FPI Bulletin: Iran’s Bid to Renegotiate the Nuclear Deal

By Tzvi Kahn

Foreign Policy Initiative

November 5, 2015

Ayatollah Ali Khamenei’s conditional acceptance of the nuclear agreement last month directly challenges President Obama’s interpretation of its provisions on sanctions for terrorism, human rights violations, and prospective violations of the deal. In effect, Iran’s supreme leader is seeking to renegotiate the agreement and prevent the United States from employing these tools, all of which President Obama has pledged to use. This ploy indicates how difficult the nuclear deal will be to implement, and suggests that Tehran may someday point to U.S. refusal to meet its evolving demands as a pretext for violations of the agreement or even its complete abrogation.
Iran Seeks to Amend the Deal
In an open letter to President Hassan Rouhani on October 21, Ayatollah Khamenei delineated new conditions for accepting the nuclear agreement, formally known as the Joint Comprehensive Plan of Action (JCPOA). Released just days after Adoption Day, which officially marked the beginning of efforts to implement the deal, the letter demands “written declarations” from the United States and European Union that all sanctions “have been completely lifted,” not merely waived or suspended. Khamenei also warned that the future imposition “of any type of sanctions, at any level or under any pretext” — including acts of terrorism or violations of human rights — would constitute a violation of the JCPOA, thus releasing Iran from its obligations as part of the deal.
By contrast, the Obama administration has repeatedly vowed to retain terrorism and human rights sanctions and to snap nuclear sanctions back into place should Tehran violate the agreement. In his July 14 statement formally announcing the deal, President Obama affirmed that the United States “will maintain our own sanctions related to Iran’s support for terrorism, its ballistic missile program, and its human rights violations.” “If Iran violates its commitments,” he said on July 15, “there will be real consequences. Nuclear-related sanctions that have helped to cripple the Iranian economy will snap back into place.”
Troublingly, there are provisions in the JCPOA that may support Khamenei’s new demands. For example, Paragraph 29 states that the European Union and the United States “will refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran inconsistent with their commitments not to undermine the successful implementation of this JCPOA.” This nebulous phrasing invited Tehran to argue that the nuclear deal should preclude any sanctions, even those imposed in response to Iranian terrorism and human rights violations.
Other language suggests that the imposition of any snapback sanctions would release Iran from its obligations under the deal. According to Paragraph 37, which describes the snapback process, “if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.” This provision is simply an acknowledgment of Tehran’s view, but it also constitutes a threat to abrogate the agreement if the P5+1 attempts to enforce it.
In effect, Khamenei has conditioned his approval of the deal on U.S. and European acceptance of Tehran’s interpretation of these clauses, and now seeks to formalize its views as binding obligations on the United States and Europe. This effort demonstrates that Khamenei considers nuclear negotiations ongoing, thereby enabling him to continue raising new demands. In fact, in his letter to President Rouhani, the supreme leader also stated that Iran will neither give up its stockpile of enriched uranium nor modify its heavy water reactor at Arak until inspectors stop pursuing their suspicions that Iran once had an active nuclear weapons program.
Still, in this context, it seems unlikely that Iran would abrogate the deal in the short term, lest it fail to receive sanctions relief. More likely, Tehran would protest American behavior and declare that the U.S. has materially breached the JCPOA. Such an objection would lay the foundation for Iranian withdrawal from the agreement at a time of its choosing, at which point it could blame the United States for torpedoing it.
Congress Vs. Majlis
Khamenei’s interpretation of the agreement presents an acute irony. Whereas Khamenei and his subordinates continue to impose new conditions, the Obama administration has repeatedly insisted that any effort to change the JCPOA’s original text would cause Iran to abandon the deal. This asymmetry has created a dynamic that favors the Iranian interpretation of the JCPOA’s many vague and disputed clauses. The best illustration of this dichotomy lies in the differing ways that Khamenei and Obama have interacted with their respective legislatures while lawmakers were reviewing the deal.
During the review period in the U.S. Congress, President Obama repeatedly derided domestic critics of the agreement for insisting on a better deal, arguing that the Iranian government, the Iranian opposition, and the Iranian people would never accept it. In fact, he claimed, “this is the strongest non-proliferation agreement ever negotiated,” therefore making any changes unnecessary. Ultimately, U.S. lawmakers reviewed the text of the deal under the assumption that it would not change.
By contrast, the Iranian Majlis, or parliament, worked under the assumption that Tehran could extract even further concessions. As Majlis Speaker Ali Larijani put it, “We have not approved the JCPOA in the way that the other side [i.e., the U.S.] has said.” The Majlis resolution approving the deal included a provision stating that “failing to lift the sanctions, or restoring the canceled sanctions, or imposing sanctions for any other reason” would lead Iran to “terminate [its] voluntary cooperation.” Subsequently, Nejatollah Ebrahimian, spokesman for the Guardian Council, which approves any legislation the Majlis passes, explained that the Council “did not approve the JCPOA, but rather the Majlis plan on the JCPOA. … The JCPOA remains a political document, not a legal one.”
The Obama administration should make clear that it rejects the additional conditions imposed by Khamenei and the Majlis. Yet so far, it has neither criticized his letter nor effectively advanced the American interpretation of the deal. In fact, on the same day as Khamenei’s conditional approval of the JCPOA, Democrats in Congress, with White House Chief of Staff Denis McDonough and Treasury Secretary Jacob Lew in attendance, threw a party to celebrate Adoption Day.
Whereas President Obama and his advisors once insisted that no deal is better than a bad deal, their case on behalf of the JCPOA ultimately rested on the premise that the United States would never receive another opportunity to make such a deal, leaving Washington with a binary choice: Take it or leave it. As a result, a confident Tehran has continues to issue new demands that further weaken an already flawed agreement. Change will come only if the Obama administration finds its voice and insists that an agreement approved only by one side is no agreement at all.