Europe’s anti-Iran decision lacks legal justification
Iran, US come to third way to manage tensions
On October 18, as stipulated by the 2015 nuclear deal, part of Iran’s arms embargo pertaining to missiles and drones will expire. However, the trio of European nations, consisting of Britain, Germany, and France, has declared their intention to uphold sanctions against Iran, going against the terms of the nuclear deal or the Joint Comprehensive Plan of Action (JCPOA). Iran Daily has discussed the matter with Reza Nasri, an international lawyer and an expert in international affairs. Nasri is of the opinion that Europe’s action lacks a solid legal justification.
By Ebrahim Beheshti
Staff writer
IRAN DAILY: On October 18, another part of Iran’s sanctions on arms and missiles is set to expire, as per the JCPOA. The European Troika – Britain, Germany, and France – reportedly intend to uphold them. Can Europe, with the backing of the United States, prevent the lifting of these sanctions against Iran?
NASRI: Europe’s latest decision will keep in place the sanctions imposed by the European Union in this specific area. However, it won’t affect the lifting of international sanctions imposed by the UN Security Council. This means that other UN member-states, who were previously called upon by the Security Council not to engage in missile-related cooperation with Iran, will no longer be bound by those restrictions as of October 18.
To maintain these sanctions, the three European countries behind this decision (France, the UK and Germany) would have to incorporate the provisions of this Security Council resolution concerning Iran’s missile activities into their domestic legal order; and these domestic laws would naturally only be binding within their jurisdiction. These laws would have an extraterritorial effect only if, during the drafting process, these countries choose to add “secondary sanctions” into the mix, which is a highly improbable scenario.
From a legal standpoint, what will the Europeans and possibly Americans rely on to enforce their decision? Do their references have legal justification?
Europe’s argument in this context lacks solid legal foundations. They assert that their action is a response to Iran’s non-performance or blatant violation of the JCPOA. However, Iran’s decision to resume its nuclear activities is actually consistent with “remedial measures” granted to Iran under JCPOA’s Articles 26 and 36. Evidently, agreed-upon “remedial measures” cannot logically be construed as unlawful or outside the framework of the agreement, warranting Europeans to take countermeasures. Put simply, the JCPOA equips Iran with the option to suspend “in whole or in part” its commitments if the other party fails to fulfill its obligations in a significant manner. This mechanism was meant to provide Iran – currently the aggrieved party - the tool to “compel” a non-compliant counterpart to fulfill its side of the bargain.
Therefore, it is legally untenable for non-compliant parties to interpret the execution of these “remedial measures” as “significant non-performance” or a violation of the JCPOA, when Iran decides to resort to them. This mechanism is specifically meant to lead them to fulfill their obligations, not to use it as a pretext to violate them even further.
From a political perspective, it appears that Iran and the United States are currently adopting a strategy of managing tensions, and the recent agreement on prisoner exchange and the release of Iranian assets is seen as a positive sign for the resumption of nuclear negotiations. Given this context, what is the underlying message or implication of Europe’s decision to maintain missile sanctions? Does this negatively affect the approach to contain tensions?
Politically, European authorities are grappling with concerns stemming from campaigns and allegations that have circulated over the past two years regarding “Iran’s military involvement in the Ukrainian conflict.” They fear that lifting military sanctions on Iran could trigger a strong backlash in their domestic political scene and upset public opinion. So, there is a strong “domestic politics” component to their decision, which has little to do with “international security” or “non-proliferation,” as they claim. In any case, past experience shows that engaging in a “tit-for-tat” cycle is never a good idea, as it always carries the risk of escalating tensions and potentially hampering negotiations and the conflict resolution process.
So far, there is no clear indication – at least not publicly – that the showdown between Iran and Europe has had a serious effect on Tehran and Washington’s bilateral efforts to manage tensions.
Of course, Iran’s latest decision to revoke the authorization of certain European inspectors of the IAEA - seemingly in response to Europe’s recent measures – could potentially, if not handled carefully, complicate the de-escalation process with the United States. So, it should be approached thoughtfully.
We should bear in mind that for every “tension” that arises in the course of a conflict-resolution process, there is always the possibility for parties to sway into a broader escalation and lose control. So, it’s always wise to avoid disproportionate responses, and always foresee an off-ramp strategy if the genuine intention is indeed to peacefully resolve the underlying dispute.
What do you think will be the impact of Europe’s resistance to implementing the terms of the JCPOA, specifically the lifting of some sanctions on October 18, on the future of nuclear talks? Are we likely to see a resumption of the nuclear talks, or are the parties considering new approaches beyond the JCPOA?
It seems that the parties involved have concluded that the revival of the JCPOA – in its current form – would not occur until after the upcoming US presidential elections. Iran is unwilling to settle for a lesser deal that does not deliver meaningful economic benefits, and President Biden seems unwilling to restore the JCPOA at the cost of having to endure considerable pressure from the Israeli lobby, Congress and his political rivals throughout the election season.
Now, assuming Mr. Biden is re-elected, the period spanning from the start of his second term (January 2025) until the expiration of Resolution 2231 (October 2025) is merely nine months, within which Iran will also hold its own presidential elections. This means that the practical window for reviving the JCPOA in its former configuration would be only about three or four months. At that time, it seems unlikely that the US administration would agree to revive an agreement whose main restrictions would sunset with the expiration of Resolution 2231 shortly thereafter.
As a result, it seems that the parties are exploring a third approach which involves engaging in piecemeal “mutual de-escalation measures” (away from legal formalities) in diverse areas of concern, in order to create the political foundation for a more comprehensive agreement after the US presidential elections. At least, this would be the logical solution, which recent developments - including the release of prisoners on both sides, the release of certain Iranian frozen assets, the reduction of military tensions in the region, and the deceleration of Iran’s nuclear activities – seem to corroborate.