conflicting parties.

We may urge the US Administration to come back to JCPOA as early as possible.

    Mr. Siddiqiui,

    Please provide additional information regarding the last sentence in your comment, ” We may urge the US administration to come back to JCPOA as early as possible.”

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