Ryan Alford made the remarks Tuesday in an exclusive interview with the Islamic Republic News Agency (IRNA).
“First as matter of domestic American law, the US' arguments that the JCPOA was intended merely to create a political agreement are groundless,” he said. “Determining whether an international agreement is political or legal depends on the intentions of the parties: as Prof. Bruce Ackerman of Yale Law School (and David Golove) noted, the intention of the United States to make a legal agreement is clear from fact that Congress authorized President Obama to agree to the JCPOA,” he added.
He reiterated that if arguments to the contrary were to be taken seriously, it would also follow that America's agreements would join the World Trade Organization, the IMF and the World Bank (achieved by similar congressional-executive agreements) would also be mere political commitments, which is obviously not the case.
“As Ackerman and Golove noted, Iran and the other nations of the P5+1 properly understood this 'congressional-executive' agreement on the part of the United States to create substantive legal obligations,” Alford noted.
“Second as the United States (and other nations) intended to create a legal agreement, withdrawal from that agreement is governed by the regime of treaty denunciation set forth in the Vienna Convention on the Law of Treaties (to which the US is not a party, but which it accepts as representing certain binding principles of customary international law),” he said.
He went on to say that “the Vienna Convention requires parties who wish to engage in treaty denunciation to obtain the consent of all other parties, or to do so in accordance with the withdrawal provisions of the agreement at issue.”
Neither condition has been met here: no other nation (never mind all of them) has agreed, and the JCPOA permits withdrawal only when another party has materially breached the agreement (Trump does not even appear to be making good faith arguments that Iran has done so; rather, he has made numerous on-the-record statements saying that he wishes to withdraw merely because it is a 'bad deal'). In contract law, this would be like trying to break a contract because you should have asked for a better price, which is an absurdity; that would simply be a breach of contract. Similarly, as there is no unilateral right to revoke a treaty under international law (see Brilmayer and Tesfalidet in the Yale Law Journal Forum), unilateral withdrawal from the JCPOA is a breach of international law.
Additionally, even if all of the above were incorrect, Security Council Resolution 2231 imposed a legal obligation on UN member-states to implement the JCPOA, which this unilateral withdrawal breaches. In particular, paragraph 26 of the Resolution states that the 'United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realization of the full benefit by Iran of the sanctions lifting' (emphasis mine), which is clearly mandatory and not hortatory.
Accordingly, by virtue of its membership in the UN and Article 25 of the UN Charter, the US is legally bound. The US' unilateral withdrawal is directly contrary to this legally binding obligation.
Third after materially breaching the JCPOA by unilaterally withdrawing from it in a manner contrary to its provisions and to paragraph 26 of the Resolution, the US has no basis to invoke the 'snapback' provisions of the Resolution at the Security Council. I believe this would be the case even if Iran were to suspend its own compliance with the JCPOA, as Iran's non-compliance would stem from US non-compliance, and Iran then could invoke paragraph 36 of the JCPOA, which states that where one party is in breach, another will have 'grounds to cease performing its commitments.' Were Iran to make this argument, any member of the Security Council could then refuse to endorse the invocation of the snapback provisions.
On a more political note, any invocation of the snapback provisions by the US after it violates both the international law of treaty denunciation and the obligations imposed by Resolution 2231 would likely be seen by the international community (or at the very least its non-NATO members) as laughably illogical and cynical in the extreme. Of course, this perception depends on this being reported accurately in the media, which is not guaranteed, especially in view of the very poor reporting in Western media on the subject of provocative and inflammatory allegations of chemical weapons use by the Syrian Government and the similarly poor reporting on Syrian retaliation against Israeli bombing (which was misattributed to Iran without any evidence whatsoever, as was the case in the earlier reporting on allegations of chemical weapons use).
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New York, May 22, IRNA – Iran nuclear deal is not merely a political agreement, Canadian Lawyer Ryan Alford said, adding that the US unilateral walkaway from the deal is in contrast with its internal laws, Vienna Convention and UNSC commitments.
