Don’t Believe the Hype: Trump Is Not “Decertifying” the Iran Deal

If you’ve been reading the papers, or spent any time online, you’ve probably seen the banner headlines and dire warnings announcing that the President has decided to “decertify” the 2015 Iran nuclear deal, the Joint Comprehensive Plan of Action (JCPOA).  (The JCPOA is the agreement negotiated by the United States, the UK, Germany, France, Russia, China, the EU, and Iran to verifiably cut off all of Iran’s potential pathways to a nuclear weapon in exchange for relief from certain nuclear-related sanctions.)

It’s not true. Indeed, the President does not have any legal authority to “decertify” the JCPOA, whatever that would even mean. Moreover, as Tess Bridgeman explained in great detail here the other day, there are many other things that Trump does have the authority to do respecting the JCPOA but that he is, in fact, not doing, notwithstanding what you might read in countless misleading and imprecise accounts. [See also Tess’s post this morning, immediately below, which covers some of what I discuss here.]

For example:

— The President is not withdrawing the United States from the deal (not yet, anyway).

— Nor, as the New York Times headline (among many others) ominously announces, is Trump refusing to certify the JCPOA, whatever that would entail.  (In fact, there’s no such thing as certifying or not certifying the deal.)

— He is not using the delegated statutory authorities that the President has long had to reimpose the nuclear sanctions on Iran that Presidents imposed before the JCPOA. President Obama lifted, or waived, those sanctions after Iran undertook major (and in important respects irreversible) steps to significantly constrain its nuclear program and submit to an extremely robust monitoring and transparency regime. As a matter of U.S. domestic law, the President could remipose them, although such action would constitute the United States’ unilateral breach of the JCPOA. (As I have explained elsewhere, such a breach would not violate international law because the JCPOA is not binding on the U.S. (or the other parties) as a matter of international law—which is why President Obama was able to have the United States agree to it in the first place without Senate ratification or congressional authorization.) Notably, however, Trump is not doing so.[1]

— The President is not certifying that Iran has done anything to breach the JCPOA.

— Indeed, Trump is not “certifying” anything.  Instead, he is declining to certify one thing (see below).

– The Presdient is not even refusing to certify that Iran has complied with the JCPOA—to the contrary, the President reportedly will certify, or at a minimum his officials are likely to confirm what virtually everyone agrees to be the case, namely, that Iran is complying with its obligations under the JCPOA.[2]

— Trump is not identifying any material change in circumstances or new information since his last set of certifications to Congress (in July) pursuant to the Iran Nuclear Agreement Review Act of 2015 (INARA).

— He is not doing (or declining to do) anything that would require Congress to reimpose, or “snap back” into place, the nuclear sanctions against Iran.

— Nor is he doing (or declining to do) anything that would even require Congress to invoke the INARA’s highly expedited procedures for considering whether to “snap back” sanctions.

So, if those are among the important things that Trump is not doing, what is he doing, and to what effect?

As he mentioned in his speech this afternoon, President Trump is refusing, this weekend (the statutory deadline is the 15th), to make one particular INARA certification that he made in April and in July–not directly involving Iran‘s compliance with the deal, but simply a certification that the U.S.’s own “suspension of sanctions related to Iran pursuant to the agreement” is: (I) “appropriate and proportionate to the specific and verifiable measures taken by Iran with respect to terminating its illicit nuclear program; and (II) vital to the national security interests of the United States.”  Trump is declining to make this particular certification to Congress, notwithstanding Secretary Mattis’ recent testimony that it is in the national security interest of he United States to “stay in” the JCPOA.

What is the legal impact of Trump’s refusal to make this discrete certification about the relationship between sanctions suspension and our national security?  Merely that, under INARA, it frees up Congress to circumvent its ordinary, internal legislative procedures for considering a new statutory “snap back” of sanctions. It is noteworthy, however, that Trump is not urging or recommending that Congress actually use such “fast track” procedures, let alone recommending that Congress approve a “snap back” of the sanctions. To the contrary, by all accounts Trump and his officials do not recommend that Congress enact such a “snap back,” just as Trump himself is not exercising his own authority to lift the sanctions suspension.  And there’s no indication that Congress is inclined to do anything of the sort.

Therefore, not only is the President’s new refusal to certify that the U.S. sanctions suspension is “vital,” and “appropriate and proportionate,” an extremely narrow exception to his certifications; more importantly, it will also have no legal effect, either under domestic law or with respect to the continuing operation of the JCPOA.

Once all this is understood, one can see clearly that this gambit is nothing much more than a public relations ploy—what Tess called a “subterfuge”—to give cover to Congress to do something that is principally unrelated to the JCPOA and INARA.  As Secretary of State Tillerson described it in a press briefing last night, Trump is asking Congress to enact an amendment to INARA that would automatically impose severe sanctions on Iran if that nation tripped certain “trigger points,” most of which would be unrelated to the JCPOA’s requirements, such as support for Hezbollah or the Houthis, or development of an ICBM.  In theory, such a new amended law, requiring automatic sanctions if those “trigger points” are tripped, might prompt the state parties to renegotiate the JCPOA.  As Tess has explained, however, that is fantasy–something that will never happen.  The effect of such a statutory amendment, then, would only be to increase the odds of a unilateral U.S. breach of the JCPOA in the future, something that would be deeply harmful to the national security.

And here’s something else–the truly important and disturbing aspect of today’s announcement:  Unfortunately, Trump threatened that “in the event we are not able to reach a solution working with Congress and our allies,” then he will “cancel[]” the U.S.’s “participation” in the JCPOA, an outcome that would be calamitous.

Regardless of the merits of the President’s proposed statutory amendment, however, and of the President’s threat of a later U.S. breach of, or withdrawal from, the JCPOA, this much is clear:  What the President does or does not certify this week is truly beside the point.  It’s a feint; the real danger consists of the President’s threat to withdraw from the JCPOA, which is unrelated to any certification or lack thereof.

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[1]  He is instructing the Department of the Treasury to impose new sanctions on Iran’s Islamic Revolutionary Guard Corps, but those would be unrelated to the JCPOA and Iran’s nuclear activities.

[2] The President’s “New Strategy on Iran,” just released by the White House, states that “Iranian military leaders have stated publicly that they will refuse to allow International Atomic Energy Agency (IAEA) inspections of their military sites,” which would violate the JCPOA and its Additional Protocol. Note, however, that even this is not an accusation that Iran has actually refused the required IAEA inspections. And for good reason: As the Carnegie Endowment for International Peace has explained, the IAEA’s quarterly reports have specifically confirmed that its personnel have been given the required access rights:  “It is true that Iranian officials have publicly denied that the IAEA would be allowed to inspect self-declared military facilities. It is also accurate that Iran has permitted such access in the past and that the IAEA has categorically rejected any such limitation, as Director General Yukiya Amano stated flatly to the Associated Press that the agency ‘has access to [all] locations without making distinctions between military and civilian locations.’ Access to military sites could become an issue in the future, but in advance of any request, it would be wrong to assume that Iran will block access.”

In his speech this afternoon, President Trump also mentioned that “on two separate occasions, [Iran has] exceeded the limit of 130 metric tons of heavy water.”  That is correct:  The JCPOA requires that heavy water in excess of 130 metric tons “be made available for export to the international market . . . and delivered to the international buyer,” and as the Carnegie Fund points out, in February 2016 Iran exceeded the limit by roughly 900 kilograms, i.e., by about 0.7 percent, and in November by roughly 100 kilograms, or less than one-tenth of one percent.  Iran had adopted what Carnegie calls a “specious” reading of the agreement that because there were no potential buyers, it could retain any excess.  The other parties to the JCPOA, however, rejected this reading, and, in response, within several days “Iran shipped heavy water to Oman for storage, where it was verified by the IAEA, thereby bringing Tehran back into compliance with the JCPOA limit.”  This example, if anything, shows how the agreement has successfully worked. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).