During his campaign for presidency, Donald Trump referred repeatedly to the nuclear accord with Iran, officially known as the Joint Comprehensive Plan of Action (JCPOA), as a "horrible agreement," one that would lead to "a nuclear Holocaust," and so bad that "it is suspicious." He repeatedly and falsely claimed that the United States has given Iran $150 billion, whereas in reality Iran will receive only about $55 billion. Regardless of the amount, however, what Iran will eventually receive is its own money that had been held up in frozen accounts with European and Asian Banks as a result of the U.S. sanctions imposed on Iran.
Trump also promised repeatedly that, if elected, he will tear up the JCPOA. He told the American Israel Public Affairs Committee’s conference earlier year that his first priority after he is elected would be to "dismantle" the agreement.
So, the question is, now that Trump President-Elect, will he tear up the nuclear deal with Iran? More importantly, can he actually do that if he wants to stay within the international norms and laws? And, assuming that he will deliver on his promise, what will be the consequences for the United States, its European allies, the Middle East, and especially Iran? Before addressing these important questions, it is important to discuss an important aspect of the JCPOA that has not been discussed previously.
Trump’s populism regarding the JCPOA reveals an aspect of the agreement, which is its non-optimality. The non-optimality means that the agreement´s compliance force is not at its maximum vis-à-vis the signatories, the P5+1 that consists of the five nuclear-weapon States that have a permanent seat in the United Nations Security Council plus Germany, on one side of the "table, and Iran on the other side. We already know that Washington has been dragging its feet on abiding by its obligations for Iran sanctions relief, which has resulted in the reluctance of the Western financial institutions in resuming banking ties with Iran. Obviously, this is not viewed positively in Iran, because it has complied with its treaty obligations to the letter.
The root cause of the non-optimality of the JCPOA is in its fundamentally-coerced character. Iran, its people, and its nuclear negotiators were facing military threats by US and Israel. Moreover, the "toughest economic sanctions in history" had also been imposed on Iran by the US and its European allies, as well as the UN Security Council. The purpose of the measures was to "convince" – in reality coerce – Iran to negotiate. Such coercive maneuvering has become commonplace today, even if it goes against the very spirit of international laws of regarding national sovereignty and adhering to international treaties. However, the irony in all of this is that coercive bargaining also leads to non-optimal results for those resorting to coercion, the US in this case. So, Trump´s rhetoric and populism are not surprising in this context.
The US cannot legally nullify the JCPOA, because it is not a bilateral agreement between Iran and the United States, but rather a deal that Iran signed with P5+1. In addition, the JCPOA has been endorsed by the UN Security Council through its Resolution 2231 as an international law, filed under Chapter VII of the United Nations Charter, implying that respecting the resolution and implementing its provisions are mandatory for all members of the UN, and in particular the five permanent members of the Security Council. In addition, there will be other legal hurdles, if Trump decides to void the JCPOA.
Aside from the obligations under Chapter VII of the UN Charter, international laws recognize that the continuity of a State is not affected by changes in its government, even if the change is brought about by a revolution. Thus, the question would be, why can the change of government in the US resulting from a normal constitutional electoral process even be a reason to plead for a break of the continuity in the State identity and its international obligations? It cannot be. In this context it is useful to recall that in 1979 the new Islamic Republic of Iran and its Supreme Leader, Ayatollah Ruhollah Khomeini, assumed all the previous multilateral arms-control commitments of the previous regime of Shah Mohamad Reza Pahlavi, including its obligation toward the Nuclear Non-Proliferation Treaty that Iran had signed in 1968, and ratified in 1970. Beginning in 1992, the same was true about Russia after the old Soviet Union collapse at the end of 1991. Thus, why should this be any different for the incoming Trump administration?
The Vienna Convention on the Law of Treaties (VCLT) decrees on possible means of detachment from an international treaty’s obligations in case of fundamental change of circumstances, the so-called rebus sic stantibus principle. But, the circumstance allowing it must be an exceptional. A change of government resulting from a normal electoral process does not qualify as one. In addition, the sanctity of international treaties is the cornerstone of the international system, crystallized in Article 26 of the VCLT´s principle pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. States cannot simply choose and pick which treaties to abide by as they like at any given moment. The stability of the international treaties system will be gravely endangered by unilateral conduct, which Trump and his team should keep in mind. U.S. unilateralism will set a dangerous precedent for others to follow.
Moreover, given that the JCPOA is a multilateral agreement, with the US being only one party to it, other signatories´ interests will also be adversely affected if the US acts alone. Of course, nothing can prevent Trump from negotiating his own additional separate deals with Iran, if Iran is inclined to do so. There is no evidence though that Iran will be inclined to do so.
Proponents of voiding the JCPOA might point to the fact that Trump has announced that the US will withdraw from the Trans-Pacific Partnership (TTP), and try to use it as a model for voiding the JCPOA. The TTP is not, however, yet in force, whereas the JCPOA is a valid, multilateral agreement very much in force. Thus, the two are not comparable. The most that the US can do is unilaterally, and illegally, withdrawing from the JCPOA and accept its consequences. What are such consequences?
Setting aside the legal ramifications of such a move for the US, withdrawing from the JCPOA would create deep fissures between the United States and its European allies. From 2003-2005 during the presidency of Iranian reformist President Mohammad Khatami, the three European powers, namely, Britain, France, and Germany negotiated with Iran to reach a compromise for limiting its nuclear program. The compromise was reached, but because the George W. Bush administration wanted Iran’s total capitulation, the negotiations failed. During the Obama presidency the same European powers agreed to impose tough economic sanctions on Iran with the hope that Iranian leaders will be "convinced" that they need to scale back the nuclear program. Now that the nuclear agreement has been reached, Iran has made major concessions, and the International Atomic Energy Agency has reported time and again that Iran has abided by its obligations under the JCPOA, there would be no way that the European allies of the United States will renege on their promises to Iran. They are eager to expand their commercial relations with Iran, a dynamic market with 80 million people. Indeed, on November 14, the 28 members of the European Union reaffirmed their resolute commitment to the JCPOA.
A unilateral voiding of the JCPOA by Trump will also isolate the United States, and will confirm what Iran’s supreme Leader Ayatollah Ali Khamenei has been claiming over the past three decades, namely, that the United States cannot be trusted. This will also be a bonanza to Iran’s "deep state" – the secret and semi-secret network of the hardline military and intelligence officers and agents who opposed the nuclear negotiations with the United States, because they had the most to lose from successful completion of the negotiation that strengthened the moderate President Hassan Rouhani.
In addition, the Trump administration will not have the skilled diplomats and thoughtful strategists to convince any major power to go along with its wishes for voiding the JCPOA. Michael Flynn, Trump’s national security adviser, has likened Islam to "cancer" that "has to be excised," has stated that fear of Muslims is "rational," and considers Iran "more dangerous than Daesh" [also known as the ISIS or ISIL]. Mike Pompeo, Trump’s nominee for CIA Director, has hyped Iran’s "threat" by claiming that "Iran is intent on destruction of our country," has opposed the JCPOA fiercely and wants to roll it back, has downplayed the political and economic cost of bombing Iran claiming that "2000 bombing sorties" will do the job, and has called for regime change in Iran. He has also claimed that the so-called "global war on terror" is a war between Christians and Muslims. Trump has nominated retired Marine Gen. James "mad dog" Mattis as the next Defense Secretary. He has declared that the JCPOA "fell short," that "it is fun to shoot some people," and has called for a war on "political Islam." He has also claimed falsely that Iran and Daesh are in cahoots, although Mattis has also said that voiding the JCPOA will hurt the United State. Given such a hardline national security team that seemingly looks for an excuse to start a war with Iran, which significant power and what rational leader will go along with the wishes of a new US president who has no experience in foreign policy, the Middle East, the Islamic World, and Iran?
Congress and the Senate just approved renewal of economic sanctions on Iran for another ten years and, despite his agreement with Iran, President Obama has indicated that he will sign it into law. The renewal violates the JCPOA. Article 26 of the JCPOA states that,
The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realization of the full benefit by Iran of the sanctions lifting specified in Annex II. The US Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA.
And, Article 29 declares that
The EU and its Member States and the United States, consistent with their respective laws, will refrain from any policy specifically intended to directly and adversely affect the normalization of trade and economic relations with Iran inconsistent with their commitments not to undermine the successful implementation of this JCPOA.
Tehran has reacted angrily and rightfully to the development, declaring that the renewal of the sanctions represents a violation of the JCPOA. Tehran’s hardliners are also rejoicing, as are the neocons and Israel lobby. Jennifer Rubin, Israel’s advocate at the Washington Post is happy that there is "unanimity on Iran sanctions in the Senate" (which approved the renewal with 99 votes).
In about six months Iran will hold its presidential elections. Not only can the incoming Trump administration not legally withdraw from the JCPOA, it should also weigh its policy toward Iran carefully. It should not do anything to motivate Iran’s hardliners to try to defeat Rouhani in his bid for re-election. What is the true national interest of the United States? Dealing with Rouhani and his team who have advocated accommodation with the West, or with an ultra-hardline administration far worse than that of Mahmoud Ahmadinejad, Rouhani’s predecessor?
This is an expanded and updated version of an article that was published on Huffington Post.
Muhammad Sahimi is a professor at the University of Southern California in Los Angeles. For the past two decades he has published extensively on Iran’s political developments and its nuclear program. He was a founding lead political analyst for the website PBS/Frontline: Tehran Bureau, and has also published extensively in major websites and print media. He is also the editor and publisher of Iran News and Middle East Reports and produces a weekly commentary for broadcasting that can be watched at http://www.ifttv.com/muhammad-sahimi. Katariina Simonen, LL.D. in public international law, is a member of the Pugwash Executive Council and Associate Fellow at the Eric Castrèn Institute for International Law and Human Rights at the University of Helsinki.
