by Kaveh L. Afrasiabi
In a remarkable and somewhat unprecedented rebuke of the US administration, India’s Foreign Minister Sushma Swaraj has announced that India will not respect unilateral U.S. sanctions on Iran and will recognize “only the UN sanctions.” Bound to raise tensions with Washington, India’s brave decision reflects both India’s political evolution and the primacy of her own national interests. It’s also another setback for the White House’s hawkish anti-Iran policy, which has already alienated key European allies who are struggling to preserve the Iran nuclear deal without the United States by offering Iran a package of incentives in the near future. Adding real bite to her major policy announcement, Swaraj then went on to meet Iran’s visiting Foreign Minister Mohammad Javad Zarif, who is seeking to shore up global sanctions-busting support through a flurry of diplomatic trips.
India’s principled stance of maintaining business as usual with Iran despite American pressure reassures Iran about one of its key energy trade partners. Indeed, India’s imports from Iran have peaked in recent months to over 600,000 barrels per day. China, too, has invited Iranian President Hassan Rouhani for a bilateral meeting in June ahead of the summit of the Shanghai Cooperation Organization, where Iran as an observer keen on full membership. Moreover, Beijing has signaled its intention to sustain its key energy connections with Iran, which include investment by Chinese firms in Iran’s vast South Pars Field. Together, India and China make up nearly 40 percent of Iran’s oil exports and this might jump even higher in the near future.
Swaraj’s statement has focused attentions on New Delhi and its growing economic and geopolitical ties with Tehran. This was vividly demonstrated in the February 2018 India visit by Rouhani that resulted in a number of new bilateral trade agreements, including on the expansion of the India-built Chah Bahar port, which is also key for Afghanistan’s development.
But there is also a hidden message regarding the role of UN in the present controversies swirling around unilateral U.S. exit from the Iran nuclear deal (the Joint Comprehensive Plan of Action or JCPOA). Indirectly, Swaraj is sending a message to the UN that it must take action in defense of the JCPOA in conformity with its own stance mandating full compliance with the terms of the agreement not only by the signatories but also the entire UN family of nations.
To elaborate, UNSC Resolution 2231 provides for the termination of the provisions of the previous seven Security Council resolutions on the Iranian nuclear issue, retains a temporary arms embargo and ballistic missile technology ban, codifies the sanctions “snapback” mechanism (under which all Security Council sanctions will be automatically re-imposed if Iran breaches the deal), and assigns to the International Atomic Energy Agency the necessary verification and monitoring of Iran’s nuclear-related commitments under the JCPOA for their full duration. Also, the resolution calls on the UN chief to report to the Security Council on the JCPOA’s implementation and also sets up a Security Council facilitator to provide a brief on the JCPOA’s implementation parallel to the efforts of the secretary general. This resolution is invoked under Article 41 of Chapter VII of the UN Charter, which authorizes it to adopt measures necessary to maintain international peace and security. All the other Iran resolutions that imposed sanctions on Iran invoked Article 41 as well.
A Security Council resolution is “binding” when it creates obligations on its addressees. The starting point in interpreting a resolution should be the natural and ordinary meaning of the terms used by the Security Council and the weight and importance attached to its “demands” and or “requests” by the Council. Resolution 2231 “affirms” that the JCPOA’s adoption “marks a fundamental shift in its consideration of the issue,” urges all member-states to fully comply with the terms of the JCPOA, and “decides under Article 41” that “states shall comply” with the various provisions of the resolution. It “underscores” that “that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions” and then goes on to call for the agreement’s adoption by the member states. Indeed, the “binding” nature of the resolution can be confirmed by the resolution’s own explicit reliance on Article 25, which states: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council.” This is a legal obligation, enforceable under international law, which has a broad and evolving scope encompassing the decisions of Security Council increasingly acting as a fount of international law.
Given that Article 25 is placed in the Charter’s sections dealing with the general powers and functions of the Security Council, it clearly indicates the applicability of Article 25 for any of the Security Council’s actions, and not just those taken pursuant to other articles, above all its call on member-states to adopt and implement the provisions of the JCPOA. Substantive decisions within the meaning of Article 25 of the Charter are typically referrenced to as “legally binding decisions: ergo omnes (valid for the world) rather than an ordinary traité contrat.
So, why don’t the other JCPOA signatories collectively introduce a new Security Council resolution in defense of the JCPOA, just as the UN Secretary General Antonio Guterres has done? The United States would of course veto such a resolution but in so doing it would be inflicting further damage on its own credibility and global image and, simultaneously, elicit more pressure both at home and abroad to re-think its ill-advised and, indeed, illegal move on the JCPOA, which has isolated the US in the international community. Who knows, perhaps India’s timely jolt will spur the JCPOA authoring states in the Security Council—UK, France, China, and Russia—to action against the blatant U.S. breach of a legally binding international agreement.
Kaveh L. Afrasiabi is a former adviser to Iran’s nuclear negotiation team and the author of several books on Iran’s foreign affairs, including Iran Nuclear Accord and the Remaking of the Middle East (with Nader Entessar).