October 10, 2017
What are the Implications of Decertification of the Iran Nuclear Deal?
By Ashish Kumar Sen
Trump faces an October 15 deadline to certify to the US Congress that Iran is complying with the terms of the nuclear agreement that the Islamic Republic struck with the five permanent members of the United Nations (UN) Security Council plus Germany in 2015. The deal cuts off Iran’s path to a nuclear weapon.
Despite criticizing the agreement as “terrible,” Trump has twice before certified Iran’s compliance with the deal. The president doesn’t need a reason to decertify the deal. Trump is expected to state that the Joint Comprehensive Plan of Action (JCPOA) is not in the United States’ national security interests.
Decertification would not take the United States out of the deal, but it would put the deal’s future on shaky ground. It would start the clock on a sixty-day period during which Congress can re-impose sanctions on Iran.
If sanctions were to be re-imposed, Iran would likely accuse the United States of failure to comply with the terms of the JCPOA, which states that sanctions will be lifted as long as Iran complies with the terms of the agreement. This will also create unease among US allies who have relationships—diplomatic as well as commercial—with Iran.
Under US law, the US president should certify every ninety days that Iran continues to comply with the terms of the JCPOA; it is not, however, part of the terms of the nuclear agreement itself.
Under the terms of the JCPOA, the United Nations’ nuclear watchdog, the International Atomic Energy Agency (IAEA), is the sole authority for verifying Iran’s compliance. The IAEA has, on multiple occasions, certified that Iran is in compliance.
European partners in the agreement have endorsed the IAEA’s position.
At an Atlantic Council event on September 25, European ambassadors defended the deal and warned against opening it up for renegotiations. Here is what they had to say:
- Peter Wittig, Germany’s ambassador to the United States: “We don’t think it will be possible to renegotiate it and we believe there is no practical, peaceful alternative to this deal.”
- David O’Sullivan, the European Union’s ambassador to the United States: “This agreement is delivering on a very, very important objective, which is to ensure that Iran does not possess nuclear weapons. The view of the European Union is that this agreement is a success.”
- Kim Darroch, the United Kingdom’s ambassador to the United States: “We think we are more secure because of this deal and that’s why, as long as the Iranians continue to comply with it in the view of the [International Atomic Energy Agency], we will continue to support it.”
Federica Mogherini, the European Union’s high representative for foreign affairs and security policy, had this to say following a meeting with Iranian Foreign Minister Javad Zarif in New York on September 20:
“With quite a good number of conflicts, crises, and a nuclear threat coming from a different part of the world—the international community cannot afford dismantling an agreement that is working and delivering.
“This is not a bilateral agreement. This is not an agreement that involves six or seven parties. This is a UN Security Council Resolution with an annex. And as such, all member states of the United Nations are considered to be bound to the implementation of it.
“So, it doesn't belong to one country, to six countries, to seven countries, to the European Union—it belongs to the international community.”
Ernest J. Moniz, a member of the Atlantic Council’s International Advisory Board, in his capacity as energy secretary in former US President Barack Obama’s administration was part of the US team that negotiated the deal with Iran. In a Boston Globe op-ed, Moniz made the case for preserving the deal. He wrote:
“When the Iran nuclear agreement was concluded more than two years ago, many questioned whether Tehran would live up to its terms. Incredibly, now it’s our continued compliance that’s in question. If the president pulls the United States out — either by failing to certify Iranian compliance without clear evidence of violations or by making a clean withdrawal — he will trigger a crisis that will significantly increase nuclear dangers.
“A nuclear-armed Iran would be a threat to the region and the world and must never be allowed to happen. The 2015 nuclear agreement is foundational for preventing this outcome, not an enabler as President Trump and others have suggested. If the United States walks away from our obligations, Iran could walk away without notice. To understand the stakes, it’s important to be clear about what this agreement accomplished and what we would lose if the United States causes the deal to collapse.”We asked Atlantic Council’s community of experts what decertification of the deal would mean. This is what they had to say:
R. Nicholas Burns served as under secretary of state for political affairs under former US President George W. Bush. He is a member of the Atlantic Council’s board of directors.
If President Trump takes this action, it will weaken the United States and strengthen Iran. Our allies France, Germany, and the United Kingdom will not support such a step. As the IAEA has certified Iran to be in compliance with the nuclear deal, we risk a significant decline in our credibility in not meeting our international commitments. Most importantly, our action could lead to the unraveling of the nuclear deal itself. That would leave Iran free of the restrictions on its nuclear program by the entire international community, having already achieved sanctions relief. We would then be forced to try to handle a renewed nuclear crisis with Iran while simultaneously coping with the North Korea nuclear danger.
President Trump would significantly weaken the United States by walking back our commitments on the deal. It would be a historic mistake.
Stuart E. Eizenstat served as deputy secretary of the Treasury under former US President Bill Clinton. He is a member of the Atlantic Council’s board of directors and chairman of the Iran Advisory Board at the Atlantic Council’s Future of Iran Initiative.
Decertification itself does not signify that the United States will withdraw from the JCPOA. The president will almost certainly not decertify on the basis of Iranian non-compliance. The IAEA has on eight separate occasions indicated that Iran is in compliance, the president issued a certification three months ago, the United States has not attempted to produce evidence to the commission established to review charges of non-compliance, and all the other P5+1 members agree Iran is in compliance. The decertification is based upon congressional legislation, and will be based upon a general “national security” standard, based upon Iran’s highly negative behavior in such areas as support for terrorism, human rights abuses, and their missile program, all of which outside the contours of the JCPOA, which is limited to their nuclear program.
The next step after decertification, under the congressional legislation, is to throw the issue to Congress for additional sanctions, under expedited procedures. However, only the four leaders of the House and Senate can introduce such legislation, and it appears that the Trump administration does not want Congress to act on sanctions. This leaves an uncertain situation.
If Congress does not act, in January, President Trump must decide whether to waive, as President Obama did, and as he himself did initially, secondary sanctions. The JCPOA specifically requires this waiver, and it was an essential part of the deal for Iran to substantially dismantle its current nuclear program. This puts the administration in a quandary. If he is saying the nuclear agreement is not in the national security interest—I believe it very much is in our national security interest—then he could hardly waive sanctions again. Yet, if he does not waive secondary, and re-imposes them, then the administration will have essentially walked away from the JCPOA. We would be the only P5+1 nation to do so, as clearly all the other nations would want to keep the agreement.
In this scenario, there would be a major trade war with the European Union, China, the United Kingdom, and the entire P5+1 countries, as we would be sanctioning any economic activity they pursued with Iran. It is unclear what Iran would do, but it may wish to stay within the JCPOA to isolate the United States. But if they used the US action as a reason to withdraw, as the most radical elements in Iran would like to do, then they would immediately be free of the restraints of the JCPOA, including the rigorous inspection regime by the JCPOA.
Such action would also have highly negative consequences for any agreement we might wish to enter with North Korea. Why would they wish to enter into such an agreement to limit their nuclear activity, if they see the United States withdrawing from the JCPOA, which would be a gold standard compared to anything to which we could likely get them to agree.
If the president is going to decertify, the best course of action would for him to immediately appoint a high-level special envoy to negotiate a separate, follow-on agreement to deal with some of the deficiencies of the JCPOA, particularly the sunset clause, which allows Iran to resume its nuclear program in the 2025-2030 time period, to make the limitations of the JCPOA permanent, and to impose more limits on their missile program. But to have any chance of success, the administration would have to be prepared to offer Iran additional economic benefits, and I see no inclination on the part of the administration to do so.
Matthew Kroenig is a nonresident senior fellow in the Brent Scowcroft Center on International Security at the Atlantic Council.
The president is required by congressional legislation, the Iran Nuclear Agreement Review Act, to decertify the Iran nuclear deal if he does not believe that “suspension of sanctions related to Iran... is... vital to the national security interests of the United States.” This clause is separate from whether or not Iran is complying with the agreement. The president is well within his power, therefore, to decertify the deal. But the downside of this approach is that it then kicks the issue to Congress for next steps and Congress is not known to be the most strategic actor in the US government. The US Constitution grants the executive wide authority over foreign policy for a reason. As I write in a recent Atlantic Council Memo to the President, my preferred approach would be for the United States to abide by the strict terms of the Iran deal for now, while increasing pressure on Iran in other ways, with the goal of forcing Tehran to the table to renegotiate a better deal.
Michael Morell served as acting and deputy director of the Central Intelligence Agency under former US President Barack Obama. He is a member of the Atlantic Council’s board of directors.
Decertification is inconsistent with the facts. The president’s own national security team has said publicly that the Iranians are not in material breach of the agreement.
Depending on what Congress does, decertification could be the first step in the US walking away from the deal, which—in the absence of a material breach by the Iranians—would be a strategic mistake of historic proportion.
Regardless of what Congress does, decertification will strengthen the hardliners in Iran and it will drive a wedge between us and our European allies—both self-inflicted wounds.
Brian O’Toole is a nonresident senior fellow with the Atlantic Council’s Global Business and Economics Program.
The Trump administration’s move to decertify the Joint Comprehensive Plan of Action (JCPOA), reportedly against the recommendation of the president’s chief national security advisers, rests on a transparently thin procedural justification as cover for an inability to let inconvenient facts guide critical national security and foreign policy decisions.
While some clever lawyering will make this justifiable within the constraints of existing sanctions laws, it is a naked charade that our allies, and importantly, our foes see right through. Contrary to the apparent goal of strengthening the deal, decertification undermines US leverage to impose additional constraints and impedes US efforts to strengthen the JCPOA. Before formal negotiations with the JCPOA parties—China, France, Germany, Russia, the United Kingdom, and Iran—even begin, Trump will have already played his most valuable card, putting Congress and the administration in a weakened position.
Barry Pavel is a senior vice president, Arnold Kanter chair, and director of the Brent Scowcroft Center on International Security at the Atlantic Council.
If implemented, the president’s policy of decertification of Iran is likely to lead to self-isolation of the United States. The other parties to the accord likely will stick with the agreement. Even many Trump administration officials admit that Iran is adhering to the agreement, but some say Iran is not adhering to “the spirit” of the agreement. This turn of phrase means that Iran is continuing its wide range of activities that are hostile to the interests of the United States and its allies. These activities include Iran’s support for terrorism, significant human rights abuses in Iran, destabilizing activities across the region (see the Atlantic Council’s new report on this, which includes digital forensic evidence of Iran’s efforts), and continuing aggressive ballistic missile development activities.
The United States and its allies and partners should pursue a broad strategy of pushback against these activities; however, these activities were never part of the nuclear accord, and by opting out of that accord, the United States will further diminish its own influence in the region.
Thomas Pickering served as under secretary of state for political affairs under former US President Bill Clinton and as the US ambassador to the United Nations in the George H.W. Bush administration. He is a member of the Atlantic Council’s board of directors.
Decertification without clear evidence of a material breach of the agreement by Iran would:
1) Open the door to Iran claiming it is no longer obligated by the agreement even if others were to continue to comply, and thus enable it to restart all of the nuclear activities blocked or limited by the agreement, including those likely to lead to a nuclear weapon, or
2) Permit the other parties, with Iran, to continue to comply with the agreement, leaving the United States isolated with respect to the agreement and also with regard to its leadership of the international community on nonproliferation actions of all sorts; and
3) Encourage others, including North Korea, to believe that the United States would be an unreliable partner with respect to any future similar agreement limiting or blocking North Korea’s access to further nuclear weapons and developing steps toward denuclearization.
Barbara Slavin is director of the Atlantic Council’s Future of Iran Initiative.
If by decertifying Iranian compliance with the nuclear deal, President Trump hopes to relieve himself of the obligation under US law to approve the agreement every ninety days, that might not be so damaging. However, my fear is that he is simply trying to foist responsibility for US implementation on Congress and it is doubtful that Congress—which has failed to pass any significant legislation so far this year—is up to that task.
In addition, decertification would create more uncertainty about the survival of the agreement and act as a disincentive to non-US companies to do business with Iran. If Iran at some point concludes that the agreement is no longer working sufficiently to its benefit, it could walk away and blame the United States.
Further damage would also be done to the transatlantic relationship and it would be harder to achieve any other international or bilateral agreements of significance—with North Korea, for example. Finally, decertification would do nothing to moderate other Iranian policies of concern. In contrast, it would serve to strengthen the most hardline elements in Iran, which favor aggressive regional intervention and intensified domestic repression.Ashish Kumar Sen is deputy director of communications at the Atlantic Council. Follow him on Twitter @AshishSen.