China Is Done Biding Its Time
The End of Beijing’s Foreign Policy Restraint?
The historic nuclear framework agreement between Iran and the P5+1 centered on the lifting of sanctions against Iran in exchange for Tehran downsizing its nuclear capabilities. Although no parties have signed on the dotted line just yet, the clarifications of the main components of a future agreement, as described through joint and individual press briefings, signaled the beginning of a new era. Even so, some immediate questions remain about how the comprehensive deal will fit into international law.
The framework agreement is the most important nuclear agreement in several decades. It was forged against a complex backdrop of sanctions from the UN Security Council, United States, and European Union, which introduced a host of international legal questions, not least whether reneging on the agreement would represent a breach of international law—dissolving the deal before it has a chance to take shape.
Iran and the United States had different things to say on that score: U.S. Secretary of State John Kerry has stated that the agreement is no more than a political commitment, avoiding language that would indicate that the discussions would lead to a treaty (which would need to be ratified by Congress). For its part, of course, Congress will likely push for the framework to lead to an international treaty—thus giving it a hand in the final stage of the negotiations. Meanwhile, Iranian Foreign Minister Mohammad Javad Zarif indicated that Iran sees the deal as binding under international law, since it was made in conjunction with permanent members of the UN Security Council.
All along, the deal has been treated as if the parties will be able to back down at any time, divorcing the agreement from international law and binding obligations. For example, Senator Tom Cotton (R-Ark.), author of the controversial open letter signed by 47 Republican senators opposed to negotiations with Iran, has been vocal about the signatories’ willingness to strike down any future deal, indicating that there is little chance any future agreement will be viewed as binding in the United States. Beyond winning over a skeptical Congress, the Obama administration will also need to convince the next president that the framework is worth continuing despite there being no law mandating its execution after Obama ends his term in 2016. Iranian leaders also face the risk of their parliament revoking the deal at any time; Tehran’s governing body has even more leeway over international agreements than the U.S. Congress. If both sides can dismiss the deal at will, without penalty under international law, then former U.S. Ambassador to the UN John Bolton (a man not known for his love of international law) might have had a point when he said that “if the deal is that fragile, they don’t have a deal.”
International law fails to provide many answers to this problem. It isn’t at all clear which types of agreements are binding and which are mere political commitments. States use various terms to refer to their agreements, none of which has a set definition: treaty, protocol, international agreement, declaration, and understanding. In the context of the Iran negotiations, the term “framework” is meant to imply that there are no legal consequences for abandonment of obligations. But language and terminology are fluid: on the other end of the spectrum, the United Nations uses the word “charter” to create legal obligations and rights. Most agreements are somewhere in the middle, leaving room for interpretation. For example, the Algiers Accords, which Iran and the United States struck following the Iran hostage crisis, include the legal establishment of an independent tribunal for external arbitration but only the suggestion that the United States would not interfere in Iran’s internal affairs.
There is disagreement regarding whether every state-made commitment is subject to international legal oversight. The case between Qatar and Bahrain, for example, serves as precedent to the notion that every commitment is a legally binding agreement. In 1991, Qatar submitted a claim to the International Court of Justice over a territorial dispute with Bahrain. It resorted to the exchange of letters between the ministries of Qatar, Bahrain, and Saudi Arabia to argue that the ICJ had jurisdiction to hear the case. Ultimately, the ICJ decided that the minutes, along with subsequent letters exchanged between parties, constituted a legally binding agreement.
Others doubt this approach, referring to the long history and practice of signing nonbinding agreements, as well as their necessity in international law: The Yalta Conference agreements, which restructured Europe after World War II, and the Final Act of the Helsinki Conference in 1975, which created security cooperation between the Soviet Union and western Europe, were not considered formal treaties. Simply put, states do not generally want to sign legally binding treaties, even when those agreements might be groundbreaking. The reason lies partly in the strenuous domestic procedures required for government agreements to become binding. The anticipated congressional showdown over the nuclear deal with Iran is a case in point. States also prefer to have the option of backing away from agreements whenever they desire without having to explain themselves under international law or bear the political cost of opting out.
On the other hand, parties that wish to assert the authority of an agreement may push for it to be considered a legally binding international instrument, giving the agreement protected status under international law. Iran may well be inclined to look at the future comprehensive deal as a binding international instrument, as it would prevent the next U.S. president from nullifying the agreement (which, as it stands, would be possible if the motion is not passed as a treaty by Congress). This measure would bring discussions back to square one and reinstate every sanction that will be lifted under the current framework.
By these standards, the Iran framework outlines a future document that will not quite provide a binding agreement but will also not be seen as a mere political declaration, although Iran and the P5+1 countries may have differing interpretations on the strength of the agreement’s language based on what each party has at stake. Iran would like to have some sort of remedy under international law if the soon-to-be-lifted sanctions are reinstated. The United States, however, would rather opt for an interpretation that allows it to put sanctions back in place if necessary, without international legal consequences.
The marathon negotiation sessions achieved a course of action with a 25-year road map and an agreement without a sunset date, providing a strong show of confidence on all sides that any deal will have the full force and effect it deserves under international law. Unlike many other political commitments, the nuclear deal was negotiated against the backdrop of complex legal issues, including a web of national, regional, and UN sanctions. The number of involved parties—national governments, regional bodies, the UN, and the International Atomic Energy Agency—hints at the seriousness of the framework and the upcoming deal. Some of the undertakings each side has committed to uphold within the framework will be irreversible and of a legal nature. Given the sheer complexity of factors weighing in on the nuclear discussion that concluded this week, Iran’s comprehensive nuclear deal is more than a toothless political commitment.