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Legal Matters

Legal expert: US can be taken to court for abandoning JCPOA

New Delhi, A distinguished Indian legal expert believes that India and other concerned nations can take the US to the International Court of Justice (ICJ) and the World Trade Organization (WTO) for its unilateral pulling out of the Iranian nuclear deal.

Legally, India can and should protest the US' pulling out of the Iranian nuclear deal. Raising the legal disputes is within the framework of the international laws and India should take the lead in protesting against the unilateral action by the US and make Washington answerable, said Piyush Joshi, a senior lawyer practicing in Supreme Court of India.

Speaking in an exclusive interview with IRNA here on the illegal aspects of the US pulling out of the Iranian nuclear deal, he said, India could also file a case in the appropriate US Courts, challenging the US unilateral violation of an international law and, thereby, inflicting a massive damage to its economy.

India may also consider enacting its own international economic law to take action under the Indian courts against any foreign governments that cause economic harm to its economy through violation of an international law.

Elaborating on the Iranian nuclear agreement, the seasoned expert of the International laws said: The Joint Comprehensive Plan of Action (JCPOA) was executed on July 14, 2015 between Iran, the five permanent members of the UN Security Council (China, France, Russia, United Kingdom, and the United States) and Germany. Then, the UN Security Council endorsed it through adopting unanimously the Resolution No. 2231 of 2015. This resolution terminated the provisions of the previous UN Security Council resolutions for imposing certain restrictions on Iran and applicable on all the UN member states. According to Article 25 of the UN's Charter, UN member states are obligated to accept and carry out the UN Security Council's decision. Hence, the decisions of the UN Security Council become part of international laws.

Thus, the Resolution 2235 of 2015 changed a political agreement between Iran and the world powers into legal obligations, it is to be respected by all under the UN's Charter. In fact, the Resolution 2231 of 2015 specifically calls upon all the UN member states to take appropriate actions in support of the JCPOA, including refraining from doing any action to undermine the implementation of same, the co-founder of a Law Associates group in New Delhi noted.

Even outside the UN's Charter, the JCPOA is clearly a treaty governed by the Vienna Convention, making it compulsory for the signatory member states to implement it in a good faith Joshi added.

Terming the US pulling out of the Iranian nuclear deal as a clear violation of the UN Resolution no 2231, Mr. Joshi said: Since December 2016, the US government had been trying to weaken the JCPOA, which, in itself, was a violation of the UN Security Council Resolution no. 2231. Also, under the UN Security Council Resolution, withdrawal from JCPOA and re-imposition of sanctions is possible only on the basis of significant non-compliance. Although the term significant non-compliance has not been defined, it would still need some basis for a member to claim that a significant non-compliance has in fact occurred.

On May 8, the US President Donald Trump announced a unilateral withdrawal from the JCPOA and he directed the various US agencies to re-impose sanctions on Iran. The statement issued by the White House provided no concrete reasons, other than claiming that JCPOA failed to protect America's national security interests, said the Indian expert, adding the US also claimed that Iran has been using the money obtained from its economic activity under the JCPOA to fund its military build-up and help its terrorist proxies such as Hezbollah and Hamas.

'None of the other members of the UN Security Council have endorsed this view. The said treaty, is therefore, still very much part of the international law and also binding on all members under the framework of the UN Charter, the senior member of the Indian Supreme Court stated.

By the unilateral withdrawal, the US has closely aligned itself with Israel and Saudi Arabia. The US has also repealed its domestic laws that had been enacted to implement the JCPOA and has, instead, enacted a domestic law triggering the wind down of the US entities that had obtained permissions under the JCPOA regime to engage in business activates in Iran.

The JCPOA had resulted in lifting of sanctions on Iran, paving the way for the oil companies to import oil from the Islamic Republic. India presently imports 10.4 percent of its total quantity of imported crude oil from Iran.

To a question on the possible impact of the US pulling out of the Iranian nuclear deal on India, Joshi said: The so called wind down period, applied by the US under its domestic laws, will end on November 4 and Indian companies including Bharat Petroleum Corporation Limited (BPCL), Hindustan Petroleum Corporation Limited (HPCL), Indian Oil Corporation Limited (IOCL), Reliance and the Gas Authority of India Limited (GAIL) will all have to stop their engagement with Iran including importing and refining of crude oil or face actions from the US government. The economic impact of shifting of 10.4% of crude import from reasonably priced oil from Iran to other international sources will be substantial. For every $1 increase in crude oil prices, the impact on India is likely to be around $1 billion.

India would have to shift from reasonably priced Iranian crude to more expensive Saudi crude, apart from having to address various national security concerns.

Joshi added, The options that should be explored are: First, a Dispute before International Court of Justice. This is possible as both India and USA are both members of the ICJ. This issue is clearly an issue relating to not only violation of the Security Council Resolution 2231 (2015) and JCPOA, but also issue of interpretation of treaty (namely JCPOA) and the requirement of a country to compensate the other for what is clearly an intentional violation of international law so as to cover the increased costs and damages that would be directly borne by India as a result of the same; Second, a Dispute before the WTO; and Third, action Before the US Courts. India can also consider filing in the appropriate US Courts, a tortious claim against United States Government for issues arising in relation to the unilateral violation of the applicable framework of international trade and consequential economic damage to India.

Source: Islamic Republic News Agency - IRNA

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