Finding a European response to the JCPOA disaster

Since the beginning of Donald Trump’s presidency, observers wondered if, when, and how Mr Trump would decide to cancel the Joint Comprehensive Plan of Action (JCPOA), the Iran nuclear deal. Mr Trump has been an outspoken critic of the JCPOA which he frequently called “worst deal ever negotiated”. Iran would have been paid millions of dollars, referring to the Iranian assets that had previously been frozen, while the USA would have got nothing in return. As a consequence, Mr Trump multiple times promised to scrap the deal. Now he delivered. In a televised speech from the White House, Mr Trump announced that the USA would withdraw from the nuclear accord with Iran.

Insecurity and unintended consequences

Such a decision needs to be accepted, as bad as it might appear, and it is bad indeed. It is imprudent, without any need, and it even poses a risk to the security of both the USA and the EU as it is not just that it could provoke Iran to harsh foreign policy reactions such as firing rockets at the Israeli army on the Golan heights. This decision could eventually even lead to a nuclear arms race between Saudi Arabia and Iran, thereby making the Middle East even more unstable as it is today.

A nuclear arms race in the Middle East might still be a remote scenario, as the JCPOA managed to seriously thwart Iran’s nuclear programme. Additionally, Tehran announced that it would abide by the agreement if the other partners would do so as well. However, this leads to serious insecuri-ty how the Iranians, the Russians, the Chinese, and the Europeans would react. Iranian president Hassan Rouhani already announced that Iran would continue to cooperate with its partners and to abide by the provisions of the JCPOA.

If the sanctions imposed by the United States become fully effective, Iran might still not re-negotiate the terms of the JCPOA as it is one of Iranian foreign policy principles never to negotiate under pressure. Such a situation would, however, just legitimise the hard-liners in Iranian politics who had opposed negotiating with Washington in the first place. Now that the USA withdraw from the deal these hard-liners are proven correct. If president Rouhani does not find a solution to the foreseeable economic crisis, Iranians could vote for a conservative or a principlist candidate in the next presidential elections. Not to forget the fact that sooner than later Iran will choose a successor for supreme leader Ali Khamenei.

In addition to this, there might be unintended consequences of this decision, one of which being the situation on the Korean peninsula. The point about this is not that the JCPOA could, or even should, have served as a blueprint for a negotiated solution of the conflict on the Korean peninsula. On the contrary, it was never intended to serve as an example for the DPRK situation. Neither is the point that Kim Jong-un now has every reason not to trust the US president. There would have been mistrust at the outset anyway. The point is that Pyongyang now has no reason to seriously negotiate with Washington. Why should there be any agreement? Why seriously negotiate in the first place? Moreover, the DPRK could not even rely on Washington sticking to the agreement after the 2020 presidential election.

The situation is made even worse when looking at the reasons for which Mr Trump cancelled the JCPOA. His intention was to re-negotiate the terms of the agreement so that it include Iran’s ballistic missile programme, its sponsoring of terrorist groups such as Hezbollah, and its general foreign policy behaviour in the Middle East. However, Mr Trump overlooked a simple fact. Iranians tend not to give in under pressure and they would certainly not react to being bullied to the negotiation table. The USA has given up even its leverage on the Europeans in this case. It would have been more useful for Washington not to scrap the deal but to threaten European policymakers with cancelling it, if they are unwilling to re-negotiate the terms of the deal.

So, instead of continuing to build confidence between the P5+1 and Iran, and to negotiate other issues with Iran, the USA opted to suffocate any form of potential rapprochement between Iran and the West. Of course, it is clear that Iran itself is not innocent of this dire situation. It is true that Iran maintained a “ballistic missile programme”: While this was not prohibited by the JCPOA, it was not a particularly promising or encouraging move. Furthermore, Iran’s policies and its proxy conflicts with Saudi Arabia are a major source of unrest in the Middle East. Prior to the cancelling of the JCPOA, these issues could and should have been addressed critically. Now, Iran has no reason to seriously negotiate with the West about these issues.

The next steps

After Donald Trump announced last year that he would de-certify the JCPOA, this made congress the main institution to deal with this.

When Trump decided to “decertify” the Iran deal under the Iran Nuclear Agreement Review Act, it opened a 60-day window for Congress to easily reimpose old sanctions on Iran that would end the deal. During that time, Republicans were able to use a special expedited process that protects the sanctions bill from being filibustered by opponents.

The situation this year is profoundly different from that of last year. The Iran nuclear deal is first and foremost a political international agreement between parties. This means that it might be governed by international law, but the JCPOA is not legally binding as such. This can easily be shown when looking into the treaty text, and into the text of resolution 2231 of the UN Security Council. The language in which these texts are formulated, with formulations being used such as “calls upon”, “will” instead of “shall” and so forth, indicates that these texts are indeed not legally binding. This means that the only thing to keep the signatories in the agreement is the abiding by the terms of the JCPOA by the others.

In order to stick to this agreement, it needs to be implemented on a national level. This is where the domestic laws and the constitutional requirements of the signatories come into play. The JCPOA is one of three types of treaties traditionally known in US constitutional law, a congressional-executive agreement. This means that congress and the executive branch, i.e. the president, need to approve a deal. This cannot happen without congressional approval in the first place. This would seemingly make it harder for any US administration to walk away from the JCPOA.

However, it has been argued that congress enabled any administration with walking away from the deal as sanctions relief is at the discretion of the White House.

In this case, the congressional act that gave the Executive the power to make the Agreement, also gave the Executive discretion to walk away from it. The Review Act specifically grants the ability to re-impose sanctions–in effect sanctioning an executive decision to renege on its commitments and signal the end of the Deal. […] Thus, sanction relief enacted by President Obama may be withdrawn, consistent with the Review Act, by President Trump. And re-imposing sanctions will, in effect, be the death knell of the Deal.

The next steps by the United States will include 90-day and 180-day wind-down periods. After the end of these wind-down periods, the US departments of state and treasury are “required”: to re-impose nuclear-related sanctions on Iran, thereby violating provisions of the JCPOA.

A European reaction

This decision by the US president leaves the EU in a very difficult position. Not only that the USA have defied warnings of high-level European politicians, including French president Emmanuel Macron, German chancellor Angela Merkel, and British foreign secretary Boris Johnson. Mr Trump now forces his European partners to decide whether they abide by the terms of the JCPOA and deliberately choose not to follow the lead of their most important partner, or to abandon a successful agreement. For some European countries, the decision might be easier than for others. French finance minister Bruno Le Maire even suggested that the EU “enact a regulation”: allowing European companies to ignore US sanctions against Iran. This decision is more difficult for Britain, on the other hand, as the UK’s financial market is way more reliant on and entangled with the US financial market.

The EU’s decision should be informed by the fact that the United States have turned into an ally that becomes increasingly unreliable. This is not just the case when it comes to an unpredictable foreign policy in the Trump era. Mr Trump has begun to lead the USA into an in-creasingly isolationistic direction. This is true when it comes to the border wall with Mexico, this is true when it comes to his Muslim ban. In addition to this, Mr Trump already announced that he wanted to impose tariffs on various European products. Although the White House “postponed the decision”: whether these tariffs would be introduced permanently, Europe’s interests are of course free trade with its transatlantic partner. Furthermore, it is unclear whether the USA will maintain their military lead role within NATO under president Trump. And these are the issues after just little over one year of Mr Trump being president of the United States.

A European answer to increasing American isolationism is long overdue. This is the major problem with a fierce foreign policy reaction now. Europe needs NATO’s and the USA’s military capacities in order to protect itself. The fact that there has been a continuous friendship between liberal Europe and the United States and that there has been and needs to be continuous cooperation between them makes Mr Trump’s foreign policy decisions even more unfortunate. The withdrawal from the JCPOA is just the latest example of this.

As a matter of fact, Europe does not have the means to divert Mr Trump from withdrawing from the deal and it is unlikely that the EU could replace the sheer size of the US financial market. This is the EU’s and Iran’s main problem. It is very unlikely that Brussels could fully compensate the US withdrawal from the JCPOA in terms of the economy. On the other hand, the United States could very well decide to economically punish companies that still trade with Iran which would even aggravate Tehran’s precarious economic situation.

Another point is the EU’s security interest. At the moment, it cannot underscore its foreign policy positions by military means, if necessary. Instead, the EU still relies heavily on NATO, a position that is increasingly problematic the more isolationist the USA become. In any case, even if the EU tried to change this, this is unlikely to change anytime soon. As a consequence, EU policymakers might be very much tempted not to anger the USA by treating Iran even remotely as partner.

Dire outlook

Europe is not in the position to alleviate Iran’s foreseeable economic problems when the US sanctions take full effect. This is particularly true when some European companies would risk being sanctioned by US authorities because they cooperate with Iran. While it is unlikely that Iran immediately ramps up its nuclear programme, this is an option Hassan Rouhani himself could consider in order to relieve pressure from Iranian hard-liners.

The decision for European policymakers to make is, therefore, to decide whether they risk losing Iran to the hard-liners, or to risk their ostensibly good relations with the United States. Whichever option they would choose, however, they could not rely on the USA remaining a reliable ally, the only difference being the time factor.

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