By: Ed Levine
On Capitol Hill, summer is often called “the silly season.” When it comes to analyzing the nuclear agreement between Iran and the P5+1 (the United States, Great Britain, France, Germany, Russia and China), the debate on the deal is living up to that reputation.
One prime example of silliness is the opponents’ claim that the agreement will not be enforced because the UN sanctions “snap-back” is too strong an action and because invoking it would “entitle” Iran to cease all compliance with the agreement. These arguments are mired in ignorance of diplomatic practice, compounded by a gross misreading of the agreement and the recent UN Security Council resolution.
Let’s see how opponents of the agreement could be so totally wrong:
First, they assume that snap-back, or the re-imposition of sanctions that had been previously ended, would be the only enforcement option available to the P5+1. But that is nonsense, rather like saying that capital punishment is the only punishment for murder. In reality, there will be a whole range of enforcement options.
The first option is publicizing the actions of a violator, coupled with diplomacy. Think back to last November, when the IAEA reported that Iran had fed natural uranium into an IR-5 advanced centrifuge. What happened? The P5+1 (and outside experts, members of Congress and the media) denounced Iran’s actions as a violation of the Joint Plan of Action (or JPOA, the interim agreement that was reached in 2013); Iran ceased the testing; and Iranian and P5+1 diplomats crafted explicit language to make clear that Iran would not engage in this sort of testing, in order to avoid similar violations in the future.
This diplomatic solution did not rely upon any JPOA language allowing for diplomatic enforcement measures; it was understood that diplomats could do that. And they will do it again when compliance issues arise under this agreement, as they surely will, for this happens with any complex arms control agreement. Such issues may be handled through direct diplomacy, or they may be taken up in the Joint Commission established in Annex IV of the agreement.
If regular diplomacy or discussions in the Joint Commission cannot make Iran correct a violation of the agreement, the P5+1 may react by imposing snap-backs of their own individual or collective sanctions on Iran, or by suspending cooperative projects that were established pursuant to Annex III of the agreement. Paragraph 26 of the agreement would bar such actions under normal circumstances, but paragraph 60 of the Vienna Convention on Treaties specifically allows a party to an agreement to respond to another party’s non-compliance by engaging in a compensatory act that would otherwise be considered non-compliance with the agreement. While the United States has not ratified this convention, we accept it as a codification of customary international law.
The United States is already prepared to consider the re-imposition of sanctions in response to a material violation of the agreement by Iran. The Iran Nuclear Agreement Review Act that was passed by Congress just three months ago provides for snap-back legislation to be considered by Congress under expedited procedures if Iran engages in a material breach of the agreement. Such legislation can be calibrated, moreover, to snap back all U.S. sanctions or just some of them. More effective snap-back legislation, which would provide for restoration of sanctions relief once Iran came back into full compliance with the agreement, could also be enacted (without the benefit of expedited procedures).
Even if the P5+1 were to go to the UN Security Council, a full re-imposition of UN sanctions would not be the only option. The Council could agree on a resolution that simply ordered Iran to comply by a certain date, or that left some sanctions relief in place while snapping back others and promising harsher action if Iran did not comply. Indeed, the prospect of a full snap-back of sanctions after 30 days (as specified in paragraph 12 of the Security Council resolution) unless the Security Council passed an alternative resolution would likely make any fence-sitters among the P5+1 eager to work out a more measured resolution with the United States, which would retain the ability to veto that resolution and force the Security Council to impose full snap-back.
In the most extreme case, if Iran were to be found clearly trying to build nuclear weapons, the Security Council could go beyond sanctions snap-back and authorize states to use “all necessary means” to prevent Iran from continuing its non-compliance. That could lead to a blockade of Iranian ports or even to a bombing campaign by a coalition of concerned countries.
Thus, paragraph 37 of the agreement does not in any way dictate the P5+1’s recourse in the event of Iranian non-compliance. Rather, it makes clear how one of the strongest responses to non-compliance will proceed, if necessary. If we need to re-impose all UN sanctions, we can do so without fear of a Russian or Chinese veto. There are plenty of other options as well, moreover, and their availability helps to strengthen this agreement.
But what if all UN sanctions are snapped back? Would this somehow “empower” Iran to cease complying with the agreement? Paragraph 37 of the agreement says that “Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.”
Notice, however, that the agreement does not say that any other country agrees with Iran. Rather, it merely records an Iranian threat to treat any snap-back of sanctions as non-compliance on the part of the P5, and to respond to that alleged non-compliance by engaging in its own non-compliance “in whole or in part.” Fine; warning received. But does Iran’s threat make it “entitled” to follow through on that threat? No, not unless snap-back were to be imposed for no good reason. A threat is just a threat; let’s not dignify it by attributing special status to it just because the agreement records that threat.
In sum, there are many ways to deal with possible Iranian violations of the agreement; the agreement and the UN Security Council resolution provide a mechanism whereby serious countermeasures could be imposed, without in any way limiting the P5’s freedom to choose another option; and snapping back sanctions would not automatically “entitle” Iran to do anything other than coming back into compliance with its obligations under the agreement.
Are there shortcomings in the Iran nuclear deal? Of course there are, as there are in any complex agreement. But this is a carefully crafted document with many new and valuable provisions, and its Security Council enforcement mechanism is a case in point. Regarding enforcement, opponents of this very good deal are barking up the wrong tree. There’s no squirrel up there, and all their barking won’t change that.
Ed Levine is a member of the Center for Arms Control & Non-Proliferation’s board. Levine spent more than 14 years as a senior professional staff member of the Senate Foreign Relations Committee and over 20 years with the senate Select Committee on Intelligence, where he co-authored all of the SSCI’s reports on monitoring compliance of such treaties as SALT II, START, START II, CFE, INF, CWC, TTBT/PNET, and the CTBT.