posted on Sun 19 Jul 2015 11:36 AM
Security Council Resolution on Iran Nuclear Agreement

Tomorrow morning (20 July), the Security Council is expected to adopt a resolution that begins a process to lift UN sanctions on Iran, while establishing a strong monitoring system of Iran’s nuclear programme. The resolution follows the recently concluded Joint Comprehensive Plan of Action (JCPOA) agreed to between the P5, Germany, the High Representative of the EU for Foreign Affairs and Security Policy and Iran. According to the JCPOA implementation plan, an immediate step upon concluding the agreement is adopting a Council resolution that endorses the JCPOA, to be promptly followed by EU endorsement of the Council resolution. The adoption of a Council resolution triggers the JCPOA coming into effect in 90 days, a time frame that was created to allow the US Congress to review the agreement.

On 15 July, the US introduced the draft resolution to Council members in consultations under “Any Other Business”. The following day an expert-level meeting was held to explain the draft resolution and answer elected members’ questions. There have been no actual negotiations on the draft. The terms of the resolution had been agreed on in Vienna as part of the negotiations of the JCPOA, and elected members seem to have recognised that there was no room for changes. It was put in blue on 17 July and Council members have been invited to co-sponsor the resolution.

Since 2006 the Council has passed six resolutions progressively prohibiting the supply of goods and services for Iran’s nuclear programme, targeting individuals and entities with asset freezes and travel bans, and imposing an embargo on conventional arms and ballistic missiles. The adoption of the resolution will not immediately lift sanctions. The trigger for terminating the Council sanctions, according to the draft resolution, will be the Council’s receipt of an IAEA report that verifies Iran has implemented a series of nuclear-related measures. These include, for example, Iran redesigning its Arak heavy-water reactor, reducing its installed centrifuges and converting its Fordow enrichment plant into a research centre. Once the Council receives this IAEA report confirming Iran’s fulfilment of these tasks, the Iranian sanctions regime will be terminated, though “restrictions” will remain.

The restrictions, detailed in an annex to the draft resolution called the Stand-Alone Statement, essentially maintain the existing embargo on the import and export of conventional arms for five years and ballistic missiles for eight years, along with travel ban measures and asset freezes for five and eight years respectively. An attachment to the Stand-Alone Statement specifies 36 individuals and entities that will no longer be subject to the asset freeze and travel ban, and the Statement indicates there could be further de-listings. All states are called upon to continue inspecting cargo to and from Iran when they have reasonable grounds to believe the cargo contains items contrary to the provisions of the JCPOA and the Stand-Alone Statement.

What is widely being referred to as a “snap back” mechanism has been put in place to reverse the lifting of sanctions if Iran violates the agreement. The draft resolution outlines the process for this automatic reapplication of the sanctions. Concerns over non-compliance with the agreement should first be addressed among the parties to the JCPOA. This would initially involve consideration by the Joint Commission, a body established by the JCPOA made up of the eight parties to the agreement to monitor implementation of the agreement. Continued concerns could then be referred to their foreign ministers. If this process fails to resolve the issue, and a concerned party of the JCPOA considers it a significant violation of the agreement, it can notify the Council. The sanctions would then resume after thirty days of notifying the Council unless the Council adopts a resolution that continues the lifting of the sanctions. Such a resolution could be vetoed by any permanent member that believes there has been significant Iranian non-compliance. It seems this mechanism was created due to concerns that the Council might not be able to agree to re-impose sanctions in the future if Iran were to break the agreement.

Regarding monitoring, the draft resolution and the annexed Stand-Alone Statement reiterate how the procurement channel established in the JCPOA for approving imports for Iran’s nuclear programme should function. The procedures established for states seeking to provide goods or services related to Iran’s nuclear programme, as outlined in the resolution, involve first submitting a proposal to the Council, which the Council will forward to the Joint Commission. The Joint Commission will then make a recommendation on the proposed good or service, which it will submit to the Council. Unless the Council adopts a resolution to reject a Joint Commission recommendation within five working days, it is approved and the state may go ahead with the transfer or provision of service.

While not directly stated in the draft resolution, ending the Iranian sanctions will result in terminating the 1737 Committee and the Panel of Experts. The US has explained to members that it is developing a mechanism that would replace the role of the sanctions committee to collect and consider information that the Council will still receive. In addition to the Council’s role in receiving proposals and Joint Commission recommendations on exports for Iran’s nuclear programme, the draft resolution stipulates that the IAEA should provide reports to the Council as appropriate, and the Secretary-General should report to the Council every six months on the implementation of the provisions in the Stand-Alone Statement. Member states are also urged to provide the Council with any information on the implementation of the resolution’s measures.

Language in the draft resolution appears to have been affected by Iran’s desire that it reflect a new relationship with the international community and for it to no longer be portrayed as an issue on the Council’s agenda. These sensitivities seem to have led to the absence of an explicit Chapter VII reference, or language referring to the Article 39 determination by the Security Council that there has been a “threat to the peace, breach of the peace, or act of aggression.” Instead, where a Chapter VII citation might have been expected, the draft resolution makes reference to Article 25, which states that members “agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” It can be argued that the Article 25 reference makes this resolution binding on all member states. In addition, the Article 41 references in the draft resolution make clear that many of the actions to be taken come under the Council’s Chapter VII powers. Iran also seems to have been very sensitive about the agreement representing the end of sanctions. It did not want any mention of “sanctions” in the resolution and was strongly against the Council maintaining a sanctions committee. This may in part be why the Joint Commission, which includes Iran’s participation, replaces many of the functions of the 1737 Committee.

The draft resolution does not seem to contain any mandatory language directed at Iran. Where there is obligatory language, it is directed at all member states; thus symbolically treating Iran as an equal partner with other countries. The importance to Iran of a new relationship with the international community was highlighted by its permanent representative Gholamali Khoshroo at a meeting Iran organised with elected members about the draft resolution on 15 July. He apparently stressed his hope of the deal’s wider implications that would enable greater cooperation and a larger Iranian role in addressing threats to the region and beyond.

Notably the draft resolution affirms that the conclusion of the JCPOA marks a fundamental shift in the Council’s consideration of the nuclear issue and expresses the Council’s desire to build a new relationship with Iran. It also foresees that in ten years from “Adoption Day” (the day that the JCPOA enters into effect), the Council will conclude its consideration of the Iranian nuclear issue, and the item “Non-proliferation” will be removed from its agenda. (The North Korea nuclear issue, which will remain on the agenda, is considered under the agenda “Non-proliferation [DPRK]”.)

Despite the intention for the draft resolution’s provisions to terminate after ten years, the P5, Germany and the EU High Representative for Foreign Affairs and Security Policy sent a letter to the Secretary-General on 14 July stating that they would seek a new Council resolution at that point. According to the letter, the resolution would reinstate the mechanism for automatically re-activating the sanctions over an additional period of five years in the event of significant Iranian non-compliance with the JCPOA (S/2015/538).

In September, the Council will have its quarterly briefing by the chair of the 1737 Committee, which could be an opportunity to consider the impact of the agreement on the Sanctions Committee and a transition to a mechanism that would replace it.