North Carolina Journal of International Law

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President Trump’s Decertification of the Iran Nuclear Deal: Ramifications and Reasons Why

By: Phil Pullen

 

 

 

 

 

The Joint Comprehensive Plan of Action (JCPOA), or the Iran Nuclear Deal as it is commonly known, was touted by the Obama administration as one of the most significant accomplishments in international diplomacy in recent decades.  It was signed in 2015 by the P5+1, which are the five members of the UN Security Council—the United States, United Kingdom, France, China, and Russia—plus Germany.[1]  The deal essentially requires the major powers to relax the framework of harsh economic sanctions they had previously imposed on Iran, in exchange for Iran’s commitment to reduce its nuclear stockpile, curb its future nuclear production, and provide mechanisms for IAEA inspectors to monitor its progress.[2]  Although vigorously defended by the Obama administration as the best possible deal the parties could agree to, President Trump has been, even prior to his election, an outspoken critic of the deal from the very start.[3]  As a result, on October 13, President Trump withheld certification of, or decertified, the Iran deal.[4]

What exactly does decertification mean?

Every ninety days since the passing of the JCPOA, the president is required by law to certify to Congress that Iran is “in technical compliance with the deal,”[5] and that suspension of sanctions are “appropriate and proportionate” to the measures taken by Iran to curb its nuclear production, as well as “vital to the national security interests of the United States.”[6]  By withholding certification at the upcoming ninety-day deadline, which occurred on October 15, the President signaled to Congress that he essentially did not believe that the suspension of sanctions was “appropriate and proportionate” to Iran’s actions under the deal thus far, or that the deal was “vital to the national security interests of the United States.”[7]

This certification requirement is not a part of the JCPOA itself, but is required under U.S. law—the Iran Nuclear Agreement Review Act (INARA).[8]  The INARA was a bill passed by Congress after the Iran deal was signed, in order for Congress to oversee how the deal was being carried out and to ensure that Iran was meeting its commitments.[9]  Under the INARA, “the president is required to issue a certification to Congress every [ninety] days that makes a determination” on four key areas: (1) “Iran is fully implementing the JCPOA;” (2) “Iran has not committed a material breach;” (3) “Iran has not taken any action that could significantly advance a nuclear weapons program;” and (4) “suspension of sanctions is appropriate and proportionate to the measures taken by Iran and vital to U.S. national security interests.”[10] (emphasis added).  It is important to note that these four areas are broader in scope than Iran’s actual commitments under the JCPOA itself, so failure to satisfy any of the four does not necessarily mean Iran is in violation of the deal.[11]  However, if the President determines that any of these areas are not being met by Iran, then he may withhold certification to Congress.[12]  That is why decertification of the agreement is so tricky; it doesn’t necessarily mean Iran is in violation of the terms of the deal itself, which would likely trigger responses from the other major world powers, but rather it means that the president cannot certify to Congress that the suspension of sanctions is “appropriate and proportionate” and in the national security interests of the United States.[13]

Further, withholding certification does not mean the U.S. automatically withdraws from the deal, it just means that Congress now has the option to decide whether or not it wants to re-impose sanctions.[14]  Once decertification is announced, Congress has sixty days to decide whether or not it wants to pull out of the deal and re-impose economic sanctions altogether.[15] Congress can re-impose sanctions through the use of a fast-track bill, which does not encounter the same procedural hurdles as other bills passing through the regular legislative process.[16]  For example, in the House, all points of order on a motion are waived.[17]  In the Senate, the bill does not require a cloture vote and no filibuster option is provided.[18]  This fast-track procedure ultimately requires a simple bare majority in both houses of Congress for it to re-impose pre-existing economic sanctions, or add on new sanctions, and withdraw from the deal completely.[19]

Why did President Trump withhold certification?

President Trump has been one of the most outspoken critics of the deal, calling it “one of the worst and most one-sided transactions the United States has ever entered into.”[20]  He also went on to characterize it as “catastrophic” and plainly, “the worst deal ever.”[21]  So, when the president was asked to certify that the suspension of sanctions against Iran was “appropriate and proportionate to the measures taken by Iran”[22] under the deal, and that the deal itself was “vital to U.S. national security interests,”[23] it doesn’t come as a total surprise that he would take the step of withholding certification to Congress.  Nevertheless, within the greater context of his administration it does come as somewhat of a surprise, especially considering that many top officials in the Trump administration—including Secretary of State Rex Tillerson, National Security Advisor H.R. McMaster, and Secretary of Defense James Mattis—believe that remaining a part of the deal is in the best interests of the United States.[24]  In fact, President Trump was convinced by members of his cabinet to certify the deal twice previously, in April and July, but only after putting the cabinet through a “knock-down, drag-out fight.”[25]

Some, therefore, speculate that the decision to decertify was made as a political compromise between Trump and those in his administration who believe the U.S. should remain a part of the deal.[26]  This is sort of tug-of-war strategy has been deemed the “decertify-and-stay-in-the-deal” plan.[27]  The idea is that President Trump can continue to publicly lambast the deal, while maintaining the United States’ commitments—the sound policy stance Trump’s foreign policy and national security advisors seem to want.[28]  After all, this view is supported by the fact that President Trump, although withholding certification, is not explicitly asking Congress to re-impose the prior economic sanctions.[29]

A second theory falls more in line with the policy reasons President Trump gave for decertifying the deal in the first place.[30]  Known as the “decertification-as-bargaining-chip” strategy, the administration may be using decertification of the nuclear deal as a way to (a) send a message to both Iran and the world that Iran’s “overall conduct,” including its support of terrorism, and “destabilizing behavior in the region” is unacceptable, and (b) to bring Iran back to the negotiating table to re-construct the deal in order to address those concerns.[31]  Many of the deal’s opponents, including President Trump, posit that Iran’s de-stabilizing geo-political behavior, and support of terrorist groups like Hezbollah and Hamas, violate the “spirit” of the deal.[32]  Therefore, decertification is necessary to send a message to Iran that the Trump administration is not as quick to draw a line between Iran’s nuclear program and its other geo-political behavior in the region.[33]  Secretary Tillerson suggested that even if Iran does not wish to re-open talks about re-negotiating the existing nuclear agreement, the U.S. and its allies might be able to use the sixty-day time period to “negotiate a follow-on deal that would pick up where the nuclear pact leaves off,” addressing concerns like Iran’s ballistic missile program and support of regional terrorism.[34]  This view is supported by the fact that, in addition to decertifying the nuclear deal, President Trump has also directed the Treasury Department to “impose new sanctions on Iran’s Islamic Revolutionary Guard Corps for its destabilizing behavior in the region and support for terrorism.”[35]

Ultimately, the most likely rationale behind President Trump’s decision to decertify however, was a combination of the two views. President Trump gets to publicly reject a deal he has continually taken a hardline stance against, while remaining a part of a deal that many think is working, all the while giving himself and Congress the option to address further concerns related to Iran’s conduct.

What are the ramifications of decertification?

The decision to decertify has not come without major backlash in both the domestic and international arenas however.[36]  It is first important to note that the nuclear deal appears to be working, at least with regard to limiting Iran’s nuclear capabilities.[37]  The most recent IAEA report demonstrates that Iran is making its commitments under the agreement,[38] and in a July meeting of the JCPOA Joint Commission, “[t]he parties welcomed the latest report from the IAEA verifying Iran’s continued adherence to its nuclear-related commitments . . . .”[39]  Further, as recently as last month, Secretary Tillerson confirmed Iran was in compliance with the deal,[40] and the IAEA Director released a statement saying that “[a]t present, Iran is subject to the world’s most robust nuclear verification regime” and that currently “the commitments being undertaken by Iran under the JCPOA are being implemented[.]”[41]

Considering that the deal appears to be working, Trump’s decision to withhold certification was seen by many as an unnecessary disruption in an otherwise successful multi-lateral agreement.[42]  German Foreign Minister Sigmar Gabriel described President Trump’s decision to decertify the deal as, “driving a wedge between the U.S. and Europe and pushing countries in the EU closer to China and Russia.”[43]  Stephen Walt, professor at the Harvard Kennedy School of Government, went even further stating that, “Trump’s efforts to sabotage the Iran deal [are] the latest in a series of ill-considered actions that have led longtime U.S. allies to pay less attention to Washington and to pursue a more independent course toward other major powers.”[44]  Even though no official U.S. withdrawal from the deal has been issued, the simple posturing further aggravates existing diplomatic tensions between the U.S. and Europe, and provides new “arena[s] of diplomatic and political conflict with China and Russia.”[45]

United States businesses may also be skeptical at the possibility of the renewal of sanctions.[46]  In the past few years, American businesses have greatly benefitted from the ability to do business with Iran.[47]  For example, Boeing recently agreed to a deal with the Iranian government to sell a number of jetliners worth nearly $20 million dollars.[48]  This financial relationship has become so entrenched that many are concerned that the growing economic partnerships between U.S. businesses and the government of Iran will become so substantial that it would make it nearly impossible to re-impose sanctions without some sort of economic fallout.[49]  Notable critic of the nuclear deal, Senator Tom Cotton, articulated this dilemma, arguing that “[n]ow is the time to act, before Western corporations become more deeply entrenched in Iran’s economy and create a pro-Iran domestic lobby.”[50]

Nevertheless, withholding certification may actually have the intended effect of bringing Iran to the negotiating table after all.  At the most recent U.N. General Assembly meeting this past September, in response to President Trump’s repeated threats to withdraw from the nuclear deal, Iranian diplomats reached out to representatives of the major powers to begin discussions about reducing Iran’s ballistic missile arsenal.[51]  Although, publicly stating its ballistic missile program is defensive in nature only and strictly “non-negotiable,” the overtures from the Iranians suggest it is at least open to additional negotiations.[52]  However, Iran has threatened to pull out of the deal itself in light of the consistent threat of American non-cooperation.[53]  In a televised speech given in response to President Trump’s announcement that he would withhold certification to Congress, Iranian President Hassan Rouhani stated that “if [Iran’s] rights and interests in the deal are not respected, it will stop implementing all its commitments and will resume its peaceful nuclear program without any restrictions.”[54]  Both Iran’s public statements and private overtures, in combination with the fact that it has thus far complied with the technical requirements of the deal, suggest that Iran would prefer to remain in the deal and may be open to re-negotiation.

Ultimately, the Iran Deal appears to be working, and parties on all sides including the Iranian government, senior U.S. government officials, policy experts, and the other parties in the P5+1, seem pleased with the progress made so far.  President Trump’s decision to decertify the deal hasn’t changed much yet, outside of putting all the major players on edge in anticipation of what the United States will decide to do next.  Moving forward, the president’s decision and increased criticism of the deal as it currently stands may ultimately bring Iran back to the negotiating table in order to address concerns about its support of terrorism, ballistic missile program, and destabilizing actions in the region.  The President should also be mindful of deepening tensions with Europe, China, and Russia, which risk affecting the political capital it has with regard to handling other international crises like that of North Korea.  For now, however, the status quo remains—something that appears to be what all parties to the deal, including maybe even President Trump and his administration, want.

 

[1] Joint Comprehensive Plan of Action, July 14, 2015, https://www.state.gov/e/eb/tfs/spi/iran/jcpoa/ [https://perma.cc/8TZN-JW3K].

[2] See id.

[3] Louis Nelson, Trump Freshly Hints at Fully Pulling Out Of Iran Deal, Politico (Oct. 16, 2017, 12:19 PM), http://www.politico.com/story/2017/10/16/trump-iran-deal-withdraw-243816 [https://perma.cc/8T4T-KC6J].

[4] Zack Beauchamp, What Trump’s Decision to “Decertify” the Iran Nuclear Deal Actually Does, Vox (Oct. 13, 2017, 1:13 PM), https://www.vox.com/world/2017/10/13/16464084/trump-iran-nuclear-deal-decertify [https://perma.cc/J8WE-6MB6].

[5] Id.

[6] See Kelsey Davenport, Understanding the U.S. Compliance Certification and Why It Matters to the Iran Nuclear Deal, Arms Control Association (Aug. 29, 2017), https://www.armscontrol.org/blog/2017-08-29/understanding-us-compliance-certification-why-matters-iran-nuclear-deal [https://perma.cc/S352-AQGM].

[7] See Beauchamp, supra note 4.

[8] Id.

[9] Id.

[10] Davenport, supra note 6.

[11] Id.

[12] Id.

[13] Beauchamp, supra note 4.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Davenport, supra note 6.

[19] Beauchamp, supra note 4.

[20] Nelson, supra note 3.

[21] Eliana Johnson, Trump Prepares to Wound Iran Deal – And Then Save It, Politico (Oct. 3, 2017, 7:17 PM), http://www.politico.com/story/2017/10/03/trump-iran-nuclear-deal-243427 [https://perma.cc/LG86-KSPT].

[22] Davenport, supra note 6.

[23] Id.

[24] Beauchamp, supra note 4.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Scott Horsley & Tamara Kieth, Trump Calls Iran Nuclear Deal ‘Unacceptable,’ But Leaves U.S. In It For Now, npr (Oct. 13, 2017, 11:30 AM), http://www.npr.org/2017/10/13/556664338/trump-to-put-iran-nuclear-deal-in-limbo-by-refusing-to-certify [https://perma.cc/QX5U-JDRW] [hereinafter Horsley & Kieth].

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] See Harry Cockburn, Russia Warns Trump Over Iran Nuclear Deal: ‘US Withdrawal Will Seriously Aggravate Situation,’ Independent (Oct. 13, 2017, 12:54 PM), http://www.independent.co.uk/news/world/europe/russia-us-iran-nuclear-deal-trump-putin-aggravate-warning-kremlin-stability-security-proliferation-a7998576.html (“Russia has warned Donald Trump’s administration not to pull out of the Iran nuclear deal – saying America’s withdrawal would harm ‘predictability, security, stability and non-proliferation around the world.’”) [https://perma.cc/NDV7-JMC2].

[37] Horsley & Kieth, supra note 29.

[38] See generally, Director General of the Board of Directors, International Atomic Energy Agency, Verification and monitoring in the Islamic Republic of Iran in light of United Nations Security Council resolution 2231 (2015), U.N. Doc. GOV/2017/35 (Aug. 31, 2017).

[39] Press Release, Eur. External Action Serv., Chair’s statement following the 21 July 2017 meeting of the JCPOA Joint Commission (July 21, 2017).

[40] The Latest: Tillerson Won’t Disclose Trump’s Iran Decision, Associated Press (Sep. 21, 2017), https://apnews.com/22138ce9d3b54a49b2d5dc20b039969a?utm_campaign=SocialFlow&utm_source=Twitter&utm_medium=AP) [https://perma.cc/4FXF-FFJA].

[41] Press Release, Statement by IAEA Director General Yukiya Amano (Oct. 13, 2017), https://www.iaea.org/newscenter/statements/statement-by-iaea-director-general-yukiya-amano-13-october-2017 [https://perma.cc/USH5-2287].

[42] See Christopher Woody, Decertifying the Iran Deal is Putting the US In ‘Rogue-State Territory,’ Business Insider (Oct. 13, 2017, 3:01PM), http://www.businessinsider.com/geopolitical-consequences-of-trump-decertifying-iran-deal-2017-10 [https://perma.cc/65Q7-BW78].

[43] Horsley & Kieth, supra note 29.

[44] Id.

[45] Id.

[46] See id.

[47] Id.

[48] Id.

[49] Horsley & Kieth, supra note 29.

[50] Id.

[51] Parisa Hafezi, Jonathan Saul, & John Walcott, Iran Open to Talks Over Its Ballistic Missile Programme: Souces, Reuters (Oct. 6, 2017, 12:11 PM) https://www.reuters.com/article/us-iran-missiles-diplomacy/iran-open-to-talks-over-its-ballistic-missile-programme-sources-idUSKBN1CB22P [https://perma.cc/W975-H8JZ].

[52] Id.

[53] See Cindy Saine, Iran Angrily Rebukes Trump’s Decision to Decertify Nuclear Deal, VOA (Oct. 13, 2017, 8:21 PM), https://www.voanews.com/a/iran-angrily-rebukes-trump-decision-decertify-nuclear-deal/4069705.html [https://perma.cc/9ST8-65R7].

[54] Id.

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