Islamabad MoU: a framework for peace or a treaty?

The United States and Iran have entered a 14-point Memorandum of Understanding, also known as Islamabad MoU. While the agreement marks an important diplomatic milestone by breaking years of impasse between the two countries, it should be viewed as an interim confidence-building framework rather than a comprehensive peace settlement. It declares a ceasefire, creates a 60-day negotiating opportunity, and spells out broad principles for addressing contentious issues such as economic sanctions on Iran, the Strait of Hormuz, and Iran's nuclear programme. But most of the thorny issues and questions have been deliberately left for the final determination of the mechanism.

The MoU began with a declaration to immediately and permanently halt military operations on all fronts, including in Lebanon. Both parties vowed not to resort to the threat or use of force against each other. They also committed themselves to respecting each other's sovereignty and territorial integrity. It also provided a wide space for negotiations in order to reach a final agreement within 60 days, with the possibility of extension by mutual consent.

One of the most important operational provisions is regarding maritime security. On the part of the US, there was an undertaking to remove its naval blockade and associated impediments within 30 days. Simultaneously, Iran agreed to restore commercial navigation through the Strait of Hormuz. Iran also agreed to allow commercial vessels to transit the Strait free of charge for 60 days while undertaking demining and removing technical obstacles to navigation. These provisions are vital steps to restore confidence of all using the passage for transportation of a substantial proportion of energy.

The agreement also provided for the important economic commitments. The US committed to issuing waivers permitting Iranian oil exports, banking transactions, insurance, shipping and related commercial activities soon after the implementation of the MoU. It agreed to facilitate access to Iran's frozen financial assets. It also undertook, together with regional partners, the preparation of a reconstruction and economic development programme valued at not less than $300 billion. The detailed mechanisms for implementation will remain deferred until the final agreement.

While evaluating the MoU, the most important clause pertained to Iran's nuclear programme. Iran has reiterated that it would neither acquire nor develop nuclear weapons and also committed that, pending the final agreement, it would maintain the status quo regarding its existing nuclear programme, while the US agreed not to impose new sanctions or deploy additional military forces in the region.

The provision concerning the "disposition of stockpiled enriched nuclear material has intelligently been crafted". The word 'disposition' appears to have intentionally been used. In legal terminology, disposition refers to the agreed legal and physical handling, transfer, settlement or final treatment of property or assets. In other words, it simply means to determine what would ultimately happen to Iran's existing stockpile of enriched uranium.

Viewed from the above perspective, the MoU does not require Iran to surrender its enriched uranium to the US, but it leaves several options open for negotiation. One of the options is that it may remain inside Iran under the watchful eyes of international monitors. Secondly, the uranium may be downblended to lower enrichment levels under the supervision of the International Atomic Energy Agency (IAEA). Thirdly, it may be converted into reactor fuel. As a fourth option, it may eventually be transferred to a neutral third country under an agreed international arrangement. The omission provides flexibility to the negotiators and a face-saving formula.

Another important eye-catching provision is the commitment to respect the territorial sovereignty and integrity of Lebanon. Nevertheless, its practical implementation presents challenges given that Hezbollah is a state within the state. While Lebanon alone is recognised as a sovereign state under international law, Hezbollah is not a party to the MoU. Armed non-state actors are diametrically opposed to the modern concept of sovereignty. How this will be dealt with is a catch-22 situation. From the perspective of US constitutional law, the legal status of the MoU is equally important.

The President of the US, under the Constitution of the country, may negotiate treaties, but these assume constitutional form only after receiving the advice and consent of two-thirds of the Senators present. The present document does not satisfy these constitutional requirements. It why this MoU is to be regarded as an executive agreement or political framework agreement.

Full implementation of many of the provisions of the MoU would also require legal authority. For instance, removal of statutory sanctions often requires congressional legislation unless existing statutes confer presidential waiver authority. Similarly, any commitment to provide approximately $300 billion for reconstruction would necessarily require congressional appropriations. While the President possesses significant constitutional authority as Commander-in-Chief regarding the deployment and withdrawal of armed forces, Congress retains substantial constitutional powers concerning war, appropriations and domestic legislation.

International law distinguishes between legally binding treaties and political commitments according to the intention of the parties rather than the title of the document alone. Whether the Islamabad MoU ultimately creates binding international obligations will therefore depend upon both the language employed and the demonstrated intention of the parties. However, if endorsed by the UNSC in accordance with point fourteen, such an endorsement would strengthen the agreement's international legal standing.

In conclusion, the Islamabad Memorandum of Understanding may be viewed as an important stopgap arrangement but not as a final settlement. It does cover a ceasefire, create mechanisms for confidence building, facilitate economic engagement and outline a framework for resolving the nuclear issue. The most difficult issues - sanctions, the future of Iran's enriched uranium, regional security arrangements, and full implementation of the agreement - needs to be fine-tuned to eliminate ambiguity and prevent violations based on differing interpretations. Till then, let's keep our fingers crossed