Verification and the Credibility of Sanctions Relief for Iran

Following a week of speculation about the Biden administration’s foreign policy priorities, Iran’s Supreme Leader, Ali Khamanei, gave an important speech today in which he outlined Tehran’s “final” stance on US re-entry into the nuclear deal. Khamenei kept the door open for the US to rejoin the Joint Comprehensive Plan of Action (JCPOA), while declaring that the Biden administration must “completely lift” US sanctions before Iran returns to its nuclear deal commitments in full. 

Despite this stance, it appears likely that the US and Iran can find a way to “choreograph” a mutual restoration of their obligations under the nuclear deal. What was significant about Khamenei’s speech was not his declaration on sequencing, but rather the introduction of a new requirement for any choreography that would enable the US to re-enter the agreement. 

While the sequencing tango was a major part of the negotiations that led to the JCPOA and of Iranian concerns over the optics of that sequencing, Khamenei’s specific concern over the verifiability of sanctions relief is new. To understand the context of this concern speech, it is useful to refer back to a speech made by then Treasury Secretary Jacob Lew five years ago, just a few months after the implementation of the JCPOA. 

Taken together, these two speeches point to a fundamental—if overlooked—asymmetry within the JCPOA. Iran’s commitments under the nuclear deal are subject to extensive verification. The International Atomic Energy Agency (IAEA) has in place the world’s most extensive inspection regime to keep tabs on Iran’s nuclear program. In return for compliance with limitations on its nuclear program, the JCPOA parties committed to the lifting of a wide range of UN, EU, and US sanctions. But there is no verification mechanism in place to ensure that sanctions relief has been implemented “in practice,” and not just “on paper”—a distinction Khamenei highlighted today. 

Iran’s experience with sanctions relief under the JCPOA has been bitter. Even prior to the Trump administration's reimposition of secondary sanctions in May 2018, Iran had felt that it was not receiving the full benefits of sanctions relief. There were a number of reasons for this, but the primary barrier to increased trade and investment was the reluctance of major banks to facilitate transactions or provide financing for Iran-linked projects. As a result, most of the milestone deals signed around the time the JCPOA was implemented—including orders for Boeing and Airbus aircraft, joint ventures with automakers Renault, Peugeot, and Daimler, energy deals with Total and CNPC, and rail projects with Siemens and Alstom—hit a roadblock even before Trump was elected to office and the future of the nuclear deal was thrown in doubt. Obama administration officials acknowledged these challenges at the time. Lew and Secretary of State John Kerry were even drafted in to provide reassurances to global banks and economic actors about the reliability of US sanctions relief commitments. But their efforts largely failed. 

In March 2016, just a few months after the implementation of the JCPOA, Lew gave a major speech on the future of US sanctions policy—sanctions lifting was a key focus. He noted how the “experience with Iran demonstrates how difficult [sanctions lifting] can be, essential as it is.” Commenting on the quid-pro-quo of the nuclear deal, Lew noted that “since Iran has kept its end of the deal, it is our responsibility to uphold ours, in both letter and spirit.” He cited the “global outreach” that the Treasury Department was undertaking to provide guidance to foreign business and governments on how to conduct compliant trade with Iran. But reading Lew’s remarks today, it’s clear that he knew at the time that this guidance would prove insufficient and that a dilemma had presented itself for US foreign policy. “Since the goal of sanctions is to pressure bad actors to change their policy, we must be prepared to provide relief from sanctions when we succeed. If we fail to follow through, we undermine our own credibility and damage our ability to use sanctions to drive policy change,” he warned. Not only would the Obama administration fail to deliver sanctions relief in the manner envisioned, but the Trump administration would take the betrayal one step further, reimposing secondary sanctions despite Iran’s verified compliance with its commitments under the deal. 

It is the Biden administration’s undermined credibility, five years in the making, that led the Supreme Leader to insist that the US must lift sanctions “in practice, not verbally or on paper” and that Iran would seek to “verify” the implementation of sanctions lifting before fulfilling its own commitments. Importantly, the Supreme Leader believes that verification is possible, stating that if the international community wants “Iran to return to its obligations under the JCPOA,” it will do so after the US verifiably lifts sanctions.

The focus on verification suggests that Iranian leaders see dealing with the United States as a technical challenge. Iran is not going to take it on faith that the Biden administration will make good on its obligations—it will seek to ascertain that obligations have been met. This is an interesting echo of how President Obama justified the nuclear deal to the American public in July 2015, insisting that the deal was built “not on trust, but on verification.” The key difference, of course, is that the US had the means by which to perform its verification—the authority and access afforded to IAEA inspectors put American stakeholders at ease that Iran was making good on its commitments. It would seem that some effort needs to be made to give Iran similar tools of verification, both for its own sake, but also for the sake of Europe, Russia, and China, whose economic relations with Iran so vastly outweigh those of the United States. It is through these relations that the economic benefits of the deal must flow. 

The Biden administration should work closely with the other JCPOA parties to devise new mechanisms to verify that sanctions relief is being successfully implemented and identify where relief may be following short. One option might be to establish a new panel of experts or special rapporteur at the United Nations responsible for gathering, interpreting, and assessing evidence on the implementation of sanctions relief. 

There are several reasons why the United Nations may be the ideal organisation to establish such a verification mechanism. First, the nuclear deal is enshrined as a matter of international law in United Nations Security Council Resolution 2231, establishing an obligation for “promoting and facilitating the development of normal economic and trade contacts and cooperation with Iran.” Second, a United Nations agency, the IAEA, is already involved in verifying half of the nuclear deal’s quid-pro-quo. Third, Iran has itself turned to United Nations bodies to seek recourse for the failure of the United States to hold up its end of the nuclear deal, for example by filing suit at the International Court of Justice against the US. Fourth, the issue of sanctions relief impacts Iran’s relationships with the wider international community, and not just its relations with the United States or the other parties to the JCPOA. Countries which are not parties to the deal may not wish to raise politically sensitive concerns over the impact of sanctions on their bilateral economic relations with Iran in a forum that will be dominated by the United States. The UN offers as much impartiality as is possible in the international system. Finally, the issue of credible sanctions relief is not relevant to the Iran nuclear deal alone, but will be of concern for the growing number of economies subject to restrictive measures. A UN verification capacity could prove important for countries such as Venezuela, Cuba, Syria, and North Korea should a political breakthrough lead to the prospect of sanctions relief in any of those cases. 

Of course, setting up a new verification mechanism for sanctions relief won’t be possible in the short period of time that Tehran and Washington have to save the nuclear deal. But should the Biden administration acknowledge this concern and set in motion steps to create a verification mechanism, it may reassure stakeholders in Tehran that the bitter experience of the JCPOA is not bound to be repeated. This would also be consistent with the interim step of “freezing” Iran’s moves away from the nuclear deal—an approach that is reportedly being considered by the Biden administration. The provision of economic relief, whether in the form of oil waivers or eased access to foreign exchange reserves, would offer an instance where Iran could “verify” that the US has made good on a promise of sanctions relief prior to the delicate choreography of mutual restoration of the nuclear deal. Such a step would enable Khamenei and other voices in Iran to suggest that a new condition of JCPOA re-entry, set by Iran, had been provisionally met, opening the door to talks around fuller sanctions relief.

What’s clear is that Iran to wishes to build a deal not on trust, but on verification. The international community ought to afford Iran the means to do so.

Photo: IRNA

Will Iran Follow North Korea’s Path and Ditch the NPT?

By Mahsa Rouhi

Washington’s “maximum pressure” campaign against Iran has recently pushed each side into a series of escalatory moves and countermoves. Since U.S. President Donald Trump took office, his administration has hoped that Iran would eventually relent and make concessions on its nuclear program, missile development, and regional activities, but it seems increasingly likely that Iran may instead decide that its best path forward is to follow North Korea’s example and withdraw from the Nuclear Non-Proliferation Treaty (NPT), long considered the global cornerstone for preventing the spread of nuclear weapons. (Three years after pulling out in 2003, North Korea tested its first nuclear weapon.)

The mainstream view in Iran until recently was that withdrawing from the NPT would bring further diplomatic isolation, lead to increased sanctions, and court a U.S. military strike on Iran’s nuclear facilities. Therefore, it would be counterproductive to Tehran’s larger aspirations of regional leadership and reintegration into the international community. But recent events have caused Tehran to reevaluate those ambitions, as they seem increasingly far-fetched. In the past year, the prospect of withdrawing from the NPT has transformed from a fringe idea among hard-liners in Iran into a real policy option that resonates with a surprisingly large spectrum of Iranian society.

Iran still maintains that it does not seek nuclear weapons, but as the International Atomic Energy Agency revealed on March 3, Iran has nearly tripled its stockpile of low-enriched uranium to 1,021 kilograms (1.1 tons) since November 2019. This amount, if further enriched, would be enough for a nuclear bomb, if Iran decided to cross the line.

It hasn’t helped that diplomatic relations between Iran and the other parties to the 2015 Iran nuclear deal have rapidly deteriorated. Since May 2019 Iran has scaled back on its commitments, and on Jan. 5, it announced it would no longer abide by the operational restrictions on the low-enriched uranium stockpile, enrichment capacity, percentage of enrichment, amount of enriched material, and research and development.

In response, three of the remaining parties to the accord—France, Germany, and the United Kingdom (known as the E3)—triggered the deal’s dispute resolution mechanism. Iran takes issue with this, arguing that it already triggered the mechanism itself after the United States pulled out of the deal in 2018. The E3 and the European Union disagree and have been trying, with middling success, to persuade Russia and China to side with them on the matter.

This measure—if all steps are exhausted—could ultimately refer Iranian noncompliance to the U.N. Security Council and trigger the snapback of U.N. sanctions within weeks. However, as long as no party declares that Iran has not taken steps to resolve the dispute, it can remain bottled up indefinitely in the Joint Commission, the body charged with overseeing the accord. Since Iran has not taken further provocative steps, such as enriching to 20 percent, the other parties seem content to kick the can down the road.

This is for the best. Iran’s foreign minister, Mohammad Javad Zarif, has stated that if U.N. Security Council sanctions are reimposed, Iran may exit not merely the nuclear deal but also the NPT.

It is not just the prospect of U.N. economic sanctions that upsets Iranians, but the notion of again falling under provisions of Chapter VII of the U.N. Charter, which allows the Security Council to take military and nonmilitary action to “restore international peace and security.”

The idea of withdrawing from the NPT is not new, but is now being discussed widely in moderate circles, including by the speaker of the parliament, Ali Larijani. This turn in strategic thinking is due to the ramping up of U.S. sanctions, particularly on oil sales and what Iran sees as the failure of other parties to provide sanctions relief promised under the deal. Under these circumstances, Iranians increasingly believe they have nothing to gain from the deal and little more to lose by going rogue—since their country is already being treated as an outcast. The heightened tensions with Washington and the increasing possibility of conflict add to Iranians’ sense that the cards are stacked against them no matter what

To the Iranian government, U.S. pressure could potentially become an existential threat to its survival.

Iran’s strategy since 2003 can best be described as nuclear hedging: The country has been developing nuclear capabilities in order to maintain the option of building a weapon in the future should it decide to do so, while also downplaying and sidestepping international opposition in order to build negotiating leverage. However, the heavy toll from Trump’s efforts since 2018 to deprive Iran of oil revenues appears to be changing Iran’s cost-benefit calculus.

Its economy shrank by 9.5 percent last year and is projected to remain flat in the coming year. Foreign investment has declined and oil exports have dropped dramatically. Iran’s currency, the rial, has deeply depreciated and inflation has risen dramatically, increasing the cost of living for ordinary people in Iran. Economic turmoil, in turn, has created a tense domestic situation: In November 2019, nationwide protests over the sudden increase in gasoline prices put new pressure on the government. The devastating impact of COVID-19, which has hit Iran particularly hard, exacerbates the gloom.

To the Iranian government, U.S. pressure could potentially become an existential threat to its survival. The government therefore needs a game-changer. Feeling driven into a corner, Iran could consider withdrawing from the NPT as the only option left to ensure self-preservation. In a sense, they are falling for the same fatalistic logic applied by hawks in Israel and the United States who argue that since a conflict with Iran is inevitable in the future, it is best to weaken their adversary and face any conflict now rather than later. Many of the political elite feel that they should take the gamble now rather than after a few years with more limited oil revenue.

If Iran does decide to withdraw, it would not necessarily imply a decision to build nuclear weapons. It considers that rejoining the NPT will be a valuable bargaining chip. In addition, it could openly accelerate its enrichment program for the purpose of building leverage for future negotiations. However, advocates of withdrawal point out that Iran is already suffering many of the same international consequences as North Korea—sanctions, pariah status—without any of the benefits.

Tehran is suffering now from problems that Pyongyang only encountered after withdrawing from the NPT. So why not build a bomb for the sake of regime security and regional prestige?

After all, Iran complied with the nuclear deal for three years, only to ultimately be threatened with new rounds of sanctions.

Some hard-line voices in Tehran argue that a nuclear weapon capability would boost Iran’s regional status like never before and might also guarantee the regime’s survival, as the risk of toppling a nuclear government in an already destabilized region would be too high for the West. In short, they conclude, a nuclear-armed Iran would have an upper hand in the international community.

However, Iran is aware of the risks of following North Korea’s path. Despite its nuclear escalation, North Korea has not been able to negotiate tangible sanctions relief. Leaving the NPT would likely unite the international community—including China and Russia—against Iran, and could provoke the United States, Israel, and at least one of the Gulf states, or a combination of these powers, to launch military strikes against its nuclear facilities.

Such an attack, which would be hard to keep from expanding to a large-scale war, would destroy Iran’s nuclear enrichment capabilities in the near term, but would almost guarantee that Iran would continue to build nuclear weapons in clandestine facilities.

However, if faced with renewed military threats from the United States, and if the E3 continues to prove unable to defuse mounting economic pressure and potential U.N. sanctions, Iran is likely to take this step.

The government in Tehran is under immense internal pressure from hard-line factions and from the public.

In the summer of 2021, a new, most likely hard-line, president will take office. If Iran has not obtained significant sanctions relief by then, it is possible that the new president will seek to achieve for Iran the status his compatriots yearn for—likely through negotiations, with the open question being whether this will occur before or after Iran has built a nuclear weapon.

With the future of the nuclear deal in doubt, it is essential for the Europeans, China, and Russia to take firm action on sanctions relief, as well as diplomatic and economic reintegration. Such actions and assurances would de-escalate the situation, decrease the possibility of military attack and slow down Iran’s policy shift

The severity of COVID-19 in Iran gives the remaining parties to the deal a strong reason to provide sanctions relief and assistance in humanitarian fields such as sending medical supplies. Doing so would also show good faith and signal to Iranians the benefits of remaining part of the international community. It can also set a more positive foundation for diplomacy and encourage restraint on Iran’s part not to cross a red line on its nuclear activities.

It is vital that Iran continue its compliance with the International Atomic Energy Agency and remain party to NPT, in order to keep the door open for future agreements and prevent the worst-case scenarios of war or a nuclear-armed Iran.

Mahsa Rouhi is a research fellow with the nonproliferation and nuclear policy program at the International Institute for Strategic Studies. Follow her at @MahsaRouhi.

Photo:IRNA

Trump Stance on JCPOA Nuclear Deal Poses Legal Dilemmas for Iran

With the May 12 deadline for the issuing of key sanctions waivers as part of the Iran nuclear deal fast approaching, what could be the impact of the collapse of the 2015 agreement? While Donald Trump's conditions for the review of the current arrangement have yet to be met and Iran's clear rejection of any amendments to the plan, the breakdown of the Joint Comprehensive Plan of Action (JCPOA) seems inevitable.

The nuclear deal is the most important multilateral agreement reached in the global nuclear non-proliferation system in the last decade. It is now at risk of collapse.  There are three options for Iran should the US withdraw from the JCPOA.

First, Iran could exit the deal immediately and continue to fulfill the obligations under NPT and to the IAEA based only on the safeguard agreements with the agency. This is seen as the worst case scenario by the EU, E3 and the IAEA.

Second, Iran could exit the deal immediately, but continue to fulfill its commitments to the International Atomic Energy Agency (IAEA) based on both safeguard agreements with the IAEA agreed as part of the JCPOA and its preceding agreement, the Joint Plan of Action (JPOA). Under these safeguards Iran has suspended enrichment of uranium to 20 percent.  

Third, Iran could opt to remain  in the deal on the basis that the European Union and E3 (UK, France and Germany) will provide additional  benefits to Iran to compensate for the negative effects of US withdrawal.Iran’s deputy foreign minister, Abbas Araghchi, one of the key architects of the JCPOA, has stated that as long as Iran continues to benefit from a removal of sanctions, it will remain committed to the deal, but has expressed doubts that the France, Germany and the UK will be able to guarantee Iran’s interests in the absence of the United States.

Regardless of which route Iran takes, the withdrawal of the United States from the JCPOA will have a legal impact on its parties. Any possible change in the partnership or the provisions of the agreement will be reflected within the domain of international law.

The Threat of Snapback

Trump has threatened not to issue the crucial waivers that have suspended US secondary sanctions on Iran. On May 12, Iran may find itself in a position not of its own making. Despite unprecedented international monitoring and scrutiny of its nuclear program, and despite the IAEA's approval of its commitments without the slightest deviation for military purposes, it may once again face significant economic sanctions, even over the vital sale of its oil. However, snapback of US secondary sanctions could actually preclude snapback of UN sanctions, if the deal remains intact following Trump’s withdrawal.

One of the provisions of the JCPOA, unprecedented in the 70-year history of the Security Council, is the decision-making process of the partners required to resume sanctions. According to Article 37 of the JCPOA, if the dispute resolving mechanism is unsuccessful, the UN Security Council will vote on a resolution to continue the lifting of sanctions.

In such a case, the United Nations Security Council would vote for a resolution to suspend sanctions. As described in a recent report by Stephen Mulligan, an attorney with the Congressional Research Service:

The ‘snapback’ mechanism thus places the onus on the Security Council to vote affirmatively to continue to lift its sanctions by stating that those sanctions will be implemented automatically unless the Security Council votes otherwise. As a permanent member of the Security Council, the United States would possess the power to veto any such vote and effectively force the reinstatement of the Security Council’s sanctions on Iran.

In this process, the vote of all five permanent members of the Council is critical. If one of these members does not agree with the suspension of sanctions, it alone can easily restore a series of Council sanctions under Article 41 and Chapter 7 of the United Nations Charter (threats to global peace and security).

However, if the United States pulls out of the JCPOA, triggering the snapback of its secondary sanctions against Iran, it may lose the ability to use the UN sanctions snapback threat which is articulated with Article 37 under JCPOA. In other words, only parties to the Iran deal are able to trigger the UN nuclear sanctions snapback procedure. If the US withdraws from the deal, it loses the ability to trigger this mechanism.

This would be a reprieve for Iran, but there are further legal pathways that should be considered in order to prevent more damages by the US to the non-proliferation regime and international law.

Recourse to the International Court of Justice

The IAEA has verified in eleven reports that Iran has fully complied with its commitments under the nuclear agreement. On this basis, Iran feels it is facing punishment without justification.

Iran can, on the basis of Clause 2 of Article 21 of the Treaty of Amity, Economic Relations, and Consular Rights (1955), file a complaint with the International Court of Justice (ICJ) against the United States on the basis that it has had a detrimental effect on its business and trade with other countries. 

Punishing Iran with various economic sanctions, including the vital sale of its oil, may result in Iran’s withdrawal or limited implementation of its political commitments under JCPOA. Depending on whether Iran completely abandons JCPOA or suspends some of its commitments under the agreement, it means the end of the current inspections and the IAEA's ability to continue a complete and unprecedented monitoring of Iran's nuclear program. The result is the inability of a United Nations agency to carry out its mission.

The current situation has created a legal impediment, despite the wishes of Iran, for the IAEA and the members of its board of governors including the United Kingdom, France and Germany. According to the definition of the Vienna Convention on the Law of Treaties 1969, the JCPOA is not considered to a treaty, under which definition a violation would result in a case directly taken as a complaint to the International Court of Justice. 

However the IAEA is an agency authorised by the UN and if it cannot reciprocate with its obligations to a UN member state that has been in compliance with the nuclear agreement (Iran) due to the interference of a third country, the IAEA can, on the basis of Article 96 of the UN Charter, and Clause 1 of Article 65 of the Statute of the International Court of Justice, for the first time in its history, resort to the ICJ for an advisory opinion on the legal status of the JCPOA.

There is some precedent for such a request by an international organization like the IAEA. The World Health Organisation has taken a similar action on threats to the use of nuclear weapons in armed conflict, requesting a referral from the International Court of Justice. The ICJ’s response would not be legally binding but it would be a new source of international law, and may be considered by the other parties to the nuclear agreement as an official advisory about their treatment of deadlock with the United States.

The JCPOA is an improbable achievement, an agreement reached after Iran had been subjected to the harshest sanctions regime ever imposed. In political practice and in the domain of international law, the JCPOA provides a new way of resolving disputes in support of the nuclear non-proliferation regime.  the agreement collapses it would be, as in the words of Yukiya Amano, Director General of the IAEA, a “great loss for nuclear verification and for multilateralism” and in my view also for international law more generally. 

Photo Credit: Wikicommons

The Iran Deal’s On Life Support: Time To Pull The Plug

This article was originally published in Lobelog. 

The saga of the Iran nuclear deal has taken another bizarre turn. Eli Lake, a longtime skeptic of the deal, yesterday published a much-discussed Bloomberg View piece in which he surprisingly argues that “to withdraw from the Iran deal now would be a mistake.” Lake’s piece reflects a new line of thinking that has emerged from the campaign to “fix” the Joint Comprehensive Plan of Action (JCPOA).

With the recent appointment of John Bolton as national security advisor and the prognostications of Israeli Prime Minister Bibi Netanyahu, it is now being taken largely for granted that Trump will withdraw from the Iran deal. But summarily nixing the deal on May 12, the date when Trump would need to once again waive U.S. secondary sanctions in order to remain in the deal, might pose a problem. The “fix not nix” strategy, which has been advanced since Trump’s de-certification of the agreement in October 2017, reflects a concern in Washington that if Trump abrogates the deal in a flourish of executive privilege, he will harm transatlantic relations and make the U.S. seem responsible for any subsequent escalation or blowback.

For some months, the date of May 12 has loomed over the U.S.-E3 negotiations to find a fix to the deal by giving Europe the chance to compel Iran into a package of add-ons and concessions. Time is running out, and Trump seems determined to kill the deal by his own small hands. Ever aware of the optics, Mark Dubowitz, CEO of the Foundation of Defense of Democracies (FDD), has suggested a “safe harbor” period which would extend to November 12, during which the sanctions re-imposed in May would not be enforced, thereby granting a greater window for negotiations on a “real fix.”

At first glance, this might look like a reasonable accommodation. But in truth, it is an effort to bait Iran into a harsh reaction that kills the deal. The failure to renew sanctions waivers on May 12, even if sanctions snapback is delayed, will trigger substantial political pressure for the Rouhani administration or other elements within Iran’s state to respond. Should that response be escalatory—and if it takes place within the window of time before the United States has actually redesignated entities and reimposed sanctions—it will look like the Iranians were the party that abrogated the deal first during a period of “extended negotiations.”

Unworkable Fix

There are four clear signs that the strategy to pursue a “fix,” even with more time, is unworkable. The first sign is that Trump has never independently articulated what an acceptable fix would look like. His antipathy for the Iran deal is clearly more emotional than rational, stemming from his view of the deal as a key achievement of the Obama administration. Even if a rational fix were to be devised, it would still be vulnerable to Trump’s sentiment that the deal should not be saved. It may even be the case that the JCPOA is the primary reason why Trump cares about Iran at all. With the deal off the table, the unlikely tag team of Saudi Crown Prince Mohammad bin Salman and Bibi Netanyahu may have less success weaponizing the White House against Iran.

Second, the elevation of Mike Pompeo to secretary of state and John Bolton to national security advisor only compounds the problem of Trump’s impulses as he has surrounded himself with individuals who have a nearly pathological obsession with Iran as an adversary. These new advisors may find the pretense to escalate even if the JCPOA were “fixed.” Iran can no longer rely on the nuclear deal alone to underpin a basic detente with the Americans and therefore needs to begin investing in other methods of counterbalancing.

Third, there has been reduced capacity for reasonable action among the bureaucracy. The Treasury Department’s Office of Foreign Assets Control (OFAC) has failed to issue a single new license for commercial activities in Iran to date. OFAC has a clear institutional interest in creating a robust but navigable regulatory environment. The Trump administration’s Iran posture has overriden this interest, even prior to snapback, which suggests that waiver renewal would be insufficient to ensure that Iran receives the expected economic benefit from the nuclear deal.

Finally, the “fix not nix” approach is just a tactic, not a complete strategy, and has been put forward as a policy option by advocacy groups and think tanks whose larger ambitions are to seek regime change in Iran. Even if a fix were to emerge, groups such as FDD and the American Enterprise Institute (AEI) will continue to push for a more confrontational policy with Iran, emboldened by the fact that they were able to secure concessions through the acquiescence of European governments, such as the new sanctions currently being considered.

The confluence of these factors has put the JCPOA into the intensive-care unit. This characterization might unnerve deal supporters, who insist that the deal remains strong, particularly with the continued verification by the IAEA that Iran remains in compliance with its commitments under the deal. But it is important not to misunderstand the origins of the Iran deal’s strength. Deal supporters ought to remember that “JCPOA” is just a particular instantiation of the larger idea that diplomatic engagement with Iran is the best way to achieve greater security and prosperity in the Middle East. Deal supporters must also realize that the strength of the Iran deal does not derive from the mechanisms of the deal itself, but rather from the pre-existing factors and forces that made the deal possible in the first place, such as the aspirations of Iran’s citizenry, the economic need for internationalization, and the longstanding deterrents and disincentives for proliferation activity.

The total subjugation of normalized relations between Iran and the West to the uncertainties of the JCPOA has created a quagmire. Pro-engagement stakeholders in the U.S., Europe, and Iran have spent nearly all of their energies in the last year seeking to preserve the deal. In the meantime, the underlying sources of strength in Europe-Iran ties have been neglected and underutilized. The general sense of trust between stakeholders on both sides has eroded as accusations of European appeasement have collided with accusations of Iranian intransigence.

With the Iran deal in the ICU, there is an argument to keep the deal on life support. Barbara Slavin has recently argued that coming shifts in American politics could offer a strong reason for Iranian patience in regards to the nuclear deal. But the waiting game is itself harmful, eroding confidence and leading to the whittling away of strategic options.

Pulling the Plug

It may be time for Iran to pull the plug on the JCPOA. It should consider reallocating efforts and resources toward new initiatives, programs, and agreements to shore up diplomatic and economic ties between Europe and Iran, as well as the wider international community, where Trump can’t directly interfere. This would create an opportunity to declare the deal dead at Trump’s hands because of what he has already done, rather than what he may do. It would give Iran and its European, Russian, and Chinese partners a chance to craft a new plan for engagement outside the moribund JCPOA that will no longer be beholden to sentiments in Washington and less exposed to craven lobbying from the leaders of Saudi Arabia and Israel.

In Iran’s domestic arena, such a step would also allow pro-engagement stakeholders, namely the Rouhani administration, to reassert their control over the diplomatic and economic agenda. In effect, Iran could preempt Trump’s decision and pull out of the JCPOA from a position of strength, doing so without violating the spirit or letter of the agreement, and transposing its commitments to a new set of multilateral engagements. There are several steps that would need to be taken to executive such a strategy.

First, Iran should use the dispute resolution mechanism outlined in the JCPOA to orchestrate its exit from the agreement but in a manner that does not trigger the snapback of UN or EU sanctions. As per the text of the agreement, Iran would present the U.S. failure to implement the deal as grounds to “cease performing its commitments under [the] JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes significant non-performance.” The degree to which Iran opts to cease performing its commitments is critical. This is because an unresolved dispute triggers a UN Security Council “vote on a resolution to continue the sanctions lifting.” The goal for Iran must be to be to ensure that the Security Council does not vote to reimpose UN sanctions. In order to avoid this outcome, Iran should confirm to the IAEA that it intends to remain in full compliance with its commitments presently outlined in the JCPOA and ensure continued access for IAEA inspectors despite its formal withdrawal from the nuclear deal. At this stage, it will be easier to push the U.S. not to take measures to snapback UN sanctions within the UN Security Council than it will be to keep the U.S. committed to the JCPOA.

Second, Iran should strongly consider other mechanisms through which to formalize its avowed commitment to never seek nuclear weapons. Though currently a signatory to the Nuclear Non-Proliferation Treaty (NPT), as Seyed Hossein Mousavian has argued, it should also consider signing the Treaty on the Prohibition of Nuclear Weapons. Iranian officials, who have publicly praised the nuclear ban, will need to understand that their effective communication of intentions will be absolutely crucial at this stage in the strategy. After all, abrogation of the deal is currently assumed to lead to an Iranian “dash to the bomb.” Getting key stakeholders and advocacy groups to attest to the new circumstances of Iranian non-proliferation commitments will require proactive communication and transparency. If this can be done successfully, Iran could exit the agreement without punishment from the UN or EU.

Third, on the basis of the continued commitment to preserving the core security benefits of the JCPOA, Iran should formally invite the European Union into a new set of multilateral and comprehensive consultations on political, economic, and security matters modeled on the periodic meetings of the Joint Commission. Importantly, these new consultations should not be led by the E3 governments of France, Germany, and the United Kingdom. Under the auspices of the European Union and the European External Action Service, which has been the most proactive stakeholder for the expansion of political and economic dialogue between Europe and Iran, Iran must engage the wider EU 27 to create a greater space for countries such as Austria, Denmark, Sweden, and the Netherlands, which have actually made greater relative strides in expanding political and commercial ties than the E3 in their respective bilateral contexts. Of course, such efforts should also include non-EU states such as Switzerland and Norway. Bringing these smaller European states into a formal multilateral dialogue would provide a much more durable forum for engagement than the over-reliance on the JCPOA has provided thus far. Of course, Iran should also continue to hedge by finding constructive ways to deepen its relationship with Russia and China, especially outside of the realm of security cooperation.

Fourth, Iran must continue its process of domestic reform necessary for both political and economic internationalization. Most importantly, it should continue its commitment to the Financial Action Task Force action plan regardless of the snapback of U.S. sanctions. This will ensure that critical reforms are made to the Iranian financial system that will build confidence in Iran’s intentions to solve some of the most stubborn barriers to the facilitation of trade and investment. Additionally, Iran should improve openness and transparency in the domestic political sphere by tackling corruption, expanding access to media and information, and better protecting dual-nationals from undo persecution.

These four steps constitute a bold rethinking of Iran’s path to a more productive, prosperous, and peaceful place in the international community. The strategy certainly introduces technical complexity that cannot be fully considered here. But any sober assessment of the current situation surrounding the JCPOA makes it clear that Iran will need to consider new ways to leverage its fundamental geopolitical significance and its ongoing multilateral engagement in order to derive from its international relations the essential domestic political and economic dividends that have for five years underpinned Iran’s tentative turn towards openness.

Without such an effort, Iran may find itself externally isolated at the hands of Trump’s throttling of the nuclear deal. The Iranian government would also struggle to live up its ambition to ameliorate the terms of the social contract with the electorate. Whichever strategy is taken, however, the integrity and scope of Iranian diplomacy is not something to be cynically certified by an erratic American president. To save diplomacy and to prove integrity in the international system, it may be time for Iran to kill the deal.

Photo Credit: Wikicommons