Europe Can Preserve the Iran Nuclear Deal Until November

By Ellie Geranmayeh and Elisa Catalano Ewers

The United States just lost the showdown at the United Nations Security Council over extending the terms of the arms embargo against Iran. The U.S. government was left embarrassingly isolated, winning just one other vote for its proposed resolution (from the Dominican Republic), while Russia and China voted against and 11 other nations abstained.

But the Trump administration is not deterred: In response to the vote, President Donald Trump threatened that “we’ll be doing a snapback”—a reference to reimposing sanctions suspended under the 2015 nuclear deal from which the United States withdrew in 2018.

The dance around the arms embargo has always been a prelude to the bigger goal: burning down the remaining bridges that could lead back to the 2015 deal.

The Trump administration now seeks to snap back international sanctions using a measure built into the very nuclear agreement the Trump White House withdrew from two years ago. This latest gambit by the Trump administration is unsurprisingly contested by other world powers.

On the one hand, Russia and China are making a technical, legal argument against the U.S. move, namely that the United States forfeited its right to impose snapback sanctions once it exited the nuclear deal. This is based on Security Council Resolution 2231 that enshrined the nuclear agreement, which clearly outlines that only a participant state to the nuclear deal can resort to snapback. This is a legal position that even former U.S. National Security Advisor John Bolton—an opponent of the nuclear deal and under whose watch Trump left the agreement—has recently endorsed.

In the end, however, this is more a political fight than a legal one. The political case—which seems to be most favored by European countries—is that the United States lacks the legitimacy to resort to snapback since it is primarily motivated by a desire to sabotage the multilateral agreement after spending the last two years undermining its foundations. 

The main actor that will decide the fate of the nuclear deal after snapback sanctions is Iran itself. Iran has already acted in response to the U.S. maximum pressure campaign, from increasing enrichment levels and exceeding other caps placed on its nuclear program, to attacking U.S. forces based in Iraq and threatening to exit the Nuclear Nonproliferation Treaty.

But the calculations of decision-makers in Tehran will be influenced by the political and practical realities that follow snapback sanctions. And here, the response from the remaining parties to the nuclear deal—France, the United Kingdom, Germany, China, and Russia—will be critical. These countries remain committed to keeping the deal on life support—at least until the U.S. presidential election in November.

Seizing on its failure to extend the arms embargo, the United States now claims it can start the clock on a 30-day notification period, after which U.N. sanctions removed against Iran by the nuclear deal are reinstated. This notification will be timed deliberately to end before October—when the arms embargo is set to expire, and also when Russia takes over presidency of the U.N. Security Council: a time when Washington could face more procedural hurdles.

What is likely to follow snapback is a messy scene at the U.N. in which council members will broadly fall into three groups. First, the United States will seek to build support for its case—primarily through political and economic pressure—so that by the end of the 30-day notice period some U.N. member states agree to implement sanctions. The Trump administration will likely use the threat of U.S. secondary sanctions, as it has done successfully over the last 18 months, if governments don’t move to enforce snapback sanctions.

Even if most governments around the world disagree that the United States has any authority to impose snapback sanctions, some countries may be forced to side with Washington given the threat that the United States could turn its economic pressure against them.

The second group will be led by China and Russia, both of which have already started to push back. Not only will this group refuse to implement the U.N. sanctions that the U.S. government claims should be reimposed, but they likely will throw obstacles into the mix, such as blocking the reinstitution of appropriate U.N. committees that will oversee the implementation of such sanctions. This group may also see it as advantageous to seek a determination by the International Court of Justice on the legal question over the U.S. claim.

The third grouping will be led by the France, Britain, and Germany, who remain united in the belief that the deal should be preserved to the greatest extent possible. In a statement in June, the three governments already emphasized that they would not support unilateral snapback by the United States. But it is unclear if this will translate into active opposition—and their approach will certainly not include the obstructionist moves that Russia and China may make.

This bloc will look to stall decisions to take the steps necessary to implement the U.N. sanctions. This is a delicate undertaking, as European countries are not in the habit of blatantly ignoring the binding framework of some of the U.N.’s directives, and will want to balance their actions against the risk of eroding the security council’s credibility further. But they will also take advantage of whatever procedural avenues are in place to delay full enforcement of the sanctions, buying time to urge Iranian restraint in response to the U.S. moves.

Countries such as India, South Korea, and Japan are likely to favor this approach. These governments may even go so far as to send a significant political signal to Iran and back a joint statement by most of the security council members vowing not to recognize unilateral U.S. snapback sanctions.

As part of this approach, the 27 member states of the European Union could embark on a prolonged consultation process over how and if to implement snapback sanctions. The separate EU-level sanctions targeting Iran’s nuclear program are unlikely to be reimposed so long as Iran takes a measured approach to its nuclear activities.

Reimposing EU sanctions against Iran will entail a series of steps, the first of which requires France, Britain, and Germany, together with the EU High Representative, to make a recommendation to the EU Council. The return of EU sanctions would then require unanimity among member states, a goal which will take time to achieve in a context where Washington is largely viewed as sabotaging the nuclear deal.

In this process, the EU should seek to preserve as much space as possible to salvage the deal and avoid the reimposition of nuclear-focused sanctions against Iran—at least until the outcome of the U.S. election is clear. The U.K., in the run-up to Brexit, may well lean toward a similar position rather than tying itself too closely to an administration in Washington that may be on its way out.

Until now, the remaining parties to the nuclear deal have managed to preserve the deal’s architecture despite its hollowing out. The aim has been to stumble along until the U.S. election to see if a new opening is possible to resuscitate the agreement with a possible Biden administration in January.

While a Trump win could spell the end of the deal and further dim the prospects of diplomacy between the United States and Iran, the two sides could come to a new understanding over Iran’s nuclear program at some point during the second term that is premised on the original deal. Judging by the pace of the Trump administration’s nuclear diplomacy with North Korea, this will be a Herculean process with no certain outcome.

In Tehran, there will be some sort of immediate response to the snapback—most likely involving further expansion of its nuclear activities. However, Iran may decide to extend its strategic patience a few weeks longer until the U.S. election. A legal battle by Russia and China against snapback, combined with non-implementation of U.N. sanctions by a large number of countries and continued hints from the Biden camp that Washington would re-enter the nuclear deal could provide the Rouhani administration with enough face-saving to stall the most extreme responses available to Iran.

But with Iranian elections coming in the first half of 2021, there will be great domestic pressure from more hardline forces to take assertive action, particularly on the nuclear program, to give Iran more leverage in any future talks with Washington.

If Iran takes more extreme steps on its nuclear activities, such as a major increase in its enrichment levels or reducing access to international monitors, it will make it nearly impossible for the Britain and the EU to remain committed to the deal in the short term. There are also factors outside Iranian and U.S. control that could have an impact, such as a potential uptick in Israeli attacks against Iranian nuclear targets.

Over the course of the Trump administration, Europe and Iran have managed to avert the collapse of the nuclear deal. Having come so far, and just 11 weeks away from the U.S. election, they will need to work hard to prevent the total collapse of the agreement. Even if Biden—who has vowed to re-enter the deal if Iran returns to compliance—is elected, the remaining parties will need to continue the hard slog to preserve it until January.

Those opposed to the nuclear deal with Iran may see the last two months of a Trump administration as a window to pursue a scorched-earth policy toward Iran’s nuclear program. That leaves Britain and Europe with the job of holding what remains of the deal together, for as long as they can.

Ellie Geranmayeh is a senior policy fellow at the European Council on Foreign Relations. Follow her at  @EllieGeranmayeh.

Elisa Catalano Ewers is an adjunct senior fellow at the Center for a New American Security and a former U.S. State Department and National Security Council official.

Photo: IRNA

Europe Should Strike a Tough Pose With Trump on the Iran Nuclear Deal

This article is re-published with permission from the European Council on Foreign Relations. Since the initial publication of this article, John Bolton has been named Trump's new national security advisor. 

France, the United Kingdom, and Germany (the ‘E3’) appear set to intensify ongoing talks with the US in an effort to convince Donald Trump to stick to the Iran nuclear deal. Trump has threatened to withdraw from the agreement in May unless certain preconditions were met. Europeans hope the ongoing discussions will be able to find a middle way to both safeguard the nuclear deal and address outstanding areas of concern with Iran, such as on missiles and regional issues. However, Trump’s recent nomination of Mike Pompeo as US secretary of state increases the risk that this approach will backfire on Europe.

European policymakers largely viewed Rex Tillerson as a voice of moderation within the White House and as someone who, together with secretary of defense James Mattis, influenced Trump towards a more pragmatic position on Iran. If Europe is serious about saving the nuclear deal, then the appointment of Pompeo, an Iran-hawk in Washington, should serve as an urgent prompt to rethink its current strategy.

Some in European policy circles hoped that Trump’s statement on the nuclear deal on 12 January this year was part of his maximalist negotiating tactics, and that if Europe showed some flexibility, the president would be climb down from these demands. But one of the reasons Trump cited when firing Tillerson was their disagreement over the Iran nuclear deal. This should indicate that the moderate voices in the White House have been unable to bridge gaps between Trump and Europe over the nuclear deal.

Trump, meanwhile, remarked on the “very similar thought process” he and Pompeo share on a number of issues. Pompeo has been especially outspoken on Iran: he opposed the nuclear deal, supported regime change, and downplayed the costs of war with Iran. With Pompeo now in charge of US diplomacy, Europeans are likely to face a tougher and non-accommodating negotiating posture from the Trump administration over the nuclear deal. This comes against a backdrop of rising regional tensions between Iran and Israel, in addition to repeated pledges from Trump to confront Iran, most recently in his Nowruz message marking the Iranian new year.

Trump’s deal-making during his term in office should create doubt as to whether he would actually implement a side framework agreement of the type that his administration is currently seeking to strike with Europe over Iran policy. On foreign policy matters, Trump has remained dangerously unpredictable, and threatened everything from trade war to nuclear war. The pattern of negotiations between his administration and the US Congress over immigration and healthcare suggests that, even if Trump’s counterparts make concessions to fulfil his demands, there is no guarantee that he will, in the end, accept it.

Europeans should therefore be clear-eyed about the chances of success of current talks with the United States. Based on recent precedent, Trump is likely to perceive Europe’s flexibility and accommodation over Iran policy as a weakness that he can exploit to raise the benchmarks of demands. Moreover, by threatening imminent withdrawal from the nuclear deal, Trump is increasingly pressuring the E3 to jump on board with his efforts to undermine the agreement. Republican lawmakers such as Senator Bob Corker have also adopted this stance and warned that, unless the E3 sign up to the side framework agreement that meets US demands, Trump is unlikely to extend sanctions waivers due in May.

Yet, in their attempt to save the nuclear agreement through reaching a broader understanding with the Trump administration on Iran policy, the E3 must ensure that Europe does not become complicit in hollowing out the nuclear agreement. So far, the International Atomic Energy Agency has repeatedly verified that Iran is fulfilling its nuclear-related obligations. However, Iran has firmly indicated it will take reciprocal action to match any US backtracking from the deal. A potential side agreement between the E3 and the US with respect to the nuclear deal therefore risks a tit-for-tat exchange between Tehran and Washington that could alter and muddy their respective commitments under the agreement and cumulatively cause it to unravel.

So, what should Europe do?

In light of Pompeo’s appointment, the E3 should harden their negotiating tactics on the nuclear deal in ways that match the mindset of the Trump administration. First, Europeans should take a unified and more assertive position in forthcoming talks with the US to underscore that they will not be party to, nor accept as permissible, violations of a multilateral and United Nations Security Council-enshrined agreement. The E3 should continue to outline that it will not, and indeed cannot, alter expiration dates of the terms in the nuclear deal (so-called “sunset provisions”) as Trump has demanded. If Trump wants to kill the deal, he must take full responsibility, and Europe should avoid guilt by association.

Second, Europe should continue to show openness to working with the US administration on a follow-up to the nuclear agreement with Iran once the current deal has reached a more mature stage of implementation. The E3 should also have a candid exchange with Iran on regional security and demonstrate to the Trump administration that a range of tools exists to address concerns related to Iran. But in return for this flexibility, Europeans should outline an expectation that Washington will adhere to its existing obligations under the multilateral agreement and minimize the unpredictability surrounding Trump’s waivers of sanctions.

The sequencing of European measures and flexibility will be important to strengthening the E3’s position. For example, the European Union should first receive firm assurances that Trump will waive nuclear-related sanctions in May before it even debates the tougher measures against Iran’s missiles program proposed by the US and reportedly supported by the E3 during a meeting with EU foreign ministers on Monday this week. The E3 should also consider how political and legislative measures within the US could better guarantee US commitments to the nuclear deal. This could entail extensions in the length of time between each waiver of US secondary sanctions related to Iran’s nuclear program (thereby easing the unpredictability surrounding Trump’s actions), and pressing for progress in the Airbus aviation deals with Iran explicitly permitted under the nuclear deal.

Third, Europeans should prepare for the worst-case scenario – namely, a US withdrawal from the agreement and snap-back sanctions in May – and minimise the damage that will ensue. Pompeo’s appointment should be a trigger for European policymakers and companies to step up contingency planning to salvage the deal even without the US. For Iran to continue implementing the restrictions on its nuclear program, there must be a degree of political and economic incentives. As outlined elsewhere, Europe could provide this package to Iran by using a range of political and technical tools that ring-fence companies from the enforcement of US secondary sanctions through legal carve-outs, sector-specific exemptions, political understandings, and reviving the EU Blocking Regulation.

In current talks with the US, Europe should privately stress its willingness to pursue alternative options to preserve the nuclear agreement. A significant benefit of outlining a contingency plan at this stage is the deterrence impact it may have on Trump’s decision to kill the deal through highlighting the isolation the US would face. In short, Europe should outline, as it has done on the issue of trade and the Paris climate accord, that it will work with like-minded coalitions to fill the gaps left by US withdrawal.

This strategy may not, in the end, alter the decision by Trump to execute his campaign promise to “dismantle” the “disastrous deal” with Iran. But this approach at least provides Europe with the political capital to try to salvage the agreement and thereby secure its own non-proliferation goals. If Iran’s nuclear program expands in respond to Trump’s withdrawal, other regional powers, such as Saudi Arabia, have warned that they will do the same. A firm European position in defense of the diplomatic accord may also reduce the growing risk of confrontation between Washington and Tehran in the Middle East, for which Europe will inevitably bear the cost. This approach also sets a precedent that Europe is a credible international partner, demonstrating political willingness to safeguard international norms at a time when global leadership is lacking. 

Photo Credit: EU