Muhammad Sahimi and Katariina Simonen
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 but, regardless of the amount, whatever Iran will eventually receive will be 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 he has been elected, will he tear up the nuclear deal with Iran? More importantly, can he actually do that? And, assuming that he will deliver on his promise, what will be the consequences for the United States, its European allies, and the Middle East? Before addressing these important questions, it is important to discuss an important aspect of the JCPOA that has not been discussed previously.
Trump’s populist regarding the JCPOA reveals another aspect of the agreement, which is its non-optimality. The non-optimality means that the agreement’s compliance pulls 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 lies in its fundamentally-coerced character. Iran, its people, and its nuclear negotiators were facing military threats by U.S. and Israel. Moreover, the “toughest economic sanctions in history” had also been imposed on Iran by the U.S. 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 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 U.S. in this case. So, Trump´s rhetoric and populism are not surprising in this context.
The U.S. 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 U.S. resulting from a normal constitutional election 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 to the Nuclear Non-proliferation Treaty that Iran had signed in 1968, and ratified in 1970. The same is true about Russia beginning in 1992, 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, this must be an exceptional principle for exceptional circumstances. A change of government resulting from a normal election 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 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 Mr. Trump and his team should keep in mind. US unilateralism will set a dangerous precedent for others to follow.
Moreover, given that the JCPOA is a multilateral agreement, with the U.S. being only one party to it, other signatories´ interests will also be adversely affected if the U.S. acts alone. Of course, nothing can prevent Trump from negotiating his own additional separate deals with Iran, if Iran is inclined to do so.
Proponents of voiding the JCPOA might point to the fact that Trump has announced that the U.S. 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 U.S. can do is unilaterally withdrawing from the JCPOA and accept its consequences. What are such consequences?
Setting aside the legal ramifications of such a move for the U.S., 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 re-affirmed 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 repeated 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 does 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, 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. It is widely believed that Trump will nominate retired Marine Gen. James Mattis as the next Defense Secretary. If that is the case, then, we should keep in mind that he is a man who 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. 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 U.S. president who has no experience in foreign policy, the Middle East, the Islamic World, and Iran?
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 weigh its policy toward Iran carefully and not give an excuse and motivation to Iran’s hardliners to defeat Rouhani in his bid for re-election. Does the United States prefer to deal with Rouhani and his team, or an ultra-hardline administration far worse than the Ahmadinejad administration?