Bourse & Bazaar | Colum Lynch: Two years after President Donald Trump announced the U.S withdrawal from the Iran nuclear deal, Tehran has resumed its enrichment of uranium, restarted research and development on advanced centrifuges, and expanded its stockpile of nuclear fuel, cutting in half the time it would need to produce enough weapons-grade fuel to build a nuclear bomb.
“Iran is manifestly closer to being able to produce a nuclear weapon than they were two years ago,” said Richard Nephew, who participated in negotiations on the landmark nuclear deal in 2015.


While there is no evidence Tehran is preparing a dash for a nuclear weapon, the Iranian advances raise questions about the success of the White House’s so-called “maximum pressure” campaign, which is aimed at forcing Iran through the imposition of ever more stringent sanctions to accept greater constraints on its political and military support for regional militias and the development of its ballistic missile program.


The effort—which has severely damaged Iran’s economy—has yet to temper Iran’s nuclear ambitions, instead prompting Tehran to resume nuclear activities prohibited by the nuclear pact, which is formally known as the Joint Comprehensive Plan of Action, or JCPOA. It has also eroded Washington’s credibility even among many of its traditional allies and placed increasing strains on America’s diplomatic partnerships.


This month, the U.S. State Department publicly unveiled a diplomatic effort to secure a tangible result from its pressure campaign in the run-up to the U.S. presidential election—an agreement by the U.N. Security Council to extend a conventional arms embargo that is scheduled to expire on Oct. 18, just weeks before the election. Back in February, the United States privately circulated elements of a draft Security Council resolution extending the arms embargo to Britain, France, and Germany, hoping to rally support for the initiative.


The United States received a chilly response from the Europeans, who argued that the resolution was all but certain to be vetoed by China and Russia, which plan to sell arms to Iran once the embargo expires. The Europeans say they share Washington’s concerns about Iran’s ballistic missile programs and its support for proxies, including Hezbollah and other militias spread across the Middle East. But they fault Washington with undermining a landmark nuclear pact that enjoyed broad international support and which they believed had succeeded in constraining Tehran’s nuclear program, until the United States ditched it.


Last week, Brian Hook, the U.S. special envoy for Iran, warned that if the council failed to agree to extend the embargo, Washington could deliver a potentially lethal blow to the nuclear agreement by triggering a provision that would allow any of the initial seven signatories to reimpose—or snap back—all Iran sanctions, including the conventional arms embargo, that were in force before the nuclear pact was concluded. Iran has warned that if the sanctions are reimposed, it will likely pull out of the nuclear pact, end international inspections of its nuclear energy program, and withdraw from the Nuclear Nonproliferation Treaty.


Such a move by Washington would raise complex political, diplomatic, and legal questions about whether the United States, which withdrew its participation in the nuclear deal on May 8, 2018, has the legal right or the moral authority to trigger the snapback provision. Under the terms of U.N. Security Council Resolution 2231, which endorsed the nuclear deal, any participant in the nuclear pact has the right to single-handedly snap back the previous sanctions. Trump administration officials contend that while the United States is no longer a participant in the nuclear deal, it still retains all the rights of a participant under the resolution, which has never been overturned. And they intend to exercise that right if they don’t get their way.


“There is no qualification in 2231 where ‘participant’ is defined in a way to require participation in the JCPOA. And if the drafters wanted to make the qualification, they could have, but they did not,” Hook told reporters on April 30. “This is the plain reading of the text.”


“The arms embargo must be renewed, and we will exercise all diplomatic options to accomplish that,” Hook said. “We have a policy goal of renewing the arms embargo, and that’s where our focus is. We’re hopeful that we’ll succeed.”


John Bellinger III, who served as the principal legal advisor to the National Security Council and the State Department during the George W. Bush administration, said the United States can make a credible legal case for reimposing sanctions but that the outcome could prove self-defeating.


“The U.S. has the right to trigger snapback, but they may ultimately not be effective in achieving what they want to achieve,” he said, warning that states may be disinclined to observe such sanctions. “There is a real risk it could backfire if the other countries are unwilling to go along. If you try to lead but no one will follow, you have not been successful, and the U.S. will have fractured the Security Council.”


“I suspect, at the end of the day, the Security Council will be forced on a purely legal basis to conclude we have the right to submit the resolution [triggering snapback],” Nephew said. “The debate will split the council as a point of fact because you will have the French, Brits, and Germans screaming that we are not doing this in good faith and the Russians and the Chinese will lose their minds on this.” The practical outcome of this approach, he said, is that the Chinese and Russians will cry foul and declare the action illegitimate. “I have no doubt they will sell arms and will do so immediately. Those tanks that [U.S. Secretary of State Mike] Pompeo is so concerned about could be put on the next boat.”


European officials have fumed in private over the latest U.S. threat, which they suspect is designed to kill off the nuclear pact. They view Washington’s legalistic approach as inconsistent and hypocritical, noting that the very resolution being invoked by the United States to reimpose sanctions also calls on states to support the implementation of the nuclear pact. One senior European official also pointed out that a key provision in the U.N. Charter, Article 25, states that “the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”—a provision that the United States has ignored.


The U.S. strategy is “legally and politically obscene,” a U.N.-based diplomat privately toldthe International Crisis Group.


Russia has said publicly what some of its European partners are saying privately.


“Their reasoning is ludicrous, of course,” Mikhail Ulyanov, Russia’s ambassador to the U.N. in Vienna, said in an interview with the Russian newspaper Kommersant published on April 28. “It is common knowledge that Washington officially announced its withdrawal from the nuclear deal on May 8, 2018.”


“Theoretically, an attempt of this sort is possible, but it will make the U.S. appear in an extremely unattractive light,” he added. “I don’t think that the U.N. Security Council members would be ready to support the U.S. bid to remain a JCPOA participant. It is clear to everybody that this is preposterous. … The attempt to implement this plan will cause a lot of harm and lead to stormy debates in the U.N. Security Council.”


Democratic lawmakers who supported the JCPOA chided the administration for withdrawing from it in the first place and then later trying to use the deal to advance its goals. “They’re trying to have it both ways,” one Democratic congressional aide said.


Nevertheless, a bipartisan majority in Congress—including some of Trump’s most stalwart critics on the left—supports extending the Iran arms embargo. Hundreds of House lawmakers from both sides signed on to a letter to Pompeo last month urging an extension of the ban. “[W]e are concerned that the ban’s expiration will lead to more states buying and selling weapons to and from Iran. … This could have disastrous consequences for U.S. national security and our regional allies,” read the letter, which was organized by Reps. Eliot Engel and Michael McCaul, the chairman and the top Republican on the House Foreign Affairs Committee, respectively.


“It’s now just several months out where China, Russia, other countries from around the world can all sell significant conventional weapons systems to the Iranians in October of this year,” Pompeo told reporters in a briefing last week. “This isn’t far off. This isn’t some fantasy by conservatives. This is a reality.”


The 2015 Iran nuclear pact—the culmination of more than a decade of diplomatic efforts to contain Iran’s nuclear program—offered Tehran an end to crippling economic sanctions in exchange for limiting its nuclear activities and undertaking a set of verifiable commitments to assure the world it was not building nuclear weapons. It was signed by representatives of Britain, China, the European Union, Iran, France, Germany, Russia, and the United States.


Trump derided the nuclear pact—a signature foreign-policy achievement for President Barack Obama—as a flawed agreement that gave Iran access to billions of dollars that have since been used to fund Iranian-backed militias and to advance a ballistic missile program that could improve Iran’s ability in the future to deliver a nuclear payload. On May 8, 2018, Trump formally withdrew from the agreement and began a process of imposing a range of U.S. sanctions on Iran.


Despite European government efforts to circumvent those sanctions, European businesses have largely observed the U.S. measures, fearing their companies could be penalized and denied access to U.S. consumer financial markets.


Iran has insisted for years that it has never had any desire to build nuclear weapons, but U.S. and other intelligence agencies have long contended that Tehran had been secretly developing nuclear weapons for years. The International Atomic Energy Agency (IAEA) concluded that it had been working on a nuclear weapon design until at least 2009. But the IAEA also claimed that Iran had stopped its design work and was in compliance with its obligations under the nuclear pact until the United States reneged on the deal.


A year after the United States withdrew from the pact, Tehran began a process of violating its own commitments under the pact, announcing on May 8, 2019, that it would no longer be bound by limits on the size of its stockpiles of enriched uranium. Iran subsequently stepped up activities at the Natanz and Fordow enrichment facilities, increasing stores of a more purified grade of uranium that could bring it close to producing weapons-grade fuel. Iran also restarted prohibited research and development work on advanced centrifuges, which would enable the country to purify its uranium at a greater speed.


Under the terms of the nuclear pact, Iran is permitted to stockpile up to 300 kilograms of low-enriched uranium, far short of the estimated 1,050 kilograms required to produce enough weapons-grade fuel for a single bomb. But in March, the IAEA reported that Iran had produced 1,021 kilograms of low-enriched uranium, making it all but certain it has enough raw uranium to build a bomb. If Iran decided to pursue a nuclear weapon, according to Nephew, the larger stockpile would cut down its so-called breakout time—the time it would take to convert the low-enriched uranium into weapons-grade fuel—from 12 months to about six months.


But some arms control experts cautioned that Iran would still need to overcome considerable technical hurdles to weaponize and deploy a nuclear weapon. They suspect that Iran’s violations have been carefully calibrated to apply pressure on the other signatories of the nuclear pact to ease sanctions on Iran.


The Iranians’ “actions and statements indicate they are not racing to build a nuclear weapon or amass material for a nuclear weapon,” said Daryl Kimball, the executive director of the Arms Control Association. “They are retaliating in a measured way to the U.S. reimposition of sanctions, and they have threatened to go further if the situation continues indefinitely.”


In January, after Iran rejected any constraints on its enrichment of uranium, the foreign ministers of Britain, France, and Germany called out Iran for violating the terms of the nuclear pact and jointly triggered a so-called dispute settlement mechanism to press Tehran to come back into compliance or face the prospect of the Europeans declaring it in breach of its obligations—an action that would lead to the reimposition of sanctions. But the Europeans also faulted the United States for withdrawing from the nuclear accord and expressed their hopes that the initiative would compel Iran to reverse course.


German Foreign Minister Heiko Maas said at the time that the Europeans “could no longer leave the growing Iranian violations of the nuclear agreement unanswered.”


“Our goal is clear,” he said. “We want to preserve the accord and come to a diplomatic solution within the agreement.”


Richard Gowan, the U.N. director at the International Crisis Group, said Washington’s threat to trigger the snapback may be designed to “scare the Europeans into backing alternative ways to keep the arms embargo alive.”


Gowan said European diplomats had suspected that the United States might try to convince Britain to break with its European partners, declare Tehran in breach of its obligations, and trigger the snapback provision. “The fact the U.S. is making the case that it can still do snapback itself implies that the British option may not be available.”


“I am not sure there is a compromise available,” he added, noting that the Europeans may be paying as much attention as Trump to the U.S. election calendar. “The higher the chances of [Joe] Biden victory in November, the less likely the E3 [the three European signatories to the nuclear pact] will be to buy a U.S. snapback drive.”