Making peace is more difficult than starting wars. President Donald Trump has found this to be painfully true over the past months.
Now that a ceasefire arrangement, or memorandum of understanding (MoU), has been made public, it is possible to measure what has been agreed against the standards of international law and practice.
The 14-point document accommodates virtually the full catalogue of Iranian demands, which would have seemed entirely unrealistic when made during the active conflict. The US is losing its key pressure points, whether economic or military. And Iran’s nuclear obligations are yet to be determined. Other war aims, like stopping Iranian support for proxy forces, do not feature in the instrument.
But is this a legally binding agreement at all? An MoU can be a political or a legal undertaking. But a formal treaty would require advice and consent from the US Senate. In its opening sentence, the MoU confirms that the US and Iran ‘have jointly agreed,’ which might suggest an informal legal agreement – one which rests on ‘good faith’. This is probably as far as the sides could go to avoid giving the impression of a formal treaty, while indicating their intention to comply.
The sides commit to negotiating a ‘final deal’ – not exactly a technical legal term for a comprehensive peace settlement – within a maximum of 60 days. The ‘final deal’ is to be endorsed by a ‘binding’ resolution of the UN Security Council. This would compensate for the ambiguous legal nature of any final settlement by confirming that its legally binding character will ultimately emanate from the UN Charter.
But the Trump administration and Iran have shown contempt for the UN Charter: The US attacked Iran without permissible cause and assassinated much of its leadership; Iran attacked its neighbours – non belligerents – and closed the Strait of Hormuz. It has also massacred thousands of its own citizens. How seriously can an agreement between such parties be taken? And what does the MoU tell us about the state of international law?
How will peace be maintained?
Parts of the memorandum cover the initial period of 60 days until the final deal is reached. However, many of its provisions are permanent.
This includes the declaration of a ‘permanent’ termination of military operations on all fronts, which is not contingent on achieving the final deal. There is also a pledge by the parties not to initiate any war or military operation against each other in the future.
By doing so, the sides are restoring the obligation under the UN Charter that prohibits the threat or use of force among states other than in self-defence. This undertaking is to be ‘confirmed’ in the final deal – though Iran will have little faith in US commitments, having been attacked twice over the past year.
The MoU promises that the US will not deploy additional forces to the region, thus renouncing further threats of force to enforce the final deal. Indeed, it will remove ‘its forces from the proximity’ of Iran within 30 days after the final deal. How does this relate to US deployments in the region? Presumably it includes naval assets, but how about its Gulf military bases, and what precisely lies within the ‘proximity’ of Iran? But, by accepting that its deployments of whichever kind will be limited in deference to Iranian security concerns, the US has made a major concession.
The MoU also extends beyond the US and Iran, as it references their ‘allies in the current war.’ This would exclude further Israeli strikes against Iran. Israel, not a party to the deal, must also refrain from the use of force against Lebanon and respect its territorial integrity. Such restraint by Israel looks unlikely, rendering this provision a permanent, destabilizing element in the deal.
The US also expressly undertakes to refrain from interfering in the internal affairs of Iran as required by international law – another rather extraordinary turn of events, given President Trump’s encouragement of a popular revolt in February.
Can Iran charge fees for passage of the Strait of Hormuz?
In the memorandum the US pledges to remove its naval blockade of Iranian harbours within 30 days. During that period, Iran will restore traffic through the Strait of Hormuz to pre-war levels. The troublesome element arises afterwards: the MoU obliges Iran to use ‘its best efforts’ to allow the safe passage of commercial vessels with no charge for 60 days only.
Beyond that, the instrument could entitle Iran to define the ‘future administration of maritime services’ in the Strait of Hormuz in dialogue with Oman. This can be seen as an implied licence for Iran and Oman to impose a fee for the administration of passage.
It is accepted in international law that countries bordering straits that require complex navigation or are subject to a special treaty regime can charge modest fees to cover pilotage charges or the cost of maintaining navigations aids.
However, there were no fees charged for maritime services relating to the Strait of Hormuz before the war. And no needs for additional services have arisen since.
Yet the MoU implies that Iran may begin collecting a disguised toll after all. This would further dilute the firm obligation in international law that coastal states must not interfere with maritime traffic through straits used for international navigation.
Does the memorandum oblige Iran to abandon nuclear weapons?
The US will now immediately lift restrictions on Iranian oil exports and associated services, allowing vast income to flow into the Islamic Republic. The US also pledges to lift all sanctions according to a schedule to be agreed in the final deal. There is also provision for early work on releasing Iranian frozen assets.
Short of the option of threatening or using force again, or re-instituting a blockade, which the US has now disowned, this prospect alone seems to be the incentive for Iran to abandon plans for a nuclear weapon – supposedly the principal war aim of the US.
Iran pledges in the memorandum that it will not acquire nuclear weapons. But this is no achievement – that has been its formal position for many years.
The US opened the negotiations demanding that Iran must surrender all highly enriched nuclear material for treatment abroad. But according to the MoU, the material may now be down-blended in Iran under the supervision of the International Atomic Energy Agency (IAEA).
The US had also wanted Iran to renounce future nuclear enrichment for several decades. This is now to be discussed in view of ‘Iran’s nuclear needs’ – hardly a pointer towards total abandonment of enrichment.
Is this a real agreement then?
Has the Trump administration really embraced the UN principle that the use of force must not be used to settle international differences? It seems unlikely: the president threatened to attack Iran again on signing the agreement.
It is possible to conclude that the MoU is more of a face-saving device, with the purpose of allowing the Iranian military to accept a deal. Many US commitments to restoring compliance with key obligations under international law in relation to Iran are words only. If so, there is in fact little agreement and there seems little prospect the gaps in the MoU can be filled over the next 60 days.
Much is left impossibly vague. This lack of detail is already creating political problems in Washington and among US allies, particularly the $300 billion the MoU allocates ‘for the reconstruction and economic development of Iran’. Where will this money be collected, and from whom?
Moreover, the MoU relies on the agreement of others not involved in it. Sanctions relief beyond the US requires agreement from the UN Security Council and from the European Union. Frozen Iranian assets are held in many jurisdictions beyond the US. Peace in Lebanon relies on compliance from Israel, when ties appear strained.
Perhaps most importantly, the MoU requires the IAEA to arrange for the supervision of Iran’s nuclear programme. This is an independent agency loosely within the ambit of the UN – precisely the kind of multilateral institution the Trump administration distrusts.
Ironically, to extricate itself from its war, the US has been forced back into reliance on international cooperation and the institutions of the international system. And it is being forced to accept, at least nominally, the principles of the international order it had cast aside.
After January’s forcible extraction of President Maduro from Venezuela, it may have seemed to the president that force was once again a useful tool. But this memorandum suggests war is every bit as undesirable as the founders of the UN system believed.