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

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

Already laying foundation for future strategic exit from nuke deal?

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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Comments

Diametrical Opposition:

Josh Earnest

As to Kerry:

“Break a leg”

Oh wait, he did.

Words, words, words; so many words. Iran will have its bomb. Iran will have its delivery systems. Deals, treaties, agreements were just a worthwhile gambit given the promise of sanctions reduction, or elimination, because of the ineptitude of the present American administration and hunger of German industry and others for Iranian business.

Add in the Obama administration’s obsession with having a “negotiated” a treaty on its watch combined with its blatant disregard of and disdain for congress and the odds of getting sanctions reduction have to have been considered pretty good by the Iranians. And, better news for Iran(those Americans are just full of surprises) they probably never thought about the coming-soon-to-a-TV-in-your-house Schumer Show.

Not A Member of Any Organized Political | August 2, 2015 at 11:28 pm

Why? Because Obama did the pooch again but Iran didn’t say “Simon says…”

Can you spot the moron in this photo?

(Hint: he’s smiling like a moron.)

The thing is, if Iran is planning to exempt itself from its obligations in this way, it’s risking that the USA — or the UK or France, if 0bama lacks the balls — will invoke the snapback provision in Resolution 2231. Paragraphs 11 & 12 say that if any party notifies the Security Council that it believes Iran is in significant non-compliance, then 30 days later all the UN sanctions automatically come back unless the Security Council votes to stop them. And that’s a vote which the USA, UK, or France can veto. Yes, the JCPOA has an elaborate dispute-resolution mechanism, but nothing in Resolution 2231 requires anyone to use it.

For that matter, if Congress overrides 0bama’s veto and forbids him from lifting the sanctions, the USA will not be “flouting international law”. Nothing in 2231 requires any country to lift sanctions against Iran. It merely permits members to do so, by provisionally lifting the UN mandatory sanctions.

International law currently requires all UN members to obey the sanctions against Iran. When the IAEA reports that Iran is complying with the JCPOA, that requirement will go away, and members will be free to keep their sanctions or lift them. If the snapback provision is invoked, all members will be required by international law to reimpose the sanctions. If Russia and China refuse, they will be flouting international law. I think they’ll refuse anyway, because they don’t worship “international law”, but those are the facts.

But that’s all if the sanctions go away in the first place. If Iran is already out of compliance, or declares its intention not to comply, then it would take a lot of chutzpah to expect the sanctions to be lifted in the first place.

    Voyager in reply to Milhouse. | August 3, 2015 at 1:42 am

    That would require several European countries to take actions that would be both difficult and very economically unpopular.

    Also, the UN has already accepted the agreement. What is keeping the sanctions in place while the US deliberates?

      Or more simply put, this allows Iran to continue doing what it was doing before while claiming that the US and other countries are violating the terms of the deal. The president has invested a huge amount of political capital into this deal, and to have Iran officially withdraw would be a fish-slap in the face to him. So what we will see for the foreseeable future is Iran pointing fingers and screaming that the Great Satan is tromping all over the agreement, while in reality it is Iran blatently violating the terms.

      In short, this agreement is Too Important To Fail, Even When It Obviously Is. Expect another year and a few months of Iran cheating and the US looking the other way until the next US president takes office, and then we’ll see what happens.

      Milhouse in reply to Voyager. | August 3, 2015 at 2:17 pm

      The UN sanctions remain in place until the IAEA reports to the Security Council that Iran is in compliance with the JCPOA. That report has not yet been made. Until it is, no country is allowed to lift its own sanctions.

      Once the IAEA report comes in, assuming (as I do) that it will say Iran is complying, the UN sanctions will be provisionally gone, and nations will be free to lift sanctions if they want to. They are not required to. In the USA, the president can’t lift sanctions until 60 days after he informed Congress of the agreement, or 10 days after he vetoes the expected law forbidding him from lifting them. If enough Ds vote to override his veto, then he won’t be able to lift them at all.

    David Gerstman in reply to Milhouse. | August 3, 2015 at 7:47 am

    Milhouse, I don’t expect Iran to exit the deal until some point after the sanctions have been lifted. But that doesn’t mean that they don’t want to have a ready excuse for not complying with existing obligations. Or to have the US wondering if they will continue complying or not. When Iran cheats it’s often in gray areas, which it uses for its advantage.

    Sammy Finkelman in reply to Milhouse. | August 3, 2015 at 10:23 am

    “Nothing in 2231 requires any country to lift sanctions against Iran.”

    Nothing in Resolution 2231 does, but the JCOPA does.

    The JCOPA, however, is not any kind of legally binding international agreement, and, according to MEMRI, that’s because Iran didn’t want it to be.

    http://www.imra.org.il/story.php3?id=67941

    It should be emphasized that, contrary to how it is perceived, the JCPOA is not a bilateral or multilateral contract between the United States and/or Europe and Iran. Nothing has been signed and nothing is judicially binding between any of the parties. It is a set of understandings that was sent to a third party, the United Nations Security Council (UNSC), for endorsement. This structure is a result of Iran’s insistence to not sign any bilateral or multilateral contract.

      Milhouse in reply to Sammy Finkelman. | August 3, 2015 at 2:21 pm

      The JCOPA, however, is not any kind of legally binding international agreement,

      Exactly. So why all the hoo-ha about what it says? Even if it were a “legally binding international agreement”, the USA wouldn’t be a party to it without senate ratification, which isn’t going to happen. The only legally binding part of this whole mess is Resolution 2231, and it pointedly does not require anyone to lift sanctions.

I doubt Iran takes any real steps to get out of the deal until the suckers, I mean the US & EU, finish turning over the estimated $150 billion in frozen assets promised as a signing bonus. Since that alone would more than cover their losses from sanctions for several years, they will then be in a position to do as they please (which they will anyway).

But they won’t be this brazen about it. They will play the Saddam game of obstructing inspections, dragging things out, etc., as long as they can to get the economic relations with Europe reestablished and going full steam, so that any return of sanctions will be highly unlikely.

    Owego in reply to Estragon. | August 3, 2015 at 3:54 am

    Corrcect. This entire exercise is about the sanctions, not nuclear weapons. Iran has no intention of changing anything in its nuclear program. Internationally, talking is what Obama does best, he believes he can talk anyone into anything, the bigger the obstacle and more intransigent the other side, the more impressive the victory. Iran wil talk his ears off, talk tough, make him believe he’s talked down the meanest, toughest guy on the block to get the sanctions lifted, then do what pleases afterward blaming anything they please for the breach.

    No deal can be made with them. Period.

      David Gerstman in reply to Owego. | August 3, 2015 at 7:52 am

      Oswego, yes I believe you’re correct about this. Kerry has said that Iran got what it wanted when it mastered the fuel cycle. That is short sighted. What Iran wanted was having the fuel cycle with full international approval. Now that the UNSC has wiped out the violations, all that’s left is the end of sanctions, which the US gave Iran at little or no cost. (The reduction in centrifuges and enriched uranium stockpile are reversible.)

    Sammy Finkelman in reply to Estragon. | August 3, 2015 at 6:04 am

    <

    Also, the UN has already accepted the agreement. What is keeping the sanctions in place while the US deliberates?

    The timetable for lifting sanctions. They haven’t been lifted yet. They are supposed to be lifted if and when certain things happen.

    http://www.un.org/en/sc/inc/pages/pdf/pow/RES2231E.pdf

    5. Requests that, as soon as the IAEA has verified that Iran has taken the actions specified in paragraphs 15.1-15.11 of Annex V of the JCPOA, the Director General of the IAEA submit a report confirming this fact to the IAEA Board of Governors and in parallel to the Security Council;…

    ….7. Decides, acting under Article 41 of the Charter of the United Nations, that, upon receipt by the Security Council of the report from the IAEA described in paragraph 5:

    (a) The provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) shall be terminated; ..

    Annex V of the JCPOA says:

    https://www.justsecurity.org/wp-content/uploads/2015/07/271545626-Iran-Deal-Text.pdf

    6. Adoption Day will occur 90 days after the endorsement of this JCPOA by the UN Security Council through the resolution referred to above, or at an earlier date by mutual consent of all JCPOA participants, at which point this JCPOA comes into effect.

    That would mean the sanctions are lifted on October 13, at the latest (unless the International Atomic Energy Agency does not certify Iran has done a nunmber of things.)

    David Gerstman in reply to Estragon. | August 3, 2015 at 7:49 am

    Estragon, that sounds about right.

    Also note that once the sanctions are lifted, if by some miracle the original (or other, new) sanctions get applied once Iran is caught cheating:

    In such event, these provisions would not apply with
    retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

    …So any contracts or business Iran sets into motion between the time the sanctions are lifted and any sanctions are re-imposed because they’re caught cheating CAN NOT BE SHUT DOWN. I’m sure Iran has an army of lawyers already working 24/7 to forge contracts that “lock in” just about everything it would ever want to shield from future sanctions.

A beautiful quote from our very own war hero Senator John McCain: “Bomb bomb bomb, bomb bomb Iran, BOMB BOMB BOMB, BOMB BOMB IRAN”

It matters little what the “deal” says about restricting Iran. The fundamental question is whether the Iranians have any more intention of honoring their part of the “deal” than Hitler had after the “peace in our time” Munich accords. Obama and Kerry have naively assumed that Iran will honor its side of the “deal” such as it is, which isn’t much since Kerry gave away the store in “negotiations”. Iran gained much out of the “deal,” but we gained nothing and lost much. Kerry and Obama get an F for their negotiations lack of skills.

Sammy Finkelman | August 3, 2015 at 10:44 am

The JCOPA goes pretty far in what it requires of the United States (failing which, Iran can selectively or completely terminate it.)

https://www.justsecurity.org/wp-content/uploads/2015/07/271545626-Iran-Deal-Text.pdf

25. If a law at the state or local level in the United States is preventing the implementation of the sanctions lifting as specified in this JCPOA, the United States will take appropriate steps, taking into account all available authorities, with a view to achieving such implementation.

The United States will actively encourage officials at the state or local level to take into account the changes in the U.S. policy reflected in the lifting of sanctions under this JCPOA and to refrain from actions inconsistent with this change in policy.

“Taking into account all available authorities” means, I think, they would go to court to stop a state or local government.

26….The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified in Annex II.

I’m not sure exactly, but “prevent interference with the realisation of the full benefit by Iran of the sanctions lifting” may have something to do with international financial sanctions, or court judgements or court orders, or anything done by third parties. They have something specific in mind.

The U.S.Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA.

The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions. Iran has stated that it will treat such a re-introduction or re-imposition of the sanctions specified in Annex II, or such an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part.

This sounds like the agreement bars both the re-imposition of the same sanctions for other reasons, AND the imposition of any new sanctions for nuclear-related reasons. *

Doing so could terminate the agreement, or rather, Iran could selectively declare parts of it void.

—–

* And the President must fight tooth and nail to prevent anything like that from happening, so he must veto bills and waive whatever he is allowed to waive.

“Taking into account all available authorities” means, I think, they would go to court to stop a state or local government.

On what grounds?

In any case, the JCPOA has no legal status, so it doesn’t matter what it says.

    Sammy Finkelman in reply to Milhouse. | August 3, 2015 at 3:17 pm

    “Taking into account all available authorities” means, I think, they would go to court to stop a state or local government.

    Milhouse: On what grounds?

    I’m not sure. Probably interfering with federal regulation of foreign commerce, on the grounds it is pre-empted.

    The Comprehensive Iran Sanctions, Accountability, and Divestment Act (P.L. 111-195), enacted into law on July 1, 2010, includes provisions authorizing state and local governments to divest or prohibit investments of public monies in Iran. It might not be legal without it. Of course, Congress would need to repeal it and I don’t know if those sanctions are nuclear related or not.

    Here is a Congressional Research Service report from 2013 on this whole kind of issue:

    https://www.fas.org/sgp/crs/misc/RL33948.pdf

    In the case of Iran, there might be an attempt to freeze bank accounts in order to collect judgements, maybe.

    Recent legal cases include:

    Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) (a Massachusetts selective purchasing law targeted at Burma struck down 9-0)

    American Insurance Association v. Garamendi, 539 U.S. 396 (2003) [California law, the Holocaust Victim Insurance Relief Act, which required any insurer doing business in the state to disclose information about all life insurance policies issued in Europe during the Nazi regime struck down by the U.S. Supreme Court 5-4]

    Faculty Senate of Florida International University v. Winn, 616 F.3d 1206 (11th Cir. 2010) [states can restrict the use of funds to sponsor travel by state education employees to specific countries for national security reasons. No conflict with federal law especially since Florida was following the federal list of state sponsors of terror]

    Odebrecht Constr., Inc. v. Prasad, 876 F. Supp. 2d 1305 (S.D. FL, Jun. 29, 2012) [preliminary injunction granted halting the enforcement of Florida law that prevented
    state and local governments from awarding public contracts to companies with business connections to Cuba.]

    Sometimes laws specifically authorize states and local governments to add sanctions as did the the Sudan Accountability and Divestment Act of 2007 (P.L. 110-174) or the 20109 law about Iran.

    Of course, nothing would actually obligate a president to do anything, except a desire not to have the agreement fall apart.

“Will Kerry rebuke Iran and threaten that it follows through on its threats it risks being a pariah?”

Of course not. Kerry and Obama will blame Republicans for derailing Congressional approval.

This agreement was born to fail. I doubt the ‘Icans will do the right thing and kill it in its crib.

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