By Kelsey Davenport
WASHINGTON, D.C. (IDN-INPS) – President Donald Trump’s Jan. 12 decision to waive sanctions on Iran keeps the United States in compliance – for the time being – with its obligations under the multilateral nuclear deal with Tehran, known as the Joint Comprehensive Plan of Action (JCPOA). Trump’s ultimatum that Congress pass legislation to unilaterally address what he describes as "flaws" in the agreement is based on flawed assumptions. His demands are unrealistic and put the future of the accord in doubt.
Trump’s Jan. 12 statement announcing the United States would waive sanctions reiterated the threat from his October  Iran policy speech: "fix the deal's disastrous flaws, or the United States will withdraw." In the Jan. 12 statement, however, Trump put a deadline on the "fix," declaring that he would not waive sanctions again unless Congress passes legislation to address the "flaws" and almost certainly violating the JCPOA. Before the next sanctions waivers are due on or around May 12, Trump specifically called for legislation addressing four factors:
1) It must demand that Iran allow immediate inspections at all sites requested by international inspectors.
2) Second, it must ensure that Iran never even comes close to possessing a nuclear weapon.
3) Third, unlike the nuclear deal, these provisions must have no expiration date.
4) Fourth, the legislation must explicitly state in United States law – for the first time – that long-range missile and nuclear weapons programs are inseparable, and that Iran's development and testing of missiles should be subject to severe sanctions.
Under the nuclear deal, the United States committed to "implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit, and intent of this JCPOA that would undermine its successful implementation." (See Section C.)
Conditioning continued U.S. participation in the agreement on achieving changes through unilateral action is not a good faith implementation of the JCPOA and sets the United States up to violate the agreement.
Thus far, Congress has wisely refrained from pursuing legislation that would violate the deal. In response to Trump's ultimatum, it is critical that Congress does not kill the deal under the guise of saving it. Legislation that violates the agreement by unilaterally attempting to extend or alter the nuclear restrictions on Iran poses just as great a risk as Trump revoking the waivers, which would put the United States in material breach of its JCPOA commitments.
Moreover, any U.S. attempt to make changes to the multilateral accord will be staunchly opposed by Washington's P5+1 negotiating partners, (China, France, Germany, Russia, and the United Kingdom) and would be rejected by Iran.
Iranian Foreign Minister Javad Zarif quickly responded to Trump's Jan. 12 statement by saying the JCPOA is "not renegotiable" and that the U.S. announcement amounts to a desperate attempt to “undermine a solid multilateral agreement.” Russian Foreign Minister Sergei Lavrov said Jan. 15 that Trump’s approach is unacceptable and Moscow would work to preserve the existing agreement.
Federica Mogherini, the European Union’s foreign policy chief and head of the P5+1 group made similar comments last year , noting Sept. 21 that reopening an agreement that is working is unnecessary. Mogherini also called out Trump on his threat to blow up the deal. She warned that the JCPOA "does not belong to any single country and it is not up to any single country to terminate it."
Clearly, pursuing Trump's approach will only isolate the United States at a time when Washington needs to keep Iran#s nuclear program in check. Worse still, threats to pull out of the JCPOA unless other parties accede to U.S. demands will undermine cooperation on sanctions and negotiations to produce a deal to halt and reverse North Korea's far more advanced nuclear and missile programs.
Trump’s Unrealistic Renegotiation Demands
A closer look at Trump's four conditions for new legislation on the JCPOA show them to be unnecessary and unrealistic:
1) "It must demand that Iran allow immediate inspections at all sites requested by international inspectors."
Additional inspections authorities dictated by Congress are unnecessary and risk undermining the independence and integrity of the International Atomic Energy Agency (IAEA).
Under the JCPOA, key nuclear activities in Iran are subject to continuous monitoring to verify Iran is abiding by the deal. The IAEA also has timely access to both declared and undeclared sites. Declared sites can be visited on short notice and key sites can be inspected on a daily basis if requested by the agency.
If the IAEA has questions about illicit nuclear-related activities at any undeclared site (either civilian or military) that Iran does not address, the agency can request access. If Iran does not comply or fails to provide sufficient access in 14 days, the Joint Commission set up by the JCPOA can require Iran to comply with the IAEA's request. This process is outlined in Annex I, Section Q of the JCPOA. IAEA Director General Yukiya Amano noted Oct. 13 that agency inspectors have had all the access to sites they have requested and that the verification regime is the "world’s most robust."
The JCPOA does not allow "anytime, anywhere" inspections – but that is not necessary for a strong agreement. Nor is likely that Iran – or any other country – would agree to give inspectors carte blanche access to any site, particularly military facilities. The current measures, combined with U.S. national intelligence means, provide high confidence that any deviations from the provisions allowed in the JCPOA would be quickly detected.
Additionally, the United States cannot and should not dictate the terms of international inspections. The IAEA is an independent organization and the credibility of the agency’s work depends on that perception. For the United States or any other country to try to legislate the agency's access risks undermining the independence and integrity that is so critical to the IAEA's work.
2) "It must ensure that Iran never even comes close to possessing a nuclear weapon."
It is unclear how Trump thinks legislation can or should be crafted to address this vague demand. A bill that seeks additional barriers based on a unilateral and arbitrary understanding of what constitutes "close to possessing a nuclear weapon" would be outside the scope of the JCPOA and would certainly be rejected by Iran and the United States' partners.
While some of the core restrictions under the JCPOA will expire, a shorter breakout time is not necessarily indicative of pursuing a nuclear weapons program. Currently, the breakout, or time it would take for Iran to obtain enough fissile material for one bomb, is approximately 12 months. That timeline will drop after the first 10 years of the JCPOA when restrictions begin to expire.
However, a shorter breakout alone does not indicate by itself that Iran has chosen to pursue nuclear weapons. For instance, if Tehran begins producing enough enriched uranium for its Bushehr power reactor, its breakout time would be shorter, but its activities would be legally permissible under the Nuclear Nonproliferation Treaty (NPT).
Additionally, key restrictions on Iran are permanent under the JCPOA. The enhanced inspections and monitoring under the additional protocol do not expire, nor does the prohibition on certain weaponization activities (Annex I, Section T). As a result, inspectors have more access than in prior years and Iran cannot claim that certain activities relevant to developing a nuclear explosive device are for conventional military purposes as it has in the past. The combination of restrictions, enhanced IAEA monitoring and access, and national intelligence means puts the United States in the best possible place to quickly detect covert nuclear activity, or a dash to nuclear weapons using declared nuclear facilities.
There are legitimate concerns about what happens in 10-15 years when some of the core nuclear limits mandated by the JCPOA are due to expire. But it is far better to sustain the current deal and look for opportunities, in conjunction with the P5+1 partners, to build on it in a way that strengthens nonproliferation in Iran and regionally, rather than risk the agreement immediately.
3) "Unlike the nuclear deal, these provisions must have no expiration date. My policy is to deny Iran all paths to a nuclear weapon – not just for ten years, but forever. If Iran does not comply with any of these provisions, American nuclear sanctions would automatically resume."
Unilaterally demanding an extension of JCPOA restrictions under threat of reimposing sanctions would violate the deal. Under the terms of the JCPOA, full implementation of the JCPOA results in Iran being treated like any other non-nuclear weapon state under the NPT. The State Department itself stated in the 2016 Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament Agreements and Commitments that with the implementation of the deal, "previous issues leading to NPT noncompliance findings [regarding Iran] had been resolved."
Additionally, 10 years from adoption day, barring the reimposition of sanctions on Iran by the United Nations Security Council, that body will no longer be "seized" of the issue of Iran's nuclear program. At this point, if Iran is in compliance with its international treaty obligations and the United States has no intelligence suggesting that Iran is pursuing a covert nuclear program, there is no legitimate basis to subject Iran’s nuclear program to arbitrary restrictions under threat of sanction.
The United States is also obligated in the JCPOA to seek the statutory lifting of sanctions eight years after adoption day. If Washington intends to threaten automatic reimposition of sanctions in perpetuity if Iran resumes certain nuclear activities, Congress cannot make a good faith effort to statutorily lift the measures.
The United States does not need to seek a basis now in order to respond to future, hypothetical Iranian actions. If national intelligence or evidence obtained by the IAEA were to emerge in the future that Iran had resumed nuclear-weapons related activities in violation of its NPT commitments, the United States should work multilaterally, as it did leading up to the JCPOA, to pursue a response supported by the international community.
4) "Legislation must explicitly state in United States law – for the first time – that long-range missile and nuclear weapons programs are inseparable, and that Iran's development and testing of missiles should be subject to severe sanctions."
Formally linking Iran's long-range missile program to its nuclear weapons program under U.S. law risks putting in place conditions that would disrupt the JCPOA because of activities outside the scope of the agreement.
While the JCPOA does not cover Iran's ballistic missile activities, the UN Security Council Resolution 2231, which endorses the deal, calls upon Iran to refrain from testing ballistic missiles designed to be nuclear-capable. While this is a nonbinding condition, the eight-year prohibitions on selling or purchasing certain ballistic missiles and related technologies without prior approval from the Security Council are absolute.
Since the Iran nuclear deal was implemented in January 2016, the UN secretary-general has issued four reports assessing the implementation the resolution. Several of the reports, including the most recent in December 2017, call into question Iran’s compliance with the restrictions, noting several allegations of illicit transfer of ballistic missile systems.
Iran’s flouting of UN Security Council restrictions is troublesome, but the United States has a number of tools to address Iran’s ballistic missile activities. The JCPOA did not waive or prohibit additional U.S. sanctions on Iran’s ballistic missile activity and the United States has responded to Iran’s ballistic missile activities by passing new measures and designating individuals and entities.
In the past six months, the administration targeted additional entities assessed as involved in Iran’s ballistic missiles program as recently as Jan. 12, and Congress passed additional sanctions on Iran’s ballistic missile activity in August 2017. Implementation of these measures, as well as UN restrictions, should be the focus of U.S. efforts at this point.
Given Iran’s security concerns and the current U.S.-Iranian tensions, an agreement limiting ballistic missiles may be unlikely in short term, particularly if the JCPOA's future is in doubt, and because of the central role that Iran's ballistic missiles play in its national security. But the United States can and should do what it can to enforce UN Security Council Resolution 2231 and encourage Iran to abide by its announced range restriction. Iran has stated it will limit its ballistic missiles to a range of 2,000 kilometers.
While this commitment is voluntary and nonbinding, it has been reiterated by the Supreme Leader, and a June 2017 report by the U.S. Defense Intelligence Ballistic Missile Analysis Committee found that Iran’s current ballistic missile inventory includes systems with a range of up to 2,000 kilometers, but did not discuss any missiles that exceed that range.
The United States should also work with its EU allies, which have stated in October a willingness to work cooperatively to address Iran’s ballistic missiles–separate from the JCPOA. That could include discussions on a regional ballistic missile limitation mechanism and greater information sharing to ensure that the existing UN restrictions, as well as U.S. sanctions, are abided by. Training on Resolution 2231 and export controls could also be beneficial to enhance compliance with existing restrictions. Given the broad authorities already on the books, a focus on implementation, rather than additional sanctions, may be the best path forward.
Responsible legislators should understand Trump's demands to "fix" the deal for what they are: an attempt to force Congress to unilaterally push changes that other parties won't accept, or allow him to reimpose sanctions in violation of U.S. commitments.
Even if the Congress proposes "fixes" to the JCPOA that do not violate the terms of the agreement outright – and it is difficult to conceive of legislation that would meet Trump’s conditions without violating the deal – there is no guarantee that Trump will not move the goalposts again in the future and demand additional concessions for continued U.S. participation in the accord.
From a nonproliferation perspective, the JCPOA can continue to block Iran's pathways to nuclear weapons for more than a decade if fully implemented. With top U.S. policymakers like Secretary of Defense James Mattis affirming that Iran is meeting its commitments and that the deal benefits U.S. national security interests, there is no reason for Washington to pull out of the deal, demand additional changes, and risk a new proliferation crisis now.
The Trump administration must recognize that the best path forward to address Iran's nuclear program is to fully implement the agreement at hand and look for opportunities to build on its unique nonproliferation value. [IDN-InDepthNews – 18 January 2018]
Photo: The ministers of foreign affairs and other officials from the P5+1 countries, the European Union and Iran while announcing the framework of a Comprehensive agreement on the Iranian nuclear programme. April 2015. Credit: Wikimedia Commons.
IDN is flagship agency of the International Press Syndicate.
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