Exploring the Application of Estoppel in the Joint Comprehensive Plan of Action

On 14th July 2014, the United States, the United Kingdom, China, Russia, the European Union and Iran brought into being the Joint Comprehensive Plan of Action (JCPOA), colloquially known as the Iran Nuclear Deal. Under the JCPOA, the sanctions levied on Iran due to its nuclear program were to be removed, in the event that Iran significantly diminished its nuclear capabilities. Almost three years later, on 8th May 2018, President Donald Trump expressed unequivocal intention to withdraw the United States from the JCPOA and reimpose sanctions on Iran, primarily due to its ballistic missile program and Iran’s role in conflicts in Yemen and Syria.

President Trump’s decision to withdraw from the JCPOA came in the form of a “decertification” of the agreement under the United States’ Iran Nuclear Agreement Review Act of 2015 (INARA), which specifies the criteria for the same. Although President Trump has stated that the lifting of sanctions was disproportionate to the national security interests of the United States, no credible threat to the same has been proven. Additionally, pre-existing sanctions that have been imposed by the United States on Iran for its ballistic missile program continued to persist even after the negotiation of the JCPOA. However, the primary area of concern is determining whether the withdrawal was legally permissible under international law, or not. Although literature around the JCPOA is divided as to whether it constitutes a binding agreement, this piece aims to analyse the applicability and legal validity of the principle of estoppel in the instant case.

Examining the Bounds of the Principle of Estoppel:

Estoppel has been considered to form a part of general principles of international law, as opined by Professor Ian Brownlie. The application of the principle primarily relies on three conditions: firstly, that there must be certain representations either through statements or conduct, from one party to another; secondly, the party making these representations must do so with the intention of being bound and with the authority to do so; thirdly, the party invoking the principle of estoppel must have changed its position to its detriment, by relying on these representations. The principle is also well established in ICJ jurisprudence, as can be demonstrated by the Nicaragua case and through Judge Ajibola’s opinion in the Territorial Dispute case.

Representations Made by the United States

The most crucial criterion for estoppel to arise is a representation being made by one state to another. According to the Nicaragua case (mentioned above) the representations may be either through conduct, or through declarations made by persons possessing the requisite authority. However, it is crucial to note that since the INARA is a purely domestic legislation, the same would be excluded from the ambit of a representation made by the United States to Iran. In the current scenario, the United States has both directly and indirectly made representations to Iran to the effect that should Iran comply with its agreed-upon commitments under the JCPOA, the nuclear-related sanctions levied upon it would be relaxed. The first such representation is of course the JCPOA itself, under which Iran is to significantly reduce the number of active nuclear plants it has and will limit the number of centrifuges it operates as well as its enrichment of uranium, in exchange for which the United States will withdraw its sanctions. The same was explicitly stated by then-President Barack Obama, on 14th July, 2015 – the same day as the JCPOA’s creation. The JCPOA itself was preceded by the Lausanne Statement made by the European Union’s High Representative alongside the Iranian Foreign Minister on behalf of, inter alia, the United States and the European Union; this statement promised to terminate the United States’ and the European union’s nuclear-related sanctions on Iran post IAEA-verified implementation by Iran of its nuclear commitments. According to Professor Malcolm Shaw’s definition of estoppel, representations extend to situations where a party has consented to the making of a declaration on its behalf. Subsequent to the creation of the JCPOA, a joint statement was released by then-Secretary of State John Kerry and Iranian Foreign Minister Javad Zarif subsequent to the creation of the JCPOA, which noted that Iran had complied with its obligations, and that the United States had lifted its nuclear-related sanctions, as it had “committed to do”. The Lausanne Statement, along with further representations made by the President and the Secretary of State of the United States, not only amount to representations to the world in general and Iran in particular, but also act as endorsements of the JCPOA and thus further solidifies the JCPOA’s already apparent status as a representation by the United States.

Conduct by Iran:

Since the JCPOA’s negotiation, the IAEA has repeatedly pointed out that Iran has been fulfilling its commitments as determined under the agreement; it is a matter of course that Iran is doing this at the very least on the basis of the JCPOA, which is clearly a representation by all the parties to one another. Further, Iran has publicly stated that its continued pursuit of developing a peaceful nuclear program depended heavily on the achievement of a final negotiation with the West, primarily with regard to the removal of sanctions crippling the nation’s economy. It is necessary to note that the JCPOA prevents Iran’s creation of a nuclear weapon by restricting the scope of its nuclear program, which involves placing a limit on the number of centrifuges Iran can install, as well the level to which it can enrich uranium. While these limits not only prevent Iran from acquiring the capacity to build a nuclear weapon, it also significantly inhibits the scope and effectiveness of its civilian nuclear program. Iran has therefore relied on the United States’ representations, extending but not limited to the JCPOA, to its detriment in terms of even its civilian nuclear program. The final element for the application of estoppel is therefore fulfilled in the instant case.

In conclusion, it appears that all the elements of the principle of estoppel have been fulfilled in this case. Therefore, it can clearly be said that any attempt by the United States’ to withdraw from the JCPOA is barred under International law by the well-established principle of estoppel, and is thus unlawful.