On Nov. 29, Iran and the P5+1 (China, France, Russia, the United Kingdom, and the United States, plus Germany) are set to meet in Vienna for a seventh round of talks on reviving the 2015 Iran nuclear deal – the Joint Comprehensive Plan of Action (JCPOA) – marking the first time the two sides will convene since the election of Iranian President Ebrahim Raisi in June. Although Raisi and U.S. President Joe Biden have both pledged to return to the JCPOA, Tehran’s delay in resuming negotiations and refusal to engage directly with U.S. counterparts have frustrated the Biden administration, which has been exploring a “Plan B” in the event that talks fail.
Despite early speculation that the consolidation of hardliner control in Tehran would hasten the JCPOA’s revival, Iran’s presidential transition and domestic politics have led to a five-month hiatus in talks. Tehran’s main concern is that there is little to stop the United States from withdrawing from the deal again. As a result, the Raisi administration has demanded the immediate removal of Trump-era sanctions and is seeking guarantees that Washington will not abandon a future nuclear agreement. On the other hand, the Biden team’s insistence that it will lift sanctions only after Iran returns to full compliance with the JCPOA’s nuclear constraints – even though Iran technically remains a participant in the accord and the United States is not – and congressional opposition to returning to the JCPOA’s original terms have hindered efforts to negotiate a pathway back to the deal.
In the meantime, Iran’s steady nuclear advances in breach of the JCPOA’s limits – an apparent bid to build negotiating leverage – risk scuttling the talks altogether. According to the latest report from the International Atomic Energy Agency (IAEA), the United Nations’ nuclear watchdog, Iran continues to produce and stockpile enriched uranium at 60 percent levels (bringing it closer to the 90 percent threshold considered to be weapons-grade), produce uranium metal (which can be used to make the core of a nuclear explosive device), and deny IAEA inspectors access to certain sites. Although uranium enriched to 60 percent cannot be used for nuclear weapons, the knowledge gained from enriching at higher levels, operating advanced centrifuges, and producing uranium metal cannot be erased, potentially rendering some of the nonproliferation benefits of the JCPOA obsolete. As U.S. Special Envoy for Iran Robert Malley said last month: “This is not a chronological clock, it’s a technological clock. At some point, the JCPOA will have been so eroded because Iran will have made advances that cannot be reversed.”
With the JCPOA teetering on collapse, it remains in everyone’s interest to find a diplomatic resolution. So what needs to happen to break the deadlock?
Prospects for a Clean Return
All told, the JCPOA was working as intended before the Trump administration’s unilateral withdrawal in 2018. Contrary to expectations in some quarters that Tehran would cheat on its commitments, and despite various Trump administration allegations of Iranian non-compliance, the IAEA, U.S., and Israeli intelligence agencies all confirmed that Iran complied with its commitments under the deal – and even continued to do so for a year after the U.S. exit.
Yet after a year of the Trump administration imposing new sanctions (despite Iran continuing to fulfill its nuclear commitments) in its so-called “maximum pressure” campaign, Iran began scaling back its own compliance with the JCPOA, abandoning many of the deal’s restrictions by the beginning of 2020. Following the Israeli assassination of top Iranian nuclear scientist Mohsen Fakhrizadeh, Tehran ramped up its uranium enrichment to 20 percent. Iran then ramped up enrichment to 60 percent, its highest level ever, in response to reported sabotage at the Natanz enrichment site, for which Israel is believed to be responsible. Rather than rolling back Iran’s nuclear program, pressure and sabotage have pushed Tehran to develop more advanced capabilities with even less transparency.
Iran’s continuing nuclear progress makes a quick, clean return to the JCPOA and the verification and monitoring measures it entails all the more crucial. Although it is not clear whether Raisi will pick up where the talks left off under his predecessor, Hassan Rouhani, or seek to drive a hard bargain in an attempt to extract concessions and run the clock, the reality is that it will be difficult to overcome differences that stand in the way of a mutual return to compliance with the JCPOA. Biden’s insistence that Iran explicitly agree to negotiations for a “longer and stronger” agreement after restoring the JCPOA – extending and lengthening restrictions on Iran’s nuclear program, also called a “JCPOA plus” – will be even harder to achieve under Raisi, who may be less inclined to cooperate with the United States than Rouhani.
Conversely, Tehran’s demand for an ironclad guarantee that Washington will not abandon the deal again will be impossible for Biden to meet, notwithstanding his pledge on the margins of the G20 summit that the United States commits to “stay in full compliance, so long as Iran does the same.” In 2015, Iran’s parliament passed a bill approving the JCPOA and the U.S. Congress reviewed the JCPOA pursuant to the Iran Nuclear Agreement Review Act (INARA). For the United States, however, the deal represented a non-binding set of political commitments rather than a legally-binding agreement subject to U.S. Senate advice and consent. And regardless of whether a new accord is legally binding, under U.S. law the president would likely retain the authority to withdraw the United States without congressional approval.
What’s more, the labyrinth of sanctions related to the JCPOA and beyond – both economic restrictions under U.S. jurisdiction (so-called “primary” sanctions) and on entities outside U.S. jurisdiction (secondary sanctions) – will be difficult to unravel. In addition to lifting sanctions reimposed after Trump’s withdrawal from the JCPOA, in abrogation of U.S. commitments under the deal, the Biden administration will need to address a range of sanctions which may technically be consistent with the JCPOA, but which Tehran claims are “contrary to the spirit” of the deal and may inhibit its full implementation. For example, leaving U.S. counterterrorism sanctions under Executive Order 13224 on the Central Bank of Iran, the National Iranian Oil Company, and the National Iranian Tanker Company in place effectively would invalidate any sanctions relief that Iran hopes to gain from the JCPOA. But lifting these sanctions is politically costly for the Biden administration since they were imposed using counterterrorism authorities, and Congress is likely to oppose the lifting of other sanctions pertaining to Iran’s human rights abuses, ballistic missile program, and the elite Islamic Revolutionary Guard Corps.
Furthermore, Iranian Supreme Leader Ayatollah Ali Khamenei has declared that the economic benefits of sanctions relief must be implemented “in practice” and not just “on paper.” The verification of sanctions relief, which some argue goes beyond the terms of the JCPOA, could require the Biden administration to take proactive steps to redress the perceived “asymmetry” in U.S. sanctions policy, including by creating new mechanisms to oversee the lifting of sanctions and removal of legal barriers pertaining to trade with and investment in Iran.
In light of the current impasse between Washington and Tehran, and the complexities of rolling back Iran’s nuclear capabilities and lifting U.S. sanctions, the prospects for a clean return to the JCPOA appear increasingly dim. And the longer negotiations take, the harder it will be to fully restore the JCPOA, leaving an interim deal as the more realistic and expedient option.
Although the Biden administration is aiming for a complete restoration of the JCPOA, coupled with further negotiations on a JCPOA plus, National Security Advisor Jake Sullivan recently has begun to float the idea of an interim deal or a “JCPOA minus.” Short of a clean return, an interim arrangement could offer limited sanctions relief in exchange for full cooperation with the IAEA and taking steps to address the more worrisome aspects of Iran’s nuclear program, including its enrichment of uranium to 60 percent and expanded use of advanced centrifuges. The United States, for its part, could grant waivers to buyers of Iranian oil, allowing Tehran to restore oil exports and repatriate revenues. Alternatively, it could unfreeze some portion of Iranian funds to finance non-military imports or provide sanctions waivers on humanitarian goods. This would buy time and prevent Iran’s nuclear program from reaching a point where the JCPOA’s nonproliferation benefits are technically impossible to restore.
While an interim deal might not be the most desirable outcome, it may be the only means of breaking the current deadlock. After six rounds of stalled talks, both Washington and Tehran appear to be overconfident in their bargaining positions. The Biden administration views existing sanctions as an important means of leverage over Iran, and remains reluctant to lift them before Iran returns to full compliance with the JCPOA. But Iran has proven adept at weathering U.S. sanctions through the development of a “resistance economy.” At the same time, Tehran may be overconfident in its calculations about the support China and Russia are willing to provide, a crucial element for the sustainability of its resistance economy in the long term.
By striking an interim agreement, the United States and Iran can create space for future negotiations leading to either the revival of the original JCPOA or a JCPOA plus.
Still, an interim deal may not be enough to assuage U.S. allies and domestic critics of the JCPOA. After all, Israel, Saudi Arabia, and the United Arab Emirates supported the U.S. withdrawal and maximum pressure campaign, though the Gulf Arab states have since publicly called for “an urgent mutual return to full compliance with the JCPOA.” Given their anxiety about Iran’s ballistic missile program and regional activities, which lay beyond the scope of the JCPOA, Israel and the Gulf states would likely criticize an interim agreement absent assurances from the United States that their broader concerns about Iran will be addressed in a timely manner. And although Washington has been consulting closely with its Middle Eastern partners on the future of the JCPOA, Israeli officials have warned repeatedly that they would be prepared to “act alone” to prevent Iran from acquiring nuclear weapons.
An interim arrangement also might need to be submitted to the U.S. Congress under INARA, since its terms would likely differ from those of the JCPOA that Congress reviewed in 2015. Under INARA, Congress would then have an opportunity to vote to reject U.S. participation in any new arrangement. And while there probably would be insufficient votes to kill a new deal outright (or at least, insufficient votes to override a presidential veto), members of Congress opposed to diplomacy with Iran would likely seek political concessions from the Biden administration, while the specter of a congressional vote also could deal the United States a weaker hand at the negotiating table.
Point of JCPOA No Return?
With Iran’s nuclear advances approaching the point of technical irreversibility, it may be tempting to argue for a redux of maximum pressure. Indeed, the United States and Israel reportedly are exploring other options should the JCPOA collapse, to include military action. (It should be noted that absent a real threat of imminent armed attack by Iran, the threat or use of military force against Iran would be unlawful.) Nevertheless, some observers have argued for a more aggressive posture to deter Iran while others have dismissed the prospect of a negotiated settlement, resigning themselves to the inevitability of a nuclear-armed Iran. As negotiations falter, Gulf Arab navies, in coordination with the U.S. Navy, recently held their first joint military exercise with Israeli warships in preparation for conflict with Iran.
But even a full collapse of the JCPOA does not necessarily imply that Iran will cross the nuclear threshold, nor should it mean the end of diplomatic efforts. Alarmist warnings about Iran’s nuclear program have emerged every two years for more than three decades, and yet Iran has not acquired nuclear weapons. As troubling as Iran’s nuclear expansion is, the good news is that it has not taken the provocative steps of enriching to 90 percent or formally withdrawing from the JCPOA, let alone the Nuclear Non-Proliferation Treaty. The potential for nuclear proliferation in the wider region – not to mention confrontation with Israel, which is believed to already possess nuclear weapons – would be as inimical to Iranian interests as it would be counterproductive for the United States and its partners.
The United States should always prepare for worst-case scenarios. Yet it is easier to employ threats and coercive action than to contemplate a path to peace. Even if a deal on reviving the JCPOA remains elusive, Washington will still have to find a way to constrain Tehran’s nuclear ambitions while mitigating the risks of direct military confrontation. Whether or not the JCPOA can be fully restored, an interim deal may be the only viable option to defuse growing tensions and head off another cycle of escalation.