The United
States’ withdrawal from the JCPOA could certainly be considered as an
ill-advised, even absurd decision, but, like it or not, could not be labelled
as running counter to international law. Let us remember the care taken by the
American negotiators in Vienna to avoid giving the JCPOA any formal attributes of
an international treaty -- which would have required a formal approval by
the Congress --. They even took care to avoid presenting it as an
“agreement” not only in its title, but even in the body of the text. The
document was never signed by the parties, only adopted by a silent consensus of
the seven parties following a declaration by the representative of the European
Union. True, the JCPOA, soon after its adoption in Vienna, has been “endorsed”
by a formal resolution of the United Nations Security Council, but again the
Americans, when partaking in its drafting, took great care to deprive the
formula of any binding force under the United Nations Charter.
Destroying
from outside the JCPOA up to the core
What
happened after the withdrawal is another matter. Washington started developing an
aggressive strategy against the six remaining parties aimed at destroying the
JCPOA from outside. Reintroducing sanctions could have been accepted as a
logical consequence of the American withdrawal as long as it did not produce direct
adverse effects on the smooth implementation of the Vienna arrangement.
Unfortunately, the extra-territorial dimension of most of these sanctions created
a steadily growing imbalance between the Iranian nuclear commitments and their
expected benefits for Iran. Though, up to now, Donald Trump’s administration had
spared the inner mechanisms of the JCPOA. By threatening to forbid Tehran to send
abroad the low enriched uranium and the heavy water it may produce in excess of
the limits agreed in the Vienna arrangement, Washington has gone one step
further. It undermines the letter and the spirit of the very core of the JCPOA.
Furthermore,
in its May 3 statement, the State Department explicitly demands Iran “to stop
all proliferation-sensitive activities, including uranium enrichment”. Here we
return to square one, in 2003, when John Bolton, already him, was bullying the
three Europeans negotiating with Iran into gaining Tehran’s submission to the
famous “zero centrifuge” formula. There was of course zero chance of success,
the negotiation collapsed two years later. However, it never stopped entirely
and morphed into different formats until the final and decisive push given by
Barack Obama and John Kerry. This last effort led to the Vienna arrangement or
JCPOA, based, precisely, on the de facto recognition, within determined limits,
of the Iranian enrichment program.
The
collective failure of Iran’s JCPOA partners
All of this
to say that the six remaining parties to the JCPOA, and not only Iran, should have
felt equally attacked by the last American move. One would have liked to hear
from the Europeans the word “protest” instead of the meek “regret” and
“concern”. China, embroiled in a difficult negotiation with the United States,
prudently called “on all relevant parties to exercise restraint etc.”. Only
Russia dared to “blame” the US and to express its “understanding” of Iran’s
position. An opportunity was missed by Iran’s JCPOA partners to demonstrate through
a common statement their solidarity against the squarely hostile gesture from
the United States. Let us hope that the next meeting of the Joint Commission
provided for by the JCPOA will offer a new chance for the parties, including
Iran, to speak up in one voice.
The Europeans were braver when it came to react
to the Iranian answer. Putting forward their “great concern”, they urged Iran “to
refrain from any escalatory steps” and rejected “any ultimatums”. By using this
last term, did they intend to target Washington as well Tehran? In reality,
Tehran’s “ultimatum” to progressively step up its nuclear activities absent any
progress in alleviating the American sanctions reads as one of the most
carefully poised and soft-spoken ultimatums in History. It rather sounds like a
call for help from President Rouhani, caught between the United States and his
own radical opposition.
Primum non nocere
Where can we go from now? INSTEX, the barter
mechanism intended to facilitate at least the run-of-the mill trade between
Iran and the European Union is yet to take off and will need no less than a
year, probably more, to operate at full capacity. China is not at the present
time in a position to take a bold initiative. Russia could perhaps help Iran to
sell part of its oil, but this carries serious risks. All in all, no easy
solution is in the offing in the two to four-month lapse of time given by
Tehran to its JCPOA partners to alleviate on a priority basis sanctions on its
oil exports and its banking system.
In waiting for better opportunities, the primary
requirement for Iran’s partners in the JCPOA should be to defuse all risks of further
tensions between them : primum non nocere. The Europeans should therefore
avoid threatening to refer Iran to the Security Council for non-compliance with
its commitments. The urgency for now is to save the spirit of the JCPOA, even
against its letter, as long as Iran does not give rise to a significant danger
of proliferation. We are still far from this point.
Of course, Iran too has to play its part. To
get around the latest American decisions in the immediate future, it can
down-blend to natural level the enriched uranium produced in excess that cannot
be exported anymore. It can also down-blend its heavy water in excess to common
water. Regardless of the JCPOA, Iran has today no interest in accumulating at
great cost and efforts, using a fully outdated model of centrifuge, big
stockpiles of enriched uranium of which it has no use in the short or even
medium-term. It would better prepare for the future by prioritizing, within the
perfectly legal framework offered by by the JCPOA, the development of its new
models of centrifuges. And instead of trying to revive the uncertain construction
of the natural uranium research reactor abandoned when joining the JCPOA, it should
rather press its partners to help speed up the construction of the new reactor
pledged in the same JCPOA, which has been desperately dragging on. This would
be a positive ultimatum!
Towards a way-out of the crisis
But all of this covers only one part of the
picture. The other is in Washington, where drums of crisis and war have started
beating. While displaying their solidarity with all the remaining parties to the
JCPOA, the Europeans, in spite of all difficulties, still have the capacity to
bend the situation into a better direction. Of course, they will not convince
President Trump to return to the JCPOA, nor the Iranians to renegotiate the
JCPOA with the Americans. But they could capitalize on Donald Trump’s obvious
longing, as seen on multiple tweets and remarks, to produce at long last proof
of his “art of the deal” by striking some kind of arrangement with Tehran. All
the better if it would take place before the next Presidential election. For
this, a limited agreement would suffice, if it both clearly benefits the United
States and reduces the Iranian risk of proliferation. This is where the
Europeans could enter the game in the role of the honest broker. The first
prerequisite would be to take into account the mutual distrust of the two
parties. They should therefore be able to put forward equally balanced, fully voluntary
and reversible gestures. The task is difficult, but not impossible
What the Americans can give
To start with the American side, a first
possible gesture could be to reinstate the waivers allowing the sale to Iran of
commercial passenger aircraft, as provided for by article 22 of the JCPOA.
Negotiations between Iranian companies and Boeing as well as Airbus did start upon
the conclusion of the Vienna arrangement. They were interrupted by the American
withdrawal. All in all, they addressed the acquisition of more than two hundred
planes equally spread between Boeing and Airbus. The completion of this
negotiation would be, of course, highly beneficial to Iran, due to the sore
state of its fleet, but also to Boeing, going through a difficult pass, and to
the American economy at large. The perspective of creating thousands of jobs in
the American aircraft industry would be a positive signal in an election year.
Last but not least, it would also benefit the European economy.
Another possible American gesture would be to
reintroduce some waivers for Iranian oil’s main clients. This would reduce
tensions on the oil international market and facilitate America’s relations
with its traditional friends : Japan, South Korea, Taiwan among others,
without forgetting Europe. And again, reasonable gasoline prices at American
pumps in an election year would be a welcome feature. A third possible gesture
would be to ease the restrictions imposed on the Iranian banking sector,
provided, of course, that Iran finally brings its legislation into conformity
with international norms against the financing of terrorism.
What the Iranians can give
How could Iran come at par with such a bounty
of gestures? Starting with the third and last point, we know that the adoption
of anti-terrorism international norms currently feeds a bitter internal debate
in Iran. But precisely, the perspective of an attractive package could lead to
a favourable arbitration by the Supreme leader and thus settle the matter. However,
this would not be enough by far, to satisfy the American side. At least another
important Iranian gesture would be needed to tip the scales.
Like Edgar Poe’s letter, it is right before our
eyes. As long as Iran is committed by the JCPOA provisions not to exceed a
stockpile of 300 kilograms of low-enriched uranium (LEU), it has absolutely no
interest in spinning the 5,000 or so centrifuges authorized by the same JCPOA.
Their potential output goes far beyond this limit. 1,500 centrifuges would
amply suffice to produce a couple of hundred kilograms of LEU per year. And
again, the real challenge for Iran is not to run a big bunch of outdated
centrifuges (the present IR1 model dates back from the early Seventies) but to
be able to produce and operate efficient, up-to-date, centrifuges when the
JCPOA comes to its end. There would be therefore no drawback for Iran in
announcing a voluntary switch-off of about two thirds of its presently active
centrifuges. All of this under the supervision of the International Agency for
Atomic Energy, in return for the United States’ own commitments – and just
how long as it keeps its commitments.
*
With perhaps on top of such reciprocal gestures
a common understanding to envisage the reopening of a collective negotiation when
the JCPOA arrives to its end, we have at hand the main elements of a fair deal
both parties could be proud of : Donald Trump for having obtained much more
than Barack Obama in curbing Iran’s nuclear activities without giving more than
what was already contained in the JCPOA ; Rouhani for having alleviated a
part of the most disruptive American sanctions while preserving the legitimacy
and the future development of the Iranian nuclear program. Now, the combination
of all these elements into a successful venture is the job of the diplomats. And
to continue with pride, the Europeans, as we know, are rightly proud of their
long diplomatic tradition. With some luck and hard work, they could be proud
tomorrow for having helped defuse a serious crisis in our time.
(published on May 14, 2019, by LobeLog)
