Improving the Joint Comprehensive Plan of Action
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There is significant precedent in American history for Congress and the White House to work together to renegotiate the terms of an international treaty or a non-binding agreement. Throughout American history, Congress has rejected or required amendments to more than 300 treaties and international agreements (of which about 80 were multilateral).8 This includes major bilateral and multilateral arms control and nuclear agreements during and after the Cold War. Our colleague at the Foundation for Defense of Democracies, Orde Kittrie, professor of law at Arizona State University and former lead attorney for nuclear affairs at the State Department, has studied the issue of congressional review of international agreements. His research found that presidents may argue that “the slightest change [to an agreement] … would unbalance the package and kill the treaty,” but that this has not been true in a vast majority of cases.9
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The Joint Comprehensive Plan of Action (JCPOA) negotiated between the P5+1 and Iran places termlimited constraints on Iran’s nuclear activities in exchange for the lifting of many of the most impactful global sanctions. However, the deal contains structural flaws that enable Iran to:
- Expand the pathways to a nuclear weapon, access to heavy weaponry, and ballistic missile technology during the duration of the agreement as a result of a series of sunset clauses;
- Build economic resiliency against sanctions pressure, diminishing Western leverage to address non-compliance and enforcement; and,
- Walk away from the agreement if members of the P5+1 attempt either to re-impose sanctions in a socalled “snapback” sanctions scenario or to impose non-nuclear related sanctions in response to Iran’s other illicit activities.
The sunset clauses—the fatal flaw of the JCPOA— permit critical nuclear, arms, and ballistic missile restrictions to disappear over a five- to 15-year period. Tehran must simply abide by the agreement to soon emerge as a threshold nuclear power with an industrial-size enrichment program. Similarly, it must only hang tight to reach near-zero breakout time; find a clandestine sneak-out pathway powered by easierto- hide advanced centrifuges; build an arsenal of intercontinental ballistic missiles; gain access to heavy weaponry like more sophisticated combat aircraft, attack helicopters, and battle tanks after the lifting of the U.N. conventional arms embargo after five years; and develop an economy increasingly immunized against future sanctions pressure. Iran can achieve all this without violating the agreement by simply waiting for the sunset dates to be reached. By cheating Tehran will only get there faster, for example, if it refuses to grant the IAEA physical access to suspicious sites and Washington can’t get European support to punish Iranian stonewalling.
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If past is prologue, even under the scenario in which Iran walks away from the JCPOA, Iran will likely escalate its nuclear program only incrementally not aggressively so as to avoid crippling economic sanctions or military strikes. Despite Iranian President Hassan Rouhani’s statement that if the West does not provide Iran with the nuclear deal it wants, Iran “will go back to the old path, stronger than what they [the West] can imagine,”27 Iran has historically moved cautiously.
For example, between 2008 and 2013, Iran only increased its operating centrifuges by an average of about 1,000 per year at the Natanz facility.28 During this five-year period, during which sanctions on Iran escalated significantly, Iran’s nuclear program expanded incrementally, as demonstrated in the chart above.29
While the increases over the five year period were concerning, Tehran was careful not to engage in massive nuclear escalation that could trigger more crippling economic sanctions or military strikes. Based on this history, it is reasonable to expect Iran to maintain this careful policy even if it walks away from the current deal and refuses to renegotiate based on Congress’ required amendments. Indeed, the risks are the same. A rapid breakout by Iran would likely lead to a military response, as presidents from both parties have repeatedly pledged to use military force if necessary to prevent an Iranian nuclear weapon. Iran knows that it would ultimately lose such a war.
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In this most likely scenario, after a congressional vote of disapproval, Iran could decide to implement certain nuclear commitments but choose not to implement others, thus creating diplomatic ambiguity among the P5+1. During the interim negotiations, Iran failed to implement certain commitments,35 possibly violated others,36 continued attempts to illicitly procure nuclear goods,37 and evade sanctions38 (including 10 days after the JCPOA signing, when Quds Force Commander Qassem Soleimani traveled to Russia in defiance of a U.N. Security Council travel ban39).
Should Iran implement certain nuclear commitments but choose not to implement others, especially commitments to cooperate with IAEA inspections and the resolution of concerns regarding the possible military dimensions (PMDs) of Iran’s program, diplomatic pressure on the United States would intensify. Iran’s compliance with certain commitments might still trigger U.N. and EU sanctions relief, which could sow confusion about P5+1 policy. Iran would also likely try to exploit this uncertainty to divide Russia and China from the West, and Europe from the United States.
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The JCPOA does not effectively and permanently block Iran’s multiple pathways to a nuclear weapons capability. Rather, it offers Iran a patient path. If Iran abides by the terms of the agreement, it can emerge in 10 to 15 years with a massive nuclear program, a short path to a nuclear bomb, intercontinental ballistic missiles, and a strong economy immunized against sanctions pressure. Specific terms of the current JCPOA, therefore, should be renegotiated such that the final agreement prevents Iran from acquiring a nuclear weapons capability.
Through a joint resolution of disapproval of the JCPOA, Congress can help the Obama administration and its successor negotiate and enforce a stronger nuclear agreement. In doing so, this Congress would be following a proud tradition of legislators who have rejected or insisted on amendments to more than 300 bilateral and multilateral treaties and international agreements, including major arms-control agreements reached with the Soviet Union at the height of the Cold War—at a far more dangerous time against a more menacing enemy who had thousands of nuclear tipped missiles aimed at American cities.
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Washington can use diplomatic persuasion and U.S. financial sanctions to keep European businesses out of Iran. If U.S. sanctions remain in place, few European banks will risk penalties or their ability to transact in dollars by re-entering the Iranian market. Even if Europe and other countries lift all their sanctions, Washington could revert to a pre-2010 dynamic in which Washington imposed unilateral sanctions and presented foreign companies with a choice of doing business in the United States or Iran. That was still a period of intense sanctions pressure on Iran as Treasury used designations of key Iranian economy actors and sustained outreach to the international business community to persuade financial institutions and major companies to cut their business ties with Iran. Washington would have difficult conversations with its allies about sanctions enforcement. Given the power of U.S. markets and the dominance of the U.S. dollar, however, which continue to demonstrate their global attractiveness as Chinese growth de-accelerates and international investors seek American market opportunities and dollar-denominated safe havens, most important foreign companies are likely to keep Iran at arm’s length.