Photo Source: UNAIMD
Sanctions and the Iranian Nuclear Program: America’s Bizarre Diplomatic Maneuver
by Andrew Ma
March 26th, 2021
As Joe Biden begins his term as President of the United States, he is left with the question of how to best tackle the dispute between the United States and Iran over the Iranian nuclear program and the JCPOA. To best understand how the Biden administration ought to proceed, it is important to first understand the legal context behind the final actions of the Trump administration and what strategy they wished to pursue.
In the wake of the American presidential election, Iran’s nuclear program has faded out of the mainstream media. However, now may be a crucial moment to reconsider the interaction between American and Iranian leadership regarding Iran’s nuclear weapons program. At the United Nations Security Council meeting on August 14th, 2020, the United States, in an unsuccessful effort, proposed reinstating snapback sanctions against Iran and an extension of the global arms embargo. Of the other fourteen members of the Security Council, only the Dominican Republic supported the United States, while both China and Russia vetoed the resolution. Despite this, on August 20th, the United States notified the United Nations Security Council of Iran’s non-performance of its duties under the Joint Comprehensive Plan of Action (JCPOA)—the nuclear deal signed by the Obama administration in 2015—and stated its intention of reinstating full sanctions against Iran on September 19th.
Perhaps the most obvious reason that the American proposal failed is the fact that the United States, under President Donald Trump, formally declared its withdrawal from the JCPOA in May of 2018. The absence of the United States from the agreement greatly reduced the strength of its legal argument to reinstate sanctions. Meanwhile. Iran’s position has not shifted much since Trump initially announced American withdrawal from the JCPOA. Supreme Leader Ayatollah Khamenei, President Hassan Rouhani, and the Foreign Ministry of Iran have all criticized the United States for not respecting and upholding its commitments, while stating that Iran would continue to uphold the JCPOA only if it found the deal to still be in line with its national interests.
Though the issue may appear to be a political dispute based on divergence from the JCPOA, the dispute over the Iranian nuclear program is actually rooted in at least three separate treaties, each with their unique importance to the conflict. Through invoking international law to reinstate sanctions, the United States is not only hoping to reapply political and economic pressure against Iran, but it is also attempting to legitimize its actions and position by returning to a formerly accepted status quo.
Background of the Conflict
After a group of students who were hardline supporters of the new Islamic Republic held fifty-two Americans hostage, and were supported in their actions by Ayatollah Khomeini, the legitimacy of Iran’s conservative religious leadership began to be hinged upon its ability to oppose the United States. Naturally, it would need nuclear weapons to help ensure regime survival if it was going to resist the United States in the long-term.
Iranian Students Storming the Former US Embassy in Iran
Source: Original unknown, AFP/Getty Images
However, nine years before Iran became a theocratic republic, the former monarchy ratified the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which restricts non-nuclear states like Iran from acquiring nuclear weapons. It is important to note that despite a change in regime type amounting to the declaration of a new state, the modern Islamic Republic of Iran is still bound to its prior commitment to the NPT. In addition, it has not attempted to denounce or withdraw from the NPT, meaning that its terms should still apply to the Islamic Republic. Had the new regime wanted to, it could have withdrawn from the NPT, so its lack of action in this regard may be understood as willingness to be bound by its terms. Nonetheless, the International Atomic Energy Agency (IAEA), the United States and many other state parties claim that Iran has repeatedly failed to meet its obligations to the NPT and other treaties relating to its nuclear program.
Overview of the NPT
The NPT is an international treaty opened for signature in 1970 with three main goals: non-proliferation, disarmament, and peaceful use of nuclear energy. Though it has been heralded as a relative success of international law for limiting the rate of nuclear proliferation, it can also be viewed as a political treaty for the benefit of the nuclear weapon states, which use the treaty to legitimize their monopoly over nuclear weapons. While disarmament is less immediately relevant because Iran has not yet actually acquired nuclear weapons, it may become more relevant in the future if Iran continues to develop its nuclear capabilities. The other two aspects of the treaty, non-proliferation and peaceful use of nuclear energy, are key parts of the political issue, as Iran could have benefited from breaches of the non-proliferation clauses, and currently still claims that its nuclear program falls under the NPT’s categorization of peaceful use.
Agreement between Iran and the IAEA
Article 3 of the NPT states that non-nuclear states must negotiate an agreement with the International Atomic Energy Agency (IAEA) for safety, and to prevent the diversion of materials used for peaceful nuclear energy to non-peaceful purposes. In 1974, Iran first entered into such an agreement with the IAEA, but it has consistently failed to comply with the terms of the agreement. In this agreement, Iran agreed to provide information regarding all of its nuclear materials, allow verification of its practices to ensure that materials were not being diverted to non-peaceful uses, and cooperate with the IAEA to ensure that safeguards were implemented correctly. Iran has, at one time or another, violated all of these terms; to name a few instances, it failed to declare its uranium imports in 1991 and 2003, failed to declare the locations and facilities where it was storing and processing materials, and failed to provide information on waste management. In response to many of Iran’s failures to report, the IAEA launched an investigation which did not find concrete ties to nuclear weapons, but nonetheless ended with a formal report of non-compliance to the United Nations Security Council since it was not able to fully ascertain Iran’s nuclear intentions.
An IAEA Laboratory in Seibersdorf, Austria
Source: Xavier Dengra
Actions of the Security Council: Resolutions 1696 and 1737
The United Nations Security Council, after receiving the results of the investigation from the IAEA, invoked its Article VII powers to determine that Iran’s noncompliance amounted to a threat to peace. It adopted United Nations Resolution 1696 in 2006, which called for Iran to suspend all of its uranium enrichment and comply with both the specific terms set in its agreement with the IAEA, and the more general principles stated in the NPT. It also called for other states to exercise caution and refrain from exporting any materials to Iran that could aid with the further development of its nuclear program. Finally, it signaled that if Iran failed to clarify all outstanding issues with the IAEA within one month, the security council would pursue legally binding measures, including sanctions. In the eyes of the international community, Iran had clearly violated its agreement with the IAEA and the broad articles of the NPT, as fourteen of the fifteen security council states endorsed the resolution, including all the permanent members; Qatar supported the resolution in principle, but due to the geopolitical tensions at the time in the Middle East, believed it to be poor timing to vote in favor. After Iran failed to comply with Resolution 1696, the Security Council passed Resolution 1737, which formally sanctioned Iran, banned all sales to Iran related to their nuclear program, and froze assets of those supporting, dealing with, or involved with Iran’s nuclear program.
The Iranian Position
As previously alluded to, Iran’s legal position has remained relatively consistent throughout the years, based primarily on the logic that if other states are unable to decisively prove that its nuclear program is non-peaceful, then it has done nothing wrong besides occasionally neglect to fully report all the details to the IAEA. Again, the fundamental justification for the existence of its nuclear program comes from NPT Article 4(1), which granted it the inalienable right to pursue peaceful nuclear energy, meaning that the key piece of Iran’s legal argument is the inability to definitively prove that it is using its nuclear program to develop weapons.
As for its failures to report and declare, it is not clear that violating its agreement with the IAEA is equivalent to a direct violation of the NPT. On one hand, it can be interpreted that failure to report to the IAEA should amount to a violation of NPT Article 3, which obligated state parties to negotiate the agreements with the IAEA in the first place. However, the authority of the IAEA does not extend to determining the compliance of states with the complete text of the NPT. Thus, it can be argued that Iran’s violation of its agreement with the IAEA might not amount to an Article 3 violation, especially since there is no specific language articulating this in the NPT. Furthermore, the Security Council also does not generally have a responsibility to adjudicate such potential treaty violations; it only became involved in this specific case regarding Iran since it fell under the Security Council’s Annex VII powers and was of significant concern to the permanent members, all of whom are nuclear weapon states desiring to uphold the NPT and maintain their own nuclear monopoly as best as possible. Therefore, despite what the United States might claim, it is not immediately evident that Iran has directly violated the terms of the NPT.
With Iran’s position technically grounded in international law, and the Security Council’s actions also within their authority, the two sides were at a stalemate. Legally, the argument would be deadlocked until definitive evidence surfaced that either proved Iran’s nuclear program was entirely peaceful or involved with the production of nuclear weapons. Since Iran was unwilling to alter its position or give up enriching uranium, the sanctions wore on and the international community did not find the answers it wanted. Between 2006 and 2015, this was the accepted status quo. Meanwhile, even though the sanctions were targeted at Iran’s leadership and those involved with its nuclear program, it was the ordinary citizens of Iran that ended up bearing the brunt of the economic burden. This, combined with the election of Hassan Rouhani, a more moderate President of Iran, brought key players to the negotiating table to strike a deal.
Overview of the JCPOA
The JCPOA was an agreement negotiated in 2015 between the P5+1 (United States, Russia, China, United Kingdom, France, and Germany), the European Union, and Iran, aimed at resolving the uncertainty surrounding the Iranian nuclear program and lifting economic sanctions on Iran over the next fifteen years. The full text of the agreement spans over 109 pages and contains many details related to exactly which of Iran’s nuclear facilities can be used, at what times they may be used, and for what purposes. Some of the key points include a 97% reduction in low-enriched uranium, a two-thirds reduction in active centrifuges for ten years, implementation of a new additional protocol that greatly expanded the IAEA’s ability and authority to monitor Iran’s nuclear activities, and a snapback clause that allowed any of the P5+1 to execute the dispute resolution process in the JCPOA and eventually bring Iran’s suspected non-performance of duties to the Security Council to reimpose sanctions., Of course, if it was then determined that the claim was false and Iran was successfully performing its duties, sanctions would not be reimposed. After the agreement came into effect in 2016, there was a brief moment of balance where all parties appeared satisfied with the arrangement. After all, they had spent the better part of a year negotiating its terms. Given this, why then would the United States withdraw from the JCPOA? Did it have a legal argument for doing so or was the decision strategic or political?
American Legal Reasoning for Withdrawal
Broadly speaking, American legal reasoning for withdrawing from the JCPOA can be categorized into the following two groups: belief that Iran’s nuclear program is not peaceful, and belief that Iran is explicitly violating a provision of the JCPOA or the Additional Protocol with the IAEA. As mentioned above, the crux of Iran’s legal position has always been that its nuclear program is completely peaceful. If there was sufficient evidence to prove that its nuclear program was not entirely peaceful, then the entire legal context of the dispute would shift and the United States could potentially have a strong argument for withdrawing from the JCPOA, at least temporarily. Likewise, a direct violation of the JCPOA or Additional Protocol would also grant the United States a strong legal basis for withdrawal, as it can argue that it should not expect to remain in the JCPOA if Iran is actively violating its terms. Regardless of whether the withdrawal was motivated by the first reason, the second, or both, the United States has not publicized the necessary evidence to justify its decision. In fact, between the time the JCPOA went into effect until the time the United States withdrew, the IAEA did not find Iran to have committed any substantive breaches of the agreement. Of course, this does not rule out the possibility that Iran did indeed violate the terms of the JCPOA, but even if it did, the United States failed to support its legal position with clear evidence proving that Iran had breached the terms of the JCPOA before American withdrawal. Naturally, this leads both states and individuals to suspect that though the United States may have had a legal reasoning for withdrawal supported by hidden evidence that it cannot reveal for one reason or another, the primary reason it withdrew may have been political or strategic.
American Political Reasoning for Withdrawal
The most obvious reasons for the United States to withdraw from the JCPOA are political, and many of them are closely linked with Trump and the stark contrast between his foreign policy strategy and that of his predecessor, Barack Obama. Some believe that Trump was influenced by Israel and the Israel lobby. Others believe that he was harnessing nationalistic “America first” fervor to solidify his power base. Some even believe he had a personal desire to tear down one of Obama’s greatest foreign policy accomplishments. These reasons, while perhaps amusing to discuss as an exercise of discerning the domestic political climate and psychoanalyzing Trump, are not all that relevant to the scope of this paper. Aside from these reasons, there are a number of valid strategic concerns that experts have raised about the JCPOA, even while Obama was still in office.
American Strategic Reasoning for Withdrawal
Critics of the JCPOA rightly point out that the agreement does not address Iran’s ballistic missile program, nor does it indefinitely prevent Iran from building up its nuclear program to the point where it could acquire nuclear weapons. In their eyes, the JCPOA is a band-aid fix at best, and completely ineffectual at worst. This is because even without seeing its nuclear program to fruition, Iran’s current ballistic missile program enables it to strike two thousand kilometers from its borders. For reference, this means that Iranian missiles could strike targets as far away as Belarus and Nepal, and can credibly threaten American allies in the Middle East, such as Israel. Furthermore, since the JCPOA does not indefinitely prevent Iran from developing its nuclear capabilities, it can freely do so once it has fulfilled the terms of the JCPOA for its duration of activity. Then, Iran could hypothetically reap the benefits of a nuclear weapons program combined with a ballistic missile program that is already well-developed and technologically sophisticated.
Another consideration is Iran’s support for regional militias destabilizing the Middle East and harming American interests, which the Trump administration claimed was sufficient enough for a reimposition of sanctions in 2018. Iran has used its influence to take sides in many conflicts in the Middle East by supporting militant groups such as Hezbollah in Lebanon, and various other groups in both Yemen and Iraq. Since it is impossible to know exactly which combination of these reasons caused the United States to withdraw, a fair analysis of the American attempt to initiate snapback sanctions through the Security Council on August 14th, 2020 should be done with all of these reasons in mind.
The effective striking range of various Iranian missiles.
Mystery of the Snapback
Arguably the most important and interesting question to answer is also the most obvious one: why did the United States want to activate snapback sanctions through an agreement that it had already withdrawn from itself? Before even discussing this question, it should be noted that while the United States may technically have had the legal authority to proceed with this logically strange diplomatic maneuver (on the grounds that the United States is still listed as a participant of the JCPOA in Resolution 2231, which officially endorsed it), it is hard to imagine that other states would accept this unconventional way of doing things. In fact, the United Kingdom, France, and Germany jointly stated that any procedure initiated by the United States after its withdrawal from the JCPOA would have no legal effect and would not be recognized. This American claim that it is still “involved” in the JCPOA is tenuous at best, and more likely is both legally and logically unsound upon further scrutiny and consideration. If one keeps this in mind, the question of why the United States would want to go through the Security Council to initiate snapback sanctions after withdrawing from the JCPOA becomes even more bewildering. If the intention was to sanction Iran for its violations, why not provide proof of their violations? Even if full evidence cannot be released, why not at least provide some context and explanation that might persuade other states to take the new American position seriously? If the intention was to completely abandon the JCPOA because it was a strategic blunder, why trigger a provision of the agreement two years later? With no clear answer to any of these questions, the best reasoning remaining is that the United States turned to international law as a formality and way of legitimization, rather than as an earnest attempt to use a mechanism established by the JCPOA.
In conclusion, based on the fullest extent of publicly available information, the United States appeared to be already set on sanctioning Iran for long-term strategic reasons before it turned to the United Nations. It did not expect any support from the Security Council and went through the motions of attempting to initiate snapback sanctions purely as a means to legitimize its own unilateral sanctions, which may be interpreted as an attempt to return to the status quo of 2006-2015 and resolve the nuclear issue through isolating Iran, rather than engaging it. Only time will tell if this maneuver is a mistake, but at the present moment, the idea seems counterintuitive at best. Considering that the end goal of this strategy seems to be a reversion to the previous status quo, but with the international community against the United States and without hefty sanctions against Iran, it is difficult to imagine why this plan would be better than either sticking with the JCPOA or never negotiating it in the first place. In the end, the Security Council did not decide to reimpose snapback sanctions, but this situation is still quite significant because instead of isolating Iran, the United States has seemingly isolated itself and made many of its future diplomatic endeavors to curtail Iran much less credible and much more unnecessarily difficult.
Acknowledgements: I would like to thank Alice Li for her daily motivation and support, Elad Raymond for assisting me in the publication of this paper, and Laurent Kleinheinz for his comments and suggestions.
About the Author: Andrew Ma is a native of Seattle, Washington, and a third-year student at Williams College. He is a Class of 1960 Scholar majoring in Political Science and concentrating in International Relations, American Foreign Policy, Justice and Law Studies, and Science and Technology Studies. After graduation he wishes to pursue a career in international law.
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