Is the Iran Deal a Fait Accompli?

On September 11, 2015 – a fateful date for America – Congress failed to gather the 60 Senate votes required to pass a Resolution of Disapproval of the Iran nuclear deal, thus giving a green light to the Joint Comprehensive Plan of Action (JCPOA) as agreed to in Vienna on July 14.

A few days later, U.S. congressman Mike Pompeo (R-Kan.) informed Secretary of State John Kerry that “the copies provided to Congress of the JCPOA are not signed by the parties,” thus making the binding character of “an international agreement of this magnitude” questionable.

Actually, the absence of signatures in the JCPOA document is not as pivotal as it seems.  Article 18 of the JCPOA anticipates the passing of a U.N. Security Council resolution that should promptly “endorse” the full text of the JCPOA and, therefore, make it binding on all U.N. member-states.

True to form, UNSC Resolution 2231 was effectively passed unanimously on July 20 under Chapter VII of the U.N. Charter.  Compared to other resolutions of the Security Council, Resolution 2231 is unusual in many respects:

– It was passed “under silence,” a rather coercive procedure where the raising of an objection might be regarded as obstructionist and could isolate the objecting state.  It should also be noted that Congress had no prior input whatsoever in the drafting of this resolution.

– It is exceedingly long (104 pages), as it includes virtually the full text of the JCPOA in Annex A and a special “Statement” in Annex B that outlines inter alia the time restrictions governing the acquisition by Iran of conventional weapons and ballistic missiles and makes these activities subject to prior approval by the Security Council on a case-by-case basis.

– It underscores its binding reach on “all States without exception” by referring specifically to Article 25 of the Charter and to Article 41 – no fewer than 10 times – which reflects the most drastic enforcement mechanism under Chapter VII of the Charter, short of military intervention.

So the document that no one has signed (the JCPOA) is now an act of international law binding on all the 193 U.N. member-states, including Iran.  UNSC Res. 2231 provided the JCPOA an armor-plated protection that no missile from Congress could penetrate, unless one could convincingly demonstrate that the U.S. administration acted ultra vires in bypassing Congress.

The JCPOA will be officially adopted before the end of October (“Adoption Day” is scheduled 90 days after the UNSC Resolution is passed).  “Implementation Day,” to occur upon the confirmation by the IAEA that Iran has complied with its nuclear-related measures, will trigger the lifting of most sanctions applied by the EU and the U.S. and of all those enacted under previous UNSC Resolutions between 2006 and 2010, through the adoption of a new Security Council resolution in due time.  But these U.N. sanctions could be reinstated, according to Articles 11-12 of UNSC Resolution 2231, if a JCPOA participant State (U.S., Britain, France, Russia, China, Germany, the EU, and Iran) raises an issue that “constitutes significant non-performance of commitments under the JCPOA.”

This is where it gets interesting.

On September 22, 2015, the respected MEMRI reported that “Iran openly declares that it intends to violate UNSC Resolution 2231 that endorses the JCPOA.”  Three top Iranian leaders – President Hassan Rouhani, Foreign Minister Javad Zarif, and Deputy Foreign Minister Abbas Araghchi – stated that they will abide by the provisions of only the JCPOA and they will violate Resolution 2231.  Zarif and Araghchi see “no consequences” for violating Resolution 2231, in the same way as Iran “refrained from complying with UN Security Council resolutions … 10 years ago … and nothing happened.”

The reason for this Iranian gambit is obvious: they want to have a free hand on the acquisition of conventional weapons and the development of ballistic missiles.  Restrictions on these items were first suggested in the Lausanne Parameters of April 2, 2015.  They were later removed from the JCPOA and eventually reappeared in great detail in Annex B of Resolution 2231.  The Iranian position on this issue was reiterated on October 5 by Air Force Commander Ali Hajizadeh: “Iran will not slow down developing ballistic missiles and did not recognize the UN Security Council resolution [2231] that bans Iran from doing so.”

Iranian leaders brag about their willingness to violate the provisions of Resolution 2231, which is an act of international law, while they declare their compliance with the JCPOA.  Beyond the obvious arrogance of such declarations, the inconsistencies of the Iranian position should be stressed:

A footnote in the JCPOA – mentioned twice in the document and often invoked by Iranian leaders – states that “the provisions of this Resolution [2231] do not constitute provisions of the JCPOA.”  And yet the lifting of all U.N. sanctions, which is of paramount importance to the Iranians, is contingent upon Resolution 2231, as clearly indicated in Article 18 of the JCPOA.  Also, as stated above, Adoption Day is linked to Resolution 2231, and it makes the commitments in the JCPOA to come into effect.  Moreover, the Preamble of the JCPOA recalls that “The E3/EU+3 and Iran reaffirm their commitment to the purpose and principles of the United Nations as set out in the UN Charter,” thus implying an unwavering respect for binding Security Council resolutions.  The JCPOA and Resolution 2231 are so closely intertwined that it is inconceivable to abide by the former while resolutely intending to violate the latter.

This brings us back to Articles 11-12 of resolution 2231: if a JCPOA participant State raises an issue that “constitutes significant non-performance of commitments under the JCPOA,” the U.N. sanctions could be reinstated within 30 days.  What could be more significant of non-performance than Iran’s declared intent to violate a binding UNSC resolution that endorsed the JCPOA and is central to its official adoption?

The blatant Iranian disregard of the U.N. Charter should disqualify Iran from being a party to the international agreement that the JCPOA represents.  This is not the first Iranian violation of the principles of the U.N. Charter.  For the past 15 years, Iranian leaders have repeatedly called for the annihilation of Israel, in violation of Article 2[4] of the Charter.  This is the point that Israeli prime minister Netanyahu emphatically brought to light in his “deafening silence” speech at the U.N. General Assembly on October 1.  While Israel has been selectively targeted and shamelessly delegitimized by U.N. bodies for years, isn’t it time to point a finger to the glaring violations of Iran?

Finally, the interconnection between the JCPOA and the binding Resolution 2231 shows that the JCPOA is actually an international agreement akin to a treaty and not merely the kind of executive agreement that the Obama administration promoted, against the more sensible position of Congress.  Even though Congress was bypassed through the whole preparation of the JCPOA, perhaps it could take advantage of the latest Iranian maneuvers to invoke Article 11 of UNSC Resolution 2231.