by Mark Fitzpatrick
US President Donald Trump would have no substantive grounds for following up his broad hints to decide in the negative when the 15 October deadline comes for re-certifying that Iran is complying with the nuclear deal struck two years ago. The circumstances have not changed since the last two times the Trump administration has certified Iranian compliance with the deal, called the Joint Comprehensive Plan of Action (JCPOA). Any decision this time to decline certification would be purely political rather than fact-driven.
Let us nevertheless look at the facts. The law that requires re-certification every 90 days – the ‘Iran Nuclear Agreement Review Act of 2015’ (INARA) – sets four conditions. Three pose objective criteria regarding Iranian compliance, while one requires a subjective judgement that suspension of sanctions pursuant to the agreement is ‘vital to the national security interests of the United States’. The latter is boilerplate language, and at the time of drafting of the legislation was intended for dire circumstances such as an Iran-directed terrorist attack on the US. No such circumstances prevail today.
It should be abundantly clear that maintaining the JCPOA, and therefore the sanctions relief, is in US national interests. Most importantly, it would keep nuclear limits on Iran that block its paths to a nuclear weapon. The troubles that Iran causes in the region would be magnified many times if it were nuclear armed. Honoring the deal also preserves prospects for striking new agreements to limit Iran’s missile program and other troublesome activities. Maintaining the JCPOA maintains US diplomatic credibility more broadly. Breaking it would make a peaceful resolution of the North Korean nuclear issue nearly impossible, for example, because Pyongyang would have no reason to believe the US would adhere to any deal. In fact, any country with whom the US sought to strike a deal would have to question US willingness to adhere to its commitments.
Violations?
What about the other criteria for certifying Iran compliance? The three objective criteria are that:
(i) Iran is transparently, verifiably, and fully implementing the agreement, including all related technical or additional agreements;
(ii) Iran has not committed a material breach with respect to the agreement or, if Iran has committed a material breach, Iran has cured the material breach; and
(iii) Iran has not taken any action, including covert activities, that could significantly advance its nuclear weapons programme.
As far as can be judged on the basis of statements by every single authority that has examined the evidence, all three conditions are being met. Since January 2017, the International Atomic Energy Agency (IAEA) has reported four times, most recently on 31 August, that Iran is meeting its nuclear-related commitments under the JCPOA. The first two conditions are thus met. The United Nations Secretary General reported on 20 June that the procurement channel established under the deal was functioning and that no information had been received about nuclear or dual-use transfers to Iran contrary to Resolution 2231. The third condition thus appears also to have been met. There is no publicly available information about any covert Iranian activities, but one has to assume that if there were even any hints of such activity it would be leaked by authorities in capitals that are hostile to Iran. Thus, when parties to the JCPOA met in New York on 20 September, they all agreed, according to EU foreign policy chief Federica Mogherini, that so far, all sides are fully implementing the agreement – “No violations.”
It is not clear why National Security Advisor H.R. McMaster deviated from this consensus by claiming on ABC News on 17 September that Iran has been “spinning too many centrifuges.” Since McMaster is not known to violate the confidentiality of intelligence reports, his comment may have been based on claims to this effect that have been circulating in the private sector.
The Washington-based Institute for Science and International Security (ISIS) claimed earlier this year that Iran exceeded the number of advanced centrifuges it was allowed to spin. The enrichment and enrichment R&D plan that was negotiated as part of the JCPOA put this number at “roughly ten.” Although Iran expansively insisted that “roughly” could mean up to 15 and some parties were willing to go along with this, Iran never spun more than 13. In other words, it pushed the boundary but never violated an agreed limit. And as I explained in a June 15 commentary, the differences are not significant for proliferation purposes.
Most of the JCPOA parties now agree that the number should not exceed 11. According to two sources close to the IAEA, Iran has been holding to this limit, even though it continues to insist it should be allowed more. There is thus no violation. In a 21 September report, the ISIS agreed, saying “we assume Iran has come into compliance on this issue.”
The ISIS nevertheless continues to claim that Iran is “violating” the deal, although it points to no cases where firm limits are being exceeded. It would behove analysts to be cautious about using loaded words like ‘violation’, for which, in contrast to the term “material breach,” there is no agreed definition. Iran has certainly pushed the boundaries. What it has not done, as far as is known, is to violate any agreed limits, other than two minor excess holdings of heavy water in 2016. Calling other JCPOA controversies “violations” provides a false public narrative that could discolor the president’s determination.
The Trump administration also agrees that Iran is in ‘technical’ compliance with the JCPOA. It argues, rather, that Iran is violating the “spirit of the deal.” This is an extremely vague concept; every party might have its own sense of the spirit. The Trump administration is pinning its argument on the second preambular sentence in the JCPOA, which says the parties ‘anticipate that full implementation of this JCPOA will positively contribute to regional and international peace and security’.
There is no denying that so far the JCPOA has not contributed to regional peace, but the agreement is still young. In any case, as anyone who ever attended a Model UN knows, preamble language can be aspirational, but it is not operative. It does not provide grounds for decertifying compliance.
Mark Fitzpatrick is the executive director of the International Institute for Strategic Studies-Americas. This is reprinted, with permission, from the IISS blog.
Excellent and properly hard hitting. We’re playing hardball now.
McMaster hopefully will see this and think again about his obsession on Iran.
Iran could not have “violated” anything with respect to heavy water since the agreement itself contains no limit on the amount of heavy water Iran can have — rather, it merely imposes a requirement that any amount over the ‘estimated’ needs of Iran be exported…and that has happened exactly as required. The JCPOA estimates Iran’s domestic needs of heavy water, it does not impose any upper limit on it.
Note that heavy water itself is not “nuclear material” and would normally not be required to be declared to the IAEA at all. It cannot be used for making nukes without a corresponding heavy water reactor (and reprocessing plant to extract the plutonium from spent fuel rods — technology that Iran had long offered to forego, way before the JCPOA) and poses to weapons threat.
Going forward, assume Trump will not certify and will pass the ball to Congress.
Make the case why Congress must not reinstate secondary sanctions.
Play up the road to major Middle East war with American soldiers in the middle of it, dying for what? Americans do NOT want another useless war!