The United States Unilateral Withdrawal from the Restrictions of Iran’s Nuclear Program in JCPOA 2015 under International Law

In 2015, Iran with the P5 + 1 countries (China, France, Germany, Russia, Britain and the United States, as well as the European Union High Representative for Foreign Affairs and Security Policy) agreed on a JCPOA (Joint Comprehensive Plan of Action) which deals with Iran's nuclear program. The Joint Comprehensive Plan of Action 2015 (JCPOA) is a controversial agreement. First, the JCPOA's status in international law is debated and is not considered as an international treaty. In the midst of the uncertainty over the status of the JCPOA, on May 8 2018, the United States unilaterally declared that it was withdrawing from the JCPOA. Even though the JCPOA has been endorsed by UN Security Council Resolution 2231 (2015). Thus, other JCPOA participating countries view the withdrawal of the United States as an act that is against international law. This article aims to determine whether the JCPOA is an international treaty and whether the withdrawal of the United States from the JCPOA is justified under international law.

Frifield in her letter to Congress, that the JCPOA is not an international agreement.
"The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JCPOA reflects political commitments between Iran, the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China), and the European Union". 2 The United States argument has been challenged by some experts. One of them is by Michael D. Ramsey (Professor of Law at the University of San Diego Law School) in his writing which shows several things that show that the commitment in the JCPOA can bind Iran's recognition, namely: JCPOA guidance is very specific with respect to the revocation carried out by the United States, contains detailed about dispute resolution mechanisms, and it is unclear whether United States negotiators made it clear to either party that the agreement was nonbinding because Iran stated otherwise. 3 On May 8, 2018 the President of the United States Donald Trump decided to stop his commitment to the JCPOA and withdraw his participation from JCPOA participants. In his statement, President Donald Trump underlined two points of the United States withdrawal, which are Iran's bad faith and bad actions. "Iran negotiated the JCPOA in bad faith, and the deal gave the Iranian regime too much in exchange for too little". 4 Indeed, the issue of US withdrawal has emerged since Donald Trump changed as president to replace Barack Obama. The withdrawal of the United States was accompanied by the reimposition of sanctions against Iran which were suspended after the United States agreed to the JCPOA. These sanctions were reimposed after President Donald Trump signed the presidential memorandum on May 8, 2018. In this presidential memorandum the President of the United States mandated "The Secretary of State and the Secretary of the Treasury shall immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA". 5 Iranian Foreign Minister Mohammad Javad Zarif responded to United States withdrawal from the JCPOA by stating "US persistent violations & unlawful withdrawal from the nuclear deal". Several prominent legal experts have also opposed the United States' withdrawal from the JCPOA. One of the experts who oppose the actions of the United States is Matthew Bolton (Professor of Political Science Pace University) who states "In international law, it is a custom that you keep your word. This is a violation of the international norm". 6 In this study the author tries to describe the status of the 2015 Joint Comprehensive Plan of Action in international law. The author will also analyze the withdrawal of the United States from the 2015 Joint Comprehensive Plan of Action, and see whether the United States has violated international legal obligations of withdrawal or not. 5 White House, 2018, "Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran's Malign Influence and Deny Iran All Paths to a Nuclear Weapon", https://www.whitehouse.gov/presidentialactions/ceasing-u-s-participation-jcpoa-takingadditional-action-counter-irans-malign-influencedeny-iran-paths-nuclear-weapon/, accessed on 25 th April 2020.

B. STATUS OF THE 2015 JOINT COMPREHENSIVE PLAN OF ACTION ACCORDING TO INTERNATIONAL LAW
In some cases, negotiating an agreement between countries can result in an agreement that does not impose any legal obligations. This agreement creates moral or political obligations and does not require legal obligations for the participants. 7 Instruments that contain this kind of political commitment are generally referred to as "soft law". According to Michael John Allen and Brian Thompson, "In international law, political commitments are referred to as non-binding agreements, honorable or decency agreements and such obligations are not legally binding, which of course, does not undermine the legal effects of such measures". 8 Soft law is the answer to the difficulties faced by countries to make an international agreement. Making the process of international agreements takes a long time, and requires complicated negotiations to reach an agreement. The concept of "soft law agreement" refers to the agreement and the terms of the agreement that do not set out to create legal obligations, imprecise in language, and flexible in context. 9 In practice, law scholars began to divide international treaties into 2 forms, namely soft law and hard law.
"  precision, and delegation." .10 One of the reasons why the United States rejects the status of the Joint Comprehensive Plan of Action (JCPOA) as an international agreement is because United States believes the JCPOA does not contain a legal obligation for its participants. 11 In addition, the JCPOA is also seen as not meeting the criteria as an international agreement because it was not signed by the participants. The view of the United States shows the tendency that the JCPOA is a soft law. On the other hand, Iran believes that the JCPOA is an international treaty and is binding on the United States through UN Security Council Resolution 2231.
The issue of the JCPOA as an international agreement is hit by several problems. First, from the point of view of its formation, JCPOA participants prefer to use less formal methods than conventional international agreements. Once agreed, the document was not signed by any participants. Based on this, the United States Department of State emphasizes that the JCPOA agreement is a document without signature and not binding under international law.
In fact, a country's consent to be bound by an international treaty can be expressed in various ways under the Vienna Convention 1969. This provision formulated in article 11 which reads: " When referring to the JCPOA text, it cannot be found regarding the provisions governing the way participants are bound to international agreements (consent to be bound). Even though this kind of requirement is important to mark the start of the commitment of the agreement participants. Malcolm N. Shaw stated that, "The consent of the states parties to the treaty in question is a vital factor, since states may (in the absence of a rule being also one of customary law) be bound only by their consent. Treaties are in this sense contracts between states and if they do not receive the consent of the various states, their provisions will not be binding upon them." 13 The next debate is whether the JCPOA meets elements of international agreements. There are at least 2 elements of international agreements that are debated against the JCPOA. The first element is based on the form of the JCPOA instrument. The 1969 Vienna Convention on the Law of Treaties mentions the phrase "whatever its particular designation" in describing international treaties. The 1969 Vienna Convention does not further explain the meaning of the phrase. The Vienna Convention also does not limit its participants to determining the titles of the documents to which they agree.
The name of an international agreement can vary widely, including: "covenant; agreed minutes; charter; notes verbales; memorandum of understanding; convention and agreement". So it is 251 Christopher Valerio Jovan The United States Unilateral Withdrawal from the Restrictions of Iran's Nuclear Program in JCPOA 2015 under International Law possible for Iran and P5 + 1 to establish the Joint Comprehensive Plan of Action as an international agreement. For an example can be seen in the case of Qatar versus Bahrain. The International Court of Justice ruled that, "the Minutes of 25 December 1990, like the exchanges of letters of December 1987, constitute an international agreement creating rights and obligations for the Parties". 14 The element of international agreement that needs to be considered next is the element of "governed by international law". "According to the International Law Commission's Commentary (ILC), the phrase 'governed by international law' embraces the element of an intention to create obligations under international law". 15 This means that the parties to an agreement agree to legally bind themselves to the agreement under international law.
To prove that the element of "governed by international law" is fulfilled, it is necessary to prove the intention of the JCPOA participants. According to the International Court of Justice, the intention is shown by considering "drafting history, the language of the agreement and the circumstances of its conclusion as well as the subsequent practice". 16  Iran's failure to implement the IAEA Additional Protocol. As a result, Iran has been subjected to various sanctions, including sanctions from the United States, sanctions from the European Union, as well as sanctions given through UN Security Council Resolutions. This factor is related to the terms used in the JCPOA. The terms or terminology can be a differentiating factor between international treaties and soft law which do not have binding legal force. For example, the term "wishes, may or intentions are used in non-binding instruments and those such as undertakes or shall are reserved for treaties". 18 The Vienna Convention does not regulate the terms that should be used in international treaties, but the practice of forming international agreements so far describes terms that are often used by the parties in establishing legal obligations. According to Anthony Aust, "On the contrary, using 'will' instead of 'shall', no employment of terms such as 'undertake' and 'agree' or expressions such as 'come into effect' or 'come into operation' and naming the instrument a 'memorandum' or similar titles can imply the intention of creating gentlemen's agreement." 19 JCPOA parties emphasized the use of the term voluntary action. The term appears in several parts of the JCPOA. First, the term voluntary can be found in the JCPOA Preamble and General Provisions which reads: "The International Atomic Energy Agency (IAEA) will be requested to monitor and verify the voluntary nuclear- 17 Ibid.

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Volume 4, Number 2, June 2020 related measures as detailed in this JCPOA." 20 This terminology is also reused in several articles of the JCPOA. On Article 1 of the JCPOA, it says that "Iran will abide by its voluntary commitments, as expressed in its own long-term enrichment and enrichment R & D ..." 21 Next, in Article 15 of the JCPOA, it says that "Iran will allow the IAEA to monitor the implementation of the voluntary measures for their respective durations ". 22 In fact, the provisions of the JCPOA are a reaffirmation of Iran's commitment based on the NPT. This can be found in the Preamble and General Provisions Joint Comprehensive Plan of Action, which reads "Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons". 23 This provision does not create new obligations towards Iran, but rather reaffirms the provisions in the NPT which prohibit Iran as a (Non-Nuclear Weapon States) from developing nuclear weapons.
"Each non-nuclear-weapon State Party to the Treaty undertakes… not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices". 24 In this regard, one of the instruments that can be used as a comparison in the JCPOA case is the 1994 Agreed Framework. Like the JCPOA, the 1994 Agreed Framework is also a nuclear-related agreement. This agreement was signed by North Korea and the United States. Although signed, the 1994 Agreed   26 The final factor that can determine the intention of JCPOA participants is based on the circumstances of its conclusion as well as the subsequent practice. This factor relates to the actions taken by the agreement participants after the instrument was agreed upon. The act of registering international treaties with the UN Secretariat is a good example of 25 Para. (iv) Agreed Framework Of 21 October 1994 Between The United States of America and The Democratic People's Republic of Korea, 1994. 26 Federal Foreign Office, 2019, "E3-/ EU-Statement on JCPOA", https://www.auswaertigesamt.de/en/newsroom/news/e3-eu-statement-onjcpoa/2215416, accessed on 10 th April 2020.

Christopher Valerio Jovan
The United States Unilateral Withdrawal from the Restrictions of Iran's Nuclear Program in JCPOA 2015 under International Law demonstrating the parties' intentions in making international treaties. In the case of the JCPOA, the participants do not register the agreement with the UN Secretariat as stipulated in Article 102 of the UN Charter, which reads: "Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it." 27 Based on the previous explanation, the JCPOA did not meet the criteria as a binding international agreement. German Foreign Minister Michael Roth said that, "The Joint Comprehensive Plan of Action, as the JCPOA is officially called, is not a treaty under international law, but an action plan". 28 Based on these facts, the intention of the JCPOA participants was more towards political agreement and not aimed at making legal obligations.
" about-the-legal-status-of-the-jcpoa-no-more-thansoft-law/, accessed on 9 th of April 2020.   1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) shall be terminated" 31 The UN Security Council basically has a function to maintain international peace and security. 32 This function is shown by the UN Security Council in UN Security Council Resolution 2231. In this resolution, the UN Security Council ensures that Iran's nuclear program is aimed at peaceful and not military purposes, so as to prevent disturbances to international peace and security.
It should be noted that the preliminary provisions in the UN Security Council Resolution explain the scope, object and purpose of the resolution, which in this case is "affirming that full implementation of the JCPOA will contribute to building confidence in the exclusively peaceful nature of Iran's nuclear program". urges its full implementation on the timetable established in the JCPOA". 35 The UN Security Council also asks every member state of the United Nations as well as regional and international organizations to take actions that can support the implementation of the JCPOA. This is stated in the second paragraph of UN Security Council Resolution 2231 which reads: "Calls upon all Members States,  Resolution 2231 does not create an international legal obligation for JCPOA participants. UN Security Council Resolution 2231 is also considered not obliging its member countries to implement the provisions of the JCPOA. Brian Hook stated that "Resolution 2231 did not transform the JCPOA from a nonbinding political arrangement". 39 This problem was raised from the term used by the UN Security Council in this resolution. Terms such as "calls upon, urges, and demands" are not considered to create legal obligations. "It is generally understood that when the Council uses other verbs, such as 'calls upon' or 'urges' or even 'demands', "it is not imposing legally binding obligations". 40 One of the most against that UN Security Council Resolution 2231 creates a legal obligation is John Bellinger (former Legal Adviser for the U.S. Department of State and the National Security Council). John Bellinger rejected the binding power of this resolution based on the terminology used in this resolution. The choice of the term used by the UN Security Council is seen as merely creating voluntary action, because the Security Council has avoided using stronger terms such as mandate or decisions.
" , https://www.state.gov/press-briefing-with-brianhook-special-representative-for-iran-and-senioradvisor-to-the-secretary-of-state/, accessed on 1 st of May 2020. 40 Passblue, 2020, "The United States Has an Explicit Right to Initiate Snapback under United Nations Security Council Resolution 2231", https://www.passblue.com/wpcontent/uploads/2020/08/LEGAL-BRIEF-The-United-text. Another consideration that must be considered is the context and purpose of the resolution. In other words, UN Security Council Resolution 2231 must be viewed in its entirety, from its preamble to its annex, and take into account the subsequent statements and practices of members of the UN Security Council and the countries that are subject to this resolution.
One of the examples about interpretation of the term UN Security Council Resolution can be found in the International Criminal Tribunal for the former Yugoslavia (ICTY). The ICTY emphasizes that a UN Security Council resolution must be interpreted literally and logically. As described by the ICTY as follows: " The International Court of Justice in the Namibia Advisory Opinion 1971, considered that the terms "declares" in paragraph 2 and the terms "calls upon" used in paragraph 5 of UN Security Council Resolution 276 are binding. 45 The International Court of Justice opinion illustrates that the terms used in UN Security Council Resolutions do not automatically limit their binding power. According to the International Court of Justice, it is also necessary to pay attention to circumstances which may help to demonstrate legal obligations. Likewise in the case of UN Security Council Resolution 2231, the use of the term "calls upon" does not limit the legal force of the Security Council Resolution.
" Deal", http://opiniojuris.org/2018/05/21/the-internationalcommunity-and-the-challenge-to-the-rule-of-law-the-The International Court of Justice noted in the Kosovo Advisory Opinion that, "resolutions of the Security Council must be read in conjunction with the general principles set out in annexes". 47 In this case, the JCPOA as an annex of UN Security Council Resolution 2231 cannot be ruled out. Both are instruments that are interrelated with each other. The success of this resolution depends on the implementation of the parties to implement their commitments in the JCPOA.
UN Security Council Resolution 2231 and the JCPOA are sources of binding international law for JCPOA participants. This is based on Article 25 of the UN Charter which states, "the Members of the United Nations agree to accept and carry out the decisions of the Security Council". 48 Although the Security Council was not aimed to be a legislative body, it does have a lawmaking function and its decisions are binding under international law. 49 Based on the explanation above, even though the JCPOA cannot stand alone as an international agreement. However, the presence of UN Security Council Resolution 2231 which adopted the JCPOA created the obligations contained in the JCPOA binding as law. Therefore, based on UN Security Council Resolution 2231, JCPOA participants must comply with the commitments contained in UN Security Council Resolution 2231 and be bound by the obligations arising from the JCPOA. future-of-iran-nuclear-deal/, accessed on 3 rd May 2020.

C. UNILATERAL WITHDRAWAL OF THE UNITED STATES FROM THE JOINT COMPREHENSIVE PLAN OF ACTION ADOPTED BY UN SECURITY COUNCIL RESOLUTION 2231
The issue of US withdrawal from the JCPOA began to emerge since Donald Trump was elected president of the United States in 2016. During the United States presidential election campaign, Donald Trump strongly criticized the JCPOA. After taking office as president of the United States, a new policy of maximum pressure on the Iranian economy was created to force Iran to end its destabilizing activities in the Middle East and to permanently end its missile and nuclear weapons program. The United States has gradually begun to reduce their commitment to the JCPOA. The United States is also seeking to renegotiate the Iran nuclear issue, because the JCPOA is deemed incapable of limiting Iran as a non-nuclear country but only delaying Iran becoming a nuclear state. 50 However, the United States' attempt to renegotiate failed because it did not receive support from other JCPOA participants.
On May 8, 2018, the United States declared its withdrawal from the JCPOA. This was conveyed directly through President Donald Trump's state address at the White House. In his speech it is said "I am announcing today that the United States will withdraw from the Iran nuclear deal". 51 Not long after the presidential speech, Donald Trump signed a presidential memorandum.
Based on the presidential memorandum, the United States not only 50 Paul K. Kerr dan Kenneth Katzman, 2018, "Iran Nuclear Agreement and U.S. Exit", https://fas.org/sgp/crs/nuke/R43333.pdf, accessed on 6 th of April 2020. 51 White House, 2018, "Remarks by President Trump on the Joint Comprehensive Plan of Action", https://www.whitehouse.gov/briefingsstatements/remarks-president-trumpjointcomprehensive-plan-action/, accessed on 6 th of April 2020. 52 Jean Galbraith, "Contemporary Practice of the United States Relating to International Law", The American ended its participation as a participant in the JCPOA, but also reimposed sanctions against Iran that were previously suspended. 52 There are two types of sanctions that the United States has imposed on Iran. The main sanctions are those that apply to activities that have links between Iran and the United States, including transactions involving US citizens or overseas subsidiaries of US companies. 53 Since the United States declared its withdrawal on May 8, 2018, the United States has no longer participated in meetings or activities related to the JCPOA framework.
The second type of sanction is secondary sanctions. Secondary sanctions target foreign legal entities that carry out transactions with Iran. These sanctions have a major impact on various industrial sectors in the world, especially the JCPOA participating countries. For example in Germany, these US sanctions affected major German companies, such as: Volkswagen, Daimler and Siemens. 54 Since the United States declared its withdrawal on May 8 2018, the United States has no longer participated in meetings or activities related to the JCPOA framework.
Based on the JCPOA Preamble and General Provision, the Joint Commission is a commission consisting of P5 + 1 countries and Iran that will monitor the implementation of the JCPOA and will carry out the functions provided in the JCPOA. One of the functions of the Joint Commission is the authority to discuss issues regarding dispute resolution arising from the implementation of the JCPOA. 55 In the case of the United States, it is known that the United States has never brought its dispute with Iran to the Joint  65 Under the provision of the UN Charter, the United States has an obligation to carry out its commitments under the JCPOA which have been adopted by UN Security Council Resolution 2231. "Endorses the JCPOA, and urges its full implementation on the timetable established in the JCPOA". 66 In fact, the UN Security Council has specifically included Article 25 of the UN Charter into UN Security Council Resolution 2231. It is said that, "Underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council's decisions". 67 The JCPOA and UN Security Council Resolution 2231 do not explicitly mention the withdrawal clause. However, by looking

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Volume 4, Number 2, June 2020 at the objectives UN Security Council Resolution 2231, so the United States action clearly contrary to the purpose set by the UN Security Council. The United States itself is a country that is directly involved in the process of drafting and negotiating UN Security Council Resolution 2231. It is the responsibility of the United States to uphold the dignity and authority of the UN Security Council, including implementing UN Security Council Resolution 2231. The United States claims that although it is no longer a JCPOA participant, the United States maintains its status as a "JCPOA participant State". This was done by the United States to return all UN sanctions against Iran (snapback mechanism). This attitude was shown by the United States on August 16, 2020. The United States through Mike Pompeo submitted a letter of application for a "snapback mechanism" to the UN Security Council to return all sanctions against Iran. In addition, the "snapback mechanism" carried out by the United States also did not comply with the provisions in Security Council Resolution 2231, namely through the Joint Commission.
Snapback mechanism in UN Security Council Resolution 2231 can be found in paragraphs 10-15 in the "Application of Provisions of Previous Resolutions" section. This provision can be used if one of the parties in the JCPOA feels that the other party is not fulfilling its obligations. If the Joint Commission fails to resolve the dispute, then one member of the Security Council has 10 days to submit a new resolution to the Council which reaffirms the agreed sanctions lift process. If no member submits such a resolution within 10 days, the Security Council President can do so. 68 In both cases, the Council will have 30 days to debate and approve a resolution 68 Andrea Berger, 2015, "Explaining UN 'Snapback' in the Iran Deal", https://rusi.org/commentary/explainingun-snapback-iran-deal-0, accessed on 6 th of April 2020. 69 Para. 11 of UN Security Council Resolution 2231 Permanent Mission of the Russian Federation to the United Nation, 2020, "Statement by Vassily Nebenzia, mandating the lifting of further sanctions. 69 If permanent members of the UN Security Council fail to reach agreement, the previous sanctions will be reinstated.
The other JCPOA participants strongly rejected the various arguments of the United States. Russia as a member of the JCPOA states that there is no reason for the United States to withdraw its commitment from the JCPOA, because Iran has strictly complied with its obligations which are regularly confirmed by the IAEA. According to Russia, UN Security Council Resolution is an international law and must be implemented by all UN member states. Permanent Representative of Russia to the UN Vassily Nebenzia stated: "US officially pulled out from its resolution 2231 and JCPOA obligations, closed the door behind and engaged in unilateral pressure by reimposing and reinforcing national sanctions against Iran, which are contrary to the aims of both the JCPOA and the resolution 2231." 70 British Prime Minister Theresa May, German Chancellor Angela Merkel and French President Emmanuel Macron issued a joint statement discussing the sustainability of the JCPOA. These countries made sure to keep their commitments in the JCPOA and reminded again that the JCPOA has been ratified through UN Security Council Resolution 2231 which has the force of law.
"This resolution remains the binding international legal framework for the resolution of the dispute about the Iranian nuclear programme. We urge all sides to remain committed to its Permanent Representative of Russia to the UN, at an open VTC of UNSC members under agenda item Non-Proliferation",https://russiaun.ru/en/news/nonprolife ration_300620, accessed on 6 th of April 2020.