The most vociferous critics of the Joint Comprehensive Plan of Action, the agreement between the United States, China, Britain, France, Germany, Russia, the European Union and the International Atomic Energy Agency (E3/EU +3) and Iran point with consternation to a delay of 24 days between the report of possible agreement violations to a possible decision to find Iran in guilty of such violations. That decision, in turn, could lead to snap-back of economic sanctions or one to use military force to prevent Iran from racing to the bomb. Critics have rightly pointed out that 24 days is enough time for the Iranians to hide or destroy evidence or to create enough ambiguity so that the United States would likely be outvoted by a majority of the signers to the agreement. In my previous posts on the deal, I have stressed that the agreement builds in vested interests among our European allies that would likely lead at least some of them to give Iran the benefit of the doubt and thus oppose American enforcement efforts. In fact, Russell Berman, Professor of Comparative Literature and German Studies at Stanford University and Senior Fellow at the Hoover Institution has pointed out, a close reading of the Iran deal indicates that the deal can be read to allow for a much, much longer period of delay.
Berman’s careful reading of the dispute resolution mechanism in paragraphs 36 and 37 of the agreement is particularly important in view of this morning’s news brings a report of a letter by 29 American nuclear physicists to President Obama in which the signers congratulate the President on what they regard as a superb deal. The physicists write the following about the JCPOA’s dispute resolution procedures:
“Concerns about clandestine activities in Iran are greatly mitigated by the dispute resolution mechanism built into the agreement. The 24-day cap on any delay to access is unprecedented, and will allow effective challenge inspection for the suspected activities of greatest concern: clandestine enrichment, construction of reprocessing or reconversion facilities and implosion tests using uranium.”
It is hard for this layman to understand the optimism and confidence of these physicists that 24 days will not prevent Iran from effectively hiding clandestine activities, either at the main sites under inspection or at as yet unknown secret sites on off-limits military bases. So on that ground alone, their letter is not convincing.
Yet, as Berman has pointed out to me paragraphs 36 and 37 of the agreement indicate that dispute resolution can be read to call for 50 days before a decision is reached. Here is the exact text of these key paragraphs.
“Dispute Resolution Mechanism
36. If Iran believed that any or all of the E3/EU+3 were not meeting their commitments under this JCPOA, Iran could refer the issue to the Joint Commission for resolution; similarly, if any of the E3/EU+3 believed that Iran was not meeting its commitments under this JCPOA, any of the E3/EU+3 could do the same. The Joint Commission would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration, any participant could refer the issue to Ministers of Foreign Affairs, if it believed the compliance issue had not been resolved. Ministers would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration – in parallel with (or in lieu of) review at the Ministerial level – either the complaining participant or the participant whose performance is in question could request that the issue be considered by an Advisory Board, which would consist of three members (one each appointed by the participants in the dispute and a third independent member). The Advisory Board should provide a non-binding opinion on the compliance issue within 15 days. If, after this 30-day process the issue is not resolved, the Joint Commission would consider the opinion of the Advisory Board for no more than 5 days in order to resolve the issue. If the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then that participant could treat the unresolved issue as grounds to cease performing its commitments under this JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes significant non-performance.”
Berman succinctly summarizes this paragraph as follows: “15 days Joint Commission, then 15 days Foreign Ministers, then 15 days Advisory Board, then back to Joint Commission for 5 days, then to the United Nations Security Council.” That is, the paragraph 36 clearly states that dispute resolution process can last 50 not 24 days. In referring to a “30-day process” the text adds to confusion as the paragraph clearly refers to three fifteen day periods plus another five amounting to 50 days in all.
Note as well that the 15 day limit that applies to the Joint Commission and Foreign Minister procedures applies “unless the time period was extended by consensus.” While it is unlikely that the United States would accept further delay, it is possible that an American President would refuse to veto a “consensus” of the E3/EU +3 in favor of extending the delay beyond 15 days. For reasons I presented in my previous blog, a strong majority including our European allies could favor more delay. In that case the delay between a report of a possible violation and a decision about its validity could be extended as long as there was a “consensus” to do so. The 24 day “cap” to which the nuclear physicists confidently referred would not only turn into a 50 day marathon but might be even longer. With each passing day, the Iranians would have more time to evade the agreement or, if they decided to do so, follow the North Korean model, race to the bomb and confront the E3/EU+3 with a fait accompli.
Berman writes: “One has to assume that if it would be to Iran’s advantage to delay the process, it could claim 50 days at this level. I would imagine that this process might kick in after a finding by inspectors which might take place up to 24 days after an initiation of a concern.” That is, Berman raises the possibility that the JCPOA might be read by the Iranians and perhaps other signers to suggest that the dispute resolution process described above would begin after the first 24 days. If the Iranians chose to read the text that way, then the JCPOA calls for a delay from reported infraction to decision of 74 days or even more if there was a consensus to do so.
Paragraph 37 calls for the UN Security Council “upon receipt of the notification from the complaining participant” to “vote on a resolution to continue the sanctions lifting.” It again confusingly refers to acting “within 30 days of the notification” even though the process could be extended beyond that for reasons indicated above. The Security Council could vote to restore economic sanctions, though there is no reference to possible threat of use of force legitimated by the UN. Berman notes a loophole in paragraph 37. If sanctions were restored by the Security Council, where by the way Russia and China have a veto, “these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.” Even if one assumes that the previous business deals were not aiding Iran’s progress toward the bomb, the fact that they would not be ended would aid the Iranian economy, continue to build vested interests in Europe opposed to firm enforcement of the agreement.
The crucial point is this one. If a historian and a literary scholar can read the Joint Comprehensive Plan of Action to allow for 50 or 74 or more days between report of a dispute to its resolutions and a decision to do something about the alleged violations so can the leadership of the Islamic Republic of Iran. The text is, in fact, not ambiguous. It clearly states that a far longer period of delay and evasion is built into the agreement than the much discussed 24 day limit. When and if the Iranian regime decides to read the deal in the way that we have been able to do, it will stand on firm textual ground in doing so. This is yet another reason why this agreement should be rejected by members of the United States Congress.
Jeffrey Herf, Distinguished University Professor, Department of History, University of Maryland, College Park