The Iran Nuclear Deal After Rouhani’s Announcement

On Wednesday, one year after President Donald Trump withdrew the United States from the Iran nuclear deal, Iranian President Hassan Rouhani announced that Iran would no longer adhere to two of its nuclear commitments – specifically, it will no longer abide by the limits on the amounts of low-enriched uranium and excess heavy water that it can stockpile in the country. It’s important to note, however, that it may take some time before those limits are reached given Iran is currently under the required caps. If the remaining participants in the Joint Comprehensive Plan of Action (JCPOA) cannot deliver the economic benefits Iran believes it was promised within 60 days – in particular protecting its oil and banking sectors – Iran also says it may resume enriching uranium at levels higher than the 3.67 percent cut-off required by the deal or it may attempt to resume work on its original, plutonium-producing design of its heavy water reactor.

Iran’s announcement was a long time coming, given the United States abrogated all of its own JCPOA commitments a year ago. The Trump administration has been steadily re-imposing sanctions it lifted pursuant to the JCPOA, as well as adding new ones (including a new round of sanctions on Iran’s metal exports within hours of Rouhani’s remarks). Still, Iran’s announced steps are clearly concerning, especially in the context of the escalatory posture the Trump administration has been taking vis-à-vis Iran across political, economic, and even military domains. But what’s the real import of Iran’s announcement from a nuclear proliferation perspective? Does it put Iran in breach of its JCPOA commitments? And what does it say about the future of the Iran deal?

What’s the significance of this announcement from a nuclear proliferation perspective?

Compared to the steps Iran could have taken, the initial measures announced on Wednesday come as somewhat of a relief. For example, kicking out IAEA inspectors, or ceasing performance of any of the JCPOA’s significant monitoring, transparency, or verification requirements would have been of far more immediate and serious concern to the international community. These are essential components to ensuring that Iran’s nuclear program remains exclusively peaceful and that all of its nuclear materials and processes are accounted for. In contrast, what Iran did announce – exceeding its 300 kilogram low-enriched uranium cap (down from about 10,000 kilos it had to get rid of before getting any sanctions relief under the JCPOA) and the 130-ton excess heavy water stockpile limit – while of course unfortunate and escalatory – are of less pressing immediate concern.

This is in part because Iran’s current stockpiles fall somewhere below the JCPOA’s limits (Iran is currently in compliance). That means it will take some additional period of time – and Iran can control how much time – before those limits are reached. In addition, because of the JCPOA, as of today we can be confident that Iran is at least one year from having enough fissile material for a nuclear weapon, and that it hasn’t re-started any of the processes that would be needed to get there. Unless inspectors are kicked out, we will know if and when that changes. Thus, Iran appears to have carefully chosen which of its commitments it would suspend. It has given itself flexibility in whether or not it actually ends up going over the deal’s limits, while creating pressure on other actors in the meantime. That said, the possibility that Iran exceeds the limits relatively quickly, at least by a small amount, shouldn’t be discounted.

More important, it’s not at all clear the European JCPOA participants will be economically able or politically willing to meet Iran’s demands to head off the more concerning enrichment-related measures Iran might take, especially within 60 days. Europe is being put in the unenviable position of essentially choosing not to comply with new and re-imposed U.S. sanctions and risk the consequences, or watching the Iranian nuclear threat re-emerge as the country takes increasingly escalatory steps. (I need not reiterate here that it didn’t need to be this way – the JCPOA was succeeding at containing Iran’s nuclear program, the sole purpose of the arrangement, as verified repeatedly by the IAEA.) The U.S. has lost any credibility in calling for Iran to remain in compliance after so brazenly breaking its own commitments, so Europe is left to try to avert disaster alone.

On Twitter, Rouhani said that “win-win conditions will be accepted” in negotiations with the remaining JCPOA participants. But if that does not occur, the follow-on steps Iran has foreshadowed are more concerning: enriching uranium above the JCPOA’s 3.67 percent limit and altering the re-design work on its heavy water reactor. But whether these steps end up posing a serious proliferation concern will depend on the specific steps Iran actually takes if and when that time comes (there’s a big gulf between 4 percent enrichment and 19 percent enrichment, for example), and whether IAEA inspectors remain in place to verify all of Iran’s activities. Moreover, given Iran had to fill the core of its Arak heavy water reactor with concrete to gain initial sanctions relief under the JCPOA, it’s not clear precisely how it would be able to make good on reverting to its original, proliferation-sensitive design.

Is Iran now in breach of its JCPOA commitments?

No, not as of today. Iran hasn’t exceeded any JCPOA limits yet, but it has threatened to do so. This means it remains in compliance with the letter of the JCPOA. And as noted above, it may take some time to exceed the stockpile limits for low-enriched uranium and heavy water. Once those limits are exceeded, however, it will arguably be in violation of those two JCPOA commitments.

That said, Iran has a non-frivolous argument that even those actions would be JCPOA-compliant in a technical sense. Paragraph 26 of the JCPOA states, in relevant part, as follows:

The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realisation of the full benefit by Iran of the sanctions lifting specified … The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions. Iran has stated that it will treat such a re-introduction or re-imposition of the sanctions specified in Annex II, or such an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part.

The basic idea here is reciprocity and aligned incentives (key pillars of the whole JCPOA): in the event that the U.S. fails to uphold its sanctions-related commitments, Iran would fail to uphold its nuclear ones. The United States has re-imposed the sanctions it relieved pursuant to the JCPOA and imposed a raft of new sanctions across a range of sectors. And it did so when Iran was upholding its nuclear commitments. So can Iran, in response “cease performing” in “whole or in part” its JCPOA commitments?

The language of paragraph 26 is a bit squishy. The formulation “Iran has stated” at the beginning of the final, and operative, sentence clearly puts the other JCPOA participants on notice of Iran’s intentions, but does it amount to a meeting of the minds that Iran is permitted to take these actions? It arguably does not. This is in part because it was foreseen that there may be disagreements about what it meant for the United States to impose new nuclear-related sanctions. For example, would sanctions targeted at a sector subject to relief under the JCPOA, but for ostensibly non-nuclear reasons, count? With this formulation, the United States also avoided giving Iran a pass on ceasing its performance of nuclear commitments if the U.S. had suspended some of its sanctions commitments for legitimate and proportionate reasons – such as responding to Iranian non-compliance

But in today’s situation, it is abundantly clear that there are no such fine lines to parse. The United States has in fact ceased performing its own JCPOA commitments – in every imaginable way and purposefully. It did not do so in response to Iranian non-compliance. This adds some weight to Iran’s case, but given the wording of paragraph 26 it still does not make it a terribly strong one.

What does Iran’s announcement say about the future of the JCPOA?

At bottom, Iran has set an initial 60-day clock for getting economic concessions from its remaining JCPOA partners. It seeks “win-win” conditions – economic benefits and protections for its oil and banking sectors in exchange for either a return to full JCPOA implementation or forestalling the more serious measures it outlined that it might take (it’s not entirely clear which). It’s possible that Europe – and China and Russia, though this announcement is mostly targeted at the United Kingdom, France, Germany and the European Union – can deliver just enough for Iran to save face and forego the more dramatic steps it has foreshadowed. Or perhaps, that there is enough progress in negotiations to delay the stated 60-day implementation of more seriously concerning actions.

But the opposite is also possible. And with the United States and Israel as likely spoilers to a negotiated solution to the current crisis, we could see Iran taking the more proliferation-sensitive steps it foreshadowed 60 days from now.

That said, given Iran could have announced more concerning measures, and will at minimum delay the more troubling ones that it threatened, it appears there is currently a path for climbing down from escalation. If the relevant actors within Iran’s leadership were truly bent on walking away from the JCPOA and ramping up their nuclear program in earnest, they could have done so with this week’s announcement (or before). They also could have stopped implementing their Additional Protocol to their IAEA Safeguards Agreement (as they did about a decade ago) or otherwise cease implementing transparency and verification measures.

But Iran has allowed the eyes of the international community to remain fixed on their nuclear activities, at least for now. This could be seen as a sign that at least some key actors in the Iranian government are holding back the hardest of the hardliners and trying to forge a more cautious path of continued international engagement. That is, at least until the next U.S. election or a serious military provocation calls off all bets.

 

IMAGE: High Representative of the European Union for Foreign Affairs and Security Policy Federica Mogherini and Iranian Foreign Minister Mohammad Javad Zarif attend a final press conference of Iran nuclear talks in Vienna, Austria on July 14, 2015. (Photo by JOE KLAMAR/AFP/Getty Images)

 

About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).