Iran declares U.S. in material breach of nuke deal, but why?

Iran declares U.S. in material breach of nuke deal, but why?

Late last week there was a significant event in the course of the nuclear negotiations with Iran.

Iran lodged a complaint with the International Atomic Energy Agency (IAEA) complaining that the United States was already in “material breach” of the agreement known as the Joint Comprehensive  Plan of Action (JCPOA) based on a statement by White House Press Secretary Josh Earnest (quoted below) (h/t The Tower).

Before addressing the (remarkably thin) substance of the complaint, it’s interesting to note that the administration has been warning that the JCPOA is the best or perhaps only means to prevent Iran from developing a nuclear weapon immediately.

In the words of Secretary of State John Kerry last week at a Senate Armed Forces Committee hearing, if Congress rejects the deal Iran would “consider themselves free to go back and enrich and to go back to where they were with the 12,000 kilograms, 10-12 bombs, et cetera.” Of course Iran may be preparing to say “no” before Congress decides on the deal. Will Kerry rebuke Iran and threaten that it follows through on its threats it risks being a pariah?

So even without looking at the merits of the Iranian complaint, Iran, absent any Congressional action, is already attempting to free itself from the obligations it agreed to a little more than two weeks ago.

The Iranian complaint cited White House Press Secretary Josh Earnest’s press briefing from July 17. (The annotation is taken from the complaint.):

“The military option would remain on the table, but the fact is, that military option would be enhanced because we’d been spending the intervening number of years gathering significantly more detail about Iran’s nuclear program. So when it comes to the targeting decisions that would be made by military officials either in Israel or the United States, those targeting decisions would be significantly informed, and our capabilities improved, based on the knowledge that has been gained in the intervening years through this inspections regime.” [Emphasis added].

After quoting Earnest’s statement, the complaint explained:

The threat or use of force under any circumstances except in self-defense is a violation of the fundamental principles of international law and the Charter of the United Nations, and such statements constitute a breach of erga omnes obligations under Article 2(4) of the Charter. Moreover, at a time when the Joint Comprehensive Plan of Action (JCPOA) is successfully concluded between the Islamic Republic of Iran and the P5+1, such a statement is totally unwarranted and seriously undermines the very basic principles required for its implementation that is expected to begin soon. These statements amount to a material breach of the commitments just undertaken by all JCPOA participants …

This was no threat issued by Earnest but rather a hypothetical. Earnest was responding to a question about what would happen if Iran was found to be cheating and he answered that the information the United States (and the P5+1 nations) would obtain by the monitoring would give it the means to strike at those parts of Iran’s illicit nuclear program that had been discovered.

Given that the complaint is total nonsense, why would Iran lodge it?

1) The Escape Clause.

I noted in a post two weeks ago that the JCPOA has escape clause written in that would allow Iran to exit the agreement if the United States would attempt to re-impose sanction even in the case of Iranian violations. In a comment to the post, commenter Sammy Finkelman noted that “Therefore, it has to make sense for Iran to keep this agreement at every point in time, and everyone else has to be prepared for Iran to declare it void at any point in time.”

Paragraph 36 of the JCPOA in the “Dispute Resolution Mechanism” section states that if any party has a complaint that is not resolved to its satisfaction ” 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.”

Since satisfaction is an objective term, Iran has now set into motion a process that can choose to opt-out of the deal in 65 days time. (Presumably this 65 days starts from July 24, 2015, the date on the complaint.) In any case that date will be about week after the 60 day limit Congress has to debate the bill and vote on it. Presumably then Iran can use its complaint as a basis for saying it will only stick to the deal if Congress approves the deal. This way Iran, again, can pretend that it is abiding by international law, while Congress and the United States is flouting it and benefit further by having the administration parrot its claim that only Congress stands between the deal and war.

Or put more a little differently, the administration has hinged its credibility on Iran being bound by the JCPOA and Iran is threatening to leave, daring the United States to call its bluff.

2) Military Sites

Iran has consistently said that it will not allow inspections of its military sites. By construing Earnest’s statement as  a threat against its military sites it now how has additional “proof,” that its fear is valid.

3) Failure to Communicate

Iran has accused its enemies of faking intelligence and the IAEA credulously using that information. The emphasis Iran place on Earnest’s statement may be an implicit warning to the IAEA that if it does not comply with the agency’s requests, it will be on solid ground.

4) Shot Across the Bow

In one way or another, Iran has fired a shot across the bow of the “international coalition” that the administration boasts of having assembled to challenge Iran’s nuclear aspirations.

Iran has exploited an obvious hole in the deal. It is a deal that instead of mapping out clear penalties that Iran would incur for specific violations instead defines down violations as disputes and relegates them to ill-defined processes for resolution. Or as Jeffrey Herf observed, “By intentionally embedding American decision-making in complex and time-consuming multilateral processes, it is a crowning achievement for those who oppose the unilateral use of American power.”

Of course this procedural problem with the JCPOA, is a result of the flawed premise of the agreement.

The agreement and subsequent United Nations Security Council resolution wiped clean Iran’s record of flouting international law and its nonproliferation obligations. Iran, according to the agreement isn’t a serial scofflaw, who must gain the trust of the international community, but rather a wronged innocent, whose voice deserves the same (or even greater) weight than the other parties to the deal.

The processes are set up not only to delay enforcement but possibly to block it altogether. The complaint to the IAEA is only the first example of Iranian obfuscation and misdirection that we can expect over the next ten to fifteen years of the deal, if Iran remains committed that long.

Irony note: Back in February Earnest accused Israel of cherry-picking intelligence to distort the emerging deal at the time. Will he push back that hard against Iran now that he’s being pegged as an obstacle to peace in our time?

Sound of chirping crickets note: Why no MSM coverage of this? This is huge!

[Photo: UNVIE U.S. Mission to International Organizations in Vienna / Flickr ]

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