On 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.
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