Vagaries of Consciousness
- There has already been too much chaos in the Middle East
President Trump, in a ten-minute address, has withdrawn from Iran nuclear deal known as Joint Comprehensive Plan of Action (JCPOA) that was negotiated over a twelve-year period (2003-2015) by the US, Russia, China, France, UK and Germany, and was working quite fine in the last three years. The president claimed that “[a]t the heart of the Iran deal is a fiction, that Iran only desired a peaceful nuclear energy program. Today we have definitive proof that this Iranian promise was a lie. Last week Israel published intelligence documents, long concealed by Iran, conclusively showing the Iranians’ regime and its history of pursuing nuclear weapons”.
The decision has left other participants to the deal in quandary. However, they have shown poise and maturity by vowing to remain committed to the agreement. This show of solidarity has temporarily diffused consequences which are likely to flow from a unilateral withdrawal of an important participant. It is useful to examine the legal basis of this decision and various ramifications that are likely to follow.
The JCPOA is an agreement signed among the P5+1 and Iran, with the High Representative of the European Union for Foreign Affairs and Security Policy. Subsequently, the JCPOA was endorsed (and adopted) by the UN Security Council (UNSC) as it lifted the nuclear related sanctions on Iran. Under the agreement, Iran has reaffirmed that under no circumstances will it ever seek, develop or acquire any nuclear weapons, and that this commitment would be transparent and verifiable (a position consistent with its obligations under the Non-Proliferation Treaty (NPT) to which it remains a signatory). Furthermore, JCPOA will allow Iran to move forward with an exclusively peaceful, indigenous nuclear program, in line with scientific and economic considerations. In return, the JCPOA will lead to the comprehensive lifting of all UN Security Council sanctions as well as multilateral and national sanctions related to Iran’s nuclear program, including steps on access in areas of trade, technology, finance, and energy.
The agreement has a section on dispute resolution. Iran or any other participant could file a complaint for non-performance of commitments that would trigger the resolution process (reference to a commission, ministerial committee, advisory board). If the process fails to resolve the dispute, the complainant can notify to the UNSC its intension to withdraw from its commitments, partially or fully. The UNSC would then vote whether the sanctions be re-imposed or JCPOA should continue. This “snapback” provision is clearly not available to the US as it has not triggered the dispute resolution procedure. Evidently, it is also not open to the US to directly invoke “snapback” provision at the UNSC. So long as Iran is compliant and other participants wish to continue to work under the JCPOA, “snapback” is not a realistic outcome.
The decision has left other participants to the deal in quandary. However, they have shown poise and maturity by vowing to remain committed to the agreement
To be more precise, none of the participants has filed any complaint since the agreement went into effect. All inspection reports prepared by IAEA, as required under the agreement, have confirmed that Iran is in compliance with the stipulations of the agreement. As recently as last month, Defense Secretary James Mattis testified before the Armed Services Committee of Senate that Iran was compliant. A similar testimony was given by Daniel Coats, Director, National Intelligence in March and, most recently, by none other than the newly appointed Secretary of State, John Pompeo, during his confirmation hearing. Curiously, other than through the dispute resolution, there is no other provision that allows a participant to unilaterally withdraw from the agreement. Intriguingly, the White House has not yet issued the text of the Presidential Order that could help ascertain if it has been done in pursuance of any of the provisions of JCPOA.
Given its unique position in the agreement (all powers were arranged against it), the dispute resolution contains the following unusual provision: “Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part”.
In a nutshell, then, we see that for reasons not fully explained the US has unilaterally withdrawn from the JCPOA and has left the door ajar for Iran to walk away as well. Foreign policy experts are of the view that the unilateral withdrawal affects the US credibility as well as its legal obligations under the international law. Some have argued that even though the JCPOA was not a treaty ratified by the US Senate, the fact that it was adopted by the UNSC makes it a law binding on the US. Under Article 25 of UN Charter, all states have agreed to accept and carry out the decisions of the UNSC. The US Senate has ratified UN Charter.
Analysts also believe that the decision is politically motivated. The two countries that have welcomed the decision are Saudi Arabia and Israel. For them, as David Sanger and David Kirkpatrick of New York Times have suggested, what mattered was that “the deal legitimised and normalised Iran’s clerical government, reopening it to the world economy with oil revenue that financed its adventures in Syria and Iraq, its missile program and its support of terrorist groups”. Regarding Iran’s rising influence in the region, the European participants shared the concerns but urged the US to work within the framework of JCPOA for further enhancement of Iran’s obligations rather than risking a functioning deal.
The biggest question facing the participants is how to deal with the US sanctions which would be announced as early as next week. Iran has urged European participants to make their position clear whether they would continue with the agreement and perform their obligations. Obviously, the US would threaten sanctions against European businesses that would work with Iran. Germany and France have expressed their resolve to continue to remain in the agreement.
The EU, having worked closely with the JCPOA and very keen to see its continued success, has vowed to steadfastly support the agreement. The role of EU would also be critical in warding off threats of sanctions against member countries for allowing their companies to do business with Iran. It has done so in the case of Cuba, where it has continued to work despite recent roll-back of US efforts to normalise relations. Technically speaking, a country imposing sanctions on another country, not sanctioned by the UNSC, cannot expect other countries to follow suit, much less impose sanctions on them for not doing so. Such an act can be challenged under the dispute resolution system of the World Trade Organisation (WTO). EU is known to be the leading trading block making effective and frequent use of WTO dispute resolution mechanism.
The US decision has ensued uncertainties about Iran’s position in world affairs that were thought to have been removed. If Iran walks away from the agreement and, worse, renege on NPT, those uncertainties would amplify. There has already been too much chaos in the Middle East, engendering one more source of instability would not be in the interest of promoting peace and stability in the region.
Pakistan has justifiably expressed its concern on this development. It has underlined the significance of multilateralism in the resolution of international disputes and advise all participants to show restraint. Actions that undermine multilateralism would expose world affairs to opacities with unpredictable consequences.