Case Study – Sources of International Law, ‘Non-binding’ agreements & Treaties

Abstract

International agreements are frequently entered into by sovereign States and international organisations. Whilst many of them are formal treaties and thus have binding effect, others do not fit into this category and thereby remain non-binding agreements. This often leads to a great deal of dispute resolution procedures taking place since it is generally quite difficult to determine whether an agreement is binding or not. Using Iran as a case study, an agreement that has recently been entered into will be reviewed in order to determine its legal effects and consequences.

Introduction

A Treaty is a written agreement that has been entered into by international law actors, such as international organisations and sovereign States. A Treaty is thus a type of contract that allows parties to voluntary enter into the agreement in order to be bound by its terms (Fitzmaurice and Elias, 2005: 10). Accordingly, treaties are “the only way States can create international law consciously” (Dixon, 2007: 26) and may either be bilateral or multilateral. The legal status of the agreement between Germany and the five permanent members of the Security Council (SC) and Iran will be reviewed in order to consider its legal status, whether it is binding and whether it will prevail over previously SC resolutions. The equality of States doctrine will also be considered in order to establish whether it is workable in practice.

The legal status of this agreement. Is this a TreatyWhy?

The ‘Treaty of Non-Proliferation of Nuclear Weapons’ is a multilateral Treaty that opened for signatory at London, Moscow and Washington on the 1st July 1968 and entered into force on the 5th March 1970. The TTreaty currently has 190 State Parties, 93 signatories and 4 Depositary Governments(UN, 1968: 1). Under this Treaty Iran has been able to develop a nuclear programme that has been regarded suspicious by many other countries (Kerr, 2013: 2). Despite this Iran has persistently claimed that the peaceful nature of its activities aimed to develop nuclear energy. Consequently, Iran has thus entered into an agreement with the Security Council and Germany in order to put an end to all sanctions being inflicted upon them. Whether this will arouse further suspicion is arguably, yet the agreement, also known as the ‘Joint Action Plan’, is also a ‘Treaty’ in that it imposes obligations upon the State parties; Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia) (1998) 37 ILM 162. Furthermore, because this is a legally binding agreement between the State parties that has been created by two or more subjects of international law, it can be recognised as having Treaty status.

Under the 1969 Vienna Convention on the Law of Treaties all States have the capacity to make treaties. This can be made available to the SC under Article 43 (3) of the UN Charter. Again, this further indicates how this agreement is capable of being a Treaty (Hollis, 2012: 75). Nevertheless, the parties to the agreement must intend for it to be binding at international law (Villiger, 1985: 35). This does appear to be the case given that the agreement contains a unilateral Statement because as was confirmed by the International Court of Justice (ICJ) in Australia v France, New Zealand v France 1974 ICJ Rep 253; unilateral statements of States are legally binding in appropriate circumstances. The legal status of this agreement is that it is therefore a Treaty and legally binding. As such, Iran will no longer be sanctioned for developing a nuclear programme, which they claim to be for peaceful purposes.

Are Resolutions of the SC sources of International Law/Binding?

Resolutions of the SC generally have binding effect; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding SC Resolution 276 (1970) Advisory Opinion of 21 June 1971, although there has been some focus by the ICJ on their other effects, such as authorising effect and (dis)empowering effect (Basak, 1969: 385). The effect of the resolution will, nonetheless, depend entirely on its type . This is because a SC resolution may either be a recommendation or a decision, which are not clearly defined in the Charter. As a result, it is often difficult to determine the legal effects of such resolutions (Johnson, 1955: 107), however the Court generally refers to binding resolutions as decisions and non-binding resolutions as recommendations; Certain Expenses of the United Nations (Article 17, Paragraph 2 of the Charter) [1962] ICJ Rep 151, at 163.

SC resolutions resolution are binding if they create obligations on its recipients and if they are made under Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Agression). Since the ‘Joint Action Plan’ agreement imposes obligations on its State parties and contains a threat to the peace, it is likely that this will again render it a binding resolution. However, it has been pointed out by Hollis that the agreement is not binding on the basis that it “implies something aspirational rather than required.”(Hollis, 2013: 1). This is evident from the wording; “The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful (Geneva, 2014: 1). Therefore, whilst it seems that the agreement is a legally binding resolution, the fact that only recommendations are being made may suggest that it is not and sceptics have argued that the plan is “just a false front for the Iranians in order to have sanctions lifted” (Midwest Diplomacy, 2013: 1). Therefore, although SC sources of international law are binding, it has been questioned whether Iran should be provided with the ability to develop their nuclear programme even further as this could have disastrous effects (Zand, 2014: 1).

In case of conflict between this agreement and previous SC Resolutions which one should prevail?

The determination as to whether SC decisions possess an overriding binding effect will be determined on a case by case basis. However, it is usually the case that SC recommendations will not have an overriding binding effect; Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aeriel Incident at Lockerbie (Libya v UK) Preliminary Objection [1998] ICJ Rep 9, at 26, whilst SC decisions will; Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174. Therefore, if the ‘Joint Action Plan’ is merely a recommendation then this will not be binding and will therefore not prevail over previous SC Resolutions. If the agreement is a decision, however, then it will be prevail as it will have a binding effect. In Lockbie, Provisional Measures [1992] ICJ Rep 3 it was held by the ICJ that pre-empting obligations that flow from traditional sources of international law can be overridden by the normative powers of the SC in order to ensure that peace and security is maintained, yet the binding effect of resolutions will depend on their language, the discussions leading up to it and the provisions of the Charter being invoked (Oberg, 2005: 879). In Application for Review of Judgment no. 273 of the United Nations Administrative Tribunal (‘Mortished affair’) [1982] ICJ Rep 325 Resolution 34/165 reversed the prior decision in Resolution 33/119 in order to avoid two incompatible legal effects co-existing. Therefore, because SC Resolutions 1696 (2006) of 21 July 2006 and 1737 (2006) of 26 December 2006 will be incompatible with the new agreement, they may be reversed if the new agreement has an overriding binding effect. This is highly beneficial for Iran since they deemed the previous resolutions unfair on the basis that they had received different treatment to other States.

Comment on the parties of this agreement. What does it say about the equality of States in practice?

The doctrine of equality of States covers both legal equality and political equality. Legal equality deals with the legal relations that exist between States, whilst political equality deals with the distribution of economic and military power between States. Because Iran appears to have been given exceptional powers under the new agreement, it is likely that these new powers will be considered contrary to this principle. This is because Iran is effectively being given additional powers to control its nuclear program and is also being protected from any sanctions imposed by other States. As the doctrine seeks to ensure that all States are treated equally under international law, States ought to have the same rights and responsibilities as each other (Kelsen, 1952: 156). As this is not being effectuated under this agreement, it is clear that this principle is being contravened. Nevertheless, there is an exception to the doctrine in cases where there has been a ‘breach of the peace’ or an ‘act of aggression’ that threatened international peace and security. Therefore, because Iran has stated that they aimed to develop nuclear energy for peaceful purposes, the violation of this doctrine will be permitted (Nahar, 2005: 1). This agreement thereby illustrates that the equality of States doctrine may not actually be workable in practice since the doctrine may be contravened if the aim is to maintain international peace and security.

Conclusion

Overall, it appears as though Iran’s agreement with the SC and Germany is a Treaty and will therefore have binding effect. This is because the agreement has been made purely to maintain peace and security. Although Iran’s activities have been met with some suspicion over the years, they have continued to state that the peaceful nature of their activities merely aimed to develop nuclear energy. As this agreement does appear to be a Treaty, it is likely that it will be capable of prevailing over previous SC resolutions. This is welcoming for Iran who were subjected to unfairness as a result of resolutions 1696 and 1737, although not all would agree with this decision. Hence, many would argued that the agreement conflicts with the equality of States doctrine. Nevertheless, because Iran have stated that they are acting in the interests of national security, the doctrine will be capable of being breached. Accordingly, the Doctrine is therefore not always workable and in this instance, Iran are being treated more favourably than other States.

References

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Dixon, M. (2007) Textbook on International Law, London, Oxford University Press.

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Hollis, D. B. (2012) The Oxford Guide to Treaties, London, Oxford University Press.

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Kerr, P. K. (2013) ‘Iran’s Nuclear Program: Tehran’s Compliance with International Obligations’ Congressional Research Service, CRS Report, R40094.

Oberg, M. D. (2005) ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ European Journal of International Law, Volume 16, Issue 5.

Midwest Diplomacy. (2013) ‘Understanding Iran and the Nuclear ‘Joint Plan of Action’ [Online], Available: http://egiuliani.wordpress.com/2013/11/24/understanding-iran-and-the-nuclear-joint-plan-of-action/ [14 January 2014].

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(1968) ‘Treaty on the Non-Proliferation of Nuclear Weapons’ Multilateral, [Online], Available: https://treaties.un.org/doc/Publication/UNTS/Volume%20729/volume-729-I-10485-English.pdf [13 January, 2014].

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Zand, L. (2014) ‘Organisations Warn Senate Against New Iran Sanctions’ Fellowship of Reconciliation, [Online], Available: http://forusa.org/blogs/leila-zand/62-organizations-warn-senate-against-new-iran-sanctions/12813 [20 January, 2014].