The Iranian Nuclear Deal and the Crisis in the UN Security Council

Published on August 22, 2020

Introduction

The United States has suffered an unprecedented defeat in the United Nations Security Council (UNSC) in an attempt to extend the arms embargo on Iran. The resolution they tabled on 15 August received only two votes in favor (from the United States and the Dominican Republic), with 11 abstentions and two votes against (Russia and China). However, the Trump administration is determined to block the lifting of the restrictions, scheduled to expire on October 11, 2020[1]. In this regard, White House officials rely on the sanction’s reinstatement mechanism provided for in the Security Council Resolution 2231 of 2015, which was activated on August 20.

Iran’s nuclear deal and the Security Council Resolution 2231

The Iranian Nuclear Agreement, technically called the Joint Comprehensive Plan of Action (JCPOA), represents a multilateral agreement on lifting the sanctions to which the Islamic Republic of Iran was subjected because of its nuclear program, in exchange for Iran’s limiting the program and placing it under a strict supervision regime. The agreement was signed on July 14, 2015, by Germany, France, the United Kingdom, the United States, China, Russia, Iran, and the European Union through the High Representative for Foreign Affairs and Security Policy[2]. The JCPOA was confirmed by resolution 2231, which was adopted unanimously.[3]

The United States withdrawing from the JCPOA and imposing a policy of maximum pressure

The Donald Trump administration has sharply disapproved of the agreement, saying it “The Iran Deal was one of the worst and most one-sided transactions the United States has ever entered into.” [4] Trump considered that the JCPOA does not guarantee definitively the blocking of Iran’s path to obtaining a nuclear weapon, in case if Tehran decides to alter the nuclear doctrine in this regard. Another argument was that the agreement does not address Iran’s ballistic missile program, nor does it restrict their regional activities, which are considered destabilizing. Consequently, in May 2018, he ordered a unilateral withdrawal from the agreement and imposed a strict sanctions regime on Iran[5]. Since then, relations between the United States and Iran have entered the phase of a “policy of maximum pressure”[6], to which the Iranians have opposed a “policy of maximum resistance”[7].

With this approach, the United States sought to persuade Iran to return to the negotiating table to sign a new agreement, which would not only limit its nuclear program indefinitely but also cut the ballistic missile program and regional activities of Iran. However, the approach did not yield the expected result. As for Iran, a year after the United States withdrew from the agreement, during which time they waited in vain for political and economic support from the Europeans, it decided to gradually reduce its commitments under the agreement, despite the Europeans’ dissatisfaction. The agreement has survived to the present day but has been constantly undermined by the United States. Regional security has been steadily deteriorating since the spring of last year, when Iran decided to retaliate militarily, through intermediaries, in response to the policy of maximum pressure. We have thus entered a vicious circle, in which Iran’s tactics of increasing the costs of US policy of maximum pressure have led to an increase in pressure from the American side. The culmination of tensions was reached in January 2020, when the US military assassinated Qassem Soleimani, the commander of the special forces of the Revolutionary Guards.

The JCPOA was gradually emptied of its content, however, it survived as other members struggled to keep it alive, at least until the US presidential election. Biden’s victory is expected to change the approach in relation to Iran, possibly leading to the unblocking of the impasse and the reopening of negotiations, most likely in the multilateral format provided by the JCPOA, unless it is not completely destroyed by then.

Dissatisfied with the fact that the approach did not yield the desired results, the Trump administration is trying one last assault according to the policy of maximum pressure. The pretext is a provision in UNSC Resolution 2231, which states that the restrictions on arms imports and exports imposed on Iran will expire on 18 October 2020[8]. The United States is seeking an extension of these restrictions to the Security Council. However, the attempt on August 15 resulted in their isolation[9]. Nonetheless, the US officials have expressed their determination to move forward to block the lifting of arms restrictions at all costs. In this regard, they use the provisions of Resolution 2231, the Resolution which confirms the JCPOA and which they violated at the time of the withdrawal of the agreement, in order to achieve their target. This has sparked a heated debate in the Security Council, in which even European states are challenging the US approach. According to some experts, the real stake of the White House and of the Republicans who are anti-Iran is the complete destruction of the JCPOA, in order to make Biden’s task more difficult if he succeeds Trump.

Initiation of the mechanism for re-imposition of sanctions provided for in Resolution 2231

On 20 August, the United States launched the sanctions reinstatement mechanism provided for in Article 11 of Resolution 2231[10]. The mechanism is triggered by a notification sent to the Security Council by any “JCPOA participating State”, provided that it is found that another JCPOA participant, in this case Iran, has committed a “significant breach” of the provisions of the agreement. Upon receipt of the notification, the Security Council has 30 days to vote on a resolution to “continue lifting sanctions” prior to the signing of the JCPOA. Otherwise, all sanctions annulled by Resolution 2231 will be re-imposed.

Sanctions are normally imposed by a Security Council Resolution expressly providing for this. In the current geopolitical context, it will be impossible for the United States to pass a resolution against Iran because it would hit the veto of Russia and China. However, the mechanism for re-imposing sanctions provided for in the JCPOA is an innovation that cancels the veto of Russia and China, because in this case a resolution is needed to prolong the lifting of sanctions, which the United States can block using its veto. The US approach is challenged by all other members of the JCPOA and will likely create a crisis in the Security Council.

US arguments in favor of the right to trigger the sanctions reinstatement mechanism

Despite the fact that the United States has withdrawn from the JCPOA, it still considers itself entitled to resort to the instrument of reinstating sanctions. The main argument is that Article 10 of Resolution 2231 specifies that the United States is a “JCPOA participating state”. According to US officials, the JCPOA and resolution 2231 are two separate documents, and this gives them the right to activate the mechanism, even if they left the JCPOA.

Criticisms of the US decision to activate the sanctions reinstatement mechanism

All other remaining members of the JCPOA challenge the right of the United States to use this mechanism. The statements of the American leaders, the policy of maximum pressure against Iran, and the threats to sanction any entity that does business with Iran, in the sectors under the sanctions, undoubtedly confirm that the United States has left the JCPOA[11]. Germany, France, and the United Kingdom have repeatedly stated that the United States no longer has the legitimacy to use this mechanism[12]. French officials spoke about the principle of balance between rights and obligations with regard to international agreements. By leaving the JCPOA, the United States violated both the nuclear agreement and the Resolution 2231 confirming it. As a result, they also annulled their right to use the provisions of Resolution 2231. For European states, but also for Russia and China, the mechanism for re-imposing sanctions is reserved exclusively for states that remain in the JCPOA. The United States has officially declared its exit from the JCPOA. Therefore, it cannot now declare that it is a participant in the JCPOA only to re-impose sanctions and to permanently destroy the agreement. This comes after they failed to achieve their goals of maximum pressure policy.

Russia and China unequivocally oppose the US attempt. Russian officials are referring to a 1971 ruling by the International Court of Justice, which ruled that states that do not comply with the provisions of an international agreement can no longer enjoy the rights deriving from that agreement[13].

China refers to paragraph 10 of resolution 2231, which requires JCPOA participants to use the mechanism provided for in the agreement to resolve disputes[14]. An important clarification is needed here. The JCPOA has its own manner for conciliating conflicts, called the dispute settlement mechanism. According to Article 36, if a member considers that another member is in breach of its obligations, it shall refer the matter to a Joint Commission for consideration. If the dispute persists, it will be discussed at the level of Foreign Ministers. If this is not resolved here either, the case will be debated by an Advisory Council. If the solution is not satisfactory for the member who submitted the initial complaint, it has the possibility to send a notification to the Security Council, and thus the mechanism for re-imposing sanctions is triggered. The United States did not follow this route because it withdrew from the JCPOA. It, therefore, infringes the very article used to re-impose sanctions[15].

The argument used by the United States to re-impose sanctions is that Iran has committed a “significant violation of JCPOA provisions.”[16] It is true that Iran has reduced its obligations under the agreement, but it happened a year after the United States withdrew from the agreement and imposed the strictest sanctions regime the Islamic Republic has ever witnessed. In addition, the reduction of Iran’s commitments is covered by Article 36 of the agreement, which states that “a participant may reduce its commitments, in part or in full, if it is found that another participant has not complied with its obligations”.[17]

The crisis of authority of the UN Security Council

The unilateralism of the United States undermines the authority of the most important body responsible for maintaining international peace and security. The United States also undermines the authority of the sanction’s regime. When the 30 days expire and the Council does not issue a resolution to extend the lifting of sanctions against Iran, we will assist in two parallel realities. On one hand, we will have the United States, which will claim that the sanctions have been re-imposed. On their side, there will be a few rival states of Iran and a few other states that will be persuaded to join the United States. On the other hand, we will have Russia and China, which will ignore the re-imposition of sanctions and refuse to implement them. Germany, France, and Britain will criticize the US decision and try to keep the JCPOA alive, in order to prevent a harsh reaction from Iran. European states will also try to take the time to wait for the outcome of the November presidential election. As a result, the United States will not only fail to achieve its goal of stopping arms transfers to and from Iran but will also undermine the Council’s authority and reduce its own influence in this body.

Iran’s options

Lifting restrictions on arms imports and exports remained Iran’s last benefit from the JCPOA. The moderate camp led by President Hassan Rouhani used this argument in order to cool off the pressure of conservatives and radicals who have long called for the abandonment of the JCPOA and increased nuclear activity. Proponents of an uncompromising line criticize the lack of economic and political will of European states to compensate for the damage caused by the United States’ withdrawal from the agreement. However, the position of these three camps is congruent with regard to the harsh retaliation that will take place if Iran loses this last benefit as well. In the past, Tehran officials have threatened to exit the JCPOA, reduce cooperation with International Atomic Energy Agency (IAEA) inspectors, resume the uranium enrichment process at the Fordow underground facility and even exit the Non-Proliferation of Nuclear Weapons Treaty (NPT).

At the moment, the camp of Hassan Rouhani and Javad Zarif is leaning towards the policy of “strategic patience”, at least until after the presidential elections in the United States. However, it will be difficult for them to withstand the pressure at home, as the discourse against the JCPOA is on the rise in Iran. In addition, Rouhani also faces a hostile parliament. Thus, those combative voices call for action and pressure for an end to cooperation with IAEA inspectors. Other voices will demand to leave the NPT. We can expect a symbolic reaction in the nuclear field. For example, it could herald the increase in certain uranium enrichment capabilities. However, Rouhani will cling to the rejection of the embargo sided by Russia and China, the reluctance of other states to implement it, and the coming US elections, in order not to make a radical decision, helping him to sell the argument of “strategic patience”. However, it needs concrete action from the European powers and from the UN Secretary-General.

In the coming weeks, we will witness warlike rhetoric from Iran, even though they will wait for the outcome of the US elections. The United States is currently isolated in the Security Council, and only a radical reaction from Iran, in the form of leaving the JCPOA or the NPT, could change that. The United States is trying to provoke such a scenario, but Iran will not fall into this trap.

[1] https://fas.org/sgp/crs/mideast/IF11429.pdf

[2] https://www.armscontrol.org/factsheets/JCPOA-at-a-glance

[3] https://www.armscontrol.org/factsheets/JCPOA-at-a-glance

[4] https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-ending-united-states-participation-unacceptable-iran-deal/

[5] https://www.whitehouse.gov/presidential-actions/ceasing-u-s-participation-jcpoa-taking-additional-action-counter-irans-malign-influence-deny-iran-paths-nuclear-weapon/

[6] https://www.state.gov/advancing-the-u-s-maximum-pressure-campaign-on-iran/

[7] https://donya-e-eqtesad.com/%D8%A8%D8%AE%D8%B4-%D8%AE%D8%A8%D8%B1-64/3658735-%D9%85%D9%82%D8%A7%D9%88%D9%85%D8%AA-%D8%AD%D8%AF%D8%A7%DA%A9%D8%AB%D8%B1%DB%8C-%D9%BE%D8%A7%D8%B3%D8%AE-%D9%81%D8%B4%D8%A7%D8%B1-%D8%AD%D8%AF%D8%A7%DA%A9%D8%AB%D8%B1%DB%8C

[8] https://www.undocs.org/S/RES/2231(2015) (Annex B, Art. 6, Para. B, p. 101)

[9] https://www.un.org/press/en/2020/sc14277.doc.htm

[10] https://www.aljazeera.com/news/2020/08/demands-restoration-sanctions-iran-200820185410971.html si https://www.undocs.org/S/RES/2231(2015), p. 4

[11] https://www.mehrnews.com/news/5002311/%D8%A7%DB%8C%D8%B1%D8%A7%D9%86-%D8%A8%D8%A7-%D9%81%D8%B9%D8%A7%D9%84-%D8%B4%D8%AF%D9%86-%D9%85%DA%A9%D8%A7%D9%86%DB%8C%D8%B3%D9%85-%D9%85%D8%A7%D8%B4%D9%87-%D8%A8%D8%B1%D8%A7%DB%8C-%DB%B1%DB%B9%DB%B0%D9%87%D8%B2%D8%A7%D8%B1-%D8%B3%D9%88-%D8%BA%D9%86%DB%8C-%D8%B3%D8%A7%D8%B2%DB%8C-%D8%A7%D9%82%D8%AF%D8%A7%D9%85

[12] https://www.gov.uk/government/speeches/e3-foreign-ministers-statement-on-the-jcpoa