Making Sense of Iran Decertification



It’s Monday, and I am once again trying to figure out what US policy on a crucial national security problem is exactly. Last Monday it was the question of whether negotiations were pointless or not. This week it is Iran decertification.

The president’s decertification does not in itself have any immediate material effect beyond complementary measures such as the new sanctions leveled against Iran’s Revolutionary Guard Corps (see Hooman Majd on those risks). But passing the buck to Congress and the other parties to the agreement by threatening to withdraw altogether carries a variety of its own problems that others are now scrambling to fix. Do those risks extend to the administration’s strategy on the Korean Peninsula? Predictably, there has been a lot of huffing and puffing on both sides. Ambassador Haley claims it sends a strong message to North Korea. Most of the invisible college working on North Korea is scratching its head. Why would North Korea return to negotiations if the outcome is subject to endless renegotiation?

I am less sure Iran decertification matters one way or the other with respect to Pyongyang as I don’t see North Korea rushing to talks anyway. But the criticisms about US credibility and the feasibility of reaching a new agreement are completely plausible. Even if Congress can cobble something together, it will be hard to get our European partners, let alone China and Russia, to sign on to some rewrite of the agreement. And it will be virtually impossible to reconstruct the sanctions regime that the Obama administration carefully pieced together. Unless we believe that secondary sanctions can work magic, the US is going to be completely isolated on this one. And even if Pyongyang no doubt sees Washington behaving exactly as expected, what the European capitals, Beijing and Moscow think about the credibility of the US matters mightily. Why should anyone lift a finger to assist the US if its commitments are suspect?

Understanding Decertification

The intellectual origins of President Trump’s decertification of the Iran deal (JCPOA) ultimately go back to the campaign, but the most carefully formulated critique can be found in the address Ambassador Nikki Haley gave at the American Enterprise Institute in September; Eliana Johnson at Politico does an excellent job at putting together the timeline and additional possible influences, including John Bolton. In the address, she makes the crucial distinction between three legal pillars of the so-called Iran deal: obligations under the JCPOA itself; obligations on all parties, but particularly Iran, under UN Security Council Resolution 2231; and requirements under the Iran Nuclear Agreement Review Act, also known as the Corker-Cardin law.

Yet in fact the deeper purpose of her speech and the president’s was to blur the lines between Iran’s obligations under the JCPOA, UNSCR 2231, and a still-wider set of expectations about Iranian behavior—the “spirit of the deal” in President Trump’s words—that were not enshrined anywhere.

As Haley herself puts it, “the deal drew an artificial line between the Iranian regime’s nuclear development and the rest of its lawless behavior.” But the line is not “artificial.” On one side of it lies what was agreed in the JCPOA. On the other lie two other baskets of problems. The first are Iranian commitments under UNSCR 2231. If you have any doubts about Iranian compliance with these commitments, simply read the Secretary General’s own reports on compliance here, which sadly equivocate with respect to the obvious. As with North Korea, derogations with respect to the missile program are most glaring and serious, and as Israeli letters to the Secretary General have pointed out, North Korea is implicated in those derogations. If negotiations and concerted UN action can’t get Iran to cease and desist with respect to these violations of its commitments, then the sanctions re-imposed in July with respect to the missile program seem like a perfectly reasonable response.

Second however are a host of other Iranian behaviors that even UNSCR 2231 never addressed, such as Iran’s support for its collection of rogue allies. These features of Iranian behavior are never going to be restrained by any piece of paper. Rather, this second basket of problems require more direct action. President Trump’s new strategy on Iran outlines some parallel actions that the US and its allies might take and others could be added: coalition building in the region; deploying of appropriate military forces and deterrent capabilities, including to allies; counterterrorism efforts; the hard slog of anti-money laundering and proliferation work, and (not on the president’s list) even engagement with Tehran.

This may not affect Pyongyang’s propensity to negotiate one way or the other, but it sure looks like a strategy of self-isolation to me.

Yet in the end, the key question is simple: is it worth maintaining the commitment to the JCPOA in order to suspend Iran’s nuclear program, or do we think we can reach a better agreement by walking away from it and trying to get the Iranians to agree to something new?

How does certification, or decertification, address this key question? The answer is unclear, because the president’s and the administration’s precise intentions with respect to decertification remain opaque. Before turning to that issue, however, let’s clarify what the president has done. The Corker-Cardin bill is basically made up of a complex set of sequenced reporting requirements, and they are by no means limited to compliance with the JCPOA. But they do include a requirement that the president report on any material breach of the agreement, which he has not done, as well as the periodic “compliance certification” that is the subject of the current controversy. That requirement has two components. The first is to report whether Iran is in compliance with the nuclear deal. The second is more complicated. The president must certify that:

(iv) suspension of sanctions related to Iran pursuant to the agreement is—

  1. appropriate and proportionate to the specific and verifiable measures taken by Iran with respect to terminating its illicit nuclear program; and
  2. vital to the national security interests of the United States. 

If Iran is in compliance with the JCPOA, then one would assume that the quid-pro-quo offered to get such compliance would be “appropriate and proportionate to the specific and verifiable measures taken by Iran with respect to terminating its illicit nuclear program.” But (iv) (II) is a nightmare of discretion. Basically it says that the president has the authority to claim that the suspension of sanctions, which again is the fundamental quid-pro-quo of the deal, is not in the interest of the United States. And this despite the fact that the JCPOA has committed us to sanctions relief and Iran is in compliance with the agreement. If you want clear evidence that the administration is trying to hold the JCPOA hostage to other aspects of Iranian behavior, despite Iranian compliance on the nuclear aspects of the agreement, go no further than Ambassador Haley’s interview with Jake Tapper on NBC where she admits as much.

Passing the Buck

The most significant feature of the president’s Iran speech (fact checked here) comes in a dual threat to Congress and to the other parties to the July 2015 agreement: China, France, Germany, Russia, the United Kingdom, and the European Union (the E3/EU+3). Either Congress comes up with a set of measures to address the perceived weaknesses of the deal, and presumably manages to convince the other parties to go along, or the administration will “terminate the deal.”

The administration itself has offered no guidance that we have seen. Haley’s AEI speech is similarly maddening on what the administration actually wants:

“Congress then has sixty days to consider whether to re-impose sanctions on Iran. During that time, Congress could take the opportunity to debate Iran’s support for terrorism, its past nuclear activity, and its massive human rights violations...Congress could debate whether the nuclear deal is in fact too big to fail.”

How is this helpful? The Senate Foreign Relations Committee—chaired ironically by Senator Corker—is scrambling to come up with legislation that would eliminate sunset provisions, strengthen the IAEA’s hand with respect to inspections, and write in automatic snap-back of sanctions if Iranian capabilities to break out are deemed to fall below a one-year line. But if this legislation is passed, the measures will mean little if the other parties do not agree. As we have argued ad nauseam in this blog and more recently in our book Hard Target, effective sanctions regimes require coordination. If the other parties believe that Iran is fundamentally in compliance, it is not clear why they will be willing to bring coordinated pressure to bear let alone open up a second negotiating front.

As this goes to press, conflicting messages are once again coming out of the administration suggesting that the United States is in fact trying to stay in the deal, perhaps as Secretary Tillerson has suggested through negotiation of a second arrangement in addition to the JCPOA (see his interview at CNN here). Ambassador Haley is also now saying that the administration is trying to stay in the deal. But the president seems to be saying the opposite. But the most important point is not what goes on in Washington but how Iran and the P5+1 respond. Iran appears intent—for quite obvious strategic reasons—in abiding by the letter of the JCPOA. As long as it does the P5+1 are unlikely to be interested in renegotiation.

North Korean Angles 

In her NBC interview linked above, Haley claims that the whole reason for taking this decertification track is North Korea: the belief that weak deals will lead to break out. But the history of our negotiations can be read quite differently: that abrogation of an existing deal—the Agreed Framework—resulted in the collapse of restraints that had frozen the main sources of fissile material in the reactor at Yongbyon. John Bolton has been a vociferous critic of the Iran deal, but his credentials working on the Korean question deserve a close look (see my reflections here and my review of Surrender is Not an Option). It was precisely on his watch, and indeed partly as a result of this very risk taking strategy, that the North Koreans broke out.

I don’t think that risk exists with respect to Tehran’s behavior for the reasons suggested; Iran will play by the JCPOA codebook narrowly conceived while no doubt pushing back in other ways. Sanctioning the ICRG may be warranted, but get ready for yet another front in the Middle East. It is hard to avoid the conclusion that the administration has fomented an unnecessary international crisis with respect to an agreement that is doing precisely what it was intended to do. That may not affect Pyongyang’s propensity to negotiate one way or the other, but it sure looks like a strategy of self-isolation to me.

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