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Emerging Voices 2015 Starts This Week

by Jessica Dorsey

Both last year’s edition and 2013’s inaugural Emerging Voices symposium were quite successful, so this week we’re kicking off our third annual edition. Through the end of August, we will be bringing you a wide variety of posts written by graduate students, early-career practitioners and academics.

Tune in over the next several weeks if you’d like to read more about excuse in international criminal law, the right to a remedy in armed conflict, water rights in South Africa and Ireland and corporate social responsibility–to name just a few of the topics some of our contributors will cover. Please feel free, as usual, to weigh in on the discussion. Thanks for following us here on Opinio Juris–we hope you enjoy this third edition of our Emerging Voices Symposium!

Podcast Special! Why the Iran Deal is Constitutional, But Could Still End Up in U.S. Court

by Julian Ku

Due to my typical mid-summer lassitude (and a family vacation among the redwoods in California), I have not participated in the excellent legal blogosphere debate over the constitutionality of the Iran Nuclear Agreement which has included contributions from Jack Goldsmith, John Yoo, Michael Ramsey, John Bellinger, David Rivkin and many others.  Luckily for me, Prof. Jeffrey Rosen and the good folks at the National Constitution Center allowed me to share my thoughts in a podcast discussion with David Rivkin, who with his co-author Lee Casey, has argued in the WSJ that the Iran Deal is unconstitutional unless submitted as a treaty under Article II of the U.S. Constitution.  The 45-minute or so podcast can be found below, and I think it is worth listening in full.
But because I may not have made myself fully clear in the podcast, I try to summarize my thoughts here on why:  1) the Iran Deal does not have to be submitted as an Article II treaty; 2) the Iran Deal may allow individual U.S. states to impose sanctions on Iran which would likely lead to U.S. litigation.  David Rivkin does a great job explaining his views on the podcast, which are worth listening to in full as well.

A) In my view, the Iran Deal (or JCPOA) does not have to be submitted as an Article II treaty for at least two reasons.

First, the terms of the agreement, which describe its obligations as “voluntary”, indicate that it is a nonbinding “political commitment”.  Even the UN Security Council Resolution which supposedly enshrined the JCPOA into international law leaves some wiggle room for the U.S. allowing it to refuse to lift sanctions on Iran without violating the SC Resolution (or at least that is how John Bellinger reads it).

To be sure, there are indications that Iran itself doesn’t think the agreement is nonbinding and it does seem odd for the U.S. administration to make all this fuss over a 10 year agreement that is not binding, but (as Duncan has explained here and elsewhere), nonbinding political commitments are not unknown in diplomatic practice.

One example that I have been studying recently is the 1972 Shanghai Communique between the U.S. and China.   This seems a classic nonbinding diplomatic agreement which nonetheless had enormous consequences for US-China and global politics.  This and two later communiques remain crucial issues with respect to U.S. “promises” about the status of Taiwan and US promises to reduce arms sales to Taiwan.  It is not exactly the same as the Iran Deal, which purports to require its parties to take certain specific actions on certain dates, but it has some of the same flavor.

For this reason, I don’t think a promise by the President to commit the U.S. to do something beyond his term of office changes this analysis much (contra Mike Ramsey).  Presidents often promise on behalf of the U.S. to do things beyond his term, but as long as they are clear that these are political commitments, not legal ones, I don’t think a treaty is required.

Second, the JCPOA does not have to be submitted as a treaty because it doesn’t require the U.S. to change its domestic laws or even to change any domestic policy that is not already within the President’s constitutional or delegated statutory powers.  Crucially, the President has delegated authority under the various sanctions statutes to waive or lift those sanctions without getting further congressional approval.  That is by far the most important U.S. obligation under the JCPOA.  The idea of giving the president these powers to lift sanctions implies that he will seek out certain changes in behavior by the sanctioned governments and then use those promised changes (by say Iran, or in the recent past Burma) as a basis to lift the sanctions.

There is a cost for the U.S. government in going the nonbinding route.  It means that Iran should not feel itself “legally” bound to abide by the agreement, or at least those parts that are not enshrined in the UN Security Council Resolution.  For U.S. constitutional purposes, it also means that any future president can withdraw from these political commitments without any requirement of legal consultation with Congress or any concerns about violating international law.  A U.S. President is also empowered to withdraw from its UN Security Council commitments as well.  (Actually, the JCPOA itself makes it pretty easy for the U.S. president to terminate the agreement according to its own terms).  This seems only fair, however, and the administration clearly seems that this is a price worth paying to avoid the Article II treaty process.

B) State-level Sanctions on Iran Are Most Likely to End Up in Court

The individual states (e.g. New York or California) could impose certain sanctions on Iran after the deal goes into effect.  Such sanctions will probably face litigation from the U.S federal government which will claim that any state-level sanctions are preempted by the JCPOA.  But because the JCPOA is a nonbinding agreement, the preemptive effect of the JCPOA is weaker than of a full-scale treaty or executive agreement.  The outcome of such a case against state-level sanctions is far from clear and may require the federal court to consider the nature of the JCPOA more carefully. My guess is that they would find it constitutional, but might be inclined to uphold the state-level sanctions. That last finding is a close call and I would love to see that case, which could very well happen in the near future.

In short, although I don’t think the Iran Deal is a very good deal for the U.S. and I hope Congress blocks it, I don’t think the JCPOA is unconstitutional.  We will hopefully get some litigation on this point in the near future when some state rolls out its anti-Iran sanctions.  But opponents of the deal should focus on the politics (getting to 67 votes in the Senate and/or a Republican President) rather than the law.

Touchy, Touchy. What China’s Sensitivity About the Philippines Arbitration Reveals About the Strength of Its Legal Position

by Julian Ku

While I was on (my completely undeserved) vacation in California recently, I noticed more evidence that China’s government is becoming hyper-sensitive about criticism of its non-participation in the Philippines-China arbitration at the Hague.

First, a top U.S. government official stated at a conference on July 21 that, among other things, “…[W]hen they became parties to the Convention, both the Philippines and China agreed to its compulsory dispute settlement regime. Under this regime, the decision of the arbitral tribunal is legally binding on the parties to the dispute. It’s a treaty. In keeping with the rule of law, both the Philippines and China are obligated to abide by whatever decision may be rendered in the case, whether they like it or not. ”

On July 17, the New York Times published a rather bland staff editorial on the China-Philippines arbitration gently chiding China for failing to participate in that arbitral process.  Noting that China was likely to ignore the arbitration’s outcome, the NYT opined: “[China] should participate in the tribunal process if China wants to be recognized as a leader in a world that values the resolution of disputes within a legal framework.”

Both statements are pretty gentle, in my view, and Russel’s point about China’s obligation to abide by the arbitral tribunal’s rulings on jurisdiction is quite correct as a matter of law.  But it is China’s rather vociferous response that is more striking.

First, the Chinese Foreign Ministry sharply rejected Russel’s remarks.  Most curiously, it charged that the U.S. was, by “[a]ttempting to push forward the arbitration unilaterally initiated by the Philippines, [acting] like an ‘arbitrator outside the tribunal’, designating the direction for the arbitral tribunal established at the request of the Philippines.”  The spokesperson went on to say “This is inconsistent with the position the US side claims to uphold on issues concerning the South China Sea disputes.”

Second, the Chinese Ambassador to the U.S. wrote a letter to the editor of the NYT, calling its editorial “unfair.”  It also concluded that  “we do not believe that the arbitration court has jurisdiction, and as a member of United Nations Convention on the Law of the Sea, China is entitled to exclude any third-party compulsory settlement.”

I am sympathetic to China’s position that compulsory arbitration is not the way to go here, but as a legal matter, their views are hard to understand.  The UNCLOS does NOT give China the right to exclude any “third-party compulsory settlement.”  It does the opposite, and allows very limited exceptions to compulsory dispute resolution which may or may not apply here.  Furthermore, as numerous commentators have explained but which China continues to ignore, Article 288 of UNCLOS plainly gives the UNCLOS arbitral tribunal the final say on jurisdiction.  Russel was only repeating what is in the plain text of the treaty (UNCLOS) that China signed and ratified.

China’s sharply worded but legally incoherent responses are a sign that it is more nervous about the Philippines arbitration than it has let on in the past. China should just stop complaining about the arbitration and move on. It should have enough diplomatic, military, and political leverage to get past this.  It will get nowhere with its legal arguments.

Guest Post: Gone But Not Forgotten–The Ongoing Case of Jean Uwinkindi at the ICTR and MICT

by Oliver Windridge

[Oliver Windridge is a British lawyer specialising in international criminal and human rights law. The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations or any other organisations affiliated to the author.]

A sometimes forgotten aspect of the International Criminal Tribunal for Rwanda’s work is the transfer of 10 of its 13 outstanding cases back to Rwanda and to France for domestic prosecution. To be precise, of the 13 outstanding cases, the ICTR have transferred two currently detained accused to France (Bucyibaruta and Munyeshyaka) and two to Rwanda (Uwinkindi and Munyagishari). The remaining nine accused remain at large, of which the ICTR transferred seven to Rwanda for domestic prosecution if and when they are arrested (Sikubwabo, Ryandikayo, Ntaganzwa, Ndimbati, Munyarugarama, Mpiranya, Kayishema), while the Bizimana and Kabuga cases remain at the ICTR, or rather the Mechanism for International Criminal Tribunals (MICT), the mechanism established to carry out functions, including trying outstanding cases, after the completion of the ICTR and ICTY mandates. But even if sometimes forgotten, transferred cases are likely to come back into the spotlight this year with MICT President Theodor Meron’s landmark 13 May 2015 decision to constitute a new referral chamber to examine whether Jean Uwinkindi, the first ICTR accused to be transferred to Rwanda, should remain in Rwanda for trial or be brought back under the auspices of the MICT for trial.

As background, in 2011 Uwinkindi became the first ICTR accused to be transferred to Rwanda for domestic prosecution under Rule 11 bis of the ICTR Rules of Procedure and Evidence. This transfer was a watershed for the ICTR, and in particular the ICTR Prosecutor, who had tried and failed on several previous occasions to transfer cases to Rwanda, all of which were subsequently tried at the ICTR ( See Munyakazi, Gatete, Kanyarukiga and Hategekimana).

Uwinkindi opposed the transfer mainly on fair trial concerns, however the Trial Chamber found that Rwanda had markedly improved its criminal justice system since denying previous applications for transfer mentioned above, and granted the Prosecution’s request to transfer, which was subsequently affirmed by the Appeals Chamber . In order to allay concerns over potential post-transfer issues, particularly over the availability and protection of witnesses, the transfer decision included a monthly monitoring system, designed to ensure any material violation of Uwinkindi’s fair trial rights in Rwanda would be brought to the attention of the ICTR President so that action, including possible revocation could be considered by the ICTR (and now MICT). The monitoring system also allowed the ICTR/MICT to examine any issues over future financial constraints including any failure by the Rwandan authorities to make counsel available or disburse funds. Therefore, since 2011 the ICTR/MICT has received monitoring reports on a monthly basis (all the reports can be accessed at the bottom of this page.). Importantly, in its 2011 referral decision the ICTR also granted Uwinkindi permanent standing to petition the ICTR/MICT.

On 16 September 2013, Uwinkindi filed a request for revocation of the 2011 referral decision, stating that the Ministry of Justice of Rwanda had failed to make the necessary funds available for his defence to allow his team to contact defence witnesses and hire defence staff and that his counsel had not been paid since February 2013. On 12 March 2014, MICT President Meron, sitting as a single judge, dismissed Uwinkindi’s request for revocation, finding that the submissions on various funding issues had been either rendered moot or were still the focus of ongoing negotiations and may be subject to further review within the Rwandan courts. President Meron did not however rule out the filing of further requests for revocation should the circumstances warrant.

In March 2015, the MICT monitor filed its March 2015 report, in which it stated, inter alia, (more…)

Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

Guest Post: The Security Council Resolution on the Iran Deal–A Way around the “Reverse Veto”

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.] 

The Security Council’s voting procedures make it difficult to pass resolutions – and, typically, difficult to undo resolutions once passed. In an article published not long after the end of the Cold War, David Caron observed that while it is hard to address the difficulty of passing resolutions, the Security Council itself has the power to make it easier for resolutions to be undone once passed. One way, of course, is for the Security Council to put specific time limits on a resolution. But as an alternative Professor Caron suggested that the Security Council could “incorporate in any resolution taking a decision a modified voting procedure for future use in terminating the action taken.” In this way, the Security Council could get around what he described as the “reverse veto” – the default position that a resolution needs another resolution to terminate it and therefore that all P5 members must acquiesce in this termination. Professor Caron described how he had run his idea by a lawyer serving at the mission of one of the P5 but gotten a “quick and dismissive” reaction.

In the Security Council resolution endorsing the Iran deal, we now have something resembling Professor Caron’s suggestion. To see this, one must work through multiple paragraphs of Resolution 2231. To begin with, paragraph 7(a) terminates prior Security Council resolutions imposing sanctions on Iran. But the Resolution further provides that paragraph 7(a) itself can be undone – thus reinstating the prior Security Council resolutions – through what is effectively a modified voting procedure. Specifically, paragraph 11 states that if the Security Council receives a complaint from one of the parties to the Iran deal alleging that there is “significant non-performance of commitments” under the deal, then the Security Council is to “vote on a draft resolution to continue in effect the terminations in paragraph 7(a) of this resolution.” According to paragraph 12, if this draft resolution does not pass, then after a short time lag all the resolutions that had “been terminated pursuant to paragraph 7(a) shall apply in the same manner as they applied before the adoption of this resolution, and the measures contained in paragraphs 7, 8 and 16 to 20 of this resolution shall be terminated, unless the Security Council decides otherwise.” (These “snapback” provisions track the arrangement reached in the Iran deal. Also consistent with that deal, there are further related issues, including that invocation of these provisions could lead Iran to abandon the deal and also a partial limit on the reinstatement of the earlier sanctions as noted earlier on this blog by Julian Ku.)

In other words, paragraphs 7, 8, and 16-20 of Resolution 2231 will automatically terminate if a single P5 member vetoes the draft resolution that follows a complaint submitted to the Security Council by one party to the deal. This flips the usual voting procedure for terminating a resolution. Rather than needing the acquiescence of all the P5 to terminate these provisions, what is now needed is only for one P5 member to block their continuance.

Going forward, the potential for these kinds of modified voting procedures is fascinating to consider. They could increase the likelihood of getting Security Council resolutions ex ante by making it easier for these resolutions to be terminated ex post. They could also reduce the likelihood of stretched interpretations of existing resolutions. For example, if Resolution 678 authorizing the first Gulf War had provided for its own termination through a modified voting procedure, it presumably would have been so terminated before it could have been used by the United States as an asserted legal justification for the second Gulf War. On the flip side, if such modified voting procedures become part of the practice, it is possible that they could be over-used in ways that undermine the effectiveness and stability of the Security Council. It will be very interesting to see whether these kinds of mechanisms get more use in the future.

As someone who studies U.S. constitutional law as well as international law, this issue brings to mind the U.S. constitutional issue of whether a congressional statute can delegate authority to the executive branch but provide that this authority can be terminated in the future through a mere majority vote of one house of Congress (or of both houses of Congress but without Presidential signature). The first instance of this practice that I know of occurred in the Lend-Lease Act and sparked a back-and-forth between President Franklin D. Roosevelt and Attorney General Robert Jackson over the constitutionality of this practice. Ultimately, a majority of the Supreme Court held in INS v. Chadha (1983) that Congress does not have the constitutional authority to develop modified voting procedures for terminating statutory delegations. Even since Chadha, however, the practice of Congress and the President has continued to make use of such procedures, albeit often in more informal ways. In addition, the United States uses modified voting procedures in other contexts, such as the practice-based approach of allowing the President alone (without needing two-thirds of the Senate) to withdraw the United States from treaties where this withdrawal is consistent with international law.

The U.N. Charter does not specify voting procedures for terminating an existing resolution (or other ways in which a resolution might terminate of its own accord). In practice, moreover, the Security Council has long had some flexibility in interpreting its procedures under the U.N. Charter, as demonstrated by its practice of concluding that a resolution can pass with abstentions rather than affirmative votes from P5 members. To me, as to Professor Caron in his article, it seems fairly straightforward that the Security Council has the power to use a modified voting procedure as a condition for the termination of a resolution, just as it can use a fixed termination date. Resolution 2231 is an example of how such modified voting procedures for termination can be useful, and the practice may become more common in the future.

In closing, I thank Opinio Juris for letting me contribute this guest blog post.

The Pre-Trial Chamber’s Dangerous Comoros Review Decision

by Kevin Jon Heller

In late 2014, the Office of the Prosecutor rejected a request by Comoros to open a formal investigation into Israel’s attack on the Mavi Marmara. To my great surprise, the Pre-Trial Chamber (Judge Kovacs dissenting) has now ordered the OTP to reconsider its decision. The order does not require the OTP to open a formal investigation, because the declination was based on gravity, not on the interests of justice — a critical distinction under Art. 53 of the Rome Statute, as I explain here. But the PTC’s decision leaves little doubt that it expects the OTP to open one. Moreover, the PTC’s decision appears designed to push the OTP to decline to formally investigate a second time (assuming it doesn’t change its mind about the Comoros situation) on the basis of the interests of justice, which would then give the PTC the right to demand the OTP investigate.

To put it simply, this is a deeply problematic and extremely dangerous decision — nothing less than a frontal assault on the OTP’s prosecutorial discretion, despite the PTC’s claims to the contrary. I will explain why in this (very long) post.

At the outset, it is important to emphasise that we are dealing here with situational gravity, not case gravity. In other words, the question is not whether the OTP should have opened a case against specific members of the IDF who were responsible for crimes on the Mavi Marmara, but whether the OTP should have opened a situation into the Comoros situation as a whole. The Rome Statute is notoriously vague about the difference between situational gravity and case gravity, even though it formally adopts the distinction in Art. 53. But it is a critical distinction, because the OTP obviously cannot assess the gravity of an entire situation in the same way that it assesses the gravity of a specific crime within a situation.

The PTC disagrees with nearly every aspect of the OTP’s gravity analysis. It begins by rejecting the OTP’s insistence (in ¶ 62 of its response to Comoro’s request for review) that the gravity of the Comoros situation is limited by the fact that there is no “reasonable basis to believe that ‘senior IDF commanders and Israeli leaders’ were responsible as perpetrators or planners of the apparent war crimes’.” Here is how the PTC responds to that claim:

23. The Chamber is of the view that the Prosecutor erred in the Decision Not to Investigate by failing to consider whether the persons likely to be the object of the investigation into the situation would include those who bear the greatest responsibility for the identified crimes. Contrary to the Prosecutor’s argument at paragraph 62 of her Response, the conclusion in the Decision Not to Investigate that there was not a reasonable basis to believe that “senior IDF commanders and Israeli leaders” were responsible as perpetrators or planners of the identified crimes does not answer the question at issue, which relates to the Prosecutor’s ability to investigate and prosecute those being the most responsible for the crimes under consideration and not as such to the seniority or hierarchical position of those who may be responsible for such crimes.

These are fundamentally irreconcilable conceptions of “potential perpetrator” gravity. The OTP is taking the traditional ICTY/ICTR approach, asking whether the Israeli perpetrators of the crimes on the Mavi Marmara are militarily or politically important enough to justify the time and expense of a formal investigation. The PTC, by contrast, does not care about the relative importance of the perpetrators; it simply wants to know whether the OTP can prosecute the individuals who are most responsible for committing the crimes in question.

To see the difference between the two approaches — and to see why the OTP’s approach is far better — consider a hypothetical situation involving only one crime: a group of the lowest-ranking soldiers from State X executes, against the stated wishes of their commanders, 10 civilians from State Y. The OTP would conclude that the “potential perpetrator” gravity factor militates against opening a formal investigation in State Y, because the crime in question, though terrible, did not involve militarily important perpetrators. The PTC, by contrast, would reach precisely the opposite conclusion concerning gravity, deeming the soldiers “most responsible” for the crime by virtue of the fact that they acted against orders. After all, no one else was responsible for the decision to execute the civilians.

The PTC’s approach to “potential perpetrator” gravity is simply bizarre….

Guest Post: The Joint Comprehensive Plan of Action Regarding Iran’s Nuclear Program

by Dan Joyner

[Dan Joyner is Professor of Law at the University of Alabama School of Law.  He is the author of the forthcoming book Iran’s Nuclear Program and International Law, which is under contract with Oxford University Press, and is expected in print in 2016.]

The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war.  It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013.  See my analysis here of the JPOA when it was concluded.

The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes.  All of the documents can be found at this link.  It is a carefully drafted, well organized document, and compliments are due its drafters.

That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.

The general gist of the JCPOA is easy enough to summarize.  It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program.  In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally.  The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.

The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue.  The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties.  Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.

Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program.  This could occur within approximately six months from “Adoption Day.”  The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier.  So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.

There are a number of important legal observations to make about the JCPOA text.  (more…)

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?

Guest Post: Protecting Schools 80 Years After Roerich

by Bede Sheppard

[Bede Sheppard is deputy children’s rights director at Human Rights Watch.]
Eighty-years ago today, the United States became the first country to ratify the international treaty commonly known as the Roerich Pact. Actually, “commonly” is a bit of a stretch—the 80-year-old agreement doesn’t get a lot of attention these days—yet one of its key objectives has recently been in the spotlight.
The pact’s full name, the “Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments,” gives a clearer overview of its intentions. The treaty’s first article notes that “educational…institutions shall be considered as neutral and as such respected and protected by belligerents… The same respect and protection shall be accorded to…educational…institutions in time of peace as well as in war.”
Only 10 countries joined the treaty—all of them from the Americas. The Americas is also the region with the highest number of countries in which laws explicitly limit the authority of government security forces to enter higher education institutions. Most recently, many countries in the Americas have been early and enthusiastic supporters of the Safe Schools Declaration that was opened for states to join at an international summit in Oslo, Norway, on May 28-29.
The Safe Schools Declaration was drafted under the leadership of Argentina and Norway. The 47 countries that have joined so far include Argentina, Brazil, Chile, Costa Rica, Ecuador, Honduras, Jamaica, Panama, and Uruguay. The Declaration is a political commitment to do more to protect students, teachers, schools, and universities from attack during times of armed conflict. It also allows countries to endorse and commit to use a set of Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict, which call upon armed forces to refrain from converting schools or universities into military bases, barracks, defensive positions, detention centers, and weapons caches.
The need to continue working for the protection of education institutions 80 years after the Roerich Pact remains clear. In the past decade, schools have been used for military purposes in at least 26 countries with armed conflict—the majority of countries with armed conflict during that time. The practice exposes students and teachers to the danger of incoming attacks if they remain in the school while they are being used, as well as the risk of harassment, rape, and forced recruitment by the soldiers inside the school. When schools are taken over completely, those buildings may still be damaged or destroyed, with long-term consequences for students’ education. The practice has also been shown to cause students to drop out of school as well as harming school attendance, new enrollment, and advancement to higher levels of education.
But 80 years after being the first to join the Roerich Pact, the United States has shown no interest in joining the Safe Schools Declaration. At the United Nations Human Rights Council in Geneva this month, the United States joined countries such as China, Cuba, Pakistan, and Saudi Arabia to snub efforts to highlight the Oslo Safe Schools Summit in an annual resolution on the right to education. (Bolivia and Venezuela sat out the vote as well.)
Another sign of the waning US interest in the goals of the Roerich Pact can be found in the new Defense Department Law of War Manual. The manual’s forerunner—the army’s 1956 field manual on the law of land warfare, noted that the Roerich Pact “accords a neutralized and protected status” to educational institutions. Disappointingly, that recognition of educational institutions’ neutrality has been dropped in the new manual, which instead describes the pact as providing only for the “respect and protection” of education institutions.
The United States should be moving forward, not backward, when it comes to improving the protection of schools during armed conflict.  UN Security Council Resolution 2225, passed in June, expresses “deep concern that the military use of schools in contravention of applicable international law may render schools legitimate targets of attack, thus endangering the safety of children and in this regard encourages Member States to take concrete measures to deter such use of schools by armed forces and armed groups.” Many states will see endorsement and use of the new Guidelines as just such “concrete measures,” and the United States should too.
On overseeing the signing of the Roerich Pact, US President Franklin Roosevelt said: “In opening this Pact to the adherence of the nations of the world, we are endeavoring to make of universal application one of the principles vital to the preservation of modern civilization.” Respecting schools and universities as neutral and protected sites is indeed vital to the preservation of modern civilization. Let’s work to achieve it before another 80 years pass.

The Gaza Report’s Treatment of Warnings: A Response to Blank

by Kevin Jon Heller

Laurie Blank published a post yesterday at Lawfare entitled “The UN Gaza Report: Heads I Win, Tails You Lose.” The post accuses the Independent Commission of Inquiry’s report on Operation Protective Edge (“Gaza Report”) of “completely undermin[ing] the foundational notion of equal application of the law” with regard to three areas of IHL: warnings, civilian vs military objects, and compliance. None of Blank’s criticisms are convincing, but in this post I want to focus solely on her first topic, warnings. Here is what she says about the Commission’s discussion of whether Israel complied with its obligation under IHL to provide civilians in Gaza with “effective advance warning” prior to attack:

First, consider the report’s treatment of warnings, one of the precautions set out in Article 57 of Additional Protocol I.  Article 57 mandates that when launching attacks, “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”  The Commission examines Israel’s warnings in great detail, including leaflets, telephone calls, texts and roof-knocks, noting that the warnings often did lead to successful evacuation and save many lives.  However, the Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.” (¶ 237).

However, LOAC contains no requirement that the civilian population be able to act on the warnings in order to find them effective.  Instead, the legally correct approach is to examine whether the warnings generally informed civilians that they were at risk and should seek shelter. In other words, the legal issue is whether they were effective in transmitting a warning, not whether the civilians actually heeded them. The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC. Yet the Commission bases its conclusions on the post-hoc question of whether civilians actually found shelter, which ultimately depends on a host of considerations outside the control of the attacking party.

Unfortunately, both paragraphs misrepresent the Gaza Report. Let’s consider Blank’s claims one-by-one.

[T]he Commission found in many cases that specific phone warnings were not effective as required by LOAC, because the individuals in the targeted building would not know “in what direction to escape.”

The Israel Defense Forces routinely made individualized, specific phone calls to warn the residents of buildings to seek safety in advance of an attack on a particular building, far exceeding the requirements of LOAC.

These statements are misleading. The subsection of the Gaza Report that Blank criticises focuses on Israel’s controversial use of “roof knocking,” not on its use of phone calls to civilians located in or near buildings about to be attacked. (The subsection is entitled “Roof Knock Warnings.”) Indeed, the entire point of the subsection is to explain why roof-knocking does not provide civilians with effective advance notice unless it is combined with a phone call or “other specific warnings” (¶ 239). Blank does not challenge the Commission’s conclusion in that regard. She does not even acknowledge it…

Guest Post: The Law of Occupation in the New DOD Law of War Manual

by Gregory H. Fox

[Gregory H. Fox is Professor of Law and Director of the Program for International Legal Studies, Wayne State University Law School.]

In the aftermath of the Iraq occupation, a vigorous debate began over the legitimacy of the Coalition Provisional Authority’s (CPA) vast reform of Iraqi legal, political and economic institutions (see Gregory H. Fox, The Occupation of Iraq, 36 Geo. J. Int’l L. 195 (2005)). Adam Roberts coined the term “transformative occupation” to describe occupations whose very purpose was to alter local institutions. In Roberts’ (and others’) telling, transformative occupations differed from the rapacious and brutal occupations of the WWII era, creating not repressive puppet states but liberal democracies that aligned the occupied state with a host of new international norms. Yet transformative occupations seemed directly at odds with the “conservationist principle,” a term I coined (Fox, Occupation of Iraq, at 199) to describe the traditionally limited nature of an occupier’s legislative authority. Grounded in the Hague Regulations and Fourth Geneva Convention, the conservationist principle held that an occupier did not acquire the central attribute of the ousted regime’s sovereign prerogatives, namely the unlimited ability to alter local laws and institutions.

Proponents of transformative occupations argued that the Iraq model made important progress in bringing occupation law into the 21st century. It took account of the emergence of human rights, democratic politics, anti-corruption and even market-based economics as legitimate concerns of international law. Occupiers giving effect to liberal democratic rights, it was argued, should not be seen as violators of the sovereignty of the occupied state, “but, to the contrary, as facilitator of the exercise of rights recognized by international law.” (Eyal Benvenisti, The International Law of Occupation, 2d ed. 2013, at 349-50).

Opponents (including me) argued that apart from Iraq being the only recent case of a “liberally” transformative occupation, granting occupiers broad legislative powers would represent an unfortunate turn toward unilateralism in the reconstruction of post-conflict states. The UN Security Council has authorized multiple post-conflict reform missions under Chapter VII of the Charter.   Occupiers would have little incentive to seek Council approval for their actions if they could accomplish the same objectives unilaterally. Relatedly, the many fiascos attending the Iraq occupation demonstrated the wisdom of a collective approach to legal and political reform in post-conflict states.

The publication of the new DOD Law of War Manual on June 12 is an important milestone in the debate over transformative occupation. The last iteration of the Manual (FM 27-10, “The Law of Land Warfare”) dated to 1956, so an update was long overdue. Would the Pentagon claim that occupation law now permits Iraq-type reforms? A path to such a claim had already been laid by the United Kingdom, which updated its 1958 manual in 2004. The UK manual provided that an occupier may “repeal or amend laws that are contrary to international law and is also entitled to make changes mandated or encouraged by the UN Security Council.” (§11.11). Specifically, laws may be repealed if they “violate human rights treaties.” (Id. n.15). Would the United States do the same? And if so, would it claim that the traditional view of an occupier’s legislative powers should give way to a liberal democratic imperative that holds, in the words of a CPA legal advisor, that “tyrannical and repressive laws can no longer survive merely for the sake of continuity” and that international law “cannot stand opposed to consensual self-government and the rule of law”? (Brett H. McGurk, Revisiting the Law of Nation-Building: Iraq in Transition, 45 Va. J. Int’l L. 451, 464 (2004-2005)).

Remarkably, the US Manual does not take this path. Its view of occupiers’ legislative authority is quite limited. The powers afforded an occupier derive not from a general reformist imperative or even specific areas of policy such as human rights or democratic governance, but rather “from its war powers and from its duty to ensure public order and safety in occupied territory.” (§11.7).   Repeating almost verbatim language from Article 43 of the Hague Regulations, Section 11.5.2 sets out the traditionally restrictive view of the conservationist principle:

The duty of the Occupying Power to respect, unless absolutely prevented, the laws in force in the country prohibits it from arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.

The permissible reasons for changing local law (set out in Section 11.9.2) are also virtually identical to the 1956 version (§369):

The Occupying Power may subject the population of the occupied territory to provisions:

(1) that are essential to enable the Occupying Power to fulfill its obligations under the GC; (2) to maintain the orderly government of the territory; and (3) to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them.

The Manual then lists examples of laws that may be suspended or repealed, and only one arguably serves the purposes of an Iraq-style transformation: provisions “relating to the administration of the law, such as repealing laws establishing racial discrimination or promulgating laws requiring the impartial application of the law by local officials.” (§ That’s it. No endorsement of the top-to-bottom changes that the CPA made to Iraqi security and military institutions, human rights protections, criminal law and procedure, banking law, tax law, regulation of foreign trade, regulation of private economic transactions, securities law and the status of state-owned enterprises (see Kaiyan Homi Kaikobad, Problems of Belligerent Occupation: The Scope of Powers Exercised by the Coalition Provisional Authority in Iraq, 54 Int’l & Comp. L.Q. 253 (2005); Fox, The Occupation of Iraq, at 208-225). The CPA declared (.pdf) in 2004 that its goal was to create a “stable, democratic Iraq that is underpinned by new and protected freedoms and a growing market economic.” The Manual does not endorse anything close to those goals. To the contrary, it seems to disclaim wholesale transformation as a legitimate goal of occupation law, specifically noting “limitations on the ability of the Occupying Power to alter institutions of government permanently or change the constitution of a country.” (Section 11.4.2).

The Manual is not entirely free from ambiguity on the scope of an occupier’s legislative power. As quoted above, section 11.9.2. prohibits an occupier from “arbitrarily exercising its authority to suspend, repeal, or change the municipal law applicable to occupied territory.” (emphasis added). This language would seem to allow for non-arbitrary suspensions. As authority for this test, the Manual cites commentary to Article 64 of the Fourth Geneva Convention, which builds on Article 43 of the Hague Regulations by providing that penal laws of the occupied state will continue in force unless they threaten the security of the occupier. But neither Geneva Article 64 nor Hague Article 43 refers to “arbitrary” changes in law; nor is the term used in Pictet’s commentary on Article 64, quoted extensively in the Manual’s footnote to this provision. So the idea of permitting non-arbitrary changes is an invention of the DOD. What scope of action does this test permit? Presumably changes would become “arbitrary” if they did not serve one of the three purposes listed in Section 11.9.2. or amounted to the kind of sweeping constitutional change precluded by Section 11.4.2.

Why did the DOD hew so closely to the traditional approach of 1956? The new Manual suggests one reason by making clear that while occupiers acting unilaterally will have limited legislative powers, those powers can be substantially enhanced by the Security Council:

Acting under the Charter of the United Nations, the U.N. Security Council may also establish authorities or limitations that might interact with those otherwise applicable under occupation law. For example, a U.N. Security Council authorization may provide additional authority for an Occupying Power to govern occupied territory. (§

The sole example cited of such authorization is Resolution 1483 on Iraq. Many scholars (though not me) argue that the Council gave the CPA a broad legislative mandate in Resolution 1483.   The debate over 1483 arose because the resolution was a muddled set of mixed signals, resulting, no doubt, from Council members’ lingering anger at the Bush Administration for invading Iraq in the first place. But DOD might well have reasoned that if future occupations do follow a Council authorization for intervention, the occupier would have little trouble having the same Council membership approve a transformative occupation. In many situations, therefore, the Council may simply legislatively override the conservationist principle.

Unfortunately, the Manual makes this point with less than model clarity. Many provisions legitimating acts under occupation law (e.g. §, §11,8.1 and §§11.11.1 – are footnoted to CPA decrees. If the CPA was acting under Chapter VII then its actions provide no clear support for propositions of occupation law, since, as the Manual itself states, the Council may authorizes legislative authority that would otherwise be prohibited by that law (i.e. the conservationist principle).

Another possible reason for the restrictive approach lies in one of the most common arguments for transformative occupation: that occupiers must give effect to their own human rights treaty obligations in occupied territory. This is the most obvious explanation for DOD’s unwillingness to follow the UK’s more expansive view of an occupier’s legislative powers. The UK is bound by the extra-territoriality jurisprudence of the European Court of Human Rights, which in the Al-Skeini case specifically involved acts of British occupiers in Iraq. DOD was almost certainly eager to distance the US from this position and the Manual reiterates the much-criticized US claim that its human rights treaty obligations do not extend outside US territory (§

In my view the Manual does exactly the right thing in holding to a hard line against the transformative occupation. The Security Council has authorized numerous reforms in post-conflict states, and the argument for circumventing Council approval to accomplish the same goals through unilateral action should face a heavy burden of persuasion. I find most of the arguments unpersuasive. If Iraq is to be the test case for this new theory then it stands for exactly the opposite proposition: the Council correctly withheld its approval for the invasion and exerted too little control in Resolution 1483, allowing the CPA to chart a course that most agree was ineffective at best and a disaster at worst. There is thus a deep irony in proponents of transformative occupation arguing that it is necessary to bring occupation law into accord with contemporary international law, for it would incentivize occupiers to avoid multilateral control over post-conflict reconstruction, arguably one of the most remarkable legal innovations of the post-Cold War era.