Defending the Iranian nuclear agreement

Published: 21 December 2017 Author: Stefan Talmon

On 14 July 2015, Iran, the P5+1 countries B the United States, the United Kingdom, France, Russia, China, and Germany B and the European Union concluded an international non-binding political agreement, the Joint Comprehensive Plan of Action (JCPOA), that sought to ensure that Iran’s nuclear programme was peaceful. Under the agreement, Iran agreed to eliminate its stockpile of medium-enriched uranium, cut its stockpile of low-enriched uranium by 98%, and reduce by about two-thirds the number of its gas centrifuges for 13 years. For the next 15 years, Iran was to enrich uranium only up to 3.67%. Iran also agreed not to build any new heavy-water facilities for the same period of time. Uranium-enrichment activities were to be limited to a single facility using first-generation centrifuges for 10 years. Other facilities were to be converted to avoid proliferation risks. To monitor and verify Iran’s compliance with the agreement, the International Atomic Energy Agency (IAEA) was to have regular access to all Iranian nuclear facilities. The agreement provided that, in return for Iran verifiably abiding by its commitments, United Nations Security Council, European Union and United States nuclear-related economic sanctions would be lifted.

The JCPOA was subsequently endorsed by the United Nations Security Council in resolution 2231 (2015). The Security Council, acting under Article 41 of the Charter of the United Nations, lifted all nuclear-related sanctions which it had previously imposed on Iran. However, the Council also decided that upon notification by a “JCPOA participant State” of significant non-performance by Iran of its commitments under the JCPOA, the United Nations sanctions would automatically be reinstated unless the Security Council adopted another resolution to continue in effect the lifting of the sanctions within 30 days of the notification (“snap back mechanism”). Upon verification by the IAEA of the implementation of Iran’s commitments under the JCPOA, the European Union on 16 January 2016 lifted its nuclear-related economic and financial sanctions. On the same day, U.S. President Obama signed an executive order lifting U.S. sanctions imposed against Iran for pursuing a nuclear weapons programme.

As the JCPOA was not a legally binding treaty, each participant remained free to reimpose economic and financial sanctions upon Iran, subject to the general limits upon the unilateral imposition of sanctions under general international law. While Security Council resolution 2231 (2015) only lifted the mandatory United Nations sanctions, it did not prohibit States to impose sanctions unilaterally. Any termination of the JCPA without good cause would seriously damage the political credibility and trustworthiness of the terminating State, but it would not be a violation of international (treaty) law.

Although the IAEA certified that Iran was abiding by the terms of the agreement, during his speech to the 72nd United Nations General Assembly on 19 September 2017 U.S. President Donald Trump called into question the agreement, stating:

“We cannot let a murderous regime continue these destabilizing activities while building dangerous missiles, and we cannot abide by an agreement if it provides cover for the eventual construction of a nuclear program. The Iran Deal was one of the worst and most one-sided transactions the United States has ever entered into. Frankly, that deal is an embarrassment to the United States, and I don’t think you’ve heard the last of it – believe me.”

The U.S. Government criticized the agreement, inter alia, for not addressing Iran’s missile programme and its support for the Houthi rebels in Yemen, Lebanon’s Hezbollah, and Bashar al-Assad’s government in Syria.

Under U.S. law, the President had to certify to Congress every ninety days that Iran was abiding by the terms of the deal; the next date for certification being 15 October 2017. If President Trump did not recertify the agreement, Congress had sixty days to decide whether to reimpose sanctions that were suspended as a consequence of the agreement.

In his speech to the 72nd United Nations General Assembly German Foreign Minister Sigmar Gabriel implicitly responded to U.S. President Trump’s statement, saying:

“It is therefore more important than ever that the international architecture for arms control and disarmament does not crumble. Existing treaties and agreements must not be called into question. That applies in particular to the agreement on Iran’s nuclear programme. The agreement is a way out of the impasse of a nuclear confrontation which would jeopardise regional security and have an impact far beyond the region. But only if all obligations are rigorously adhered to and the agreed transparency is created, can the urgently needed confidence grow. Germany will work within the E3+3 framework to ensure that the agreement is strictly implemented and upheld. This is not only about Iran. This is about the credibility of the international community. For which state would refrain from developing its own nuclear programme if it turns out that negotiated agreements do not endure and confidence in agreements with the international community are not worth the paper they are written on?”

At a meeting of the P5+1 group of countries with Iran in New York on 21 September 2017 all parties, including the United States, agreed that Iran was in technical compliance with the agreement. The United States, however, accused Iran of violating the spirit of the agreement. After the meeting, Foreign Minister Gabriel reiterated the German position:

“It is in our utmost interest not to jeopardise the nuclear agreement with Iran and certainly not to end it now or in the future.

In the past two years, we have seen that the agreement is working and that it has prevented a dangerous nuclear proliferation in the region because everyone, including the Iranians, has adhered to the obligations arising from it and the International Atomic Energy Agency’s monitoring mechanisms are effective.

The Americans are right: Iran is still not playing a constructive role in the Middle East, be it in Yemen or Lebanon. We agree that we must discuss and address this, but not by means of a working regional nuclear arms control agreement.

I firmly believe that neither the volatile and tense situation in the region nor Iran’s conduct would improve if the nuclear agreement is no longer observed.”

Asked whether he wanted to form a coalition against the United States on this issue Foreign Minister Gabriel stated: “There already is a coalition between Germany, France and the United Kingdom. We firmly believe that this nuclear agreement must be upheld. And by the way, so do China and Russia. Only the United States want to end the agreement.” According to Gabriel, “[i]t would be a disaster if it failed. It is the only agreement of its kind in the world that works. No country would ever agree again to a process of this kind if the agreement fails.”

Speaking at the Atlantic Council on 25 September 2017, the German Ambassador to the United States of America, Peter Wittig, defended the nuclear agreement with Iran. He said:

“We are interested, and this is actually a high priority, in the continued success of the Iranian nuclear deal. That’s an EU position, that is a very high German foreign policy and security policy position. This nuclear deal is worth preserving. It prevents Iran for the foreseeable future to acquire a nuclear bomb. It’s a plus for regional security; it’s a plus for global security. It can’t be said enough: this is the most intrusive, the most comprehensive inspection verification regime in the world that this Iranian deal created; and Iran, that’s also important to note, according to the International Atomic [Energy] Agency complied with the deal. Now, those who would like to walk away – I am not saying the U.S. administration has decided to walk away – but those who want to walk away or advocate to walk away, they will have to think about the larger issues. First of all, of course, there is the danger that Iran resumes its enrichment activity, there is the danger then that there will be a nuclear arms race in the region and beyond, and – and that’s very important and goes beyond the Iranian issue – that it weakens essentially the non-proliferation regime that we have established over the years. And, last but not least, what kind of signal would this send to countries like North Korea? It would send a signal that diplomacy is not reliable; that you cannot trust diplomatic agreements and that would affect – I believe – our credibility in the West when we are not honouring an agreement that Iran has not violated. So, you know, let me say two sentences more. Those who advocate walking away from this agreement – I am not saying that this administration has decided to walk away – but there are people in this country – interestingly enough not in our countries; there is no challenge, if I am correct, in our respective countries to this agreement, it is just the U.S.; for historic reasons, a U.S. phenomenon – but those who advocate to walk away from this agreement have to come up with an alternative how to prevent, in a peaceful way, a resuming of Iranian nuclear capabilities and military capabilities. And those who advocate to renegotiate it – and there are some who do – have to make a case whether renegotiation is possible and whether renegotiation will deliver better results. And I think that is yet to prove. We don’t think it will be possible to renegotiate it, and we believe that there is no practical peaceful alternative to this deal. Last sentence, we respect that this administration is reviewing the Iran file, it’s the natural thing to do for a new administration, and we share concerns about Iran’s nefarious role in the region, Iran’s missile programme, etc., and we can talk about it, but on the basis of complying with this agreement.”

“This was a multilateral agreement with difficult partners, most difficult Iran, but then difficult partners as China and Russia. We have multilateral experience here negotiating with those partners. You can never get a deal with this group of countries that will satisfy you a hundred percent. It’s always less than perfect, and anybody who says we get the perfect deal with those kind of partners is just dreaming. This is just in the logic of a multilateral negotiating process with countries with divergent interests, and I think the fact that this worked, I wouldn’t say was a miracle, but it was a very difficult accomplishment and you should never underestimate what kind of skills, political acumen, patience, pressure, and intellectual capacity went into that deal. And it’s one of the most complex one. Once you start to unravel it, you know, you will have to think twice.”

“I think it is important to put this discussion on the merits of the Iran deal also in our global context as I mentioned briefly in my introductory remarks and I hope we can make that case in the future when we discuss this with the administration and with members of Congress. Whatever we do with Iran will have repercussions with our global order of non-proliferation regime and we should also not lose sight of the relationship to North Korea, what kind of message this sends to North Korea and our efforts to eventually come to a pathway towards an arrangement on the North Korean nuclear threat. We have a double-track approach there – pressure track – but also not excluding that eventually we might start a discussion process there with this country; and if we renege on that Iran deal, everything will be more complicated; and I think that is the global context and the current security threat context that we should never lose sight of.”

Referring to the monitoring and inspection regime of the International Atomic Energy Agency Ambassador Wittig said that “the Agency in seven consecutive quarterly reports certified that Iran is in compliance.”

In an unusual step the German embassy in Tehran on 8 October 2017 put up a number of posters on the walls of the embassy in the heart of the Iranian capital explaining Germany’s position on the JCPOA. The posters read:

“Yes to JCPOA!

For the preservation and implementation of the Vienna nuclear agreement between Iran and China, France, Germany, Russia, United Kingdom, United States of America, European Union (E3/EU+3) which has been endorsed by United Nations Security Council resolution 2231 (2015).

German Ambassador to Tehran Michael Klor-Berchtold said in Tehran on 5 October 2017: ‘The JCPOA is a great achievement and Germany remains committed to it. We do everything in our power to ensure that the JCPOA will stay a success. And: We continue our efforts to ensure that the full potential of the JCPOA reaches the everyday life of Iranian people and families.'”

After posing with a “Yes to JCPOA” poster, the German ambassador stated:

“This agreement is a clear example of how the complicated international issues could be resolved through negotiations peacefully. Together with France, Britain, the United States, China and Russia, we proved that diplomacy and dialogue are stronger than conflict. Despite the opposition voices heard, Germany still insists on sticking to the deal and implementing it.

Our posters confirm our stance and our diplomatic efforts, especially in the last few months and weeks.

I believe that more than ever, we need to emphasize dialogue and diplomacy. All the parties to the nuclear deal are responsible for its success and must look at it as a clear example of a peaceful settlement of conflict through dialogue.”

Following-up on his statement to the UN General Assembly, U.S. President Trump on 13 October 2017 refused to certify that Iran was upholding its part of the agreement. In a speech delivered at the White House at 12:53 PM EDT he said inter alia:

“Finally, on the grave matter of Iran’s nuclear program: Since the signing of the nuclear agreement, the regime’s dangerous aggression has only escalated. At the same time, it has received massive sanctions relief while continuing to develop its missiles program. Iran has also entered into lucrative business contracts with other parties to the agreement.

When the agreement was finalized in 2015, Congress passed the Iran Nuclear Agreement Review Act to ensure that Congress’s voice would be heard on the deal. Among other conditions, this law requires the President, or his designee, to certify that the suspension of sanctions under the deal is ‘appropriate and proportionate’ to measure – and other measures taken by Iran to terminate its illicit nuclear program. Based on the factual record I have put forward, I am announcing today that we cannot and will not make this certification.

We will not continue down a path whose predictable conclusion is more violence, more terror, and the very real threat of Iran’s nuclear breakout.

That is why I am directing my administration to work closely with Congress and our allies to address the deal’s many serious flaws so that the Iranian regime can never threaten the world with nuclear weapons. These include the deal’s sunset clauses that, in just a few years, will eliminate key restrictions on Iran’s nuclear program.

The flaws in the deal also include insufficient enforcement and near total silence on Iran’s missile programs. Congress has already begun the work to address these problems. Key House and Senate leaders are drafting legislation that would amend the Iran Nuclear Agreement Review Act to strengthen enforcement, prevent Iran from developing an inter- – this is so totally important – an intercontinental ballistic missile, and make all restrictions on Iran’s nuclear activity permanent under U.S. law. So important. I support these initiatives.

However, in the event we are not able to reach a solution working with Congress and our allies, then the agreement will be terminated. It is under continuous review, and our participation can be cancelled by me, as President, at any time.”

At 12:34 PM Berlin time, that is some six hours before President Trump actually announced his new Iran Strategy in Washington, D.C., government spokesperson Steffen Seibert already issued Germany’s “response” tweeting the text of a “Statement by the heads of State and Government of France, Germany and the United Kingdom” which read as follows:

“We, the Leaders of France, Germany and the United Kingdom take note of President Trump’s decision not to recertify Iran’s compliance with the Joint Comprehensive Plan of Action to Congress and are concerned by the possible implications.

We stand committed to the JCPoA and its full implementation by all sides. Preserving the JCPoA is in our shared national security interest. The nuclear deal was the culmination of 13 years of diplomacy and was a major step towards ensuring that Iran’s nuclear programme is not diverted for military purposes. The JCPoA was unanimously endorsed by the UN Security Council in Resolution 2231. The International Atomic Energy Agency has repeatedly confirmed Iran’s compliance with the JCPoA through its long-term verification and monitoring programme. Therefore, we encourage the US Administration and Congress to consider the implications to the security of the US and its allies before taking any steps that might undermine the JCPoA, such as re-imposing sanctions on Iran lifted under the agreement.

At the same time as we work to preserve the JCPoA, we share concerns about Iran’s ballistic missile programme and regional activities that also affect our European security interests. We stand ready to take further appropriate measures to address these issues in close cooperation with the US and all relevant partners. We look to Iran to engage in constructive dialogue to stop de-stabilising actions and work towards negotiated solutions.

Our governments are committed to ensuring the JCPoA is maintained. Independent of the JCPOA, we need to make sure that our collective wider concerns are being addressed.

We have asked our Foreign Ministers to consider with the US how to take these issues forward.”

Foreign Minister Gabriel told reporters on 16 October 2017 after a meeting of EU Foreign Affairs Council in Brussels, inter alia:

“If North Korea sees that the only agreement on the non-development of nuclear weapons the world has ever made with a country, that this agreement will be killed off and done away with a few years later: this will result in the situation that no one will have confidence in such agreements. As a consequence, North Korea will develop its nuclear weapons and the bad thing is, others will then probably do the same. More is at stake here than Iran. What is at stake here is the global question of how we deal with treaties which are to protect us against the development of nuclear weapons and I am sure that North Korea is closely monitoring what is happening here.”

In an interview with the daily Handelsblatt, Foreign Minister Gabriel said on 20 October 2017 with regard to President Trump’s decision to “decertify” the Iranian nuclear agreement:

“The Americans cannot denounce the agreement unilaterally, because it was adopted in the UN Security Council and also by the EU, France, the UK, Russia, China and Germany. But Trump does have the possibility of de facto destroying the agreement by imposing sanctions against Iran.

Already, many German and European companies are wary of concluding deals in Iran because they are scared they will immediately be hit by national US sanctions. The American sanctions, you see, are also directed at companies which do business with Iran but also operate in the US. No one will take that risk. The business community is afraid that the uncertain political situation will make its investments simply disappear. In addition, most companies cannot get loans to do business with Iran because the international banks are cautious, given the Americans’ behaviour. So if Trump imposes extraterritorial sanctions, then potentially every bank that does business in America will be hit. In my opinion, this type of sanctions is an attack on our German export model.”

Foreign Minister Gabriel was mistaken when he said that the American could not denounce the agreement unilaterally. As a political agreement, the agreement could be revoked or denounced by the participant States at any time. The UN Security Council did not “adopt” the agreement, but “endorsed” it. Unlike with other operative parts of the resolution the Council was not acting under Article 41 of the Charter of the United Nations when it expressed its endorsement of the JCPOA. It did not legally prescribe the agreement or the content of the agreement. The Council decided only to lift its own nuclear-related sanctions.

On 2 November 2017, the German ambassador to Tehran again expressed Germany’s strong backing of the JCPOA. He was reported as saying:

“It is important to Berlin that such a valuable achievement be preserved and the Iranian nation see its positive impact on their lives […] the new US strategy on delaying the final decision on the nuclear deal is to cause worries, and worry is like poison for the economy and we need to counter it.”

During his visit to Washington D.C. on 30 November 2017 Foreign Minister Gabriel met with members of the U.S. Congress and tried to solicit support for the preservation of the JCPOA. He made it clear that non-nuclear issues should not be used as pretext to jeopardize the agreement.

In his report to the Security Council, the UN Secretary-General on 8 December 2017 once again relayed Iran’s compliance with the JCPOA and called upon all participants “to remain steadfast in their commitment to the full implementation of the agreement.” During the debate of the Secretary-General’s report on 19 December 2017, the representative of Germany, who had been invited to participate in the Council’s deliberations as a non-member under rule 37 of the Council’s provisional rules of procedure, described the JCPOA as “a huge success in terms of international diplomacy and the strengthening of the non-proliferation regime” and expressed his delegation’s continued support for the JCPOA. At the same time, the German representative called “on Iran to cease all activities that might be inconsistent or violate the terms of resolution 2231 (2015) and to ensure its full compliance with the resolution.” The following day, the government spokesperson in Berlin also commented on the Secretary-General’s report, stating:

“Resolution 2231 of July 2015 confirms the nuclear agreement with Iran, thereby making it compulsory for the signatories. We very much welcome the statement of the report that the nuclear agreement was adhered to during the reporting period by both Iran and the other States participating in the agreement.”

Germany was not only a very strong political supporter of the JCPOA but also one of the main economic beneficiaries of the lifting of the nuclear-related sanctions imposed upon Iran. It must be recalled that only five days after the conclusion of the JCPOA, on 19 July 2015, then Minister of Economic Affairs and Energy Sigmar Gabriel and a high-ranking German trade delegation visited Iran. In the past, Iran had been one of the main markets for German exports. Due to the economic sanctions German exports to Iran had sank from 4.7 billion euros in 2010 to 2.4 billion euros in 2015. The conclusion of the JCOAP contributed to a rise in German exports to Iran by 26 percent in 2016. In 2017 German exports to Iran rose to 3.5 billion euros. On 2 November 2017 Iran’s Ambassador to Berlin said that out of 350 projects considered for investment in Iran, 83 of them worth 11.3 billion euros belong to Germany.

Category: Arms control and disarmament

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  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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