Making the best of Europe’s dwindling options

By Oliver Meier, August 2, 2019

Europeans generally believe that continued implementation of the Iran nuclear deal is an essential condition for diffusing tensions in the Gulf region. But as two parties to the Joint Comprehensive Plan of Action (JCPOA)—the United States and Iran—are now openly and willfully violating the nuclear accord, it is becoming more difficult by the day for Europeans to pursue their policy of preserving the JCPOA.

The Trump administration’s May 2018 decision to stop complying with the JCPOA has led to the current crisis. The re-imposition of sanctions on Iran and the levying of secondary sanctions on those countries wanting to maintain legitimate trade with Teheran is a remarkable act of defiance of international law by a permanent member of the UN Security Council. The Security Council in July 2015 had unanimously adopted Resolution 2231 which encapsulates the JCPOA.

Iran has reacted to US non-compliance by violating two key JCPOA commitments. It has breached obligations related to the level of uranium enrichment and the size of uranium stocks. These steps do not yet mean that Iran has significantly shortened the breakout time in which it could produce a sufficient quantity of weapons grade fissile material to build a nuclear explosive device. However, Tehran has threatened to violate other JCPOA restrictions, too. Should Iran begin to reduce its verification commitments, doubts about the peaceful nature of its nuclear activities would substantially grow. Just like in 2010, pressures to militarily pre-empt a possible Iranian nuclear weapons option are likely to move up the agenda.

Europeans, like Americans, believe that significant, willful violations of arms control and non-proliferation accords must have consequences. Thus, Europeans argue that Russia must be held accountable for its violation of the INF accord and the use of chemical weapons on the territory of a member state.

It is therefore difficult to reject out of hand the Iranian argument that the initial US violation of the JCPOA justifies a response. However, in international politics, too, one wrong does not justify another, and Europeans have consistently argued that Iranian compliance with the JCPOA is the basis for their support of the accord.

In this dire, complicated situation, what options are left for Europeans to save the JCPOA and defuse the crisis in the Gulf?

First, Europeans need to continue to distance themselves from the US policy of “maximum pressure.” This policy is flawed, ideologically driven, and unlikely to be successful in providing a sustainable solution to the crisis surrounding Iran’s nuclear program. As German Foreign Minister Heiko Maas has argued, participation in a sea mission in the Gulf, as presented and planned by the United States, must be seen in the context of the Trump administration’s campaign to isolate and coerce Iran. Whether or not Europeans will be able to maintain unity on their policy of engaging Iran will likely depend on which side the new British government under Prime Minister Boris Johnson will chose.

Second, the European Union should trigger the dispute resolution mechanism under the JCPOA. This mechanism was created to resolve situations like the current one. Iran has made repeated reference to the mechanism and claims to have triggered it in the past. The mechanism, in final conclusion, can lead to United Nations Security Council referral but only if the complaining party insists that a “significant non-performance” persists. The dispute resolution mechanism does not automatically lead to a “snap back” of sanctions, and it provides off-ramps during the proceedings. To prevent US interference, the remaining parties to the JCPOA should unequivocally state up front that Washington, by withdrawing from the JCPOA, has foregone its right to participate in the JCPOA’s Joint Commission and to trigger the “snap back” mechanism in the Security Council. By using the dispute resolution mechanism Europeans would signal their commitment to upholding relevant international law mechanisms and send a warning to Iran that further violations of the JCPOA will not be tolerated.

Third, Europeans should urgently embark on a process of creating institutions able to withstand US coercive economic pressures. They have learned the bitter way that Europe currently possesses limited capabilities to maintain legitimate trade relations with Iran in the face of US extraterritorial sanctions. The newly created Instrument in Support of Trade Exchanges (INSTEX) has been difficult to get off the ground and is not going to be able to provide a way to resume oil trade. Tehran should acknowledge these limitations and refrain from making unrealistic demands. Setting up other, more effective mechanisms will be a long-term undertaking but one that cannot be avoided if Europe is serious about achieving strategic autonomy.

In the meantime, fourth, Europeans should try to facilitate bilateral talks between Tehran and Washington. Without such a dialogue, a resolution of the current crisis will remain all but impossible. Iranians at this stage would have little to lose and much to gain by directly engaging Donald Trump. For the US President such talks may be a tempting opportunity to improve his foreign policy credentials. During the George W. Bush administration, Europeans successfully moderated between Iran and the United States. They should build on that experience.

All of this can be part of a strategy to keep the JCPOA alive until the next US elections in November 2020. One can only hope that the next US government will bring Washington back into compliance with its commitments under UNSC Resolution 2231. Such a step would facilitate progress in engaging Iran on the many regional and security issues that Europeans want to see progress on, too. Until then, Europeans appear to have limited options to resolve the current crisis.


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