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

[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.  I’ll mention only a few of them here briefly, but I’ll be writing more about them over at my blog, Arms Control Law, where you can also find background information on the issues.

1. It is important to note that the JCPOA is not a treaty. This is made explicitly clear on Pg. 6 of the JCPOA, when the text refers to all of the subsequently detailed commitments as “voluntary measures.” This fact of course has important implications for both international law, and the domestic law of the parties.  Significantly from an international law perspective, it means that neither Iran’s legal obligations, nor the legal authority of the IAEA, are affected by the terms of the JCPOA itself. The JCPOA is simply a diplomatic agreement, consisting of political and not legal commitments.  This is an important distinction to bear in mind inter alia when considering the expanded access for IAEA inspectors in Iran which is provided for in Annex 1, Section Q.  The fact that these enhanced access procedures, under which IAEA inspectors can request access to sites in Iran that have not been declared by Iran to have any connection to its nuclear program, are simply political in nature, should provide incentive for all sides to be reasonable and measured in their approach to disputes about this access.  Excessively aggressive and unreasonable demands made by either side could result in a collapse of the entire JCPOA framework.

2. Also on the subject of IAEA safeguards, the JCPOA provides that Iran will only provisionally apply its Additional Protocol agreement with the IAEA for the next 8 years, and only after that time will it formally ratify the Additional Protocol and bring it into force. Having the Additional Protocol only provisionally applied during this period could make for some complicated and perhaps controversial questions concerning its application. The most recent reports of the International Law Commission’s Special Rapporteur on Provisional Application of Treaties will be useful in clarifying these questions.  Regarding the purpose for this lengthy period of provisional application, while it may have some basis in the normal delay associated with domestic ratification procedures, I suspect that this was in fact a feature of the agreement specially negotiated by Iran in order to allow it continued leverage with the IAEA, with which it has a longstanding tense relationship.

3. One reason for that tense relationship is the IAEA’s allegations since 2011 that Iran has not been forthcoming about past nuclear weaponization work conducted in Iran prior to 2003. This is the so-called Possible Military Dimensions (PMD) issue, which was also a significant point of contention during the negotiations.  The JCPOA handles the PMD issue in a manner that has surprised many observers.  In brief, in paragraph 14 of the JCPOA the parties agree that the entire PMD issue is to be resolved between Iran and the IAEA within the next six months, pursuant to a “Road Map” document agreed separately between the IAEA and Iran on the same day as the JCPOA.  This short time frame for resolving this complex issue, which has been hotly contested between the IAEA and Iran for the past four years, appears to demonstrate the JCPOA parties’ overall intent to focus on the present and future, and not on the past.   This is a particularly prudent and pragmatic view, in my opinion, and avoids what could have been a poison pill for the JCPOA, in the form of attempts to force Iran to admit to past nuclear weaponization work.

There are many other interesting legal issues that bear observation, but I will end this guest post at this point, and invite interested readers to comment, and to follow my further writing on this and all other matters armscontrollawish at my blog.