How Iran’s Response to Multiple Breaches by the JCPOA Parties Is In-Line with International Law-Sadra Pirniakan

Sadra Pirniakan – Ph.D. Candidate at Tarbiat Modares University in International Trade and Investment Law
2025/08/04

The Joint Comprehensive Plan of Action [“JCPOA”] was adopted in 2015, by Iran and the so-called 5 1 group of countries. Due to the importance of this document, as well as the legal necessity of handling the regime of international sanctions placed on the Islamic Republic, the United Nations Security Council unanimously adopted Resolution 2231, officially endorsing this diplomatic milestone by the Parties to the JCPOA.

Although many have placed doubt as to existence of the JCPOA as a Treaty, making it governed by the rules and principles of the law of treaties, one could take a more detailed view; as officially presented in the UN’s explanation of the 2231, “…Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions”.

Thus, as can be seen, the endorsement of the JCPOA by the Council is not without its perks. If all UN Member States, including the Parties to the JCPOA, have an obligation to take “…actions commensurate with the implementation plan set out in the JCPOA and this resolution and by refraining from actions that undermine implementation of commitments under the JCPOA”, the Council has created an international obligation for them to honour the commitments therein; at least until the day the JCPOA is standing.

With this introduction, the following sections will revolve around the first breach of this obligation, and the actions that ensued.

The Importance of Understanding the “Proper” Time-Line of Events

Following the 2016 election in the United States of America, and the commencement of the Trump presidency, doubts began to appear as to the continuance of the US’s willingness to honour its obligations.

As followed, on 8 May 2018, the Trump administration announced its unwillingness to honour the said obligations, and that the US is “…Ending [its] Participation in an Unacceptable Iran Deal”, since it “was one of the worst and most one-sided transactions the United States has ever entered into”. This is despite the fact that many analysts, prior to the withdrawal of the US, called for a similar deal with North Korea, as “An Iran-Style Nuclear Deal with North Korea Is the Best America Can Hope For”.

It is all the more interesting, that even in the announcement of the Trump administration on the withdrawal from the JCPOA, they did not invoke an Iranian breach. One of the reasons invoked by the US, instead of justifying the withdrawal, has an exact opposite effect. For them, the JCPOA “enriched the Iranian regime and enabled its malign behavior, while at best delaying its ability to pursue nuclear weapons and allowing it to preserve nuclear research and development”. I would like to place an emphasis on the last part of the quoted text: “…allowing it to preserve nuclear research and development”. Being under the scrutiny of the IAEA at the time, Iran, via the explicit reference of the JCPOA, was completely allowed to do so.

According to the preface of the JCPOA, “Iran envisions that this JCPOA will allow it to move forward with an exclusively peaceful, indigenous nuclear programme, in line with scientific and economic considerations, in accordance with the JCPOA, and with a view to building confidence and encouraging international cooperation. In this context, the initial mutually determined limitations described in this JCPOA will be followed by a gradual evolution, at a reasonable pace, of Iran’s peaceful nuclear programme, including its enrichment activities, to a commercial programme for exclusively peaceful purposes, consistent with international non-proliferation norms”.

It seems obvious that what the Trump administration invoked, is flawed. Other reasons invoked in the statement of the administration reveals their disregard to the raison detre behind their obligation under international law. JCPOA, and the obligations under the Resolution 2231 were meant to settle the “Iranian nuclear issue”, not all of the policy differences between the US and Iran.

Breach of the Provisions of the JCPOA

As stated above, the United States via its 8 May Measures, breached its obligation under Resolution 2231.

The obligation to refrain “from actions that undermine implementation of commitments under the JCPOA” was breached. One could invoke the “inadimplenti non est adimplendum” and argue that, the parties to the JCPOA cannot contend Iran’s response to the withdrawal, and use the “weapon” in the Article 18 of JCPOA’s Annex V, to namely, subject Iran “to re-imposition in the event of significant non-performance by Iran of JCPOA commitments" .

As will be discussed further in the next section, it seems that Iran has resorted to “countermeasures”, a means permissible under international law, in order to bring back the violating States/States into following their international obligations, created by the Security Council.

“Countermeasures” Adopted by Iran in Response to Such Breaches

The Articles on Responsibility of States for Internationally Wrongful Acts, or ARSIWA in short, is a document by the International Law Commission, which has codified, in most part, the law applicable to international responsibility of States.

Under Article 49(1) of ARSIWA, the object of taking a countermeasure by an injured State, is to induce the responsible State into complying with its obligation. However, not all actions are permissible; only those that allow for “resumption of performance of the obligation in question”, as enshrined in paragraph 3 of the same Article may be taken. Iran’s response in increasing the levels of enrichment follows this approach.

Even more importantly, Iran has also followed its obligations under Article 50 of the ARSIWA; Iran’s countermeasure has not been in the areas forbidden and prohibited under international law. Namely, Iran has not resorted to threat, or use of force; as well as fundamental human rights, reprisals, and peremptory norms.

Quite the opposite, in fact. The US bombardment of the Iranian nuclear facilities, in the midst of the Israeli/American aggression has not stopped Iranian policy-makers from following their obligations under international law. Iranian response to the original violations in 2018, and the aggression that followed, remains to be in-line with Article 51 of ARSIWA; i.e. proportionality, and being commensurate with the injury suffered.

Snap-back, European States, Full Disregard for Reality and Common Sense

Understanding the “proper” timeline of events allowed us to not only comprehend the past couple year’s ups and downs in the JCPOA’s rocky history, but also the Iranian response to such breaches. We gathered that whilst Iran’s response seems to follow the law of state responsibility, the other Parties’ positions is in full disregard of the facts; and hence, international law.

Since the three European States (Germany, France and the UK, or E3 in short) had long threatened the resort to the “snap-back” mechanism, and since the US’s position is clear, this section will analyse the facts and law surrounding that.

Before we continue, however, we need to quickly glance over the accepted definitions of primary and secondary sanctions, as these are used in the following sections.

Primary sanctions, in the most basic sense, are those measures applied when States impose “economic sanctions by subjecting to the relevant law’s binding force their own subjects – legal entities and natural persons registered in the relevant jurisdiction or being their own citizens, as well as citizens of other countries present within the relevant jurisdiction when sanctions-related activity is conducted”. (here, page 64). This means that “US primary sanctions are not addressed to non-US persons, and EU primary sanctions are not addressed to non-EU persons”. (ibid)

In this sense, when an activity has a sufficient nexus to the sanctioned entity, the primary sanction becomes applicable. For example, when X conducts business with Y, both of which are located outside the US, are not bound by US’s primary sanctions, but the transaction is in USD, the “sufficient nexus” with the US is present since “the wire transfer have [sic] to be cleared by involving at least one US financial institution”. (here, page 67) Hence, although the situation looks like an extraterritorial application of sanctions, it remains to be a primary one. The EU has a similar application of its primary sanctions, but rather than being based on currency, “part of the business” has to be carried out in the Union, should the primary sanction apply. (here, page 68)

To understand secondary sanctions, we could follow use the logic of the example given above. Here, “whilst the settlement of a wire transfer in USD within the US clearing system creates a nexus to US primary sanctions, the same wire transfer denominated not in USD but in EUR – lacking the involvement of a US clearing bank and thus of a US person – does not create such nexus but may be subject to US secondary sanctions”. (here, page 69)

The extraterritorial application of US’s secondary sanctions is not a policy the EU (or the rest of the world) finds acceptable. To that end, the so-called “EU Blocking Regulation” was adopted in 1996 (amended in 2003, 2014 and 2018) so as to protect European interest “against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom”. (here, Title, Preamble)

However, there seems to be a loophole, as the European Commission, in August 2018, (merely months after the 8 May Measures) stated that “EU operators are free to conduct their business as they see fit in accordance with EU law and national applicable laws. This means that they arefree to choose whetherto start working,  continue, or cease business operations in Iran or Cuba, and whether to engage or not in an economic sector on the basis of their assessment of the economic situation. The purpose of the Blocking Statute is exactly to ensure that such business decisions remain free, i.e., are not forced upon EU operators by the listed extra-territorial legislation, which the Union law does not recognize as applicable to them.” (here, page 90)

It seems that the European Commission, instead of properly addressing the over-compliance of many EU entities, has chosen the “free-market” route; such entities remain “free” to choose their area of business. However, this “free decision” is clearly undermined by the fact that “[by] imposing secondary sanctions against individuals and businesses in third states, the sanctioning state is seeking to impose its foreign, trade and sanctions policy on third-state nationals not directly involved in the dispute between itself and the target state. It is therefore attempting to undermine that third state’s sovereign right to decide with whom it wishes its businesses and citizens to trade with.” (here, page 129) As such, these entities and individuals would be penalised for exactly what the “EU Blocking Regulation” was trying to prevent.

With this long explanation out the way, we need to now go back to the JCPOA, and the possible resort to the “snap-back” by the three European States. Iran’s Foreign Minister, in an op-ed in France’s Le Point, rightly emphasised that "The economic benefits promised under the JCPOA never materialized, as European companies preferred to comply with US sanctions rather than meet their government's commitments". Although one might criticise this point from the “free-market” standpoint expressed by the European Commission in August 2018 (quoted above), we can see that third States’ sovereign right (here, European ones) are clearly violated.

The European companies’ decision to withdraw from Iran’s economy was not made in a free manner. They had only one choice; exit Iran’s market, or have fate similar to Meng Whanzhou (here, page 129), Reza Zarrab (here, page 130), ZTE, HSBC, etc.

Some academics have emphasised the EU businesses decision to avoid doing business with Iran rooted in other actions by Iran, and such had long been in the “compliance policy” of those companies. (here, page 89) However, they tend to over-look one major fact: If one is threatened with either prison-time, or billion-dollar fines, they tend to “take the easy way” and avoid doing business with that country altogether. This can be easily seen in the case filed by the Islamic Republic of Iran against the United States, the Alleged Violation of the Treaty of Amity currently pending before the ICJ, where the Applicant has provided a considerable number of records proving exactly that. (here, Annex 156-185)

To sum up, the European Commission by downplaying the necessity of adherence to the “EU Blocking Regulation”, as well as its own obligation under international law (as described above, regarding the UNSC Resolution) facilitated the US’s violation of its commitments. These consequences, taken as a whole, led to the taking of countermeasures prescribed under the law of state responsibility, so as to induce all State Parties to the JCPOA into complying with their obligations.

In disregard of all that has been stated either in this section, or this Note, the European States (E3) seek to walk back from an already made (albeit faulty) conclusion, and that is, Iran has violated the JCPOA’s provisions, and they are capable of triggering the snapback mechanism, envisaged under Article 18 of JCPOA’s Annex V.

Conclusion

As explained above, the resort to Article 18 of the JCPOA due to the “non-performance by Iran of JCPOA commitments” by either the US (a non-Party to the JCPOA, per the withdrawal back in 2018) and the E3 would be in total disregard of reality.

Article 18 of Annex V could only be invoked in one instance: In a parallel universe, where the JCPOA encounters no hurdles in its implementation from day one, continues to survive even after ups and downs in politics of a particular Party to the JCPOA, all Member States of the UN refrain from sabotaging international peace, but the Iran of that universe decides to violate its obligation. In that event, and in that event only, could the E3 of that universe invoke Article 18, and fire the snap-back bullet towards the non-performer State. That parallel universe, remains what it is; a parallel universe. In our reality, those that breached their obligations towards Iran, may not invoke the articles from the very same document they almost destroyed.