The JCPOA Revisited: Implications of a US Return
And a Few Recommendations to the Iranian Negotiators
In his election campaign, Joe Biden always described Trump’s maximum pressure campaign against Iran and his withdrawal from the Joint Comprehensive Plan of Action (JCPOA) nuclear deal as the wrong step to take, reiterating that Trump never achieved any of the objectives the deal was meant to accomplish. Therefore, the US must pursue its goals and policies in countering Iran by returning to the JCPOA. Although Biden considers Trump’s policy a failure, he still aims to preserve parts of his maximum pressure campaign and lift only part of the sanctions imposed on Iran. He has postponed the lifting of all sanctions until the start of talks on Iran’s missile program and regional affairs. On this side, the IR of Iran must focus on two topics in planning its strategy. First, it must think of the implications of a US return to the JCPOA for the IR of Iran, how the lifting of nuclear sanctions will affect the livelihood of Iranians – in other words, will the Iranian economy assert the government’s statement that the lifting of sanctions is fundamental to it – and how will a US return take away any Iranian rights in exchange? Second, assuming that a US return to the nuclear deal is desirable for international entities and Iran’s domestic and economic policy, what will be the best strategy to face a US return to the JCPOA?
The author believes that assuming an opportune US return is not a definite positive for the IR of Iran and does not follow a strong logic given the experience of its previous presence in the deal. Perhaps the hadith of the infallible (PBUH) is true here: Men jarab al-mojraba halle beh al-nedama, otherwise once bitten, twice shy. As such, assuming a desired US return, the IR of Iran must base its strategy and claims for such a comeback on punishing the offender, the one who nuked the deal, and consider that a US return to the JCPOA is not necessarily the optimal situation in relation to its partial return, and that experience was the best teacher during its presence in the deal (the trigger mechanism and possibility of another exit by the next US president).
The Implications of a US Return to the JCPOA for the IR of Iran
The JCPOA consists of nuclear, political, and economic layers. The US withdrawal overshadowed all these layers, but the economy was worst affected of all. The lifting of sanctions, which was essentially the aim of the IR of Iran in the JCPOA negotiations, was totally eclipsed and reduced Iran’s interests in the lifting of UN Security Council sanctions to more or less nothing. Of course, other negative aspects of the US move on nuclear cooperation and the commitments of the participants in the deal, including the transformation of the Fordow site into a center for nuclear research, physics, and technology, must also not be overlooked.
Should the US return to the JCPOA, it will be responsible for stopping the sanctions mentioned in the deal, and continuing to do so. However, by reviewing some of the wording in the agreement, paragraphs 25 and 26 in particular, it becomes clear that some US commitments related to lifting the sanctions are not result-oriented and this country has merely committed to encouraging some measures or doing its best. In addition to the aforementioned, the US president is unable to repeal congressional ratifications according to the law. Since part of US unilateral sanctions against Iran has been ratified by Congress, he can only extend the sanctions waiver by signing an executive order. Prior to the US withdrawal from the deal, this measure was taken once every 90 and 180 days, exerting financial and psychological pressures on the space of Iran’s domestic economy and foreign investment. Thus, although a US return will half-lift part of the sanctions or stop their implementation, it is highly possible that that country will reverse engineer Iran’s commitment to its obligations in the JCPOA despite a Trump exit, return to the deal, and not extend the sanctions waiver. Despite the fact that it is mentioned in the JCOPA a number of times that Iran will consider the imposition or re-imposition of sanctions mentioned in Annex II of the agreement, as a basis for stopping all or part of its commitments under the deal, it must be kept in mind that an assumed return by the US will give it the legal right to use the trigger mechanism, as do its European partners. Implementing the mechanism will reactivate all previous Security Council sanctions against Iran.
But regardless of US commitments in the sanctions arena, the most significant implications of a US return to the JCPOA include its legal recourse to the trigger mechanism, its decisive influence on the decisions of the Joint Commission, in particular issues relating to IAEA access to undeclared sites and activities, and referring concerns over procurements in conflict with the JCPOA to the Joint Commission as provided for by the dispute resolution mechanism. All of these are known as US traps for Iran in the nuclear deal. Given that Biden does not intend to return to the JCPOA merely to implement it, he will benefit from these to expand the agreement to other areas. It will also give extra weight to the influence of regional players like Saudi Arabia and the Zionist regime in regulating US policy on Iran. Overall, the legalities of the JCPOA give plenty of room to the US and the EU to exert pressure on Iran to accept negotiations on its missile program and regional role.
Apart from the aforementioned, Iran’s administrative and executive system has adapted itself to the sanctions following the US exit from the JCPOA and efforts have been made in the country to rectify faults in the banking, insurance, and taxing systems, and accelerate self-sufficiency in producing certain essential commodities. The country also found new ways of economic and trade interaction with other nations under the shadow of sanctions, both distorting US sanctions as a tool to exert pressure on the rest and providing for part of its national financial needs. A US return to the deal and partly lifting the sanctions to create small pockets of air will only push an executive system which is already suffering from a lack of civilization-building agency towards selecting the simplest ways of providing the country’s needs and abandoning plans for all reforms.
US Intentions for a Return to the JCPOA
Biden’s perception of the JCPOA is no different from that of Obama and his foreign policy team. In effect, Biden sees himself as having inherited Obama’s legacy. Biden’s foreign policy team, which is composed of advisors from the Obama era and a number of fairly new faces, pursues two approaches in returning to the JCPOA. The first is a Clintonian one. In this approach, it is believed that the unprecedented Trumpian sanctions must be profited from as leverage to exert even more pressure on Iran. In the second approach, which belongs to Obama, it is believed that Biden must return to the deal within the first one hundred days of his administration, because the more time passes from his presidency, the more regional players like the Zionist regime and Saudi Arabia will try to stop him. It is noteworthy to say that both approaches, as well as the regional players, are agreed on placing maximum pressure on Iran and consider the JCPOA and its by-products, namely the sanctions or in other words the lifting of sanctions, as a tool to eliminate power yielding elements in the IR of Iran. However, they disagree on how the US should return to the deal. The Clintonian approach, which is closer to that of Israel, emphasizes on an incomplete, partial return to the JCPOA by tying the lifting of all sanctions to Iran’s negotiations on its regional role and missile program; the Obama approach emphasizes on a full, but tiered, return.
In any event, it seems that the new US administration will select a combination of both Clintonian and Obamaian approaches in this case. Accordingly, Biden’s priority would be to partly eliminate Trump’s maximum pressure on Tehran and withhold the implementation of certain sanctions against the country. In doing so, he intends to save face for the US as an oath-breaker and return diplomacy and the alleged paradigm of international consensus to the heart of the pressure campaign on Iran. In other words, keeping up the pressure and a token of partly lifting the sanctions. The most significant implication of a return to the JCPOA by Biden under such circumstances is that Iran’s current position, which is one of making claims against the EU and the US, will also become one of being answerable to them. Moreover, the cost of losing its economic interests under the JCPOA by Iran, which was previously borne by the US for its unilateral withdrawal, and the EU for its inability to be politically and economically independent, will then be shared by Iran. Namely, the US and the EU will gain the political and media opportunity to attribute Iran’s lack of economic benefits in the JCPOA to its unacceptance of full negotiations (amending the JCPOA, regional activities, and missile program) and the risk of financing terrorism and money laundering in its financial system (FATF regulations). This will seriously reduce Iran’s bargaining power in any negotiations. By adopting this approach for a return to the deal, America is sending a message to Iran that the problem of sanctions, even of the nuclear kind, will not be resolved without negotiations on Iran’s regional activities and missile program, and an announcement by the country that it is accepting of amending the JCPOA, including the sunset clauses, and making certain restrictions permanent.
Iranian policies and Requirements for a US Return to the JCPOA
Regarding the principle of a US return to the JCPOA, it should be noted that the nuclear deal has not set conditions for the participants leaving or rejoining. As such, the only solution would be recourse to the general rules of international treaties and practices by countries. Since the JCPOA is a multilateral agreement and the US withdrew from it unilaterally, it is vital that the remaining members should agree to its return. In other words, the US merely issuing a statement that it wants to come back will not make it a member again and the other participants must be agreeable to its return.
Iran’s main objective in accepting the JCPOA was to lift the economic sanctions. Of course, it must not overlook its nuclear rights while trying to eliminate the sanctions. Now that the US is willing to return to the deal, Iran must effectively pursue the lifting of sanctions to benefit from its economic rights under the agreement. A glance at the structure of sanctions which have been suspended or lifted shows that although these include a good part of the trade embargo, they have had no tangible effect on the banking sector. This demonstrates that even with a US return and full implementation of the nuclear deal, the most important hurdle of the country’s monetary and financial dealings with the rest of the world will continue to remain in place.
In addition, Iran has sustained substantial financial losses during the US withdrawal and America and its allies must compensate it in some way. Releasing Iranian assets in the US and preventing the issuance of judicial rulings in its courts to seize these assets in favor of real and legal plaintiffs can be considered as one way of doing this. If Iran does not make efforts to receive damages for the loss of benefits under the deal due to US withdrawal, this will upset the balance in favor of America.
The JCPOA has specific timelines and the normalization of Iran's nuclear program in the IAEA and the UN Security Council depends on these timelines and the successful implementation of the deal. Iranian negotiators must keep in mind that the US cannot delay the realization of rights pertaining to these set timelines by citing its withdrawal. Nevertheless, the author believes that the JCPOA has shortfalls which can be used by the other participants, the European troika in particular and the US should it return to the deal, at any time to delay the implementation of the deal without violating its provisions and face it with serious obstacles. This will disrupt any interests meant to be had in the deal within its set timelines.
As mentioned before, the US ability to legally activate the trigger mechanism upon return to the JCPOA is the most significant negative implication for Iran. Therefore, the Iranian negotiators should:
- Based on the experiences acquired in the JCPOA, either make the acceptance of a US return conditional on forgoing this legal possibility or by imposing stricter conditions over and above the mere non-committal attitude towards the nuclear deal by a participant. Assuming that the US will forgo this legal right under the deal, which is unlikely, the EU will still continue to have the same right.
- Or make it more difficult to activate the previous UNSC anti-Iran resolutions as a result of the trigger mechanism. Hence, the author’s practical suggestion is to replace the term “sanctions waiver” with the term “sanctions lifting” and eliminating the sentence “If the resolution described above has not been
adopted within 30 days of the notification” in paragraph 37 of the JCPOA dispute resolution mechanism.
Rushing a US return to the JCPOA will bring the IR of Iran face-to-face with a range of implications. Therefore, the Iranian negotiators must face the issue with great care and prevent such a rush. Assuming that a US return to the JCPOA nuclear deal is beneficial, which is seriously contested, one US strategy for its return is to issue a statement of return and discuss the quality of the lifting of sanctions in the Joint Commission. On the other hand, the IR of Iran must not consider the US statement of return as a complete return and activation of its rights under the deal. It should officially recognize this when the US has implemented its obligations vis-à-vis the lifting of certain sanctions, which will take nearly three months due to the complicated sanctions regime imposed by this country and requires the publication of numerous texts by OFAC.
In addition to the nuclear sanctions, a collection of non-nuclear sanctions under the headings of terrorism, human rights, and NPT, were also imposed on Iran by Trump’s executive orders, the continuation of which will nullify the lifting of nuclear sanctions. Therefore, it is paramount that all executive orders signed by Trump are canceled.