The extent to which it solves the problem of
the Iran deal; its merit as a precedent for better management of sanctions
by Ira Straus
(First Publish in 2015)
(First Publish in 2015)
The Obama Administration stated many times, in the course of
negotiating the Iran deal, that sanctions would "snap back" if Iran
cheats. It did not however specify how this would happen.
A lot of people were skeptical that this could ever happen. They
pointed out that it had been hard to get the necessary countries to agree on
sanctions in the first place. It took years. Some of these countries have made
it clear that they want to be rid of the sanctions and would not agree to
reimpose them, were they ever lifted. These countries have a veto on the UN
Security Council (SC). So if the sanctions are lifted now, they will in fact
never be reimposed. Moreover: once sanctions are lifted, economic links will be
developed rapidly, economic interests will become attached to these links,
further preventing governments from agreeing to reimpose sanctions. So how
could sanctions ever simply “snap back”?
This was a powerful critique. Yet the agreement does have a
specific “snap-back” provision. It was achieved in no small part as a
consequence of the strength of the aforementioned criticisms -- the drumbeat of
demands for something more serious than general statements that sanctions would
be reimposed if needed. The resultant of these pressures is a more robust
snap-back provision than anyone anticipated.
That makes a favorable impression on me, as one who had been
skeptical. I had elaborated and put out some “snap-back” options on my own, in
the absence of any serious one put forward by the Administration in past
months. I am pleased to see some overlap with what actually came out, along
with some differences.
The assurances on a snap-back had long sounded vacuous. Now they
have substance.
It is important to give credit to this accomplishment.
To be sure, there can still be debates as to whether the deal's
snap-back provision is sufficient. Preliminary steps would have to be gone
through prior to the “snap-back”, some of them dilatory and discouraging to
actually implementing the snap back. There are limitations placed on what would
be snapped back. And, were the snap-back provision to be invoked, it could
prove hard to get all the relevant countries to comply with their legal
obligation to in fact “snap back” and reimpose sanctions.
There are also other provisions in the deal that have raised
serious objections, but I will not deal with the other provisions here. My
purpose is to focus on three questions about snap-back mechanism itself: Does
it justify the Administration's claim that sanctions will “snap right back” if
Iran violates the deal? How important is it as an innovation in international
procedures? Can it serve as precedent for better sanctions-management in the
future?
The legal mechanism for sanctions to “snap back”
Here is the text of the snap-back paragraph of the agreement:
“[After several
preliminary procedures are exhausted, a party to the deal] could treat the
unresolved issue as grounds to cease performing its commitments under this
JCPOA in whole or in part and/or notify the UN Security Council that it
believes the issue constitutes significant non-performance. Upon receipt of the notification from the
complaining participant, as described above, including a description of the good-faith
efforts the participant made to exhaust the dispute resolution process
specified in this JCPOA, the UN Security Council, in accordance with its
procedures, shall vote on a resolution to continue the sanctions lifting. If
the resolution described above has not been adopted within 30 days of the
notification, then the provisions of the old UN Security Council resolutions
would be re-imposed, unless the UN Security Council decides otherwise.”
That’s the snap-back in a
nutshell. The sanctions-relief could be ended by any party to the deal, simply
by its bringing a complaint about Iranian non-compliance to the Security
Council (SC); ended, that is, unless the SC adopted, by unanimous agreement
among the P5, a new resolution maintaining some or all of the sanctions-relief.
Another way of putting it
would be: The sanctions are lifted only up to the moment when one of the
parties to the agreement raises a complaint against Iran and gets to the point
of bringing it to the SC, assuming that the SC doesn't agree on a new
resolution within 30 days to maintain some of the sanctions-relief. Or, yet
another way: The SC is unanimously agreeing to lift sanctions for as long, and
only as long, as none of the P5 parties to the agreement supports a complaint
brought against Iran to the SC.
The deal itself,
providing sanctions relief, must be adopted unanimously, as were the sanctions
themselves initially. But the agreement proceeds to establish a sphere of
subsequent corrective decisions or revisions -- namely, reversal or reduction
of the sanctions relief -- that can be made without unanimity.
This avoids the careening
that the veto in the SC traditionally creates between equal and opposite
unanimity requirements. Under the traditional arrangement, it requires
unanimity among the P5 for the SC to impose sanctions; then it requires an
opposite unanimity to lift sanctions; and then it requires getting another
opposite unanimous agreement in order to reinstate sanctions. There is a kind
of surrealism in this. It is not conducive to rational decision making. In
particular, it is not conducive to imposing sanctions, for fear that they could
not be lifted if appropriate. It is equally unconducive to lifting sanctions
for fear that they could not be reimposed if needed. And this makes it
unconducive in turn to practical negotiations with the target of the sanctions:
it is too hard to bring pressure to bear on it, too hard to lift the pressure
in return for a deal, and too hard to renew pressures if the deal is not honorably
implemented.
Under the arrangement in
the Iran deal, unanimity is still required to get this deal itself and lift the
sanctions; but once that is done, the challenge is not to get a renewed
unanimity for reimposing sanctions, but instead, to maintain through the
duration of the deal the unanimity in support of the sanctions-lifting.
Concretely in this case, it is not Russia or China that gets a veto on
reinstating sanctions, but the U.S. or any of its allies that gets a veto on
continuing the lessening of sanctions.
The restrictions on the
snap-back
Immediately after making
this innovative snap-back provision, the text places a limitation on just what
it is that snaps back: “In such event, these provisions would not apply with
retroactive effect to contracts signed between any party and Iran or Iranian
individuals and entities prior to the date of application, provided that the
activities contemplated under and execution of such contracts are consistent
with this JCPOA and the previous and current UN Security Council resolutions.”
This is a subtraction from the scope and effectiveness of the snap-back. It
could prove a far-reaching waiver.
Next comes a commitment
to keep snap-back for the last resort: “The UN Security Council, expressing its
intention to prevent the reapplication of the provisions if the issue giving
rise to the notification is resolved within this period, intends to take into
account the views of the States involved in the issue and any opinion on the
issue of the Advisory Board. 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.” This set of declarations is
only on paper, but it could have political effectiveness in making a snap-back
less likely, and could delegitimize a snap-back and make it harder to get other
countries to comply with them. It is constructive, in that it obstructs a
flippant reimposition of sanctions. It is destructive, in that it can be invoked
arbitrarily for diplomatic pressure purposes by opponents of a snap-back, and
for subsequent justification of noncompliance. It is sure to be used in the
arguments of any party that wants to deny a reality of noncompliance and create
an alternative reality of he-said-she-said neutrality. This alternative reality
that is bound to crop up, not only in the universe of interested powers, but in
a wider social universe that is familiar to us all from its prominence in the
public discourse space: a universe that makes a practice of standing in-between
any two sides. Both universes are always around; there are always powers with
economic and geopolitical interests against sanctions, and there are always
social milieus that claim a higher truthfulness for itself against through a
rejection of taking sides, specifically a rejection of the side associated with
its own society.
Prior to the snap-back
paragraph, the text lays out at length some stages that have to be gone through
before getting to the SC.[1]
It might be difficult to get a violation recognized as a violation in these
early stages; the Joint Commission would have 3 members -- Iran, Russia, and
China -- inclined to deny any violation, while the other 5 Western members are
not known for always sticking together to outvote the 3 naysayers; at the next
stage it would go to the foreign ministers of the same countries; at the next
stage, to an advisory board. Nevertheless, these steps are not decisive, since
finally, even if the complaint failed at all these stages, the complainant
party could take it to the Security Council. That assumes, to be sure, that the
complainant would be able to withstand the social and diplomatic pressures,
which could build up considerably in these preliminary stages, to back off and
fall silent.
How to evaluate this?
The strong side of it:
If a complaint does finally make it to the
Security Council (SC), the sanctions would indeed “snap back”, unless the
Security Council passed a new resolution stating otherwise in 30 days.
The mechanism is clever: Instead of the
Security Council voting on whether to reimpose sanctions, the Security Council
would have to make a new decision by unanimous vote among the P5 in order to
avoid reimposing sanctions. This makes re-imposition more likely, than would a
simple positive decision by majority vote. It is indeed a kind of automaticity.
For those who are opposing the sanctions, the
automatic reimposition, in the absence of a new SC resolution, would put a
premium on their compromising in the Security Council on whatever resolution
they could get the U.S. or Iran-criticizing powers to accept. For example, they
might agree to reimpose partial or modified sanctions, if they want to avoid
the whole set getting reimposed.
If the U.S. holds out, then in principle -- or
more precisely, in fact, as a matter of international law -- the entirety of
sanctions will be reimposed. However, getting the compliance of the other
powers with this law would be difficult, once they have started up major economic
relations with Iran again. Even the U.S. too would face pressure to compromise
on a new SC resolution, in order to get the other powers more in a mood for
complying.
The
weak side of it:
1. The process is less flexible and
deliberative than a simple majority-determined decision on sanctions
reinstatement. A majority process in the SC could provide for ratcheting
sanctions up and down, in keeping with diplomatic needs, until the day when the
issue is resolved. That would seem more optimal. However, a majority would not
be easy to obtain, once economic pressures mounted to maintain trade, and a
majority vote might have an even harder time than this snap-back process in
commanding compliance on the part of those who vote against it, since it would
be openly violating their customary right to veto, whereas the present
snap-back makes a show of preserving that custom, even if not in reality since
it is done in an inverted form in which they cannot veto the snap-back.
2. There is likely to be considerable pressure
within international society to drop a complaint in the course of the 35-day
dispute settlement process, during which multiple ambiguities will usually
emerge. Already the text contains clauses wherein Iran threatens to retaliate
if any sanctions are reimposed, and countries pledge to try to avoid reimposing
sanctions.
3. The economic obstacles to effective
“snap-back” -- the resistance of vested interests in trade with Iran, which
will grow geometrically from the day sanctions start getting lifted -- are not
addressed. This problem is compounded by the provision that, even if sanctions
are reimposed in full, contracts made during the off-sanctions interlude will
remain valid. Those contracts could be so large as to nearly obviate the
reimposed sanctions. Is there a danger that this will be done deliberately by
Iran? The day after sanctions-lifting provides an opening of the window, Iran
and some of its partners might rush to make far-reaching long-term contracts.
This would provide a substantial measure of insurance against a reimposition of
sanctions -- and reduce Iran’s incentive to remain in compliance with the deal.
Similarly, the unfreezing of assets, which will bring Iran an estimated
$100-150 billion, will likely be used by Iran to put its assets where it can
control them and they cannot be refrozen; or spent by Iran, not all of it for
benign purposes, with a part going to Islamist and Shi’a ideological and
terrorist purposes.
There are, as noted at the start, other major
defects in the deal. There is the allowance of renewed trade in weapons and
ballistic missiles. There is the neglect of issues of terrorism, subversion,
and destabilization. The economic strengthening of Iran by the deal could
enable Iran to give the world more trouble along these lines. And then it could
still go nuclear after the expiration date, at its convenience.
However, these other defects are not related to
the “snap back” mechanism per se. They are a matter of concessions on what in
principle are separate matters; concessions that were made in the name of
getting an agreement at all against the nuclear program. Whether they were wise
is not what this paper is about. I would like, in my remaining paragraphs, to
focus instead on the possible future merits of the snap-back mechanism per se.
The merit of such future use is not affected by the other provisions thrown
into the present deal, or others missing from it.
Let me reiterate: My speaking on the snap-back
mechanism, on the whole favorably, does not require judging the rest of the
deal. The snap-back itself is more efficacious than was expected. Whether it is
efficacious enough to outweigh the negative aspects of the deal, I leave to
others to judge. I am simply discussing the merits of the snap-back as an international
operational mechanism. Irrespective of whether or not it redeems this
particular deal, it is of importance in its own right, for future instances.
Use of this snap-back procedure as a precedent?
In future SC resolutions that impose sanctions
or other penalties on countries, there ought to be a similar snap-back
provision. This would create a new flexibility to use sanctions for effective
negotiations. It would become possible to reduce sanctions, in face of good
behavior or partial accommodations by the sanctioned country, with the
assurance that there is an efficient “snap back” mechanism to restore full
sanctions if needed. Similarly, it would be made feasible to reduce or
eliminate the sanctions as a part of a Security-Council ratified agreement with
the sanctioned country, yet have the sanctions would “snap back” to their
original level if a complainant party to the agreement submitted its complaint
about a violation to the Security Council and if the SC failed to pass within 30 days a new resolution
against the sanctions. Moreover: such negotiations, reductions, and
reinstatements could occur in multiple iterations. That would be true
flexibility: a flexibility of strength not of weakness. It would render
sanctions a much more useful instrument of diplomacy than in the past.
This is probably not the absolutely optimal
mechanism, to be secure. One might envisage making SC resolutions make
sanctions susceptible, after their original adoption by the usual P5 consensus,
to being relaxed, reimposed, re-relaxed, ratcheted up and down, etc., by simple
majority votes on the SC, rather than requiring unanimity for relaxing the
sanctions and a single objector for restoring the sanctions. But it would come
close to the same thing, and would be a good beginning, considerably better
than traditional practices in handling sanctions. It would be an inversionary
use of the harsh requirement of unanimity in the Security Council, by the
tactic -- a clever one, but not unprecedented -- of requiring the SC to pass a
new resolution by unanimity or else the current resolution would lose all force
and a previous one be reverted to. As such, it would evade the need to give an
appearance of breaking from SC rules of requiring unanimity among the P5.
The use of this method, in the present
high-visibility case of Iran, should be tested and used to its fullest. To the
extent that it works, it should be used as a precedent to the extent it fails,
it should be improved upon. If the precedent becomes more widely used and proves
on the whole a favorable experience, it might in turn serve as a step toward
subsequently trying the more optimal, majority-vote method.
[1] “DISPUTE RESOLUTION MECHANISM. If
Iran believed that any or all of the E3/EU+3 were not meeting their commitments
under this JCPOA, Iran could refer the issue to the Joint Commission for
resolution; similarly, if any of the E3/EU+3 believed that Iran was not meeting
its commitments under this JCPOA, any of the E3/EU+3 could do the same. The
Joint Commission would have 15 days to resolve the issue, unless the time
period was extended by consensus. After Joint Commission consideration, any participant
could refer the issue to Ministers of Foreign Affairs, if it believed the
compliance issue had not been resolved. Ministers would have 15 days to resolve
the issue, unless the time period was extended by consensus. After Joint
Commission consideration – in parallel with (or in lieu of) review at the
Ministerial level - either the
complaining participant or the participant whose performance is in question
could request that the issue be considered by an Advisory Board, which would
consist of three members (one each appointed by the participants in the dispute
and a third independent member). The Advisory Board should provide a non-binding
opinion on the compliance issue within 15 days. If, after this 30-day process
the issue is not resolved, the Joint Commission would consider the opinion of
the Advisory Board for no more than 5 days in order to resolve the issue. If
the issue still has not been resolved to the satisfaction of the complaining
participant, and if the complaining participant deems the issue to constitute
significant non- performance, then that participant could treat the unresolved
issue as grounds to cease performing its commitments under this JCPOA in whole
or in part and/or notify the UN Security Council that it believes the issue constitutes
significant non-performance. “ (etc.; the above-cited snap-back provision
begins here.)
Further reading: Trump should use the Iran deal's provision for making sanctions “snap back” (May 2018)
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