23 August 2017

Will Trump recertify Iran? Much hangs in the balance

Richard Nephew

Richard Nephew

Richard Nephew is a senior research scholar at the Center on Global Energy Policy at Columbia University. Previously, he was the deputy coordinator of sanctions policy at the State Department (...

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Within two months, Donald Trump will have to make one of the most important decisions of his presidency: whether to continue certifying Iranian compliance with the nuclear agreement signed between Tehran and six world powers in 2015, known as the Joint Comprehensive Plan of Action, or JCPOA. So far, the International Atomic Energy Agency, the US intelligence community, and intelligence communities in Europe and the Middle East have concluded that Iran is complying with the terms of the agreement, and a decision to recertify would be consistent with those findings. Though such a decision would likely upset some constituencies in the United States, it is the outcome desired by most US partners, and the one least likely to add to turmoil in the region.

Yet there is a real chance that Trump will make a different choice, either declaring Iran in noncompliance with its obligations under the nuclear deal or, more likely, reaching for a third option by neither declaring it noncompliant nor certifying that it is compliant. The consequences of either of these latter choices are unclear and will depend on precisely what Trump says and does. It is a momentous decision, though, meriting careful evaluation of the implications for US interests. It is clear, at least, that in the absence of incontrovertible evidence that Iran is breaking the rules, anything other than continued certification will call into question the future of the nuclear agreement, US policy towards Iran, and the nuclear future of the entire region.

The origins of certification. The certification requirement became US law under the Iran Nuclear Agreement Review Act, which the US Congress passed a few months before the nuclear deal itself was concluded in July 2015.

It requires the US president to certify four things every 90 days for the duration of the agreement, the main elements of which do not expire until 2040: first, that Iran is transparently, verifiably, and fully implementing the agreement, including all related technical or additional protocols; second, that Iran has not committed a material breach with respect to the agreement, or that if it has, it has rectified the breach; third, that Iran has not taken any action that could significantly advance its nuclear weapons program; and finally, that the US suspension of sanctions against Iran remains proportionate to Iran’s measures to terminate its illicit nuclear program, and remains vital to the national security interests of the United States. The next due date for recertification is October 15. Trump has certified Iranian compliance twice already, but since July has made clear his desire for an option that would let him avoid doing so again.

The certification requirement was intended as a check against President Barack Obama and his successors, who members of Congress feared might otherwise choose to ignore Iranian violations in order to preserve the agreement. The same law also requires regular reports on implementation from the US secretary of state, reports from the president in the event of suspected or confirmed breaches of Iran’s obligations, and, more generally, reports on any other aspects of the agreement at the request of Congress. But international attention has focused on the certification requirement, both because it is due every three months and because a failure to certify would be a trigger for Congress to consider additional sanctions.

Trump’s options. If he finds that Iran has failed on any one of the four separate criteria, Trump can decide that certification is neither warranted nor in the US interest. Importantly, there is no check against this authority. As president, he has unilateral power to make the certification decision, and those who may disagree have no legal recourse.

That said, Trump does not have unlimited political room to maneuver, not least because his decision will be highly consequential for the nuclear agreement and broader international politics. For starters, a decision to conclude that Iran has committed a material breach would raise questions about the nature of the breach and the US response. Likewise, a decision to conclude that Iran has taken action to covertly pursue nuclear weapons would ring alarm bells in Washington and beyond. Because of this, Trump is only likely to make such decisions if intelligence information or the IAEA reporting corroborates his conclusion. After the debacle over intelligence on weapons of mass destruction prior to the 2003 US-led invasion of Iraq—in which the White House claimed that Iraq possessed WMD only to have these claims subsequently proven false—it is certain that no one will give the United States the benefit of the doubt if it accuses Iran of nuclear cheating. The international community, the US Congress, and the American people will want to know why such a judgment has been reached, and­ though the Trump administration may stiff arm such requests, other members of the United States or partner governments will inevitably leak any absence of evidence. (It is worth noting that so far, there is no public indication of Iranian malfeasance, which the Trump administration’s two previous certifications of Iranian compliance, in April and July, bear out.)

Moreover, it is unlikely the Trump administration will simply assert that continuing to suspend sanctions under the JCPOA is no longer vital to US national security. True, the current administration has hinted for months that, unlike its predecessor, it does not accept the value of the nuclear agreement as sufficient in and of itself to justify continued sanctions relief. As Secretary of State Rex Tillerson noted in April, the Trump administration is undertaking a policy review, evaluating whether it would be better—on balance—to abandon the JCPOA and reclaim US authority to impose sanctions against Tehran and those who trade with it. However, there is also an appreciation within the administration and among its advocates at Washington think tanks that simply walking away from the nuclear deal would only empower Iran in its negotiations with European and Asian governments. To make decertification more palatable to anyone concerned about an Iranian nuclear restart, there would have to be a rationale that is credible outside of the West Wing, as well as an explanation as to how this course of action would advance the cause of nuclear nonproliferation.

For these reasons, while it is possible that Trump will accuse Iran of actual noncompliance, that is not his most likely course of action. More probably, his administration will simply state it is no longer in a position to certify compliance. The distinction is more than semantic. This third option would underscore that while Trump is unable to prove bad conduct, he cannot assert good conduct on Iran’s part. Trump believes the United States has been lenient in its certification decisions so far; this third-way course would call on Iran to do more to prove its compliance. His administration would probably argue for more intrusive inspections of undeclared sites and military facilities, as well as possibly a renegotiated JCPOA that improves inspector access, increases nuclear restrictions, and extends the duration of the period covered beyond the terms of the agreement, elements of which begin to expire in 2023. The new Trump demands might come with a deadline by which Iran would be required to accept the new conditions or face a US renunciation of the nuclear deal and re-imposition of sanctions.

So then what happens? If the United States could demonstrate actual Iranian cheating, then it would be reasonable to expect the rest of the world to rally to its side. Iran did violate the terms of its obligations under the Nuclear Nonproliferation Treaty for 30 years, and it has far less time under its belt complying with international nonproliferation norms. Because its stock of international goodwill with respect to nuclear proliferation is low, concrete evidence of Iranian malfeasance would be considered seriously by many other countries. Given a real threat of Iranian nuclear weapons, it is likely that many states would join the United States in opposing Tehran, and be willing to apply pressure to try to bring it back into compliance.

A decertification decision absent concrete evidence of cheating would get a different reaction. Were it to have been reached by Obama—or any US president whose antipathies toward Iran were less transparent—then the international community might have responded positively, even without clear proof. However, Trump has made no secret of his opposition to the JCPOA, campaigning against it as a presidential candidate and heavily criticizing it since. This summer he has indicated his wish to avoid the certification decision. By telegraphing his punches in this way, Trump has made it easier for Iran to argue that any decision not to certify is political, rather than technical, and made with ill intent. Given the Trump administration’s shaky relationship with key partners—made worse by spats over trade, accusations of political interference, and US reticence to embrace norms and treaties like those dealing with NATO and climate change—it is plausible that Iran’s case to the world would be well greeted, including by US allies in Europe. Trump’s approach, in short, has made gaining the world’s trust on Iran issues practically impossible. Worse, he has created a situation in which the United States might not be believed even if it did have unambiguous proof of Iranian noncompliance.

Regardless, it is likely that any decertification decision would dramatically slow trade and new investment in Iran as companies hedge their bets about the future of the JCPOA. Some—likely including companies such as aircraft maker Airbus and French energy giant Total, which have new, major stakes in Iran—would continue their activities, but many others would pull back. Of course, this would have a major impact in Iran, where the nuclear agreement has been supported but only on sufferance. It is possible that Iran would stay in the nuclear agreement, fulfilling the deal’s requirements in order to build support abroad behind its position that it has done no wrong. But in time, and without resolution, Iran would have to make a choice about whether to walk away from the nuclear agreement’s restrictions and obligations. Iranian officials have already begun hinting that they would restart sensitive nuclear activities, including the enrichment of uranium to 20 percent, should the United States walk away from the deal. In this way, decertification could plant the seeds of a serious future crisis.

We don’t know what Trump will do come October, but the implications of making the wrong choice in a less-than-supportive international environment are very serious. If Trump has real proof of Iranian malfeasance, he can and should bring it forward. Otherwise, he should continue to certify compliance and fulfill US obligations under the nuclear agreement.