The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts

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Well it’s been a dramatic and, for many of us, soul searching week since last Tuesday’s presidential election in the U.S. resulting in Donald Trump being elected the next U.S. president. I’ll hold back on political editorializing in this space. We all have our views and there are other fora in which to express them.

Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail: “My number one priority is to dismantle the disastrous deal with Iran.”  I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the Joint Comprehensive Plan of Action (JCPOA) that President Obama and Secretary of State John Kerry have been.

Of course this all comes as a shock to most of us who work in the nuclear nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal.  And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.

But now we are faced with a new reality and a lot of uncertainty about specifically how President Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.

I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:

1. I have seen arguments circulating around that because the JCPOA was endorsed by the U.N. Security Council in Resolution 2231, the commitments made in the JCPOA are therefore legally binding obligations under international law, and that President Trump therefore legally cannot withdraw the U.S. from participation in the agreement. This is incorrect. The JCPOA is not a legally binding agreement (i.e. a treaty) under international law. And the hortatory endorsement of its terms in Resolution 2231 does not change that fact. From a legal perspective, President Trump could declare that the U.S. no longer intends to comply with the terms of the JCPOA without incurring the legal responsibility of the United States.  The JCPOA is a set of political commitments undertaken by its parties. It is only the political will of the parties that keeps the agreement together.

2. That being said, some of the JCPOA’s commitments – a number of which have already been implemented by the parties including by the U.N. Security Council itself – have legal implications. Iran’s provisional application of the IAEA Additional Protocol, the U.N. Security Council’s removal of its economic and other sanctions on Iran through Resolution 2231, and the removal of unilateral economic sanctions under domestic law by the U.S. and the European Union, have all already occurred as of Implementation Day, as stipulated in the JCPOA.

President Trump could unilaterally decide to remove the presidential waivers that have implemented most of the U.S. unilateral sanctions relief under the JCPOA. The most extreme legal move the U.S. could make under President Trump would be to trigger the snapback procedure stipulated in Resolution 2231 in order to re-apply the now removed U.N. Security Council sanctions.  Here is a link to my chapter on the JCPOA from my – now even more timely! – recently published book as a reference readers on what is in the JCPOA.

3. What is President Trump likely to do with regard to the JCPOA once he takes office in January? The short answer is that nobody knows. What could he do? Well, he could do a number of things. He could:

A) Simply adopt a hostile tone and approach to the JCPOA, stopping any rhetorical and other activities encouraging foreign banks and businesses to engage with Iran, but not formally state the U.S. intention to not comply with the JCPOA going forward;

B) Adopt a hostile tone and approach, and additionally allow Congress to adopt new non- nuclear economic sanctions on Iran that do not per se violate the letter of the JCPOA, but that undermine its spirit and effects;

C) Adopt a hostile tone and approach, allow Congress to adopt new non-nuclear sanctions, and in addition actually abrogate the JCPOA by re-applying the now waived nuclear sanctions through presidential action;

D) As the most extreme legal option, adopt a hostile tone and approach, allow Congress to apply new non-nuclear sanctions, formally abrogate the JCPOA by reapplying nuclear sanctions, and initiate the snapback procedure under Resolution 2231 to re-apply the now lifted U.N. Security Council sanctions.

4. With each one of these potential courses of conduct by the United States, both the other members of the P5+1, as well as Iran, will face a different reality to what they have faced to this point, and will have to decide how to react.

It seems to me that European states, as well as Russia and China, are likely to maintain their current course of support for the JCPOA and re-engagement with Iran even if the U.S. decides to pursue any of options A-C above.  I don’t think that there is any will to go back to the pre-JCPOA posture of unilateral sanctions on Iran by any of these states, and I expect that the slowly but surely building current of trade deals being made between businesses in these states and Iran are likely to be allowed to continue.

If the U.S. were to re-impose or even strengthen secondary banking sanctions on foreign banks, it’s hard to say if this would have any effect on the pace of re-engagement with Iran by European and Asian businesses, mostly because those businesses have already had to find ways to work around unclear U.S. banking sanctions, and haven’t relied on fearful big European banks with strong connections to the U.S.  So even the re-imposition or strengthening of U.S. unilateral sanctions wouldn’t seem likely to seriously change the current dynamics of re-engagement between Iran and other countries.

5. It seems to me that there are only a few scenarios in which the JCPOA, and the essential dynamics of its current implementation, could be seriously threatened. One would be if the U.S. took the ultimate legal step of initiating the snapback procedure under Resolution 2231 to re-impose U.N. Security Council sanctions on Iran. A careful reading of operative paragraphs 11-13 of Resolution 2231 makes it clear that any one of the permanent five members of the Security Council could unilaterally effect such a re-imposition. This was a very deliberately constructed element of the drafting of both the JCPOA and Resolution 2231. These re-imposed sanctions would include prohibitions on certain trade as well as asset freezes on specified individuals and entities, and they would be binding on all U.N. member states. This not to say that the Security Council sanctions in and of themselves would grind re-engagement to a halt, as they only explicitly cover relatively discrete sectors of trade.  But I think that there would be a significant chilling effect on most all foreign business transactions with Iran that would flow from the re-imposition of Security Council sanctions.

This is to say nothing of the political implications in Iran that would flow from such a step.  It’s hard to predict how the domestic political forces in Iran would react to U.S. action pursuing options A-C above. President Rouhani might, and I stress might, be able to keep conservative groups within the Iranian government from forcing him to withdraw from the JCPOA if the U.S. pursues any of options A-C above, although I have serious doubts about his ability to do so in response to option C.  However, I do not think the moderate forces in the Iranian government led by President Rouhani would prevail if the U.S. actually forced the re-imposition of U.N. Security Council sanctions under option D. I think that would be too much for conservatives, and in particular Ayatollah Khamenei, to swallow, and that Iran would under that circumstance likely withdraw from the JCPOA and possibly dramatically resume the nuclear work it ceased under the JCPOA’s terms.  I readily confess, though, that I am well outside of my element of expertise here in trying to guess how the Iranian government, in all of its complexity, would respond to U.S. actions, and I leave it to others better informed that me to add further insight on this question.

Those are some initial thoughts. A lot will of course depend on just how aggressive President Trump and his foreign policy team decide to be in their efforts to undermine the JCPOA.

Something tells me I’m not done writing about the JCPOA after all.

A version of this post appeared previously on Arms Control Law

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Carlos Cuentos says

November 19, 2016

Time to lift some heads out from under the ground. Atleast, the next Administration won't be flying planeloads of ca$h to Tehran in naive appeasement to Islamic terrorists. As to JCPOA itself:

"The arm wrestle between the international community and Iran has one unequivocal winner: Iran. Despite the happy and hopeful comments released by most of the members of the international community, the future may not be so bright as depicted. Following the Joint Comprehensive Plan of Action (JCPOA) signed in Vienna on 14 July 2015, the reactions in the diplomatic arena were different: words of confidence from the 5+1 negotiators and words of hostility towards the USA and Israel from the Iranian religious leadership are a proof of the way the accord is perceived by the involved parties."

Elisa Freiburg says

November 21, 2016

Dear Prof. Joyner,

could you please elaborate a bit more on your argument that the SC's Resolution 2231 does not change anything about the non-binding status of the JCPOA?
Within this Resolution, the SC (in the preambular part) explicitly refers to Art. 25 of the UN Charter, which determines the binding character of SC decisions. In various paragraphs of the operative part, it also explicitly states "acting under Art. 41". So why should one think that the SC/Resolution 2231 did not create legal obligations by itself?

Dan Joyner says

November 21, 2016

Hi Elisa,
I give an explanation and analysis of how to interpret Security Council resolutions on pgs. 195-203 of my book on Iran. Unfortunately that section is not in one of the chapters I was able to put online.

But the essential idea is that, even when the Council acts under its Chapter VII powers not every provision of a resolution is intended by the Council to create legally binding obligations. There is something of an established language that the Council uses to convey whether they are creating legal obligations within each discrete operative provision. In order to interpret UNSCR's, therefore, you have to carefully read each provision and particularly note the words that are used at the beginning of it. When the Council intends to create a binding obligation, they typically use a leading word like "decides" or "demands." Other leading words/phrases like "endorses,""calls upon," "affirms," or "encourages," typically do not convey the intention of the Council to create legally binding obligations. Provisions led by these words are essentially hortatory in nature and intent.

So if you go through Resolution 2231 and look at each discrete operative paragraph and the leading words associated with it, you'll see that the Council focuses its use of legally binding language on provisions that address the Council's own prior or future actions, including its own sanctions measures relative to Iran. It never uses legally binding language in provisions addressing the essential commitments of states made in the JCPOA. With regard to those it only uses hortatory language like "endorses" and "calls upon."

I think one has to remember that the JCPOA and UNSCR 2231 were very deliberately and carefully constructed at the same time to comprise parts of one package of agreements that were to work together. Resolution 2231 was necessary because Security Council actions, particularly relative to its sanctions on Iran, were an integral part of the JCPOA. But Resolution 2231 was carefully constructed to leave the commitments of the state parties to the JCPOA legally non-binding.