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The P5+1 and Iran Nuclear Deal Alert, February 5, 2017
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Arms Control NOW

Authored by Kelsey Davenport on February 5, 2018


P5+1, Congress Respond to Trump’s Demands to Change the Iran Nuclear Deal

Officials from the United States and the E3 (France, Germany, and the United Kingdom) gathered Jan. 25 in London for a working group meeting to discuss the multilateral nuclear deal with Iran, known as the Joint Comprehensive Plan of Action (JCPOA), and Iran’s ballistic missile program.

NEW YORK, NY - SEPTEMBER 20: Secretary of State Rex Tillerson speaks to the media following a meeting with Iranian leaders over the Iran nuclear deal on September 20, 2017 in New York City. President Donald Trump declared on Wednesday that he had reached a decision about how to proceed with the controversial nuclear agreement. (Photo by Spencer Platt/Getty Images)The meeting came after U.S. President Donald Trump renewed sanctions waivers required to keep the United States in compliance with the accord Jan. 12, but threatened to withhold the next round of waivers, due May 12, if Congress and Washington’s European allies fail to address what he termed “flaws” in the deal. (See below for more details.)

Trump’s pitch did not include working with Russia and China, which in addition to the three European countries and the United States, comprise the P5+1 group that negotiated the JCPOA.

Russian Foreign Minister Sergey Lavrov denounced Trump’s approach, saying Jan. 15 that Russia will not support U.S. actions “changing the wording of the agreement, incorporating things that will be absolutely unacceptable for Iran.”

U.S. Secretary of State Rex Tillerson said Jan. 22 that the working group is a continuation of informal talks with the three European countries over provisions in the nuclear deal that expire and Iran’s activities “not related to the nuclear program.”

Despite Trump demanding a “supplemental” agreement with the Europeans to address what he termed as “flaws” in the JCPOA before the next sanctions waiver deadline, Tillerson said there is no timetable for the working group to produce results. He said the United States is under a deadline from Trump but, the administration “can’t set timetables for others.”

At a Jan. 22 news conference with UK Foreign Secretary Boris Johnson, Tillerson said that there is a “common view” with the E3 to address Iran’s ballistic missile program and provisions in the JCPOA that expire over time.

Johnson did not comment on Tillerson’s assertion that the European countries shared U.S. concerns about the future of Iran’s nuclear program after some limitations expire. Rather, Johnson emphasized that while there may be agreement amongst the Europeans to look at Iran’s ballistic missile activity, any action on to constrain the missile program must be done in parallel to the JCPOA and in a way that does not violate the fundamentals of the deal. Johnson’s remarks were consistent with an earlier October statement by the E3 leaders indicating a willingness to address ballistic missiles separate from the deal.

Trump also demanded action from Congress, but several key Democrats have already said they will not support legislation that violates the deal. Given that Trump is demanding that the JCPOA’s restrictions become permanent under threat of snapping back U.S. sanctions, it is difficult to see how any legislation addressing his alleged “flaws” would not violate the agreement.

However, Senate Foreign Relations Committee Chairman Bob Corker (R-Tenn.) said Jan. 12 he was working with the Trump administration’s national security team and colleagues “across the aisle on a way to address the flaws in the agreement without violating U.S. commitments.” He said this is an opportunity to achieve a “better deal.”

Democrats in the Senate, however, are resisting negotiations on legislation that violates the deal. Senator Ben Cardin, (D-Md.), ranking member on the Senate Foreign Relations Committee, said he is open to discussing legislation that does not violate the JCPOA. He said that Trump’s “threats and dictating final terms of potential negotiations with Congress and Europe makes it more challenging” to counter Iran without violating the deal.

Thus far, Congress has wisely refrained from pursuing legislation that would abrogate U.S. commitments under the accord. 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.—KELSEY DAVENPORT, director for nonproliferation policy, and MACLYN SENEAR, research intern


UN Security Council Field Trip

Members of the UN Security Council took a trip to Washington Jan. 29 to see what the U.S. officials describe as evidence of Iranian noncompliance with Security Council resolutions, including what is allegedly the remains of Iranian-supplied ballistic missiles used by the Houthis against Saudi Arabia.

U.S. Ambassador to the UN Nikki Haley said Jan. 29 “the evidence continues to grow that Iran is blatantly ignoring its international obligations.” She said the Security Council members visited Joint Base Anacostia-Bolling to “see the material so they could decide for themselves.” Haley made a similar presentation at the UN last month.

Iran has denied the accusations, and Foreign Minister Javad Zarif tweeted that Haley was trying to create an “Iranphobic narrative at the UN Security Council” by using “fake evidence.”

UN Security Council Resolution 2231, which endorsed the deal, prohibits Iran from transferring missiles, or related technologies and materials, without prior approval from the Security Council. These provisions are not covered by the JCPOA, which deals only with Iran’s nuclear program.

UN Secretary General António Guterres, in his December 2017 biannual report on implementation of 2231, noted that the UN Secretariat examined the debris from the missiles launched at Saudi Arabia and concluded that the diameter was “consistent” with that of the Scud models and that components bore a logo similar to an Iranian entity designated by Resolution 2231. The report said that the secretariat is still analyzing the information and material and will report back to the council.

After the UN report was issued, a UN panel of experts found that Iran did violate the arms embargo on Yemen, which was instituted by UN Security Council Resolution 2216 (2015). The UN experts concluded that Iran was in noncompliance with the resolution’s obligations because Tehran failed to keep the missiles out of Yemen. The experts did not, however, conclude that Iran had supplied the missiles to the Houthis.


Analysis: Trump’s Unnecessary “Fixes”

In his Jan. 12 statement renewing the sanctions waivers, Trump explicitly referenced four flaws in the nuclear deal that Congress must seek to address with legislation by the next sanctions waiver deadline May 12.

A closer look at Trump’s four conditions for the JCPOA show them to be unnecessary and unrealistic.

  1. "First, it must demand that Iran allow immediate inspections at all sites requested by international inspectors."

Under the JCPOA, key nuclear activities in Iran are subject to continuous monitoring to verify Iran is abiding by the deal. The International Atomic Energy Agency (IAEA) also has timely access to both declared and undeclared sites. There are also provisions in the deal allowing for five of eight members of Joint Commission, comprised of the P5+1 and Iran to oversee the deal, to require Iran to comply with IAEA access requests if Tehran does not provide timely or adequate access to non-declared sites.

  1. "Second, it must ensure that Iran never even comes close to possessing a nuclear weapon."

The second condition requires Congress to draw a vague and arbitrary redline. It also disregards several restrictions in the JCPOA that subject Iran to more intrusive monitoring and prohibit certain weaponization activities (Annex I, Section T) are permanent. A bill that seeks additional barriers based on a unilateral 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.

  1. “Third, 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. Additionally, 10 years from adoption day, barring the reimposition of sanctions on Iran by the UN 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 sanctions.

 

The United States is also obligated in the JCPOA to seek the statutory lifting of sanctions by October 2023, 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.

  1. 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.

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. Iran’s flouting of UN Security Council restrictions on missiles is troublesome, but the United States has several 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.

The United States also can, and should, work with its P5+1 partners to address any alleged violations of UN Security Council Resolution 2231, which prohibits Iran from purchasing or transferring materials and technologies relevant for ballistic missiles without Security Council approval.

For more detail on why meeting these criteria are not necessary and could risk the deal, see the Arms Control Association’s Jan. 17 Issue Brief, “Trump’s Cynical Gambit on the Iran Nuclear Deal.”


International Crisis Group Report

The International Crisis Group released a report Jan. 16, the second anniversary of the implementation of the JCPOA, assessing the performance of the deal to date and providing valuable survey data from more than 60 representatives from multinational companies pursuing business opportunities with Iran.

According to the survey, 57 percent of respondents identified fear of U.S. sanctions snapback as the reason why multinational companies were slow to trade and invest with Iran. The second two highest reasons were “other” at 12 percent and Iran’s weak regulatory system at 11 percent. Of the survey respondents, 26 percent said they would be “very adverse” to trade and investment in Iran if the United States unilaterally reimposed sanctions lifted under the deal or passed new sanctions whereas 57 percent said they would be “somewhat adverse.”

The report also includes several useful recommendations for Europe and Iran to continue supporting the nuclear deal, irrespective of the questionable commitment by the United States. The report recommends that Europe institute its blocking regulations, which protect companies from U.S. extraterritorial sanctions and develop a long-term energy partnership with Iran. Iran should take actions to improve its banking standards and take additional steps, such as closer cooperation with the Comprehensive Nuclear Test Ban Treaty Organization, to demonstrate its commitment to the deal, the report says. Iran is not a party to the 1996 Comprehensive Test Ban Treaty and the JCPOA did not require Tehran to take any steps toward ratification.


Moniz Backs Continued JCPOA Implementation

Former U.S. Secretary of Energy Ernest Moniz rebutted criticism of the JCPOA and defended the importance of maintaining the nuclear deal in a Jan. 11 speech on global nuclear issues. Speaking at the Center for Strategic and International Studies, Moniz expressed his continuing confidence in the ability of the nuclear deal to “[put] a straitjacket on Iran’s nuclear activities that effectively blocks Iran’s path to a nuclear bomb.”

In his remarks, Moniz, who played a key role in the negotiations, sought to address criticism of the JCPOA’s often maligned “sunset” provisions, emphasizing the commitments that Iran made in the agreement that do not expire as well as the unprecedented and unique verification regime. He pointed at the “permanent prohibition on Iran having a nuclear weapon or a weaponization program, permanent adherence to the Additional Protocol with a unique time window to respond to IAEA inspection requests for undeclared sites; and the requirement to ship out all spent fuel for the life of the redesigned Arak reactor.”

According to Moniz—a nuclear physicist by training who is now CEO of the Nuclear Threat Initiative—the combination of provisions gives the United States and its allies a wide window during which they can work to address Iran’s other malicious behavior in the region and continue to ensure the peaceful nature of its nuclear program.

As Moniz noted, “the nuclear deal was never meant to be the end of the road in our engagement with Iran”—yet a decision by Trump to reimpose sanctions or withdraw from the agreement would prevent U.S. and European negotiators from addressing precisely the concerns of critics who support such a move and would throw out what has been an effective national security tool for no gain.


Experts Predict Middle East Destabilization If JCPOA Collapses

The Atlantic Council and The Iran Project’s “Iran Looks East” Jan. 19 conference brought together scholars from China, India, Japan, Russia, and the United States to discuss trade with Iran amid uncertainty over U.S. commitment to the JCPOA. The scholars generally agreed that U.S. withdrawal from the JCPOA would destabilize the region and damage trade relationships.

Professor Wu Bingbing of Peking University and Sumitha Narayanan Kutty, a South Asia scholar at Nanyang Technological University in Singapore, predicted that China and India would push ahead with the Belt and Road Initiative and with the Chabahar Port on the Sea of Oman—their respective signature connectivity projects in Iran—no matter what happens to the JCPOA. They noted, however, that the uncertainty stoked by the Trump administration’s rhetoric has already spooked many investors and potential contractors and hindered progress on these projects. Renewed U.S. sanctions would make further investment in and engagement with Iran increasingly difficult, they said. Wu even speculated that if the United States took action that sabotaged the Iran deal, China might explore using RMB for energy trading with Iran instead of the U.S. dollar.

For Japan, however, U.S. threats to exit the deal are having a more negative impact. Sachi Sakanashi, a former Japanese diplomat to Tehran, said U.S. uncertainty toward the deal is handicapping Japan’s commercial ventures in Iran and left it trailing its Asian neighbors.

After the three panelists expressed concern that the collapse of the JCPOA would spark a regional nuclear weapons race and undermine global nonproliferation norms, the Atlantic Council’s Dr. Bharath Gopalaswamy noted how “very rare” it was for the views of India, China, and Japan to align on such a major issue.

Despite concerns that the collapse of the JCPOA could undermine nonproliferation norms, the experts seemed to agree that it was unlikely that Moscow and Beijing nor U.S. allies in New Delhi and Tokyo would go to the mat to defend the merits of the JCPOA and press the Trump administration to stay in the deal, suggesting that only close European allies like the Macron administration in France were in a position to do so.


Upcoming Deadlines

March 5-9, 2018: IAEA Board of Governors meets, most recently quarterly report on Iran’s nuclear program released

April 13, 2018: Deadline for the 90-day certification to Congress under the Iran Nuclear Agreement Review Act (INARA)

April 23-May 4: Preparatory Committee for the 2020 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Geneva

~May 12, 2018: Sanctions waivers due for Section 1245(d) of the fiscal year 2012 National Defense Authorization Act

Mid-June 2018: UN Secretary General’s biannual report on implementation of UN Security Council Resolution 2231

July 12, 2018: Deadline for the 90-day certification to Congress under INARA

~July 11-12, 2018: Waivers for relevant sections of the Iran Freedom and Counter Proliferation Act, Iran Sanctions Act, Iran Threat Reduction and Syria Human Rights Act


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Author: 
Kelsey Davenport