Europe Puts What Remains of the JCPOA in Limbo

By triggering the Iran deal’s dispute resolution mechanism, Germany, France, and the United Kingdom are hoping to push the sides back to the negotiating table—but they may escalate instead.

An Iranian flag flies in front of the Bushehr nuclear power plant during an official ceremony to kick-start work on a second reactor at the facility on Nov. 10, 2019.
An Iranian flag flies in front of the Bushehr nuclear power plant during an official ceremony to kick-start work on a second reactor at the facility on Nov. 10, 2019. Atta Kenare/AFP/Getty Images

About a year and a half after the United States left the Iran nuclear deal, also known as the Joint Comprehensive Plan of Action (JCPOA), the agreement is nearing collapse. For months after U.S. President Donald Trump’s decision to depart, the remaining parties to the JCPOA tried to keep it alive. But it is becoming increasingly difficult for them to do so.

One sign came on Jan. 14, in the form of a joint statement from three European signatories to the JCPOA—France, Britain, and Germany. Together, they announced that they had formally activated the deal’s dispute resolution mechanism, the process through which a complaint about a potential violation of the deal would be resolved. According to the text of the JCPOA, the dispute could end up at the U.N. Security Council, which could decide to place international sanctions back on Iran. The whole process takes about two months.

During this two-month period, the dispute could resolve itself in a few different ways. Iran could decisively return to its commitments under the JCPOA or the three European countries could backtrack on taking the case to the U.N. Security Council. At present, there is no indication that Iran or the European countries will back down. Iran has repeatedly stated that it will uphold its nuclear obligations only if it starts seeing the economic benefits the agreement promised. It has called on Europe for guarantees that the continent will continue buying Iranian oil and grant Tehran access to the revenues. On the one hand, Iran knows that Europe is unable to meet these demands because many large European firms, automakers, and big refineries that used to buy Iranian oil have extensive commercial and financial relations with the United States and do not want to put their commercial interests at risk under the U.S. sanctions. European governments have no way to force them to change their minds. On the other hand, the three European countries can point out in turn that the JCPOA is on the brink of collapse and that if they cannot convince Iran to reverse course, the Iranian nuclear case will inevitably return to the U.N. Security Council—where things are sure to get much worse for the country.

There could also be a third scenario, in which Europe repeatedly extends the one-month deadline for the JCPOA Joint Commission to look into the case before taking the file to the U.N. The commission could bide time as it waits to see how Iran responds, tries to cajole the United States and Iran back into negotiations, looks to the results of continuing inspections by the International Atomic Energy Agency (IAEA) in Iran, and perhaps tries offering the country some economic incentives. European Union foreign-policy chief Josep Borrell has already indicated as much. He has announced that the timeline for the dispute mechanism could be extended indefinitely, although he has not specified a time for the extension.

So long as Iran does not go beyond the latest infractions, it makes sense for Europe to try to kick the can down the road.

For now, although Iran has resumed uranium enrichment at the Fordow nuclear site and walked back on its commitments regarding uranium enrichment, research and development, and the amount of enriched materials it will stockpile, its nuclear program still has a long way to go before reaching the capacity it had the year before it signed the JCPOA. So long as Iran does not go beyond the latest infractions, it makes sense for Europe to try to kick the can down the road, especially if there are signs that United States could come back to the negotiating table for fear of possible Iranian blowback.

Tensions between the United States and Iran are as high as ever. In May 2019, on the one-year anniversary of the U.S. withdrawal from the JCPOA and reintroduction of sanctions, Iran first started taking gradual steps away from its commitments under the deal. In its fifth and final step, on Jan. 5—days after the United States killed Iranian military commander Qassem Suleimani—Iran announced in a statement that it would observe absolutely no operational limitations on its nuclear industry. Tehran also vowed that, from now on, its nuclear program would be developed solely based on its technical needs.

It is worth taking Iran at its word. Consider how, in the pre-JCPOA era between 2004 and 2012, Iran developed its current nuclear doctrine. In 2011, it successfully completed the nuclear fuel cycle, meaning it could handle all stages of exploration, extraction, enrichment, reactor operation, and ultimately the destruction of radioactive waste. Soon, Tehran started enriching uranium to 20 percent as a bargaining chip at future negotiating tables. As many as six Security Council resolutions and the imposition of tough sanctions did not deter Iran from its pursuits.

After bringing nuclear facilities online in Natanz, Arak, and Fordow, Tehran reached the conclusion that it did not want to pay any additional costs for its program—it was ready to talk. In 2015, the JCPOA, which recognized Iran’s right to enrich uranium and preserve the core of its nuclear program, was signed. In exchange for the lifting of sanctions, Iran gave up on 20 percent enrichment, shipped the bulk of its nuclear stockpiles out, stopped uranium enrichment at Fordow site, and agreed to redesign the Arak heavy reactor.

Iran is again in a position similar to that of the pre-JCPOA era. With the United States’ decision to leave the JCPOA, the reimposition of harsh sanctions, and the killing of Suleimani, Iran has had reason to reconsider the deterrent aspects of its nuclear program. In this regard, Iran’s prime motivation is leverage in future negotiations.

Beyond continued recognition of its right to enrich uranium, Iran hopes that by ramping its nuclear program back up, it can also get European countries to intensify their efforts to secure the economic benefits that were meant to flow to Iran as part of the deal. European countries argue that they have lived up to their obligations under the JCPOA and even launched the Instex financial mechanism—which enables European firms to get around U.S. sanctions to do business with Iran. But since the inception of the Instex in early 2019, Iran has continued to insist that it has not benefited from the JCPOA at all since it is still unable to sell its oil.

As long as pieces of the JCPOA stay intact and the dispute is not kicked over to the Security Council, it is unlikely that Iran will drastically change its nuclear doctrine—for example, by fully pulling back from the JCPOA, putting an end to IAEA inspections, and resuming uranium enrichment at levels above 20 percent.

But if the Security Council does reinstate its resolutions against Iran and if the United States continues to insist on forcing Iran to make more concessions on its missile capabilities and network of proxy militias—including Hezbollah in Lebanon, Hamas in the Palestinian territories, and the Iraqi Popular Mobilization Forces—that may change. Iran has repeatedly declared that reexercising Security Council resolutions crosses a red line because the resolutions are issued under Chapter 7 of the U.N. Charter, which paves the way for serious measures against Iran such as a war, and thus pose a military and security threat. Beyond that, Iran will not negotiate over its missile program or efforts to exercise its influence in the Middle East; it considers those programs to be essential parts of its national security and deterrence. Tehran has never conducted any negotiations on these issues, and it is very unlikely that it will do so in the future.

If pushed, Iran may put an end to the IAEA inspections and deny inspectors access to its nuclear facilities and activities. It might also take leaving the Nuclear Nonproliferation Treaty (NPT) into consideration, which would make its nuclear program even less transparent. Iran has made clear that it would be within its rights to leave and has invoked Article 10 of the NPT, which states: “Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.”

In such circumstances, the line between war and negotiation will be thin. If Iran and the West fail to reach an agreement through talks, the risk of a military conflict would increase. And there is little reason to be optimistic. When the JCPOA was first signed, U.S. President Barack Obama agreed to separate Iran’s nuclear program from its missile capabilities and its regional activities. By contrast, Trump insists that those are grievous flaws in the JCPOA, indicating that he isn’t likely to back off either.

Saheb Sadeghi is a columnist and foreign-policy analyst on Iran and the Middle East. Twitter: @sahebsadeghi