NATIONAL SECURITY & DEFENSE
How the
U.S. Could End the Iran Nuclear Deal Once and for All
https://www.nationalreview.com/2020/04/how-the-u-s-could-end-the-iran-nuclear-deal-once-and-for-all/
By JAMES S. ROBBINS
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April 28, 2020 4:59 PM
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Flag in front of Iran’s Foreign
Ministry building in Tehran (Morteza Nikoubazl/Reuters)Though the
Trump administration has already withdrawn from the deal, there is still a
clear path to scuttling it at the U.N.
Is the United States still
a participant in the Iran nuclear deal? Well, yes and no.
The U.S.
is seeking to maintain an
international conventional-arms embargo on Iran that’s set to expire in
October.
The embargo was included in the enabling resolutions
that the United Nations Security Council passed as part of the 2015 Joint
Comprehensive Plan of Action (JCPOA), otherwise known as the Iran nuclear deal.
.
Its restrictions on small-arms sales to Iran expire
this year, with its ban on the sale of missile parts and other weapons
extending another three years.
The State
Department is promoting a new Security Council resolution that would extend the
embargo indefinitely, which is certain to face opposition from Russia or China,
both of whom have veto power.
It would be smarter to simply activate the “snapback”
mechanism in the JCPOA, restoring the entire pre-agreement U.N. sanctions
regime and killing the deal for good.
Critics might
object that President Trump withdrew the United States from the JCPOA two years
ago, so Washington has no standing to engage its snapback provision. But it’s
not that simple.
The Obama
administration could have tried to craft a binding, entirely self-contained
multilateral treaty, which would be more clear-cut — a country would either be
a signatory to the treaty or not.
But Obama’s team knew it lacked the influence to
craft a deal that the U.S. Senate would approve as a formal treaty, or even the
minimal political clout to change the existing sanctions regime.
So instead negotiators
came up with what amounted to an executive agreement to use temporary loopholes
in existing U.S. law to lift American sanctions, and crafted an omnibus
104-page Security Council resolution, UNSCR 2231, to clean things up on
the U.N. side.
And whatever the status
of the JCPOA, UNSCR 2231 is still operative, and the United States, as a U.N.
member state, is still a participant in it.
There are several ways in which
the JCPOA can self-destruct under UNSCR 2231.
Article 26 tells us that
Iran would consider the re-introduction of sanctions “as grounds to cease
performing its commitments under this JCPOA in whole or in part.”
The United States has
already re-imposed sanctions, and Iran has been enriching uranium well beyond
the limits of the agreement, meaning both conditions for the deal’s destruction
have been met.
Article 10, meanwhile, notes
one means of resolution, in which any “JCPOA participant State” can bring a
complaint.
Critics claim this means
that the U.S. can’t scuttle the JCPOA, because it is no longer such a
participant state.
But that’s not quite
right, either. The dispute-resolution mechanism detailed in Article 36 allows
“any of the E3/EU+3,” including the U.S., to refer a case of “significant
non-performance” of duties under the JCPOA to a Joint Commission and Advisory
Board for a series of reviews over 30 days.
If the “complaining
participant” is not satisfied with the outcome of this process, it may “notify
the UN Security Council that it believes the issue constitutes significant
non-performance.”
5
Here is the beautiful part:
Once that notification occurs, Article 37 gives the Security Council 30 days to
consider a resolution to “continue the sanctions lifting” — i.e. to leave the
deal in place.
If it fails to pass such
a resolution in that time period, “the provisions of the old UN Security
Council resolutions would be re-imposed.”
This is the so-called
“snap back” that we have heard so much about. And because it kicks in
automatically unless the Security Council passes a continuing resolution, the
veto power that Russia and China hold as permanent Security Council members is
irrelevant, and the veto power that the U.S. similarly holds is decisive.
The United States has every
right under UNSCR 2231 to bring the matter of Iranian non-compliance to the
Joint Commission.
For that matter, Iran
could file a complaint against the United States on the same grounds. The fact
that Iran has not yet done so tells us that it knows where that process would
lead, and is a great argument for the U.S. to start the clock ticking
immediately.
Presented with a poison
pill, pro-Iranian members of the Security Council may decide that extending the
current arms embargo is the lesser of two evils. But either way, the Trump
administration will win.
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