The Iran Deal Comes Around Again

Brad Patty

3 months ago

January 08, 2018

What is commonly called “the Iran Deal” has three components, each of which imposes different requirements on the United States. There is the Joint Coordinated Plan of Action (JCPOA), which is the text negotiated by the Iran and the Permanent 5 members of the United Nations Security Council “plus one,” that ‘one’ being Germany.  This group is called the “P5+1” for short. This text commits each nation to doing various things, but contains no enforcement mechanisms:  the United States commits to setting aside nuclear-related sanctions on Iran, for example, but there is no method for punishing us if we decide to withdraw. Iran likewise commits to laying aside certain nuclear activities, but the JCPOA doesn’t have any means for ensuring they keep their word or punishing them for failing to do so.

The second part is the United Nations Security Council Resolution (UNSCR) 2231, which builds out the enforcement mechanisms. Iran was not a party to UNSCR 2231, which under its constitution it cannot accept as valid or binding. In fairness, no one in Iran’s leadership has pretended otherwise. UNSCR 2231 thus in theory binds the United States, which can veto any attempt to enforce it against ourselves; and Iran, which is constitutionally incapable of accepting it. Iran also has Russian and Chinese vetoes it can bank on, especially when it comes to arms sales that Russia and China would very much like to make to Iran.  UNSCR 2231 is thus, like the JCPOA, unenforceable.

That leaves the third piece of the deal, which are the Iranian and US laws codifying how these governments have bound themselves with regard to the deal. Unlike the toothless international agreements, these laws actually matter because the governments enforce the provisions on themselves. It is worth noticing that the US and Iranian laws on the deal come widely apart.  For example, Iran’s legislature added a commitment to work for an end to the nuclear weapons program of Israel. The American legislature added a requirement that the President periodically certify that Iran is in compliance with the deal and, separately, that nuclear-related sanctions should or should not continue to be waived.

In October of last year, the President declared that Iran was not in compliance with the deal. By the terms of the US laws, he must make another certification this week. Iran has done nothing to bring itself into greater compliance with the terms of the deal, so it is very likely that President Trump will once again refuse to certify its compliance. That brings up the question of whether or not he should continue to waive sanctions.

There are good arguments on both sides of this discussion, but an important point is that the waiving of the nuclear-related sanctions is required by the JCPOA. If the United States stops waiving these specific nuclear-related sanctions, we have violated the JCPOA’s terms. There is no way to punish us for doing this, but it does mean the end of the agreement as an entity of international law. Many in the international community, and some in America’s own State Department and Congress, would like to see an attempt made to fix the deal before it is destroyed.

Indeed, in October, President Trump took that road.

In a speech from the Diplomatic Reception Room at the White House, Trump said he is directing his administration “to work closely with Congress and our allies to address the deal’s many serious flaws so that the Iranian regime can never threaten the world with nuclear weapons.”

If that approach does not work, the president said, “then the agreement will be terminated.”

So the President gave his word to Congress that they would have a chance to try to fix the deal. Congress was at the time involved in a number of time-sensitive negotiations on other matters, including avoiding a government shutdown and the tax cut bill. It is only now that Congress is finding the time to turn its attention to the matter.  President Trump is likely to feel inclined to waive the sanctions at least one more time in order to keep his word to give them a chance to try to fix it. His administration, including his State Department, will probably continue working with allies to try to get them on board with the fixes the President and Congress believes are necessary.

It is important to keep your word, not least in matters of diplomacy, so the Security Studies Group has no reason to be opposed to this attempted fix.  We do, however, doubt that it will result in a working fix to the deal. There are several reasons for this.

  1. One of the most important ‘fixes’ desired by Washington and even some in Europe relates to Iran’s continued pursuit of ballistic missiles. Iran cannot accept new restrictions on its ballistic missiles for the same constitutional reasons cited above.
  2. Even if that were not the case, though, ballistic missiles serve a particularly crucial role in Iran’s military strategy. Iran lacks a modern air force, and thus lacks the power projection capability associated with air strikes. Their commitment to ballistic missiles is in part a calculation that they can substitute a missile strike capability for the air strike capability they lack. (This is paralleled by their use of advanced Russian anti-aircraft missiles to substitute for an air force’s capability to defend their own territory from air strikes.) Iran will regard an attempt to end its ballistic missile work exactly as we would regard demands that we should cease developing the US Air Force’s capabilities.
  3. Many European nations are opposed to threats to the JCPOA because they have already begun investing heavily in Iran since the 2015 deal. They are unlikely to accept a US-backed ‘fix’ that would be rejected by Iran, as it will lead to a US reaction that would endanger their investments. The State Department is likely to find a lot of diplomats willing to talk about it, as talk means delay; they are not very likely to find many diplomats willing to end that talk with a firm “yes.”
  4. Congress itself is divided between those who are concerned about the deal and deal advocates, including the minority in the Senate who filibustered a final vote on the JCPOA. It is not clear that there is a package of fixes that Congress could agree to in any case.

What seems most likely is that the attempt to fix the deal will fail. In the meantime, the Trump administration has already begun imposing new sanctions that are non-nuclear-related, and which therefore do not violate the JCPOA. The first batch of new sanctions directly targets companies that assist the development of Iranian ballistic missiles, as opposed to nuclear research per se. Iran may not like this, but non-nuclear-related sanctions are explicitly allowed by the terms of the agreement. Iran could argue (accurately, in my assessment) that its ballistic missiles really do have a relationship to its nuclear program — but if it did so, it would be giving up the key pretense that it has used to justify its continued testing of new missiles under the JCPOA.

That leaves the United States with a road that it can follow while Congress and State attempt the unlikely fix. The United States should move on new sanctions that directly target the regime, and that limit their impact on the Iranian people at large. This means moving on the Ayatollah’s personal business empire, and on Iran’s central bank.

In addition, the United States needs to develop strategies for supporting the Iranians who are resisting their regime. The Security Studies Group has a series of recommendations. Most relevant to the sanctions issue, we call for seized monies to be placed in a trust fund for a future Free Iranian Government. When the people of Iran are ready, these funds can be released to them to help ensure a stable transition to a better way.

About the Author

Brad Patty

Dr. Patty advised US Army units in Iraq on information operations as part of more than a decade's involvements in America's wars. His work has received formal commendations from the 30th Heavy Brigade, the 2nd Brigade, 1st Armored Division, the 3rd Infantry Division and the 1st Cavalry Division. Dr. Patty holds his PhD in Philosophy from the University of Georgia.