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The Joint Comprehensive Plan of Action (JCPOA) agreed between China, France, Germany, Russia, the United Kingdom and United States (the P5+1) and Iran on 14 July is a milestone in the history of non-proliferation. Totalling 159 pages, it is also one of the most complex nuclear agreements in history. The deal outlines the extensive restrictions that Iran will place on its nuclear programme, the monitoring and verification measures that will seek to generate confidence that it is fulfilling these requirements, and the UN, EU, and US sanctions legislation that will be lifted in return.
Yet reflecting the deep distrust between the parties, a dispute resolution mechanism enabling the rapid re-imposition of existing sanctions – the so-called ‘snap-back’ provision -
was also included. The intent of this clause is to deter Iranian defection from its obligations, by entrenching the costs of doing so. With sceptics of the deal set to scrutinise the provisions of the deal, the effectiveness of the ‘snapback’ mechanism could be amongst the most important in the JCPOA.
The Dispute Resolution Process
Should a party to the JCPOA feel that another party is not meeting its obligations, it may initiate a dispute resolution process. The sections covering this process are among the most complex of the deal. Crucially, the process varies depending upon the party initiating the complaint, and the subject of that complaint, as highlighted in Figure 1.
A ‘preliminary process’ contained within Annex IV covers complaints made by Iran with respect to the lifting of sanctions. Firstly, Iran and the relevant JCPOA party would consult with a view to resolving the issue. Should this fail, any JCPOA party could refer the matter to a Working Group on the Implementation of Sanctions Lifting, which would be coordinated by the EU’s High Representative. The Working Group would have 30 days to ‘resolve’ the issue to the satisfaction of the parties to the dispute. Further impasse would permit any party to escalate the sanctions dispute to a Joint Commission, which will be comprised of eight representatives – one from each of the P5+1 countries, Iran, and the European Union.
By contrast, non-sanctions related disputes would originate at the same Joint Commission, though it is possible that Iran might seek to bring sanctions-related disputes to the Joint Commission directly. The Joint Commission is initially afforded fifteen days to ‘resolve’ any dispute, to the satisfaction of all parties. If any of the eight members considers this to be insufficient, they may in turn refer elevate the issue to Foreign Minister level, where a further 15 day period would be set aside to find a solution. Should they feel it necessary, foreign ministers could extend this time period, and/or refer the matter simultaneously to a separate Advisory Board of three members, one of whom would be ‘independent’ – presumably a national of non-JCPOA signatory. That Advisory Board would similarly be required to issue its non-binding opinion by the end of the same 15-day window.
If the grievance persists despite foreign minister negotiations, the matter would be returned to the Joint Commission for a final five days. Thereafter, ‘if the issue has still not been resolved to the satisfaction of the complaining participant, and if [they deem] the issue to constitute significant non-performance’ the participant that made the original complaint could treat the unresolved issue ‘as grounds to cease performing its commitments under this JCPOA in whole or in part’, and/or elevate the issue to the UN Security Council on the basis that that it considers a JCPOA participant is in non-compliance.
The UN Security Council and Snapback
Security Council consideration would be a significant development. Now that a deal has been agreed, one of the JCPOA participants’ first tasks is to pass a new UN Security Council resolution which supersedes previous UN sanctions resolutions, contains the main obligations of the deal, yet maintains a reference to earlier sanctions measures, a reference which forms the basis for ‘snapback’ sanctions. The US has already tabled a draft resolution (hereinafter the ‘July Resolution’) in the Security Council, which will likely be put to a vote on 20 or 21 July.
The draft ‘July Resolution’ specifies that, in the event that the Joint Commission fails to resolve the dispute, a Security Council member would have ten days to submit a new resolution to the Council reaffirming the sanctions lifting process agreed under the terms of the ‘July Resolution’. If no member puts forth such a resolution within 10 days, the Security Council President would do so. In either case, the Council will have 30 days (subject to extension) to debate and approve the resolution mandating continued sanctions lifting. If the P5 fail to reach agreement, previous sanctions measures would be reinstated.
Deadlock at the Council, and therefore snapback is a highly probable outcome should a dispute get that far. For instance, should a P5 allegation of Iranian non-compliance be set in motion, it is difficult to foresee the Security Council reaching consensus absent incontrovertible evidence that Iran was operating covert facilities, hiding nuclear-weapons relevant research activity, or was systematically working to shorten its ‘breakout’ time (the time it would take it to produce one bomb’s worth of weapons-grade material).
Knowing the probability that a move to the Security Council would lead to the automatic reinstatement of sanctions, Iran is unlikely to choose this path if it is the complainant. Instead Tehran would be more likely to withdraw from the deal after the 35 days of failed Joint Commission and Ministerial arbitration, rather than submit to a UN process in which P5 members are unable to exercise their veto.
In this situation the vague wording of the deal could be problematic. Under the terms of the JCPOA, it is only the original complainant that can refer the dispute to the Security Council. In addition, the deal does not specify whether a decision by the aggrieved party (for instance Tehran) to ‘cease performing its commitments’ would spell the deal’s demise and therefore block recourse by others to the semi-automatic Security Council ‘snapback’ process. Without clarification on this point, the deal could be understood as requiring the tabling of a new UN Security Council resolution, bound by standard Security Council decision making rules, in order to bring sanctions back into force should Tehran opt to cease performing its obligations under the JCPOA.
There is a way to ensure the P5 members retain their ability to trigger a snap-back of UN sanctions, which is for a P5+1 country to initiate a parallel complaint to an Iranian one. If the issue concerns sanctions lifting, P5+1 members would likely have a 30-day advance warning to prepare such a complaint. However, in order for this approach to be workable, the text of the ‘July Resolution’ will need to stress that an Iranian decision to exercise its right to withdraw from its obligations does not eliminate the P5’s recourse to the agreed Security Council mechanism for reactivating sanctions.
Though national sanctions would likely be revived expeditiously in the event that Iran quits the deal, reviving UN sanctions will nevertheless be essential. Only UN measures can create universal obligations to block Iran’s access to critical nuclear technology.
Samantha Power, the US Ambassador to the United Nations, affirmed early on that the US’ intention in the negotiations was ‘to secure an arrangement to allow for snapback in New York that doesn’t require Russian or Chinese support.’ To succeed in doing so, JCPOA parties should seek to provide the clarification highlighted above.
 An unofficial draft text of the resolution is available online at: https://drive.google.com/file/d/0ByLPNZ-eSjJdSng5TTFTa2JCdXc/view ‘ Joint Comprehensive Plan of Action’, paragraph 37.