Wednesday, May 16, 2018

Trump should use the Iran deal's provision for making sanctions “snap back”

by Ira Straus 

 The Trump Administration wants to hit Iran as hard as it can with sanctions. However, it has neglected to use the provisions of the Iran deal itself for doing this. In stating that it is withdrawing from the deal, it seems to be giving away for free its standing to invoke these provisions in the future. This is troubling, and self-defeating.

 Thanks to the pressures that skeptics had placed on the Obama Administration during the negotiations for the deal, a provision was included for sanctions to “snap back” if any major party to the deal insisted on declaring Iran in non-compliance. All other parties to the deal, and indeed the entire global community, would then be legally obligated to join in reimposing sanctions.

 This is in fact what the Trump Administration would like to achieve. Yet there has been no discussion of using this provision. It is acting as if no one has called this option to its attention. And it may well be inadvertently giving away its chance to ever do it.

 Republicans would have every right to claim much of the credit for the snap-back provision. They mobilized the criticism of Obama's negotiations, arguing that the deal would be a fraud if it lifted the sanctions on Iran without providing a practical way to reimpose them -- a way more practical than ever in the past. Their arguments found resonance. The demand for stronger terms in the deal ended up coming from a broad coalition: Republicans, Israel, Sunni countries, and moderates and hardliners among Democrats, media, and security agencies.

 What the critics didn't expect was that a serious “snap back” provision could actually be agreed to. Yet in fact it was. This was, from a hardline standpoint, the most impressive single achievement of the Iran deal.

 It does not make sense for America's present hardline Administration to neglect to be using this provision at the present time. It makes even less sense to be giving up forever the option of using it.

 Does this mean that nationalist sentimentalism, expressed in a rhetoric of feeling decisive and tearing up deals altogether, prevailing over America's actual nationalist needs? If so, it is something for which nations always pay a heavy price. It is a longstanding rule of international practitioners that nationalism, while necessary to invigorate the pursuit of the national interest, is also a standing danger to the national interest. Nations need a strong nationalist sentiment, yet at the same time they need a strong capacity to form their policy by attention to their interests and keep their nationalism from interfering in this. Steering the national passions wisely is the task of the national leadership. There is a constant propensity to do damage to national power by the recklessness of nationalist passion, just as there is a constant propensity to let damage be done to national power by the fecklessness of dispassion (lack of nationalism, or a passion for disparaging it). Both propensities must be stayed by those in charge of national policy.

 Would it still be possible for the Trump Administration to use the snap-back provision? I think a way can be found. What the Administration can do at this time is to take three successive steps:

 1. Formally submit, in the manner specified in the deal, its complaint about Iran being in violation of the deal. It will need to make a decent, largely circumstantial, case, showing substantive Iranian violations in spirit and intention, along with any specific violations it can give evidence of.
2. Maintain this case and complaint through the month-long procedure laid out in the deal, despite all the criticisms and denials it will hear.
3. Proceed like this to the end, and state clearly at the end that this has made it obligatory under the deal for all powers, not just America, to renew the sanctions.

 In doing this, it would take advantage of the fact that there is no provision in the Iran deal for withdrawing from it. There has not been a formal America withdrawal, only a use of the word “withdrawal”. There is no necessity that requires the Administration to go on letting itself get boxed into a corner by its own language and give up for nothing its status of a party to the deal.

 Trump could cease speaking of having withdrawn from the deal; Sarah Sanders would surely have the skill to explain his past use of the word as just a way of speaking about the actual withdrawal of certification of compliance. This would not be an entirely untrue interpretation; at present, America is in fact providing some time before its own sanctions come back into play, so as to give other countries a chance to adjust and perhaps fix matters.

 The problem with the “withdrawal” language is that it provides insufficient incentive for our European allies to join hands to fight diplomatically for the requisite changes and supplements to the deal, and too much incentive for them to fall into the arms of Iran and its Eurasian allies instead in their fight to preserve the deal at all. A “snap-back within the deal” language would reverse this balance of incentives. It would unite most of the world with us, and stop uniting the world against us.

 The Administration's case for holding Iran in substantive violation would presumably include: Iran's escalation of its aggressive and destabilizing regional activities instead of the deescalation anticipated by the deal-makers; Iran's history of deception of the UN, which has just been spectacularly documented by Israeli intelligence; plus any more specific indications of secret continuation of nuclear weapons research or preparations for resuming the program. Would this presentation be indisputable? No; some will no doubt answer that Iran is really formally in compliance with the deal. Both sides will have a point. But that's the very reason for the snap-back provision: There is almost always a case to be made on both sides, and this fact has usually served to prevent anything from getting done by the international community. The snap-back provision was written so as to prevent the inevitable availability of an argument against a snap-back from turning into an inevitable veto of a snap-back. It answered the longstanding need of the international community to be able to enforce its decisions on the violators, cease giving the violators a daily option of whittling down those decisions by playing on the divisions among the others, and enforce the provisions strongly not just at one moment but throughout a lengthy series of processes.

 The Administration will not have to prove its case to everyone. It will, however, have to make its case a credible one, a case that convinces people of friendly disposition that there is legitimate good-faith reason for its position, whether or not they agree that its reasons are greater than the reasons on the other side of the argument. To the extent that the Administration is able to make a case about non-compliance that has at least a significant measure of merit and credibility -- to that extent, its invocation of the snap-back will have to be considered legitimate under the terms of the agreement.

 The legitimacy of the snap-back would be further buttressed by the fact that the Administration's case about Iran's non-compliance in spirit would, if made in the manner indicated, provide strong justification of the correctives the Administration and European countries alike have called for: making the deal permanent (without sunset), preventing ballistic missile development and deployment, and lessening rather than increasing Iranian regional aggression. It would underline how these supplements are needed for restoring integrity and credibility to the deal.

 With the snap-back justified on grounds that underline the need for these supplements, the renewal of sanctions would have a real chance of working to realize these supplements. And were the supplements to be sufficiently achieved, it would gain for the first time a real probability of achieving the declared purposes of the deal.

Further reading: What is the "snap back"? (July 2015)

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