Do the Iran Deal’s ‘Snapback’ Sanctions Have Teeth?
The hurdles and poison pills bound up in the agreement mean its failsafe mechanism won't have the bite it might have.
Over the past few days, supporters of the nuclear agreement between Iran and the P5+1 have made many sweeping claims about how good the deal is. When you move past the talking points and look closely at the actual details, the picture is not so clear.
Take the so-called “snapback” mechanism for re-imposing economic sanctions if Iran does not comply with its obligations under the Joint Comprehensive Plan of Action (JCPOA). While supporters of the deal have argued that the mechanism — included in a United Nations Security Council Resolution (UNSCR) — will make it easy to re-impose sanctions if Iran cheats, in reality the deal creates some not insignificant hurdles for such snapback.
When the preliminary details of the snapback mechanism were announced in the April 2015 parameters agreement between Iran and the P5+1, we expressed skepticism that it would operate as advertised. We thought that a quick and total re-imposition of effective sanctions might be unlikely to happen in practice. First, we doubted there would be U.N. Security Council authorization for the imposition of additional sanctions. Second, whatever of the U.N. sanctions regime that might remain in suspended form would be triggered not by Iranian action, but by the determination of Iranian misbehavior by an authorized body, probably the International Atomic Energy Agency (IAEA), which could be a long, difficult, and uncertain process.
Looking at the recently announced JCPOA and the United Nations Security Council Resolution implementing elements of the agreement, the snapback mechanism does contain more teeth than we feared it might. Interestingly, it also contains more teeth than the initial news reports about the deal suggested; initial reports described a snapback process that required the United States to secure the concurrence of the United Kingdom, France, Germany, and the EU (and possibly the IAEA) before anything could happen. But the extra teeth in the UNSCR do not mean it is a “snappy” mechanism in the way suggested by proponents of the deal.
Under the UNSCR, if a JCPOA participant state believes that Iran has not performed its commitments, it can bring the issue before the Security Council and require Iran to resolve the matter. If the alleging state declares itself unsatisfied with the Iranian response, the Security Council will then vote on a draft resolution — ostensibly governed by typical Security Council voting procedures — to continue the termination/suspension of U.N. sanctions. If a country vetoes that resolution, as might happen if the alleging state happened to be a veto-player like the United States, the U.N. sanctions will be reinstated. This means that the United States by itself, even without IAEA concurrence, can trigger the re-establishment of the legal basis for sanctions on Iran if it believes Iran has cheated on the agreement. But snapping back sanctions like this would come at a great cost: Iran has declared that doing so absolves it of all its obligations in the agreement, and the UNSCR does not rebut Iran’s understanding. So the sanctions mechanism does have some snap to it, though one with a potent poison pill.
What this means is that if the next president happens to be someone who has pledged during the campaign to abrogate this agreement on day one, the UNSCR provides a clear pathway for doing so: 1) Allege in the United Nations Security Council that Iran is cheating, thus setting in motion a re-imposition of sanctions; 2) declare the United States is unsatisfied with Iran’s response; 3) veto the automatic UNSCR proposing that sanctions continue to be terminated/suspended; 4) after the 30-day period, watch the legal basis for sanctions get re-instated as all previous UNSCRs that were terminated are re-applied; 5) watch Iran leave the deal; at which point 6) the deal is dead.
Of course, such a dramatic course of action could be hugely unpopular with our allies and likely would jeopardize the implementation and enforcement of any re-instated sanctions. It is worth emphasizing: An effective sanctions regime consists of a legal basis, the institutional capacity to implement the sanctions, and the political will to carry it through. This course of action only provides for the first.
In other words, what this means is that the Iran deal does provide a mechanism for re-establishing the legal basis for international sanctions, even over and against the objections of other veto-players in the United Nations — but only the legal basis and only at great cost. In practice, what this means is that there will likely be a very high hurdle for determining that Iran is not complying with its obligations, a hurdle that will approximate the hurdle of creating a new coalition to impose sanctions. What looks snappy on paper may well be anything but in practice.
In addition, because the JCPOA contains a grandfathering clause — that is, those companies who sign long-term contracts during the period between when sanctions are lifted and when they are re-imposed can continue to fulfill those contracts — the pain of more sanctions may be significantly mitigated, at least for some time. So even if sanctions are snapped back and Iran leaves the agreement, the coercive pain we can bring to bear is lessened.
While the poison pill and the grandfathering clause prevent the United States (or any other hawkish state) from truly snapping back the powerful and effective sanctions regime in place before the deal, the device for avoiding vetoes is nevertheless significant and may prove to be a very important precedent for how the United Nations might be able to function in an era of great power conflict. We are hard-pressed to come up with other examples when the U.N. Security Council has voted to disenfranchise future U.N. Security Councils and create legally binding decisions on the say-so of a single member.
The snapback mechanism is not the only aspect of the deal that is less attractive than advertised, however. See, for instance, “anytime, anywhere” inspections, which the administration once promised but now claims not to have sought. Under the terms of the actual deal, inspections that the Iranians do not want will now be subject to a 24-day delay. And if Iran still balks, of course the international community can invoke the “snapback” mechanism at that point, but it must swallow the poison pill of collapsing the agreement to do so.
In practice, the day-to-day enforcement of the deal may come to resemble the cat-and-mouse game the international community played with Saddam Hussein in the 1990s. That is certainly not how advocates of the deal would like to spin it to a skeptical Congress, but it might be the best the deal can realistically produce at this point.
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