DISPATCHES FROM MOON OF ALABAMA, BY "B"
This article is part of an ongoing series of dispatches from Moon of Alabama
[dropcap]O[/dropcap]n May 8 2018 the U.S. ceased its participation in the Joint Comprehensive Plan of Action (JCPOA) or nuclear deal with Iran. The New York Times now reports that the U.S. wants to be back in for some nefarious reason:
Secretary of State Mike Pompeo is preparing a legal argument that the United States remains a participant in the Iran nuclear accord that President Trump has renounced, part of an intricate strategy to pressure the United Nations Security Council to extend an arms embargo on Tehran or see far more stringent sanctions reimposed on the country.
...
In an effort to force the issue, Mr. Pompeo has approved a plan, bound to be opposed by many of Washington’s European allies, under which the United States would, in essence, claim it legally remains a “participant state” in the nuclear accord that Mr. Trump has denounced — but only for the purposes of invoking a “snapback” that would restore the U.N. sanctions on Iran that were in place before the accord.If the arms embargo is not renewed, the United States would exercise that right as an original member of the agreement. That step would force a restoration of the wide array of the sanctions that prohibited oil sales and banking arrangements before the adoption of the agreement in 2015. Enforcing those older sanctions would, in theory, be binding on all members of the United Nations.
The real aim of the Trump administration is of course much wider:
Political calculations aside, the administration’s larger plan may go beyond imposing harsher sanctions on Iran. It is also to force Tehran to give up any pretense of preserving the Obama-era agreement. Only by shattering it, many senior administration officials say, will Ayatollah Ali Khamenei and President Hassan Rouhani be forced to negotiate an entirely new agreement more to Mr. Trump’s liking.
The idea is idiotic and it will not work. There will be no 'snapback' sanctions and Iran will stick to the deal.
The snapback option is part of the Dispute Resolution Mechanism that is laid out in article 36 and 37 of the JCPOA deal. UN Dispatch has a short description of what it means:
The deal signed this morning creates an eight member panel, called the “Joint Commission” to serve as a dispute resolution mechanism. The members of the panel are the five veto-wielding members of the Security Council, plus Germany, Iran and the European Union. There are eight members total. If a majority (5) finds Iran to be cheating, the issue is referred to the Security Council. No single country has a veto.
And here is where things get interesting. The language of the nuclear deal says that the vote in the Security Council would not be to reimpose sanctions. Rather, the Security Council must decide whether or not to continue lifting the sanctions. And if they fail to do so, the old sanctions are snapped back into place. This framing obviates the prospect of a Russian veto, and it all but assures that if the Western countries believe that Iran is cheating, sanctions will automatically be re-imposed.
The U.S. is no longer a participant in the 'Joint Commission' and can thereby not trigger the process. There will also be no majority which would then have to refer a dispute to the UN Security Council. In its Resolution 2231 the UN Security Council also set out that only JCPOA participants can trigger a snapback process:
11. Decides, acting under Article 41 of the Charter of the United Nations, that, within 30 days of receiving a notification by a JCPOA participant State of an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA, it shall vote on a draft resolution to continue in effect the terminations in paragraph 7 (a) of this resolution [...]
That the U.S. will now claim to be still a participant state in the JCPOA will be seen as a joke by everyone who considers previous remarks the Trump administration made about ceasing its participation.
On May 8 2018 The White House published a 'Presidential Memoranda' which was headlined:
In section 2 the memorandum orders:
The Secretary of State shall, in consultation with the Secretary of the Treasury and the Secretary of Energy, take all appropriate steps to cease the participation of the United States in the JCPOA.
During the press briefing on that day then National Security Advisor John Bolton emphasized that the U.S. had left the deal and could therefore no longer trigger the 'snapback' provision of UNSCR 2231. Talking about a sanctions detail he said:
AMBASSADOR BOLTON: [...] This contingency has been posted on the Treasury Department website since 2015 because of the potential for the use of the provisions of Resolution 2231, which we’re not using because we’re out of the deal. [...]
Q But that won’t be negotiated away during that — for those existing —
AMBASSADOR BOLTON: We’re out of the deal.
Q We’re out.
AMBASSADOR BOLTON: We’re out of the deal. We’re out of the deal.
Q Are we out of the deal?
AMBASSADOR BOLTON: You got it.
The next day the Washington Post published an op-ed by Bolton. Its opening sentence is:
On Tuesday, President Trump announced his decision to withdraw from the failed Iran nuclear deal.
The August 6 2018 Executive Order 13846 which reintroduced U.S. sanctions on Iran says:
I, DONALD J. TRUMP, President of the United States of America, in light of my decision on May 8, 2018, to cease the participation of the United States in the Joint Comprehensive Plan of Action of July 14, 2015 (JCPOA), [...] hereby order: [...]
Just six weeks ago the U.S. special representative for Iran Brian Hook reconfirmed that the U.S. is outside of the deal and can therefore not trigger the snapback:
Hook appeared, for now at least, to put to rest any speculation that the U.S. could try to step back into the deal, claiming participation despite the pullout, to trigger the snapback.
"We're out of the deal," he said when asked, "and so the countries that are in the deal will make decisions that are in their sovereign capacity."
After all these declarations and confirmations that the U.S. is no longer a participant in the JCPOA the other parties of the deal will certainly not agree with any U.S. argument that claims it is still in:
A senior European diplomat, who spoke on the condition of anonymity, dismissed the strategy as pushing the words of the agreement far beyond their logical context.
But the author of the NY Times piece, David Sanger, claims that the strategy could work anyway:
But the administration’s strategy could well work, even if other members of the United Nations ignored the move. At that point, on paper at least, the United Nations would be back to all the sanctions on Iran that existed before Mr. Obama reached the accord with Tehran.
No, it can not work. Only participants of the deal can trigger the snapback process. The U.S. is no longer recognized as such a participant.
Before a snapback can occur there are actually formal processes in the 'Joint Commission' and in the UNSC which must be followed. Those processes will not happen because the other JCPOA and UNSC members will simply ignore a U.S. attempt to trigger them.
Other members of the deal could still do that though. But the Europeans are unlikely to take the U.S. side on this issue. In January they made noise that they would trigger the Dispute Resolution Mechanism of the JCPAO that ends with sanction snapback because Iran had exceeded some formal limits of the deal. But Iran countered that with arguing that it was still within the deal limits and then threatened to leave the Nuclear Proliferation Treaty should the Europeans follow through.
The Europeans did not want to risk that and have since shut up.
The clown that leads the State Department will have to come up with some better ideas.
Posted by b on April 27, 2020 at 15:38 UTC | Permalink
I'd like to think these were the last gasp moves of a dying empire, sadly plenty of life left in the beast to cause death and chaos for a few more years
Posted by: ramon | Apr 27 2020 16:03 utc | 2
this gives new meaning to the term 'non negotiable'... i guess it was issued by a schizophrenic... no offense to the schizophrenic and i hope pompeo is able to get back to his church service in kansas soon enough.. he has a lot of praying to catch up on, like praying for an order of bleach for his boss, lol...
Posted by: james | Apr 27 2020 16:07 utc | 3
While I don't think this will work, it doesn't surprise me that Pompeo would try it. Has anyone heard from Mike D'Andrea lately?
Also, does anyone think shifting numbers are concerning?
Posted by: Odin's Raven | Apr 27 2020 16:09 utc | 4
The US exists in a post truth/reality bubble. They believe their own exceptionalist propaganda and have therefore lost contact with reality and are now swimming in a sea of lies. They have no concept of what it means to enter or exit an agreement. They are non-agreement capable.
Posted by: Norwegian | Apr 27 2020 16:13 utc | 5
In reality, the JCPOA was and is dependent on American participation. The fact that other parties "adhered" to the provisions of the deal is in my opinion irrelevant and of no practical effect. The irrelevance of the EU, Russia or China is made obvious by the fact that none of them could counter Mr Trump's "maximum pressure" on Iran or even address the illegal nature of the American policy. If the US government decides to pull a stunt as detailed in the article above, all the other so-called powers will fall into line and betray Iran again.
Posted by: Jay | Apr 27 2020 16:25 utc | 6
"Le perfide Albion" has met its flee-weight inheritor in "Le seniles Nord-Americain" in the form of the 'ugly Americans' of the Washington Trump.ettes, I once had to (gladly) host and toast the author of "The ugly Aerican" thru athree-day drinking bout at Canada and Australia residences and a very unpeaceful "Friendship Hotel" in Bêijing 1974 or -74- He told me he was convinced the US would end up in the same state as his -- after imibing too much of that strong stuff. ANd of course 70% C205oHey! moutai (Máo-tái) spirits
Posted by: JoveBove/區司 | Apr 27 2020 16:28 utc | 7
Iran should sign a peace deal with the Israelis. If you travel around Iran as i have, you soon find that the average Iranian has zero interest with their leadership's obsession with what has long since become primarily a Sunni Muslim cause, and in fact deeply resent the detrimental effect it has on them. Iran has plenty of other regional commitments to it's wider Shia community and only loses from their position on the issue.
It would also benefit the Palestinian cause because major regional powers have pulled back from engagement as they don't want to be on the same side as Iran. Iran's position seems to be great news for all their enemies, and a disaster for themselves. The strategical idiocy is plain as day to all but the eccentric zealots at the top.
Iran has the largest Jewish community in the Middle East outside Israel and would benefit hugely from a change of direction. As would Lebanon and Syria who live in a perpetual state of unnecessary antagonism.
Posted by: Glasshopper | Apr 27 2020 16:42 utc | 8
War is inevitable before the election, both for the chaos it will cause and to increase the price of oil. Even Biden knows that Trump is goiing to cancel the election. The war wil be his main excuse.
Posted by: RenoDino | Apr 27 2020 16:42 utc | 9
[premium_newsticker id="213661"]
"b" is Moon of Alabama's founding (and chief) editor. This site's purpose is to discuss politics, economics, philosophy and blogger Billmon's Whiskey Bar writings. Moon Of Alabama was opened as an independent, open forum for members of the Whiskey Bar community. Bernhard )"b") started and still runs the site. Once in a while you will also find posts and art from regular commentators. You can reach the current administrator of this site by emailing Bernhard at MoonofA@aol.com.
This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License.
Whether it will work or not, it rather shows the irrelevance of the other "participants". Which suggests that it could indeed work.
Posted by: rucio | Apr 27 2020 16:00 utc | 1