BY EMILE SIMPSON
President Donald Trump’s long-awaited verdict on the Iran nuclear deal will land Tuesday afternoon, but the chances for a surprise seem slim. If Trump allows the reimposition of certain U.S. sanctions on Iran, the United States would be the first party to breach this major international agreement. If so, Trump’s decision would be at best reckless and at worse devious. Whether he understands it or not, his strategy could easily lead to another U.S. war in the Middle East — but this time without any European allies, which he will have irreparably alienated.
Let’s first recall how Trump’s decision fits into the mechanics of the deal. The July 2015 Iran nuclear deal, which is a multiparty international agreement, must be understood apart from the U.S. domestic law provisions that supervise the executive branch’s enforcement of it.
Under the international agreement, known as the Joint Comprehensive Plan of Action (JCPOA), Iran agreed to cease its nuclear program in return for the relief of specified nuclear-related sanctions imposed by the United States, European Union, and the United Nations. Hence, the United States agrees in the text of the JCPOA to “cease the application” of specified nuclear-related sanctions issued under a series of U.S. executive orders and four U.S. domestic law statues.
While the Obama administration terminated the sanctions specified in executive orders, upon certification of Iranian compliance by the International Atomic Energy Agency in January 2016, America’s statutory sanctions have merely been suspended through presidential waivers, in the absence of which they would snap back. Of these four statutes, the one that requires a new waiver by May 12 — the one Trump will announce his decision on Tuesday — concerns sanctions on U.S. and non-U.S. nationals dealing with Iran’s Central Bank and other Iranian financial institutions, as well as the purchase of Iranian oil and petrochemicals. The other three, which all require new waivers by July 12 (see here, here, and here), concern a wider variety of sectors, including shipping, insurance, and petrochemical services.
For every review so far, Trump has kept the statutory sanctions suspended. However, he decertified the Iran deal in October 2017 under a different statute again, the 2015 Iran Nuclear Agreement Review Act, which requires the president to report to Congress every 90 days that Iran is complying with the JCPOA. On its own, all that move did was open a 60-day window for Congress to impose new sanctions on Iran, but by December, none had come.
Emile Simpson is a research fellow at the Harvard Society of Fellows. He was formerly a British Army officer.
But the October decertification also gave us an important insight into Trump’s thinking on the Iran deal. While he provided no evidence that Iran had broken the letter of the deal, Trump arguedthat Iran had breached its “spirit” by engaging in “destabilizing activities” in the region. Indeed, in his Senate confirmation hearing to be secretary of state on April 12, Mike Pompeo, then-CIA director, stated that he had “seen no evidence that [the Iranians] are not in compliance today.” Furthermore, the Trump administration has not stated that recent Israeli claims about Iran’s pre-2015 behavior bear at all on its post-JCPOA compliance.
In short, the nub of the matter for Trump seems to be what the deal does not do, rather than what it actually does. This fits with his subsequent behavior. Thus, when the statutory sanction waivers last came up for review in January, Trump reluctantly renewed their suspension — but only on the basis that he would not do so again unless the other parties to the deal, especially the Europeans, managed to “fix” the deal in a way that addressed his wider concerns about Iran.
Since then, to save the JCPOA, the United Kingdom, France, and Germany all have pushed for new EU sanctions against Iran. But they have insisted that the new sanctions not be linked to Iran’s noncompliance with the JCPOA — and, thus, to the reimposition of Washington’s pre-deal sanctions — for the obvious reason that it has not been found in breach of the deal. The most that Trump is likely to concede to European pressure not to reimpose sanctions is to allow the deal to be “fixed” during the six-month grace period that the U.S. Treasury has previously suggested is likely to be given to firms affected by the changes to unwind business dealings with Iranian firms.
But that concession is in any case a dead end, because if U.S. sanctions snap back this month, and again in July, the United States will be in breach of the JCPOA. Indeed, even if the United States did have evidence of Iran’s noncompliance (which, again, it appears to admit it does not), the JCPOA, and U.N. Security Council Resolution 2231 that accompanies it, sets out a formal dispute resolution process that the United States would have to take, which Trump currently seems to be ignoring.
If Trump breaches the deal first, and fails to even follow the dispute resolution process the United States agreed to in the deal, the European-U.S. diplomatic unity that brought Iran to the table would end, and a trans-Atlantic split would open over Iran. Once the United States is in breach of the deal, Europeans cannot in good faith support U.S. moves to renegotiate it, as this would set a bad precedent not just vis-à-vis Iran but for all other security agreements and, indeed, the sanctity of any international agreement to which those European states are party. The result will be that European support for the United States over Iran will end. That makes it very unlikely that Trump will ever negotiate a better deal, which was the product of more than a decade of coordinated sanctions and diplomacy.
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