Iran has recently announced that it would gradually scale back its commitments under the nuclear agreement - as permitted by the deal itself - in view of enticing other parties to honour their obligations. In response to Iran's initiative, anti-Iran hawks in Washington are trying to push the remaining parties to the Joint Comprehensive Plan of Action (JCPOA) – or the so-called ‘Iran Deal’ - to re-impose Security Council sanctions that were lifted as part of the agreement in 2015.
For instance, Senator Ted Cruz just recently issued a statement in which he claims: “[...] it is time to take the next step and invoke the multilateral ‘snapback’ in United Nations Security Council resolution 2231.” But what is the “snapback” mechanism?
The JCPOA is characterised by the fact that it was negotiated in an environment of complete distrust between the parties. This is why the negotiators on both sides devised mechanisms within the deal that would deter the other party from breaching its commitments.
One such mechanism, which was meant to be used by Iran's counterparts, was dubbed the "snapback" mechanism. This rather unusual procedure was meant to allow an aggrieved party to the deal to reinstate previously lifted Security Council sanctions against Iran without a vote on the Council. This means, in the event that one participant to the JCPOA believed in good-faith that Iran is in violation of its commitments in a significant manner, it could submit its concerns to a dispute resolution panel. If those concerns remained unresolved, it could then single-handedly force the re-imposition of prior Security Council sanctions.
But, since in practice, Iran could not resort to this conflict-resolution mechanism without taking the risk of reviving previously lifted Security Council sanctions against itself, another mechanism - or counter leverage - was devised within the deal to allow Tehran, to keep its counterparts in compliance.
The other mechanism is enshrined in Article 36 of the JCPOA. Under this provision, if Iran deems an unresolved issue to constitute "significant non-performance" by its counterparts, it can treat it as ground "to cease performing its commitments under the JCPOA in whole or in part" until others are brought back to order.
This is precisely the mechanism Iran resorted to this month in response to the United States' withdrawal from the deal and the remaining parties' inability (or unwillingness) to compensate and normalise trade and economic relations with the country within a year, as per their obligations.
Indeed, exactly one year after the United States withdrew from the JCPOA, Iran suspended some of its commitments in accordance with the terms of the deal, giving a 60-day moratorium for the rest of the signatories to fulfil their part of the bargain.
Now, the question is, can the remaining parties to the JCPOA - in practice, the so-called E3 powers (Germany, France and the UK) - trigger the “snapback” mechanism is response to Iran's reaction?
The answer - which Europe and hawks in Washington should bear in mind - is a simple “no” for the following reasons:
Firstly, the “snapback” mechanism was intended to keep Iran - and not the United States or other parties - in check. In other words, the “snapback” provision was solely drafted in anticipation of a situation where Iran would be the initial defector. With US defection in May 2018 and the remaining parties inability to stick to their obligations, Iran can no longer, under any circumstances, be deemed as the initial defector. This means that the US withdrawal - and the remaining parties' inability to compensate it and normalise economic relations with Iran as per their obligations - has effectively rendered the “snapback” provision irrelevant and inoperative for all remaining parties. In other words, the "snapback" was not a mechanism meant to deter Iran from taking lawful measures within the framework of the deal in view of assuring the other parties' compliance; it was meant to deter Iran from initiating a significant violation.
Secondly, even if we assume that the "snapback" mechanism is still relevant, the fact is that in order to trigger the process, the JCPOA provides that a participant must notify the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments” by Iran.
However, the truth is that the remaining parties to the JCPOA would have no good-faith basis for believing Iran to be in “significant non-performance of commitments” if Iran’s so-called “non-performance” stems from measures implemented in response to other parties' non-compliance. In other words, if Iran's measures are conducted within the framework of the conflict-resolution mechanism in-built within the deal, they cannot, by any means, be perceived as “significant non-performance.”
The fact is that if the remaining parties (i.e. Europe) insist on resorting to the "snapback", they can only do so by going through a compulsory dispute settlement procedure, as laid out by the agreement. At the relevant stage of the dispute settlement procedure, Iran would then simply reiterate that it would reverse its decision and return to the full implementation of the deal only if its counterparts implement their own obligations and operationalise Iran's rightful demands. This reasonable condition would ipso facto prevent Europe from going any further toward triggering the "snapback" mechanism unless it is willing to show an absolute disregard for principle, fairness and procedure. In other words, the fact is that Europe is not entitled to, and cannot in practice, obtain any remedy by resorting to the "snapback" if it does not itself enter the dispute settlement phase with “clean hands.” Indeed, the legal adage, “those seeking equity must do equity,” would also apply to the JCPOA's dispute settlement mechanism.
Thirdly, it would be a mockery of international law and the United Nations' collective security system for European countries even to try subjecting Iran to Security Council sanctions. By attempting this, Europe would be effectively trying to punish Iran for using a leverage it was duly given by an international agreement in view of compelling other parties to remain in compliance. In fact, if Europe went ahead with triggering the “snapback,” it would be the first time the Security Council would have been employed to punish a state for its legal attempts to bring other states into compliance with a multilateral agreement that was endorsed through a unanimous resolution (Res. 2231) by the Council itself.
If Europe were to punish Iran for playing by the rules, it would be no less pernicious to the international legal order - and to the credibility of the Security Council - than the Trump administration.
Fourth, European powers' attempt to reinstate Security Council resolutions against Iran – which would not just be unlawful - would most certainly escalate tensions to a whole new level, dealing a fatal blow to the international non-proliferation regime and embolden those in Washington that are relentlessly pursuing military confrontation with Iran. A hostile act like this would most likely prompt Iran to leave the JCPOA altogether, withdraw from the Non-proliferation Treaty (NPT) and abandon the “maximum restraint” policy it is currently pursuing.
By misusing the Security Council mechanism, Europe would also give people like John Bolton a new tool to exploit in order to advance their case for war. European leaders are fully aware that the current US administration is comprised of people who invoked a decade-old expired Security Council resolution to justify military action against Iraq. Therefore, it would not be difficult for them to imagine what this crew would do if they were given half a dozen resolutions to misinterpret and exploit. Europe should know that by enabling the hawkish elements within the Trump administration, it must own the consequences of their actions.
Fifth, in order to accuse Iran of a “wrongful act” and take measures accordingly, Europe must first establish Iran's “ill intention” or at least show a semblance of a mens rea. However, European leaders, like the rest of the international community, know full well that such ill intention doesn't exist. In fact, they are fully cognisant of the fact that, by taking lawful measures, Iran's sole intention is to keep their mutual agreement alive. Penalising Iran for attempting to push other parties to honour a Security Council-endorsed agreement would leave a stain on Europe's image and moral authority - and render any future diplomatic engagements much more difficult.
With all this in mind, Europe should refrain from taking any action that would make Iran pay the cost of the other parties' transgressions. On the other hand, Europeans should also know that they cannot be entitled to the fruits of the United States’ unlawful acts and their own lack of resolve in fulfilling their own part of the bargain.
European powers should recall that their commitment was to make Iran fully benefit from the tangible dividends of the lifting of sanctions lifting, not to merely observe the administrative formalities and then disengage. So, the right course of action - in fact, the only course of action - would be for European powers to take their commitments seriously and take decisive steps to normalise trade and economic relations with Iran. Going down any other path would only make matters worse.
Reza Nasri is an international lawyer, foreign policy analyst and frequent commentator on the nuclear agreement (JCPOA) in Iran and international media.
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