The Iran Deal as a Political Commitment

by Duncan Hollis

I have to teach in 5 minutes so I just wanted to post a quick link and one comment on the Iran deal reached earlier today.  Those who want to read the joint statement itself — you can read it here.  My first reaction, based on my primer of a few weeks ago, is that it sure looks like the deal is taking the (widely anticipated) political commitment form, supplemented with the idea that a subsequent UN Security Council resolution will provide international legal force to it and the further details to be elaborated in the coming weeks.

My one comment is that this deal reflects an interesting development in US treaty/political commitment practice.  It signals (I think) the death knell of the old “will” vs. “shall” debate in determining whether a commitment was intended to have legal force or not.  For years, countries like the UK insisted that the verb “will” (which they frequently deploy in MOUs) per se reflected a lack of legal intention as opposed to the verb “shall”, which they believed was indicative of a treaty commitment.  In contrast, the United States took the position that “will” in many instances seemed indistinguishable from “shall” and thus the mere shift in wording could not, by itself, provide sufficient evidence of whether a treaty or political commitment was intended.  As a result, the United States regularly sought to avoid using both “will” and “shall” in its political commitments. Many hours and negotiating nights were, if you can believe it, spent wrestling over this issue.

Well, looking at the deal reached today, I count quite a few uses of the verb “will”.  Thus, it seems to me (unless I’m missing something, which is entirely possible), the United States may have finally conceded to the simplicity of the Queen’s English and allowed that using will, as in this deal, can be a way to signal to readers the parties intend a political commitment and not a treaty.

For those who want more, Dan Joyner has a more substantive take over at his blog.

http://opiniojuris.org/2015/04/02/the-iran-deal-as-a-political-commitment/

2 Responses

  1. Am I correct in assuming that this is a new and ominous twist to the phrase ‘where there’s a will there’s a way'”?

  2. I suspect that you are right about this. It’s been a funny divide in the common language. But I think the most recent editor of Black’s is keeping the debate alive.

    However there are other, more clear, expressions of intent:

    “we have taken a decisive step … reached solutions …”

    “This is a crucial decision laying the agreed basis for the final text of the JCPOA. We can now restart drafting the text and annexes of the JCPOA, guided by the solutions developed in these days.”

    “We will now work to write the text…”

    Plus the absence of entry in force terms, etc.

    The one statement that I found most curious was: “A new UN Security Council Resolution will endorse the JCPOA”. Surely “will” cannot mean “shall” here! “Will endorse” probably means something more like “if adopted, it will/shall have the effect of creating a legal obligation”.

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