Withdrawal from the Iran Nuclear Deal: Legal Authorities and Implications

Legal Sidebari

Withdrawal from the Iran Nuclear Deal: Legal
Authorities and Implications
May 17, 2018
President Trump recently announced that the United States is withdrawing from the Joint Comprehensive
Plan of Action (JCPOA) related to Iran’s nuclear program, which is often referred to as the “Iran nuclear
deal.” The JCPOA identified a series of “voluntary measures” in which Iran agreed to impose limits on its
nuclear program in exchange for sanctions relief from the “P5+1”—the five permanent members of the
U.N. Security Council (the United States, the United Kingdom, France, Russia, China) plus Germany. As
discussed here, the JCPOA called for lifting or easing of three forms of sanctions: (1) U.S. “secondary”
sanctions designed to discourage non-U.S.-parties from doing business with Iran; (2) sanctions imposed
by the U.N. Security Council; and (3) European Union (EU) sanctions.
In his May 8, 2018 withdrawal announcement and presidential memorandum issued the same day, the
President directed federal agencies to begin to take steps to re-impose the sanctions established under
U.S. law that were lifted or waived in order for the United States to meet its commitments in the JCPOA.
But some questions remain regarding the legal authorities for the President’s withdrawal and the legal
implications of the decision. (For analysis of the foreign policy implications of the withdrawal, see this
CRS Report.)
Domestic Legal Authority for Withdrawal
As discussed in this CRS Report and seminar, the legal framework for withdrawal from an international
pact depends on, among other features, the type of pact at issue and whether withdrawal is analyzed under
domestic law or international law. Both the Obama Administration and Trump Administration treated the
JCPOA— an unsigned document that purports to rely on “voluntary measures”—as a nonbinding political
commitment rather than a legally binding international agreement. To the extent this understanding of the
JCPOA’s legal status is correct, which some have debated, historical practice (examined here) suggests
that the President has authority under domestic law to withdraw unilaterally from the pact. Moreover,
because Congress delegated to the President the power to choose whether to waive the U.S. sanctions that
were lifted pursuant to the United States’ commitments in the JCPOA (via the authorities identified here
and here), the President also has statutory authority to re-impose U.S. sanctions on Iran.
International Legal Authorities Impacted in Withdrawal
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The framework for withdrawal from the JCPOA under international law potentially is more complex.
Political commitments are not legally binding between nations, and a party can withdraw at any time
without violating international law—although there may be political consequences for doing so. But this
general rule is complicated by the fact that the JCPOA was “endorsed by” and incorporated into U.N.
Security Council Resolution 2231 (2015). Some observers and European officials have contended that,
even if the JCPOA began as a nonbinding pact between the P5+1 and Iran, Resolution 2231 converted its
voluntary commitments into legal obligations that are binding under the U.N. Charter.
Under Articles 25 and 48 of the U.N. Charter, Member States of the United Nations agree to accept and
carry out the “decisions” of the Security Council—meaning that such decisions are binding under
international law. The Security Council’s “recommendations,” on the other hand, lack binding effect
according to the International Court of Justice (ICJ), the U.N.’s principal judicial organ. Whether a
provision is understood as a nonbinding recommendation or a binding decision depends on the precise
language of the resolution.
In Resolution 2231, it seems clear that the Security Council intended the provisions that lifted U.N.-based
sanctions to be legally binding (for the reasons discussed here). But whether Resolution 2231 creates an
obligation under international law for the United States to withhold its domestic secondary sanctions or to
comply with the JCPOA more broadly is more difficult to resolve. Resolution 2231 “[c]alls upon all
Members States . . . to take such actions as may be appropriate to support the implementation of the
JCPOA, including by . . . refraining from actions that undermine implementation of commitments under
the JCPOA[.]” While this provision arguably seeks general compliance with the JCPOA, some
commentators interpret the phrase “calls upon” as a hortatory, nonbinding expression in Security Council
parlance. Others argue that the phrase can create an obligation under international law to comply. And a
third group falls in between, describing the phrase as purposefully ambiguous or dependent on its context.
In a 1971 advisory opinion, the ICJ concluded that a provision in a Security Council resolution that
“[c]all[ed] upon all States . . . to refrain from any dealings with the Government of South Africa” was
binding under the U.N. Charter. But the ICJ based its conclusion on the historical context of the provision
rather than on a categorical interpretation of the operative language. Since the ICJ’s opinion, U.N.
Member States have ascribed varying levels of significance to the phrase “calls upon” in subsequent
Security Council resolutions. Consequently, there is no clear answer to whether Resolution 2231 creates
an obligation to comply with the JCPOA that is binding as a matter of international law.
Legal Implications of Withdrawal and Potential Conflict of Laws
As detailed in this CRS Report, the Trump Administration has not stated that it intends to utilize the
JCPOA’s so-called “snapback” provisions that would re-apply sanctions imposed by the U.N. Security
Council. But the United States will re-impose the U.S. secondary sanctions lifted pursuant to the
commitments in the JCPOA under a 90-to-180-day wind-down period. While secondary sanctions are
based in U.S. law, the penalties they impose are directed toward non-U.S. parties for conduct involving
Iran that occurs outside of the United States’ territorial jurisdiction. Although the other nations in the
P5+1 have stated that they will remain part of the JCPOA and continue to abide by Resolution 2231, U.S.
secondary sanctions potentially will apply to non-U.S. persons and companies that transact business with
Iran from within the jurisdictions of P5+1 nations and elsewhere. This dynamic has led to renewed
discussion over potential conflict of laws arising from the extraterritorial application of U.S. sanctions.
When the United States’ European allies have resisted extraterritorial application of U.S. secondary
sanctions in the past, the disputes often have been resolved through international negotiations rather than
in a judicial forum or other mandatory dispute resolution setting. For example, in 1982, European nations
claimed that U.S. export regulations that were designed, in part, to block construction of a gas pipeline
from Siberia to Western Europe, were “unacceptable under international law because of their
extraterritorial aspects.” The United States withdrew the regulations later that year.

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In 1996, the European Union (EU) adopted a so-called “blocking regulation”—Council Regulation
2271/96—in response to secondary sanctions and other extraterritorial provisions imposed by, among
other U.S. laws, the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act (also known as the
Helms-Burton Act) and Iran and Libya Sanctions Act of 1996. Under the blocking regulation, EU entities
are prohibited from complying with the extraterritorial provisions of the listed U.S. laws, and EU courts
cannot enforce judgments based on those laws. The EU also instituted a formal diplomatic protest and
initiated dispute resolution proceedings at the World Trade Organization (WTO) in 1996, claiming that
provisions in the Helms-Burton Act violated the General Agreement on Tariffs and Trade 1994 (GATT
1994) and the General Agreement on Trade in Services (GATS). Although the United States did not
participate in the WTO proceedings, arguing the dispute fell within the national security exception to the
WTO’s jurisdiction, it eventually resolved the matter through a 1997 memorandum of understanding
(MOU) with the EU. In that MOU, the United States made non-binding commitments to waive certain
extraterritorial provisions in dispute in exchange for suspension of the WTO proceedings and the EU’s
commitment to promote democracy in Cuba, among other pledges.
Whether similar disputes arise from the re-imposition of U.S. secondary sanctions on those doing
business with Iran likely will depend on the actions of U.S. officials in effectuating the U.S. exit from the
JCPOA and the response of the EU. Moreover, Congress has broad power to enact legislation related to
international sanctions through its authority to “regulate commerce with foreign nations” and other
constitutional powers. Accordingly, Congress could play a role in defining the reach of U.S. sanctions and
responding to potential foreign efforts to block U.S. secondary sanctions.

Author Information

Stephen P. Mulligan

Legislative Attorney




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