The Iran Nuclear Deal’s Current State and the Possibility of a Hasty U.S. Withdrawal
Vol. 39, Associate Editor
The Joint Comprehensive Plan of Action (“JCPOA”) is an agreement between China, France, Germany, Russia, the United Kingdom, the United States, the European Union, and Iran. The agreement cuts off all of Iran’s pathways to developing a nuclear weapon. Under the JCPOA, Iran has dramatically rolled back its nuclear program. This includes, among other things, the removal of two-thirds of its centrifuges, and the shipping of 98% of its enriched uranium stockpiles outside of the country, with a 15-year limit of no more than 300 kilograms of enriched uranium, enriched to no more than 3.7% (weapons grade uranium is 90% enriched, and Iran had 20% enriched uranium prior to the implementation of the deal). Claims that Iran could covertly violate the deal’s terms without being detected are unfounded. Ernest Moniz, nuclear physicist and the U.S. Energy Secretary at the time of the JCPOA’s negotiation and initial implementation, has said that the deal is not based on trust, but “upon verification as far as the eye can see.” Under the JCPOA, the International Atomic Energy Agency (“IAEA”) is given significant tools to monitor Iran’s compliance with the deal, which include gamma ray detectors, still and video cameras, electronic seals, and continuous access to key facilities, including centrifuge operations and Iran’s uranium supply chain. Although certain restrictions on Iran’s nuclear program will be lifted 10 to 15 years after the JCPOA’s implementation date of January 17, 2016, Iran has made a permanent commitment to allow the IAEA to indefinitely maintain enhanced verification and monitoring systems on its nuclear program. This commitment is ensured by the application of the Additional Protocol to Iran’s safeguards agreement with the IAEA. “Under the Additional Protocol, the IAEA is granted expanded rights of access to information and locations in the States . . . . By enabling the IAEA to obtain a much fuller picture of such States’ nuclear programmes, plans, nuclear material holdings and trade, the Additional Protocol increases the IAEA’s ability to provide much greater assurance on the absence of undeclared nuclear material and activities in those States.” Thus, the continued implementation of the JCPOA will ensure that the international community will be able to detect, and respond to, any current and future attempts by Iran to develop nuclear weapons capabilities. The United States’ implementation of its obligations under the JCPOA is done through the Iran Nuclear Agreement Review Act of 2015 (“INARA”). Under the INARA, the President has to certify whether or not Iran is complying with the JCPOA at least once every 90 days. If the President does not certify Iranian compliance, the INARA allows Congress to reimpose sanctions lifted under the JCPOA through an expedited process. To date, President Trump has already certified that Iran was in compliance with the agreement on two different occasions. However, the President has indicated that he will not certify Iran’s compliance with the deal, with the next deadline for doing so coming up in mid-October 2017. There is currently no legitimate basis for a finding that Iran is not in compliance with the JCPOA. U.S. Secretary of State Rex Tillerson has recently stated that Iran is in “technical compliance” with the JCPOA, but ultimately it is President Trump who will make the decision. It is unclear what will happen if the President fails to certify compliance, but the European parties to the JCPOA have already signaled that they will work to block attempts to reimpose international sanctions on Iran. As part of the JCPOA, the United Nations Security Council passed Resolution 2331, which removed international sanctions that had been imposed on Iran for its nuclear activities. There is a mechanism under Resolution 2331 by which any one of the parties to the JCPOA can trigger the termination of the Resolution, and thus unilaterally re-impose the international sanctions regime against Iran. However, as Jean Galbraith of the University of Pennsylvania Law School has pointed out, a country needs a good-faith belief of another party’s non-compliance with the agreement to trigger the snapback provision. She notes that “[i]f President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger.” If the other parties to the agreement refuse to follow President Trump’s lead, then the United States will be alone in its re-instatement of nuclear-related sanctions against Iran. This scenario could further weaken the already strained ties between the United States and its traditional European allies. European banks and companies that have made significant investments in Iran following the implementation of the JCPOA are vulnerable to U.S. sanctions against the Gulf country. These banks and companies could potentially face large fines, and may face being cut off from the U.S. banking system. Further, the departure of the United States from the JCPOA could exacerbate the already tense standoff between the United States and North Korea. As things stand, diplomatic efforts to resolve the present crisis are at a standstill. An unraveling of the JCPOA would only strengthen the North Korean aversion to negotiations with the West.  U.S. Department of Energy, Hard Questions on the Iran Deal with Energy Secretary E[r]nest Moniz, YouTube (Sept. 21, 2016), https://www.youtube.com/watch?v=BA3Q9ZwWkog.  Id.  Id.  Id.  Id.  Fact Sheet: Iran and the Additional Protocol, Ctr. for Arms Control and Non-Proliferation (July 14, 2015), https://armscontrolcenter.org/factsheet-iran-and-the-additional-protocol/.  Additional Protocol, Int’l Atomic Energy Ass’n, https://www.iaea.org/topics/additional-protocol (last visited Oct. 2, 2017).  Iran Nuclear Agreement Review Act of 2015, 42 U.S.C § 2160e (2015).  Id.  Id.  Peter Baker, Trump Recertifies Iran Nuclear Deal, but Only Reluctantly, N.Y. Times (July 17, 2017), https://www.nytimes.com/2017/07/17/us/politics/trump-iran-nuclear-deal-recertify.html.  Hallie Jackson et al., Trump Leaning Toward Decertifying Iran Nuclear Deal, Sources Say, NBC News (Sept. 20, 2017, 10:16 PM), https://www.nbcnews.com/politics/national-security/trump-leaning-toward-decertifying-iran-nuclear-deal-say-sources-n803121.  Max Greenwood, Tillerson: Iran in ‘technical compliance’ with nuclear deal, The Hill (Sept. 20, 2017, 9:35 PM), http://thehill.com/policy/international/351677-tillerson-iran-in-technical-compliance-with-nuclear-deal.  Jessica Schulberg, Europe Considering Blocking Iran Sanctions If US Leaves Nuclear Deal, EU Ambassador Says, Huffington Post (Sept. 25, 2017, 7:10 PM), http://www.huffingtonpost.com/entry/europe-iran-sanctions-nuclear-deal_us_59c9772ce4b0cdc77333e758.  S.C. Res. 2231 (July 20, 2015).  Id. ¶ ¶ 11-12.  Jean Galbraith, If President Trump Ends the Iran Deal, Can He Trigger the Security Council Snapback?, Opinio Juris (Sept. 20, 2017, 8:48 PM), http://opiniojuris.org/2017/09/20/if-president-trump-ends-the-iran-deal-can-he-trigger-the-security-council-snapback/.  Id.