The P5+1 and Iran Nuclear Deal Alert, July 27, 2017

Joint Commission Meets After U.S. Certification Controversy

Sanctions were a key topic of discussion at the July 21 quarterly meeting of the Joint Commission, a body set up by the P5+1 and Iran to oversee the nuclear agreement known as the Joint Comprehensive Plan of Action (JCPOA). Representatives from Iran, the P5+1 states (China, France, Germany, Russia, the United Kingdom and the United States), and the European Union comprise the Joint Commission and were present in Vienna for the meeting.

One controversial sanctions issue is the comment made by President Donald Trump at the G-20 meeting in Hamburg, Germany July 7-8. Deputy White House Press Secretary Sarah Sanders reported July 10 that the president urged nations at the G-20 summit “to stop doing business with nations that sponsor terrorism, especially Iran.”

IAEA Director General Yukiya Amano (left) and Iranian Deputy Foreign Minister Abbas Araghchi shake hands at IAEA headquarters in Vienna in 2013. (Photo: Veysel Kuecuektas/IAEA). Paragraph 29 of the deal requires that the EU and United States refrain from policy “to directly and adversely affect the normalization of trade and economic relations with Iran.” Iranian officials have characterized Trump’s comment as a material breach of the deal and the new sanctions legislation working its way through Congress (see below) as a violation of the “spirit” of the agreement.

The Joint Commission issued a statement after the meeting saying that sanctions-lifting was discussed, acknowledging economic engagement despite “existing challenges,” and underlining the need to “implement the JCPOA in good faith and in all its provisions.” Iran, however, appeared unsatisfied by the results of the discussions.

Iran’s Deputy Foreign Minister Abbas Araghchi told press after the meeting that the United States has acted “without goodwill and even with ill intention” in some instances. Araghchi said Iran was “not satisfied” with broken promises made by the United States and is not convinced that Washington “has properly carried out its duties.” Araghchi said he did meet bilaterally with the U.S. delegation, led by Under Secretary of State for Political Affairs Thomas Shannon, after the full Joint Commission meeting.

The Joint Commission met just four days after a contentious decision by Trump to recertify to Congress that Iran is complying with its commitments under the nuclear deal (see below for details on what certification requires). Under U.S. law, the president must issue this certification every 90 days. According to press accounts, Trump did not want to issue the certification, but was finally persuaded to do so by several top officials, including Secretary of Defense James Mattis, Secretary of State Rex Tillerson, and National Security Advisor H.R. McMaster.

In a July 25 Wall Street Journal interview, Trump said that “if it was up to me, I should have had [Iran] non-compliant 180-days ago.” Trump also said he would “be surprised” if Iran was in compliance in 90 days.

Trump’s wishes aside, it is quite clear that Iran has met its major obligations under the terms of the nuclear deal. Air Force General Paul Selva, vice chairman of the Joint Chiefs of Staff, recently told Congress that Iran is meeting its commitments under the JCPOA and the International Atomic Energy Agency (IAEA) report in June confirms that Iran is abiding by the deal’s limits. Any attempt to “decertify” Iranian compliance without clear evidence of a material breach of the JCPOA should be viewed with great skepticism.

Reportedly, the United States may also try and test the deal by pushing for inspections at military sites. But it is up to the International Atomic Energy Agency (IAEA) to request access and determine if Iran's cooperation is sufficient to resolve concerns about illicit or undeclared activity. If the IAEA remains unsatisfied with Iran's response, five of the eight members of the Joint Commission can vote on action to resolve the agency's concerns (Annex I, Section Q). Given Trump's remarks on the prospect of decertification in 90-days, pushes by Washington for inspector access to non-nuclear sites should be treated with caution and carefully assessed.

The next deadline for certification to Congress of Iranian compliance with the JCPOA will around Oct. 15. Failure to issue the certification, or a finding by the Trump administration that Iran is in “material breach” of the nuclear agreement, can trigger expedited reimposition of sanctions by the U.S. Congress under the Iran Nuclear Agreement Review Act of 2015 (see below). Before the next compliance report, the administration will need to waive sanctions in mid-September to continue meeting U.S. commitments under the agreement. —KELSEY DAVENPORT, director for nonproliferation policy, with Samantha Pitz, communications intern

Material Breach and the 90-Day Compliance Certification

The Iran Nuclear Agreement Review Act of 2015 defines material breach and the conditions that must be met for the president to issue a compliance certification.

The certification, which must be submitted to Congress every 90 days, is not just about Iran meeting its nuclear commitments under the JCPOA. The president must determine that:

Iran is fully implementing the JCPOA;
Iran has not committed a material breach (or whether a material breach existed and was resolved);
Iran has not taken any action that could significantly advance a nuclear weapons program; and
suspension of sanctions is appropriate and proportionate to the measures taken by Iran under the JCPOA.

Given that some of these conditions could encompass activities and judgements that are outside the parameters of the JCPOA, failure to issue the compliance certification does not necessarily mean that Iran is failing to meet its commitments under the deal.

According to the text of the legislation, material breach is defined as a breach or failure to perform commitments that:

benefits Iran’s nuclear program,
decreases the amount of time required by Iran to achieve a nuclear weapon, or
deviates from or undermines the purpose of the agreement.

The legislation requires the president to submit information to Congress about a potential breach or significant noncompliance within 10 days of the concern arising. Thirty days after the notification, the president must provide a report on whether the compliance issue constitutes a material breach, if the breach has been resolved, the status of resolution, and any Iranian actions that led to the breach.

Failure to issue the 90-day certification, or a material breach report, could trigger a process in Congress that would allow for expedited consideration of legislation to reimpose sanctions waived under the deal.

U.S. Announces Additional Sanctions

Along with the certification that Iran is meeting its commitments under the JCPOA, the State Department announced July 18 that the United States was sanctioning additional Iranian individuals and entities under existing executive orders. The statement noted that Iran’s “continued malign activities outside the nuclear issues undermine the positive contributions to regional and international peace and security that the deal was supposed to provide.”

Two of the sanctioned entities were put on the Treasury Department’s designation list for activities related to Iran’s ballistic missile activities. An additional 16 entities were designated under an executive order that combats transnational criminal organizations.

Congress is also moving forward on new Iran sanctions. The House of Representatives passed a bill, HR 3364, that includes new sanctions on areas such as ballistic missile activity and support for terrorism. The July 25 vote was 419-3, although several members who voted for the bill, including Representative Jim McGovern (D-Mass.), expressed concern about the impact of the Iran sanctions on the JCPOA. McGovern said he worried that the legislation would be “used and manipulated to undermine the JCPOA” and that the Trump administration is “actively seeking to abrogate this international nuclear agreement.”

If signed into law, the Iran sanctions in the bill do not appear to violate the deal, but they are unnecessary, unhelpful, and give the administration congressional support to increase pressure on Tehran during a time when U.S. commitment to the nuclear deal is already being questioned.

Iran has characterized the measures as a violation of the “spirit” of the agreement. After the measure passed the House, Araghchi called the bill a “blatant hostile act” and said there will be a “decisive response.”

The Senate passed the same set of Iran provisions in June in S 722. The House version, however, includes sanctions on North Korea and modifications to the Russia sanctions in S 722. The House and Senate versions of the bill must be reconciled before it is sent to Trump for signature. The Trump administration has expressed reservations about the Russia sanctions in both the House and Senate versions of the legislation. It is unclear if Trump will sign the final bill.

Zarif Makes the Rounds in New York

Iranian Foreign Minister Mohammad Javad Zarif spoke about the nuclear deal at several events in New York in mid-July to make the case that Iran is meeting its obligations, raise concern about U.S commitment to maintaining the JCPOA, and reiterate that the nuclear deal enjoys global support.

The New York Times reported July 18 that Zarif told a small group at the residence of the Iranian Ambassador to the UN that the Trump administration is “trying to make it impossible for Iran to benefit” from the nuclear deal, once they realized scrapping the agreement “would not be globally welcome.”

Zarif also hinted that Iran may run out of patience if concerns about U.S. noncompliance are not resolved. He told The National Interest July 17 that if it comes to a “major violation” or “significant nonperformance, then Iran has other options available, including withdrawing from the deal.”

Zarif reiterated these points in a July 19 interview with Charlie Rose, saying that the “nuclear deal is alive because the rest of the world and Iran want to keep it alive. ”

International Support for the Deal Remains Strong

Despite Trump’s threats to pull out of the accord, the JCPOA enjoys broad support from Washington’s P5+1 partners and the international community. When the UN Security Council endorsed the JCPOA in Resolution 2231 (July 2015), it also called upon all member states to cooperate with the nuclear deal. The U.S. government should not underestimate the extensive international backing for the continuation and full implementation of the agreement.

At the 2017 Preparatory Committee meeting for the 2020 Review Conference of the Nuclear Nonproliferation Treaty (NPT) in May, more than three dozen countries expressed support of the continued implementation of the Iran Deal in their statements. Several are excerpted below.

The United Arab Emirates delegation stated May 4:

UAE has welcomed the Joint Comprehensive Plan of Action (JCPOA) concluded with Iran, with the hope it will reflect positively on Iran’s behavior in the region. Full and transparent implementation of the JCPOA is essential to build confidence and credibility in Iran’s nuclear activities.

Turkey, came out in explicit support of the Iran deal May 8. Its delegation argued that “the agreement on the Joint Comprehensive Plan of Action is an important achievement for peace and stability not only for the region but also globally.”

Canada stressed the importance of the JCPOA and its monitoring and verification mechanisms to ensure Iran’s nuclear program remains peaceful in a May 8 statement:

Full implementation by Iran of all of its JCPOA commitments combined with rigorous monitoring and verification by the IAEA, and fulsome reporting by the Agency’s Director General, will continue to help build the confidence of the international community that Iran’s nuclear program is exclusively peaceful in nature.

Brazil, in its statement May 8, commended the diplomatic approach for curtailing Iran’s nuclear pursuit: “Brazil took satisfaction in seeing vindicated our long-standing support for a diplomatic solution that would ensure the exclusively peaceful nature of the Iranian nuclear program.”

Many countries laud the Iran deal as a contribution to regional and international stability. Some countries, like Japan in its May 8 statement, support the continuation of the deal to the extent of further contributing in money and resources to the implementation of the JCPOA:

Japan will continue to support the JCPOA, which strengthens the international non-proliferation regime and the stability of the Middle East region. We will continue to contribute towards the steady implementation of the JCPOA.

Various delegations not only supported the progress Iran has made, but also called on each of the parties of the deal to fulfill their commitments and duties. In a May 3 statement by South Africa, the delegation declared: “South Africa welcomes the progress made towards the implementation of the JCPOA with Iran and calls on all parties involved to fulfil their obligations under the agreement.”

Upcoming Dates

Sept. 11-14: IAEA Board of Governors Meeting; IAEA quarterly report on Iran’s nuclear program
Sept. 12: 72nd Session of the UN General Assembly Opens
Sept. 14: U.S. sanctions waivers due for renewal (estimated)
Oct. 15: President’s 90-day certification of Iran’s compliance with the JCPOA is due to Congress (estimated)