Memo: How Might Trump Undermine and Break the Provisions of the JCPOA

On July 17, 2017, President Trump reluctantly [1] certified that Iran has complied with the Joint Comprehensive Plan of Action (JCPOA) agreement implemented by the Obama Administration. Following the certification, the Trump Administration then placed sanctions on Iran citing its testing of ballistic missiles and support for Syrian President Bashar al-Assad. While the Obama Administration also escalated non-nuclear sanctions on Iran, President Trump and his administration’s extensive anti-JCPOA rhetoric and efforts to discourage legitimate business with Iran in potential violation of the JCPOA are indications that he may not intend to recertify the accord in October.

There are Two Main Ways in which the Administration Can Back Out of the JCPOA

  1. Trump could choose not to certify the JCPOA (even if Iran is in compliance)
  2. Trump could unilaterally implement “snap back” sanctions (even if Iran is in compliance)

If President Trump chooses not to certify the JCPOA, Congress has sixty days to begin expedited consideration of qualifying legislation reinstating sanctions in the House of Representatives Committee on Foreign Affairs or the Senate Committee on Foreign Relations. In either chamber, the Committee has ten session days after the date of referral to report the qualifying legislation before it is discharged and placed on the calendar.

If the Committee reports the legislation reinstating sanctions to the House or if the legislation is discharged from consideration, then the following steps will take place:

  1. The proposed legislation is considered on the House floor.
  2. Two hours of debate are allowed for the legislation.
  3. The legislation receives a vote.

If the Committee reports the legislation to the Senate or the legislation is discharged from consideration, then the following steps will take place:

  1. The proposed legislation is considered on the Senate floor.
  2. Ten hours of debate are allowed for the legislation.
  3. The legislation is immediately voted on.

Any appeals from the decisions of the Chair relating to the application of the Rules of the Senate shall be decided without debate. Debate of any veto messages with respect to qualifying legislation will be limited to ten hours.    

If President Trump decides to directly withdraw from the JCPOA, the Administration could also implement “snap back” sanctions by revoking the previous waivers, re-issuing the executive sanctions previously revoked by President Obama, and reimposing Specially Designated Nationals (SDN) designations that the Obama Administration had previously relieved from nuclear-related sanctions.

First, President Trump could revoke the previous waivers, which would reinstate the statutory sanctions on Iran listed under the Waiver Determinations and Findings. [2] The authority cites to sections in the Iran Freedom and Counter-Proliferation Act of 2012 (IFCA), National Defense Authorization Act for FY 2012 (Public Law 112-81), Iran Threat Reduction and Syria Human Rights Act of 2012 (Public Law 112-58), and the Iran Sanctions Act of 1996. 

Second, President Trump could reissue the Executive sanctions previously revoked by the Obama Administration. President Obama issued “Executive Order: Revocation of Executive Orders 13574, 13590, 13622, and 13645 with Respect to Iran, Amendment of Executive Order 13628 with Respect to Iran, and Provision of Implementation of Authorities for Aspects of Certain Statutory Sanctions” on January 16, 2016. This Order lifted some of the sanctions implemented by the United States and the UN Security Council prior to the nuclear agreement with Iran. However, Trump could choose to reinstate those same sanctions using his executive power.

Third, President Trump could choose to reimpose SDN designations that the Obama Administration had previously exempted from nuclear-related sanctions. President Obama relieved designated individuals and entities [3] and exempted them from the nuclear-related sanctions, as required by the JCPOA [4]. President Trump could use his executive power to simply relist the Iranian individuals and entities that President Obama had delisted.

Possible Ramifications to Trump’s “Snap Back” Sanctions

The purpose of the JCPOA agreement is to ensure that Iran’s nuclear program is exclusively civilian in nature. The JCPOA gives the United States the ability to monitor Iran’s nuclear energy advancement while giving Iran the opportunity to develop its energy within the guidelines. The lifting of sanctions also allows Iran to re-enter the global economic market per the terms of the nuclear agreement.

The U.S. is not prohibited by the JCPOA from escalating sanctions targeting Iran for non-nuclear activities, provided they do not interfere with U.S. sanctions-lifting obligations. However, the United States cannot reimpose sanctions on the same entities even if they are imposed under a separate justification without violating the JCPOA. Doing so would remove Iran’s incentives to comply with the deal.

The language of the JCPOA explicitly states:

“The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. 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.”

If the United States were to not abide by its agreed upon provisions and place sanctions in violation of the nuclear agreement, Iran can choose to appeal to a joint committee and state the claim that the United States violated the JCPOA.

Caution Moving Forward

While President Trump could technically back out of the JCPOA and destroy the deal, each method has immense consequences for international security, for America’s credibility to negotiate future diplomatic agreements, for nuclear nonproliferation efforts, and for the stability of the entire Middle East. If the legislation goes through Congress, there is always the option that Congress abstains from reinstating the sanctions that would violate the JCPOA. Yet, given that every Republican in Congress voted against the accord during Congressional review in September 2015 and the Republican party controls both houses of Congress, such an outcome seems unlikely. Thus, if Trump failed to certify, Congress would likely deal the accord a fatal blow.

Trump’s decision to “snap back” would further escalate the tense relationship between the United States and Iran and push forward the sentiment of mistrust that has long prevented the two states from successfully sustaining a cooperative relationship. This would not only create pressure in the international community and isolate the United States from its European allies, but such a hardline approach could also increase the climate for war between the United States and Iran. The Administration ultimately has significant latitude and can terminate America’s compliance with the agreement if President Trump so chooses. 

[1] Peter Baker, Trump Recertified Iran Deal, but Only Reluctantly, New York Times, https://www.nytimes.com/2017/07/17/us/politics/trump-iran-nuclear-deal-recertify.html. (July 17, 2017).
[2] See Waiver Determinations and Findings, Dept. of State (Oct. 18, 2015).
[3] Annex II, Attachment III of JCPOA
[4] Paragraph 21 of JCPOA

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