The Recent Letter of John Kerry and its Impact on the Joint Comprehensive Plan of Action (JCPOA)

[Abdollah Abedini is an Assistant Professor of International Law at the Faculty of Law, Farabi College at the University of Tehran.]

On December 19, 2015, John Kerry, the United States Secretary of State, sent a letter to Mohammad Javad Zarif, the Foreign Minister of Iran, on the US government’s firm intention to implement the JCPOA. The letter was issued pursuant to an Act adopted by the House of Representatives (H.R) entitled “Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.” Then, the Act included by Congress in the “Consolidated Appropriations Act, 2016.” According to Iranian authorities, the Act contains a provision which may jeopardize the implementation of the JCPOA. In this respect, Mr. Zarif is of the view that: “Acting exactly based on the congressional law, it will definitely mean violation of the JCPOA.”

Having been inspired by terrorist attacks of Paris on November 13, 2015, the Act mainly governs acts of terrorism. According to the Act, an individual with any of the nationalities of the 38 countries (or in the language of the Act, “aliens”) involved in Visa Waiver Program (VWP) may not be permitted to enter the US, when he or she “has been present, at any time on or after March 1, 2011: (I) in Iraq or Syria; (II) in a country that is designated by the Secretary of State…or any other provision of law, as a country, the government of which has repeatedly provided support of acts of international terrorism.” It is to be noted that the month before enacting Visa Waiver Act, the H.R adopted an Act on November 19, 2015 entitled “American SAFE Act,” in which there were many provisions similar to those of the Visa Act; however, the point that countries specified by the Secretary of State as States sponsors of terrorism has been added.

Some commentaries suggest this could be a ban for whomever wants to go to Iran, including businessmen, tourists, scientists, educational activists and so on. It is noteworthy that some of the supporters of the VWP raised protest to the Act.

The ambassadors of 28 EU countries, for instance, have declared in a common note: “such indiscriminate action against the more than 13 million European citizens who travel to the U.S. each year would be counterproductive, could trigger legally-mandated reciprocal measures, and would do nothing to increase security while instead hurting economies on both sides of the Atlantic.” It is noteworthy that under a Regulation adopted in 2013, the EU may take into account appropriate measures on the different treatment taken by countries which have reciprocally waived visa requirements for the specific time.

Kerry’s letter, in such circumstances, is a response to Iran’s concerns on the future of the JCPOA in general, and its implementation in particular. The piece, therefore, is sought to indicate whether and to what extent the letter will impact on the JCPOA.

The Letter as a Unilateral Declaration

Kerry’s informal letter, which has been neither printed on the Secretary’s official letterhead, nor found on the US Secretary of State’s official website, has been published by many other websites on the Internet. However, the US Secretary of State’s spokesperson, John Kirby has observed officially: “the Secretary noted the concerns by Foreign Minister Zarif. You saw that he addressed that in his letter. There’s no violation of the JCPOA or our commitments by dint of this new legislation.”

The International Court of Justice (ICJ) in one of its most renowned cases, the Nuclear Tests case, upheld the view that: “declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.”

Hence, without a doubt, the letter can be categorized as a unilateral act under international law. In fact, the letter is a unilateral declaration, as a form of a unilateral act that obliges the US not to give effect to the Act to the extent that jeopardizes the implementation of the JCPOA. In addition, the ICJ has pointed out: “…interested States may take cognizance of unilateral declarations and place confidence in them, and are entitled to require that the obligation thus created be respected.”

The International Law Commission, in “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations” adopted in 2006, points out: “any unilateral behavior by the State producing legal effects on the international plane may be categorized as a unilateral act.”

Moreover, a unilateral declaration must be issued by authorized officials explicitly and publicly. As established in international law, foreign ministers’ statements, by virtue of their functions, may create obligations for their respective countries. The US Secretary of State has explicitly maintained in the letter that: “we remain fully committed to the sanctions lifting provided for under JCPOA.”

Giving assurance to his Iranian counterpart, John Kerry affirmed the US intention to JCPOA commitments. In another part of the letter, he points to the US Government’s power to waive the Act and confirms that: “the recent changes in visa requirements passed in congress…will not in any way prevent us from meeting our JCPOA commitments…” The letter indicates that the US Government would not permit potential impediments which may be created by the Act to affect in the implementation of the JCPOA.

On the other hand, some Congressmen have been dissatisfied and have observed that: “we…express our strong opposition to your commitment to waive a newly-enacted reform to the Visa Waiver Program that was clearly intended to cover individuals who have traveled to Iran in the past five years.” Unfortunately, it seems that enacting the Visa Waiver Act and the following reactions do not signify an optimistic future for the JCPOA implementation.

Impact of the letter on the future of the JCPOA

The Conclusion of the JCPOA in an atmosphere which there was little hope to reach an agreement made “a fundamental shift in [the UN Security Council] consideration of this issue, and …its desire to build a new relationship with Iran strengthened by the implementation of the JCPOA and to bring to a satisfactory conclusion its consideration of this matter.”

In fact, the JCPOA has satisfied what its parties, namely, the E3+3 and Iran, hope for. In this situation, some actions taken by some parties, such as enacting Visa Waiver Act, could frustrate all endeavors to reach JCPOA aims. However, Kerry’s letter is a sign that the US government intends to continue to implement the JCPOA. Some of the letter’s sentences could be interpreted as an hindrance to this path. Thus, it is necessary to focus on the related words of the letter.

When it comes to the Kerry’s letter, he states: “we will implement them [JCPOA commitments] so as not to interfere with legitimate business interests of Iran.” He suggests some solutions and further observes that: “to this end, we have a number of potential tools available to us, including multiple entry ten-year business visa, program for expediting business visa, and the waiver authority provided under the new legislation.”

One may well ask what does he mean by “legitimate business interests”? And who should determine such “legitimate business interests”? According to the letter itself, the answer would be that the US would determine what the business interest is and whether it is legitimate. The logical follow-up question regards the exact meaning of the legitimacy, whether as a point of fact or law.

Generally speaking, these are the issues which would arise during the implementation of the JCPOA. It is proposed that JCPOA parties bring these questions to the Joint Commission contemplated by JCPOA to resolve them, before endangering the JCPOA’s implementation. The JCPOA has established a dispute resolution mechanism in its Annex IV under which a Joint Commission is comprised of respective parties, (China, France, Germany, the Russian Federation, the United Kingdom, and the United States, with the High Representative of the Union for Foreign Affairs and Security Policy, and Iran) would consider any kind of disputes concerning JCPOA. Section 2 of Annex IV states the relevant functions of the Joint Commission: “review and consult to address issues arising from the implementation of sanctions lifting as specified in this JCPOA and its Annex II’ and ‘consult and provide guidance on other implementation matters that may arise under the JCPOA.”

The JCPOA, pursuant to the adoption of the UN Security Council resolution 2231, is considered as a part of international peace and security which requires unanimity as well as leaving any unilateral approach of all parties, particularly the US as a key partner.