The Iran Deal Is Not Dead Yet, but It’s Getting There
Europe’s decision to start the dispute settlement process may set the clock ticking on the deal’s ultimate demise.
Britain, France, and Germany on Tuesday bluntly dismissed U.S. President Donald Trump’s plea to abandon the landmark Iran nuclear pact, but they also confronted Iran for its increasing refusal to abide by critical provisions of the 2015 accord that limit its ability to restart its nuclear program.
What’s the latest?
In a joint letter, foreign ministers from the three European powers triggered the so-called dispute settlement mechanism in an effort to compel Iran to comply with its obligations under the pact, which is known as the Joint Comprehensive Plan of Action (JCPOA). On Jan. 5, Iran announced its fifth big breach of nuclear restraints, essentially throwing off all limits on its ability to enrich uranium, the necessary step to building a bomb.
The dispute settlement mechanism starts the clock on a 65-day period of intensive review by signatories of the deal, including input from the foreign ministers of Britain, China, France, Germany, Iran and Russia. It remains unclear whether the United States, which is no longer a party to the deal, will play any role. If the dispute is not resolved according to the original terms of the agreement, the Europeans could declare the Iranians in breach of their obligations and reimpose a broad range of U.N. sanctions that were lifted after the nuclear pact was approved.
“Together, we have stated unequivocally our regret and concern at the decision by the United States to withdraw from the JCPoA and to re-impose sanctions on Iran,” the ministers stated. “Following Iran’s announcement in May 2019 that it would cease meeting some of its commitments under the JCPoA, we have sought to persuade Iran to change course.”
Why did the Europeans take this step?
The move represented a desperate attempt by the Europeans to salvage a core arms control treaty that has been steadily unraveling since May 8, 2018, when Trump announced that the United States intended to withdraw from the nuclear pact, which was negotiated during President Barack Obama’s administration. The United States has since expanded sanctions against Iran and threatened to punish foreign businesses that do business with Iran. An effort by European governments to partially circumvent U.S. sanctions through the creation of a financial vehicle, known as Instex, has largely faltered. But without any economic benefits from the deal, Tehran has repeatedly argued that it has little reason to keep complying with its terms.
Despite their frustrations with the Trump administration over its decision to withdraw from the nuclear pact, European leaders expressed alarm at the prospect of a rejuvenated Iranian nuclear program. With the series of recent breaches, especially in terms of uranium enrichment capacity, Iran has shrunk its theoretical breakout time to a bomb from about a year to a matter of months.
German Foreign Minister Heiko Maas said the Europeans “could no longer leave the growing Iranian violations of the nuclear agreement unanswered.”
“Our goal is clear,” he added. “We want to preserve the accord and come to a diplomatic solution within the agreement.”
While the European ministers said they remain committed to the Iran nuclear deal, British Prime Minister Boris Johnson, a close ally of Trump’s, suggested that it might be time to consider a replacement for the pact. “The problem with the agreement is that from the American perspective is that it is a flawed agreement,” he said, suggesting a new so-called “Trump deal.” “That’s what we need to see, and I think that will be a great way forward.”
Why does Trump oppose the nuclear deal?
Trump has displayed contempt for the Iran nuclear deal since his 2016 election campaign. The basic flaw, he contends, is that it lifted U.N. Security Council restrictions on Iran’s ballistic missile program, returned Iranian funds held overseas, and granted limited sanctions relief to Tehran in exchange for a partial, and perhaps temporary, pause in Iran’s ability to pursue nuclear weapons. Trump argues that Iran used that economic breathing space to finance pro-Iranian militias that have killed American soldiers, fired rockets at Israel, and promoted terrorism throughout the Middle East. The president and his backers have often presented misleading characterizations of the deal—for instance, falsely claiming that Obama gave billions of dollars to the Iranians in exchange for signing the deal. The relief involved Iranian money that had been held in Western banks. It didn’t help that the Iran deal was negotiated by Trump’s predecessor.
What part did Iran play in this crisis?
Until Trump pulled out of the Iran deal, Iran had—by the Trump administration’s own admission—complied with its obligations under the terms of the agreement. Iran has responded by incrementally halting the implementation of key provisions of the deal that are designed to limit its capacity to enrich uranium and the work it can do at nuclear facilities. Iran continues to maintain that its program is designed to generate electricity, not to produce a nuclear bomb, though that is harder to maintain now that Iran has begun openly enriching uranium above the levels necessary for power generation.
Since May 8, 2019, when Tehran announced it would no longer be bound by limits imposed by the nuclear pact on its stockpiling of heavy water and enriched uranium, Iran has announced five expansions in its nuclear activities.
Following the U.S. assassination of top Iranian military leader Qassem Suleimani (though following Iran’s pre-announced schedule for breaching the pact), Iran retreated further from the deal. On Jan. 5, it announced that it would no longer limit the number of centrifuges it can use to enrich uranium—a key factor in the speed at which it can create a weapons-grade stockpile—and lift all “operational restrictions” on its nuclear program. At the same time, Iran has not announced plans to fully withdraw from the pact and pledged to continue to permit inspections of its nuclear facilities by international inspectors from the International Atomic Energy Agency. Iran says that if it gets sanctions relief, it will come back into compliance with the accord.
The dispute mechanism invoked by the Europeans will refer the question of Iran’s compliance to a joint commission comprising states that signed and remain in the nuclear pact. They will be given 15 days to review the complaint. If they can’t resolve the matter—it’s almost certain they won’t—then they can ask for more time or kick the ball to foreign ministers, who would be given an additional 15 days or more. If they still can’t resolve the situation, then the matter would be sent to a three-member advisory board, which would be given 15 days to issue a nonbinding opinion. If the big powers can’t agree on the opinion in the following 15 days, the matter gets kicked back to the joint commission for another five days.
If the joint commission remains stuck, the Europeans will have the option of pressing the U.N. Security Council to take a vote on a resolution asking whether U.N. sanctions on Iran should continue to be lifted. But there is a risk in pursuing this course. The United States would likely veto it. If that resolution is not adopted within 30 days, the so-called snapback provision would come into effect: that is, a range of sanctions imposed on Iran before the nuclear deal was struck would be reimposed. In short, the nuclear deal would be formally, finally, irremediably dead.
“The Europeans clearly want to preserve the JCPOA and to encourage the United States and Iran to get back into compliance,” Daryl Kimball, the executive director of the Arms Control Association, told Foreign Policy. “But by triggering the disputes resolution mechanism, they theoretically open the door to the snapback provision and the reimposition of sanctions.”
The wild card
The United States has not indicated what role, if any, it intends to play in the deliberations over Iranian compliance. Many of the signatories are likely to argue that the United States, which has formally withdrawn from the pact, lacks the legal authority to invoke its powers under the agreement to see sanctions reimposed. But some diplomats indicate that the United States could argue that it has a role to play.
As mentioned, the Europeans run the risk of setting off a series of events that could culminate in the reimposition of U.N. sanctions on Iran, a goal that Europeans are keen to avoid. The Iran pact, however, does provide an off-ramp for the Europeans, who must declare Iran in breach of the agreement before referring the final decision on sanctions to the Security Council. Once the matter is before the Security Council, the United States would have the right to block any decision to maintain sanctions, a move that would trigger the snapback provision.