Why the Biden administration should stay out of the JCPOA

This post is one of three CERL blog articles that examine the Iran Nuclear Deal and the United States’ future role in it it. The views expressed in this article are those of the author and do not necessarily represent those of CERL or any other organization.

President-elect Joe Biden has stated that he will return to the Joint Comprehensive Plan of Action (JCPOA), more widely known as the Iran Nuclear Deal (“deal”), as long as Iran returns to strict compliance. This is not a good move.

Iran’s nuclear program has advanced since President Trump withdrew from the deal in May 2018. Even though Iran purports to adhere to the agreement, it has continually shifted the goalposts of its compliance, threatening frequently to withdraw. It has inched up its enrichment well above the agreed limits of 3.67 percent and has stockpiled enriched uranium above the authorized amounts. Parties to an agreement are not permitted to unilaterally change the terms of compliance. While international law does not apply to the non-legally binding JCPOA, the agreement is drafted using treaty format and phraseology. Perhaps the Obama negotiating team initially planned for a legally binding agreement but ultimately relinquished that goal. Regardless, even political commitments are expected to be observed while in effect. Even though the United States withdrew from the agreement, all other remaining parties, including Iran, are expected to observe the agreement’s provisions. Iran, no doubt, has moved further toward its obvious goal of attaining a nuclear weapon.

Iran was not a reliable negotiating partner to begin with given that the United States was well aware of its 20-year history of noncompliance with the legally binding safeguards agreement with the International Atomic Energy Agency (IAEA). Most states that not only condone but support terrorism tend not to be ethical or reliable. Indeed, as I have written previously, there is a serious ethical question regarding whether the United States should have negotiated with a state sponsor of terrorism that routinely violates its international legal obligations. The Obama administration characterized the dilemma as a binary choice between war and the JCPOA. The Trump administration’s withdrawal from the deal proved the falsity of that assertion. Negotiations, diplomacy, and open lines of communication are almost always preferable to radio silence because dialogue at least holds open the possibility of peace. But when your negotiating partner routinely refers to your state as the “Great Satan” and urges “Death to America” and death to the “Little Satan,” referring to Israel, the only democracy in the region, one must exercise great caution in negotiations. Indeed, as the old English saying of unknown provenance goes, “He who sups with the devil should bring a long spoon.”

That long spoon, in this context, came in the form of the “red lines” wisely promulgated by the Obama administration as negotiations got underway. Had those red lines been maintained, the deal would have been worthy of bipartisan support. The most critical red line was no enrichment or reprocessing for Iran. If that position had held, and if the agreement called for timely and adequate verification to ensure that Iran observed this provision, the agreement would have been worthwhile. That red line, however, was abandoned by the Obama administration in order to consummate the deal. The other vital but ultimately discarded red line was “anytime, anywhere” inspections. This requirement somehow slipped to an ineffective 24-day notice procedure. As an analogy, could you imagine a District Attorney calling up a criminal suspect and advising him that there was a warrant to search his home, so he should not move anything and they would see him in 24 days? The deal also bans any inspections on Iranian military sites—precisely where the Iranians are most likely to conduct nuclear weapons research. Worse, there were sub rosa allowances in the deal that permitted Iran to evade certain limits imposed by the JCPOA.

Many observers optimistically anticipated that the JCPOA would limit Iran’s ballistic missile program and support for terrorism. But it appears that the goal of entering into an agreement was a higher priority for the Obama administration than ensuring the agreement’s success from the U.S. perspective. This became obvious when President Obama announced that he was taking the military option off the table. Few statements could have more clearly signaled to Iran that virtually anything was negotiable and that the United States would be amenable to any terms the Iranians desired.

A cash payment of $1.8 billion was delivered to Iran by the Obama administration—a rather unusual occurrence that made the United States appear as either a supplicant or partner in crime. Some observers believe that having given Iran the cash and ultimately rewarding it for its violation of legally binding safeguards agreements and UN Security Council Resolutions, it was pointless to withdraw when we did. In other words, we performed our end of the bargain so why withdraw before Iran met its obligations? But a bad deal is a bad deal, and Iran is unlikely to ever fulfill its commitments. Why reward and cooperate with a regime that funds terrorism and builds Intercontinental Ballistic Missiles (ICBM) that could have no other possible target besides the United States? Why help Iran avoid its existing commitments and pave its way to a nuclear weapons capability? Withdrawing from such an agreement was not only the right thing to do—it was an obligation if one views U.S. national security of paramount importance.

The Trump administration’s withdrawal highlights the weakness of the JCPOA as a non-legally binding agreement. As a merely political/policy agreement, any party may withdraw at any time for any reason or for no reason, with no notice requirement. This is not to demean political agreements. Most western states observe such agreements with the same diligence as legally binding commitments. But Iran is not Belgium or Norway. Iran has a well-documented history of violating legally binding agreements—a history that virtually ensures minimal, if any, compliance with agreements of lesser status such as political commitments. For years, Iran violated its legally binding safeguards agreement with the IAEA by failing to declare nuclear facilities and conducting prohibited nuclear weapons work at undisclosed locations. Iran violates obligations under the Genocide Convention by regularly threatening Israel with annihilation—a threat not often made against another sovereign nation by a responsible member of the international community. (Inciting genocide is a clear violation of the Article III(c) of the convention.) Iran appears to have virtually ignored legally binding UN Security Council Resolutions pertaining to its nuclear program, which have the force and effect of international law. A state sponsor of terrorism, Iran’s true colors should be a mystery to no one. To somehow believe that Iran would diligently observe a non-legally binding agreement reflects the triumph of hope over experience.

Why is it so hard to see Iran for what it truly is? Iran poses a threat to the entire region with its drive for hegemony. The Trump administration deserves great credit for the peace agreements it brokered between Israel and the United Arab Emirates, Bahrain, Sudan, and most recently, Morocco. Other regional Arab states may not yet have formal peace agreements with Israel, but they are not far behind, as the recent and unprecedented meeting between Israeli and Saudi Arabian leaders illustrates. But it is more than the Trump administration driving former enemies into each other’s embrace. Iran’s conduct has contributed to this development; national security will naturally take precedence over lesser concerns for Middle East nations.

All of the reasons why the Iran Nuclear Deal was a bad idea in the first place still pertain. As I have noted, the deal did not restrict Iranian development of ICBMs, which are solely intended for use against the United States (since Iran can already reach Israel with its arsenal of missiles). Iran has never revealed to the IAEA the possible military dimensions of its nuclear program as it was required it to do. Rejoining the JCPOA would continue to reward Iran for its violations of international law.

Should a Biden administration wish to reengage with Iran, the answer is not to rejoin the deal as it is but to renegotiate a new, legally binding treaty subject to U.S. Senate advice and consent, as would be typical for an agreement of such major international import. Historically, significant arms control and nonproliferation agreements have always been submitted to the Senate, even if not for adoption as a treaty. And we know full well from the statements of then-Secretary of State Kerry that the only reason the deal was not submitted to the Senate was because the Obama administration knew it would not approve the JCPOA. The better approach would have been to make changes to the agreement that the Senate would have found acceptable. Maintaining the original red lines and addressing ICBMs and terrorism would have helped ease its passage.

Should the United States reverse course on the JCPOA for a third time, we will surely appear to foreign states as an unreliable and unpredictable partner. The United States has never joined a treaty, then withdrawn from it, and then rejoined. It is so unusual to even contemplate that the Vienna Convention on the Law of Treaties does not even mention rejoining treaties. Again, the JCPOA is not a treaty, but this would nevertheless be a poor way to conduct business. Had the agreement been negotiated as a treaty and had the Senate given advice and consent and the president ratified the JCPOA, then it is almost certain that President Trump would not have withdrawn from the agreement so precipitously after entry-into-force. There is no historical precedent for such a rapid withdrawal. The treaties that President Trump withdrew from were roughly 30 years old and circumstances had changed dramatically. It is simply unproductive in the international arena (or in the domestic arena, for that matter) if each new administration of the opposite party seeks to reverse the positions taken by the previous administration. It forces those charged with executing our foreign policy to lurch forward and backwards while appearing confused to observers and no doubt to themselves. It is also bound to confuse corporate entities that wish to do business based on American law and international agreements.

Instead, the Biden administration should use the Trump administration’s withdrawal from the agreement as leverage to renegotiate the deal. The other parties to the agreement should also support this.

We should never lose sight of the real goal of the agreement—to prevent Iran from manufacturing nuclear weapons. It is highly revealing that we should need such an agreement at all since the Treaty on the Nonproliferation of Nuclear Weapons (NPT) already requires this of Iran. This was yet another major flaw in the JCPOA: most important language of the agreement was put in the preamble rather than in the operative paragraphs. Preambular language is merely aspirational and is never binding. Yet the JCPOA preamble states that “Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons.” That is the only commitment that really matters in the JCPOA, and yet it curiously appears in the non-binding preamble of an unsigned, non-legally binding agreement. It could not get much weaker than that. Let us not make this mistake again.

David S. Jonas is a partner at FH+H Law Firm in Tyson, Virginia, and a member of the CERL Advisory Council. He is a retired Marine Corps officer whose last military assignment was nuclear nonproliferation planner for the Joint Chiefs of Staff. He subsequently served as general counsel for two federal agencies and teaches nuclear nonproliferation law and policy at Georgetown University Law Center and the George Washington University Law School.

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Why the Biden administration should stay out of the JCPOA