Throughout his election campaign, from March to November 2016, Donald Trump declared that the nuclear pact with Iran was « a disaster, » « the worst deal ever negotiated, » and that if elected president his « Number-One priority » would be to dismantle it. After becoming President, Trump kept his word and on 8 May 2018 the US unilaterally withdrew from the Joint Comprehensive Plan Of Action (JCPOA).

Are Trump’s criticisms justified? When he states that the JCPOA, because of its “sunset” clause, does not prevent Iran from eventually acquiring nuclear weapons, he is correct. His accusation that the JCPOA has given Iran a mountain of cash that has been used to produce nuclear-capable missiles, finance terrorism and spread terror and chaos throughout the region is likely also accurate.

Was it therefore right to withdraw from the JCPOA and to impose unprecedented economic sanctions from November 2018 onwards, notably by limiting Iranian oil exports to the maximum? As a strong supporter of keeping one’s word and complying with international agreements, I must admit that I surprise myself by posing the question in a serious way. Clearly the answer will depend on the outcome. If it leads to Iran’s decision to withdraw from the NPT, as it has threatened to do on many occasions (see Appendix), or to a military confrontation, it would be a disaster. On the other hand, if it leads to the conclusion of a better and lasting win-win agreement between the US and Iran, President Trump will be praised for his strategy. As we shall see, the developments over the past year are not grounds for much optimism. Yet there is still a chance that this manufactured crisis can be a catalyst for progress.

What was Iran’s response to the US withdrawal from the JCPOA?

For a full year after the United States exited the JCPOA and imposed new sanctions, Iran continued to strictly abide by its obligations. In May 2019 Iran signalled that in 60 days’ time it would start to gradually move out of compliance with the JCPOA limits if the EU and other partners did not also meet their commitments.

Indeed, both the JCPOA and UNSC Resolution 2231 of 20 July 2015 endorsing it, specify that if other parties do not comply with the agreement in whole or in part, Iran will not be bound to respect its commitments in whole or in part. As a result, in the summer of 2019, Iran first enriched Uranium at 4.50% above the 3.67% threshold and then accumulated a stockpile of enriched uranium exceeding the 300 kg limit.

What was the European Union’s response ?

The EU has been trying by all means to save the JCPOA by circumventing US sanctions. In January 2018, it created a barter mechanism called INSTEX (Instrument in Support of Trade Exchanges) to allow EU companies to trade with Iran. In addition, in early September 2019, France proposed that Europe grant Iran a credit line « of about $15 billion over four months » repayable through future oil sales. Nevertheless, the U.S. threat to sanction companies doing business with Iran prompted many major European companies (including Airbus, Total, German and French car companies, Siemens, and Danish ship operator Maersk) to stop trading and investing in Iran.

At the end of September 2019, at the UN General Assembly in New York, President Macron made a concerted effort to arrange a meeting between Trump and Rouhani. The « Macron plan, » to the best of my understanding, can be summed up in 4 points:

1. We must ensure that Iran will never have the nuclear weapon;
2. Iran must take concrete steps to help bring an end to the civil war in Yemen;
3. Iran must guarantee freedom of movement in the Strait of Hormuz;
4. The sanctions imposed on Iran must be lifted.

Rouhani and Iranian Foreign Minister Javad Zarif responded to Macron that the United States must first publicly promise to lift sanctions. Rouhani said that he was not interested in the type of flashy summit that Trump had with the North Korean leader, Kim Jong-Un. On Thursday 26 September, Rouhani told a press conference: “What we believe in is that the JCPOA is not a maximum form of agreement. It is what was possible at its time. Now, if we wish to take a step above and beyond the JCPOA, that is possible. But the proper foundation would lie upon the full and exact implementation of the JCPOA first.«  In plain language, this means lifting the sanctions.

While Rouhani’s statement is encouraging, the US has maintained a hard line against Iran, with President Trump declaring at the UN: “No responsible government should subsidize Iran’s bloodlust” and “As long as Iran’s menacing behavior continues, sanctions will not be lifted—they will be tightened. »

As is well known, the JCPOA contains a very unique dispute resolution mechanism called « snap-back sanctions ». If any of the P5+1 states considers that Iran is not meeting its commitments under the JCPOA, and that the issue constitutes a significant non-performance, it could, after several attempts at conciliation at different levels of power, refer the matter to the UN Security Council. The UNSC would then have to decide if it confirms the renewal of the lifting of sanctions adopted under former legally binding UNSC resolutions. If in such a case the US uses its veto right, all such resolutions would instantly become applicable again with their procession of international sanctions.

Until recently the EU, in order to save the JCPOA, has resisted engaging the « snap-back » procedure considering that Iran’s breaches were not « significant » and could still be reversed.

This wasn’t possible anymore after that, in November 2019, Iran not only operated a cascade of 60 IR-6 centrifuges at Natanz, started the development of more efficient IR-9 centrifuges, but also began enriching uranium in the underground Fordow facility.

Therefore, on 14 January 2020 the EU triggered the JCPOA dispute resolution mechanism while making clear that they will not rush to bring the matter to the Security Council. « European diplomats stressed the move was not being taken to reimpose sanctions, but to try to find some way to press Iran to come back into compliance with the deal. »

However, adding to the difficulties facing the EU are some time-sensitive provisions in the agreement itself. In a speech delivered on 11 November 2019, Rouhani pointed out that if Iran remains in the JCPOA until October 2020 and avoids provoking snap-back sanctions, the UNSC resolutions prohibiting it from buying and selling heavy weapons and missiles will come to an end. « By remaining in the deal, we would reach a huge political, defensive and security goal (in 2020) … It would be a huge political success. » If the EU wants to avoid this, it will have, in the coming months to refer the matter to the Security Council for a vote against the further suspension of sanctions under previous UNSC resolutions.

Such a course of action by the EU would not be without risks. Russia and China may well consider that Iran’s violations of the JCPOA were the consequence of the United States’ unilateral withdrawal from the agreement and decide not to implement previous legally binding UNSC sanctions against Iran. This would create a damaging precedent which could irreversibly undermine the credibility and effectiveness of the UNSC in preventing an aggravation of « any threat to the peace, breach of the peace, or act of aggression » as provided under Chapter VII of the UN Charter.

Despite the EU’s persistent attempts to salvage the JCPOA, President Trump’s intransigence and Iran’s apparent determination to continue breaching provisions of the agreement have left the Europeans with few good options. In my view, there is thus no alternative to behind the scene good faith negotiations with all the parties to hammer out a new agreement.

What are the prospects for negotiations today?

President Trump’s « maximum pressure policy » against Iran continues to cause considerable damage to the country’s economy. In addition to imposing bilateral sanctions, the United States has succeeded in preventing its European allies from trading with Iran. As could be expected, Iran has chosen to respond with a « maximum resistance policy. »

Unfortunately, US-led economic sanctions are hurting the Iranian people much more than they harm the Revolutionary Guards and high-placed members of the regime. President Trump clearly hopes that the economic pain endured by ordinary Iranians will provoke internal opposition and undermine the country’s leadership, forcing it to negotiate a more favourable nuclear deal. And, indeed, internal discontent in Iran has been running high. Protests that began on 15 November 2019 in reaction to a huge increase in fuel prices spread within hours to 21 cities. The government response was swift and brutal. According to media reports, some 1,500 Iranian citizens were killed and many others jailed and tortured in the ensuing crackdown.

Given the level of tension and mistrust between the two nations, one must also consider the possibility of a military escalation. While Iran may consider itself to be safe from a full-fledged ground invasion, it is potentially vulnerable to a bombing campaign, maritime blockade, or large-scale cyberattack. Iran’s response has been to demonstrate – by attacking oil tankers in the Persian Gulf and oil installations in Saudi Arabia and by shooting down a US surveillance drone with a surface to air missile – that it has the means to cause serious disruption in the region. Thus far, Iran’s military brinksmanship appears to have been an effective deterrent. In June 2019, President Trump chose at the last minute to cancel a planned air strike on targets in Iran in retaliation for the downing of the American drone, thus averting a major escalation.

Under these conditions it is understandably difficult for Iran to negotiate with the United States publicly. The country’s leaders, and above all Rouhani, are at pains to avoid any actions that could be perceived as a capitulation to US pressure. It is essential that the United States and Iran, with the active cooperation of the EU, Russia and China, negotiate away from the limelight.

The basic outlines of any new agreement are clear: stronger assurances that Iran will not produce nuclear weapons in the long term and a credible guarantee that US sanctions will effectively be lifted as long as Iran complies with its obligations. This new agreement should also provide for a number of measures that are not included in the JCPOA, in particular :

• That Iran ratify the Comprehensive Nuclear Test-Ban Treaty (CTBT), which should not be a problem since in the JCPOA « Iran reaffirms that under no circumstances will Iran ever seek, develop or acquire any nuclear weapons. »

• That Iran place all its nuclear materials and facilities under « irreversible IAEA safeguards. »
• That Iran’s Majlis ratify the Additional Protocol to its Comprehensive Safeguards Agreement with the IAEA without further delay.

Furthermore, as US Assistant Secretary of State for International Security and Nonproliferation Christopher Ford has stated, any comprehensive deal must include “the requirement for robust IAEA verification and monitoring, including authorities that go beyond Iran’s Comprehensive Safeguards Agreement and the Additional Protocol to include additional access rights.«  This is a position I have long advocated for any state found in non-compliance with its Safeguards Agreement. These extended IAEA access rights would be terminated as soon as the Agency has drawn the « broader conclusion » that there are no undeclared nuclear material and activities in the State and that its declarations to the Agency are correct and complete. As Assistant Secretary Ford stated, “after full disclosure of its past weapons program and ceasing its enrichment work, Iran would be entitled and encouraged to enjoy more comprehensively the benefits of peaceful applications of nuclear technology. »

The best guarantee that Iran’s nuclear programme is and will remain exclusively peaceful would be for Iran to adopt the so-called « nuclear gold standard,” a legally binding obligation to foreswear enrichment and reprocessing technology. Since 2003, however, President Rouhani has repeatedly stated that Iran will never give up its right to enrich uranium. This reality defines the outer parameters of how a new agreement with Iran might augment the constraints contained in the JCPOA.

It might nevertheless be possible to find a more acceptable formula to achieve a similar goal without Iran having to formally renounce this right. Iran could, for example, commit to suspend all nuclear fuel-cycle activities and mothball its conversion and enrichment facilities as long as it is able to supply its nuclear power plants with fresh fuel elements without undue delay and at a fair market price.

In exchange the US would commit not to restrain Iran’s export of gas and oil under any pretext while retaining the right to impose other sanctions for reasons unrelated to Iran’s nuclear programme. In order to avoid a repetition of the unilateral withdrawal from the JCPOA by the Trump Administration, and given the lack of trust between Iran and the United States, the new agreement might have to take the form of a treaty approved by the US Senate. It is encouraging that this point has been acknowledged by Christopher Ford, who stated on 19 September 2019 that :

We would be open to concluding a successor deal with Iran in the form of a legally-binding agreement. The JCPOA was negotiated as no more than an arrangement of political commitments. And indeed, from day one […] the mere “plan of action” nature of the JCPOA undermined its ability to inspire confidence over time. […] Any such agreement would presumably also include express withdrawal procedures and timelines, which would regularize and provide predictability even in the event that any party decided to reassess its course in the future.

During negotiations, Iran could implement confidence-building measures such as reducing its stock of enriched uranium to the level and grade required by the JCPOA and closing the underground Fordow enrichment facility. In return, the US could partially suspend sanctions limiting Iranian oil exports. These measures are all the more achievable because they are easily reversible.

The « New JCPOA » would have to be strictly limited to Iran’s nuclear programme, since verification would be implemented by the IAEA. Other points related to Iran’s foreign policy and military involvement in the region raised by Macron (to which the United States will no doubt want to add the question of limiting the development of ballistic missiles), should be the subject of a separate political agreement possibly involving other partners such as Saudi Arabia.

If the Trump Administration refuses to negotiate a new nuclear agreement as long as Iran doesn’t commit to stop supporting Hezbollah, get out of Syria, retract from Iraq, and end human rights abuses, than there will be no « New JCPOA » and the situation will only get worse.

On the contrary, if a « New JCPOA » can be concluded, President Trump would be able to say that he did better than President Obama and that he was therefore right to withdraw from the original agreement. Such an outcome could be seen as a major political victory for Trump – which may be an inducement for him to show some flexibility in the negotiations. A « New JCPOA » would certainly require support by other permanent members of the UNSC at a time when there is a great deal of tension among some of these nations. There is, however, one thing on which they can all agree: they do not want to see another country follow North Korea’s example of withdrawing from the NPT and getting the bomb.

For any negotiation to succeed, the outcome must be perceived as a win-win for both parties, and both sides must be willing to negotiate simultaneously and in good faith. Unfortunately, these conditions are not being met today. To reach that stage will require a concerted effort from the EU, Russia and China to convince the US and Iran that it is in everyone’s best interest not to miss any opportunity to make progress in resolving the Iranian nuclear crisis now.

Pierre Goldschmidt

Appendix

The spectre of NPT withdrawal

Since 2003 Iran has threatened to withdraw from the NPT on a number of occasions. In May 2006, in a letter to United Nations Secretary General Kofi Annan, the Iranian parliament threatened to force the government to withdraw from the NPT if the United States and its allies continued pressuring Tehran to suspend uranium enrichment.

Iran has since issued several similar threats, in particular after the United States’ unilateral withdrawal from the JCPOA in May 2018. Most recently, on 20 January 2020, after Britain, France and Germany declared Iran in violation of the JCPOA and launched the dispute mechanism that could eventually see the matter referred back to the Security Council and the re-imposition of U.N. sanctions, Iranian Foreign Minister Javad Zarif, said : “If the Europeans continue their improper behaviour or send Iran’s file to the Security Council, we will withdraw from the NPT.”

Because an Iranian decision to withdraw from the NPT could trigger a devastating war in the Middle East or, at the least, lead to further international economic sanctions against Iran, it may be that the Islamic Republic has little to gain from such a move, at least for the time being. Even if Iran remains a party to the NPT, its repeated threats to withdraw may raise concerns that it is seeking to become a nuclear threshold state. These concerns could prompt Iran’s neighbours to launch their own secret nuclear weapons programs which, when eventually detected by the IAEA, could lead them to withdraw from the NPT.

One should not forget that in March 2018, Saudi Arabia’s Crown Prince Mohammed bin Salman declared that the Kingdom “does not want to acquire any nuclear bomb, but without a doubt if Iran developed a nuclear bomb, we will follow suit as soon as possible.” Given the availability of technical support (e.g., from countries such as Pakistan) to begin developing nuclear enrichment capabilities, such statements should not be regarded lightly.

“Several countries have missiles with nuclear warheads, not one or two. But [they tell us that] we can’t have them. This I cannot accept.”

This was clearly a reference to Israel and its undeclared nuclear arsenal. While President Erdoğan’s statement may have been political posturing, it is an indication that the situation in Turkey may be more volatile than in the past and could change quickly if, for instance, Iran were to withdraw from the NPT.

Because the withdrawal from the Treaty by one more state could set in motion a chain of events leading to the unravelling of the non-proliferation regime, it is imperative to put in place comprehensive measures to deal preventively with this risk. I have made very detailed proposals to reach that goal.

But in the short term the priority should be on reaching a new agreement with Iran.