As a candidate, Donald Trump made clear that, if elected, he would “dismantle the disastrous deal with Iran.”Footnote 1 Nonetheless, the Joint Comprehensive Plan of Action (JCPOA) remained in place throughout 2017, and all four International Atomic Energy Agency (IAEA) reports that year verified Iran's compliance with its nuclear commitments under it.Footnote 2 On January 12, 2018, President Trump warned that he would withdraw from the JCPOA by mid-May unless he “secure[d] our European allies’ agreement to fix [its] terrible flaws.”Footnote 3 No such agreement materialized and, on May 8, Trump announced his decision to withdraw. He also ordered the reimposition of robust primary and secondary sanctions that had been previously waived pursuant to the JCPOA.
Under the JCPOA, the five permanent members of the UN Security Council, Germany, and the European Union agreed to relieve Iran from nuclear-related sanctions in exchange for its agreement to place verifiable limits on its nuclear program.Footnote 4 Shortly after the JCPOA was reached in July 2015, the Security Council passed Resolution 2231 endorsing the deal.Footnote 5 This resolution “[c]alls upon all Members States, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by … refraining from actions that undermine implementation of commitments under the JCPOA.”Footnote 6 Also by the terms of Resolution 2231, “[a]ll states … are called upon to comply” with a statement made by all parties to the JCPOA except Iran, which in turn provides that “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons” for an eight-year period.Footnote 7 Pursuant to the JCPOA, Resolution 2231 also lifted previous Security Council resolutions that had imposed sanctions on Iran.Footnote 8
Over the course of 2017, Trump continued to waive U.S. sanctions pursuant to the JCPOA but expressed ongoing dissatisfaction with its terms and more generally with Iranian behavior. One concern involved the sunset provisions of the JCPOA, which included time limits on certain Iranian commitments to reduce its uranium enrichment.Footnote 9 Another concern related to Iran's ballistic missile testing. Notwithstanding the provision in Resolution 2231 calling upon it to do otherwise, Iran continued to engage in testing, including by launching a medium range ballistic missile test within a few days of Trump's inauguration.Footnote 10 More generally, Trump signaled disapproval of the JCPOA’s narrow focus on Iran's nuclear program, noting that “the Iranian regime continues to fuel conflict, terror, and turmoil throughout the Middle East and beyond.”Footnote 11 Starting in October 2017, President Trump declined to certify to Congress that Iran was taking “appropriate and proportionate” measures to end its nuclear program—a decision that, under the 2015 Iran Nuclear Review Act, provided Congress with the option of reimposing sanctions on Iran through an expedited legislative procedure.Footnote 12
When Trump decided to waive sanctions again on January 12, 2018, he announced that he would withdraw from the JCPOA unless a unified stance aimed at toughening it was reached with European allies before the next waiver deadline on May 12, 2018:
Despite my strong inclination, I have not yet withdrawn the United States from the Iran nuclear deal. Instead, I have outlined two possible paths forward: either fix the deal's disastrous flaws, or the United States will withdraw.
…
In 2015, the Obama Administration foolishly traded away strong multilateral sanctions to get its weak nuclear deal. By contrast, my Administration has engaged with key European allies in seeking to secure a new supplemental agreement that would impose new multilateral sanctions if Iran develops or tests long-range missiles, thwarts inspections, or makes progress toward a nuclear weapon—requirements that should have been in the nuclear deal in the first place. And, like the bill I expect from Congress, these provisions of a supplemental agreement must never expire.
I also call on all our allies to take stronger steps with us to confront Iran's other malign activities. Among other actions, our allies should cut off funding to the Islamic Revolutionary Guard Corps, its militant proxies, and anyone else who contributes to Iran's support for terrorism. They should designate Hezbollah—in its entirety—as a terrorist organization. They should join us in constraining Iran's missile development and stopping its proliferation of missiles, especially to Yemen. They should join us in countering Iran's cyber threats. They should help us deter Iran's aggression against international shipping. They should pressure the Iranian regime to stop violating its citizens’ rights. And they should not do business with groups that enrich Iran's dictatorship or fund the Revolutionary Guard and its terrorist proxies.
Today, I am waiving the application of certain nuclear sanctions, but only in order to secure our European allies’ agreement to fix the terrible flaws of the Iran nuclear deal. This is a last chance. In the absence of such an agreement, the United States will not again waive sanctions in order to stay in the Iran nuclear deal. And if at any time I judge that such an agreement is not within reach, I will withdraw from the deal immediately.Footnote 13
In response to Trump's warning, European allies engaged in dialogue regarding his concerns and sought to discourage him from withdrawing from the JCPOA. In February during a visit with German Chancellor Angela Merkel, British Prime Minister Theresa May stated that they were both “‘ready to take further appropriate measures’” regarding Trump's concerns about Iranian behavior.Footnote 14 By the end of March, U.S. officials had met three times with officials from the United Kingdom, Germany, and France (the E3) in an unsuccessful attempt to negotiate the supplemental agreement called for by Trump.Footnote 15 These meetings focused on “the sunsetting of restrictions on Iran's nuclear program, the omission of [intercontinental ballistic missiles] from the original Iran nuclear agreement, and a stronger inspections regime.”Footnote 16 Near the end of April, President Emmanuel Macron of France visited the United States and indicated his support in principle for a supplemental agreement, while disagreeing with Trump that withdrawal was an appropriate alternative. He stated, “I believe we can both combine our common views and our differences, because we are not in a vacuum. I always said we should not tear apart the JCPOA and have nothing else[,] … that would not be the good solution.”Footnote 17
On May 8, 2018, Trump announced that the United States would end its participation in the JCPOA and reimpose the lifted sanctions:
In theory, the so-called “Iran deal” was supposed to protect the United States and our allies from the lunacy of an Iranian nuclear bomb … .
…
The agreement was so poorly negotiated that even if Iran fully complies, the regime can still be on the verge of a nuclear breakout in just a short period of time. The deal's sunset provisions are totally unacceptable … .
Making matters worse, the deal's inspection provisions lack adequate mechanisms to prevent, detect, and punish cheating, and don't even have the unqualified right to inspect many important locations, including military facilities.
Not only does the deal fail to halt Iran's nuclear ambitions, but it also fails to address the regime's development of ballistic missiles that could deliver nuclear warheads.
…
Therefore, I am announcing today that the United States will withdraw from the Iran nuclear deal.
…
As we exit the Iran deal, we will be working with our allies to find a real, comprehensive, and lasting solution to the Iranian nuclear threat. … In the meantime, powerful sanctions will go into full effect. If the regime continues its nuclear aspirations, it will have bigger problems than it has ever had before.
…
Iran's leaders will naturally say that they refuse to negotiate a new deal; they refuse. And that's fine. I'd probably say the same thing if I was in their position. But the fact is, they are going to want to make a new and lasting deal, one that benefits all of Iran and the Iranian people. When they do, I am ready, willing, and able.Footnote 18
In conjunction with his remarks, Trump signed a presidential memorandum with five main sections explaining the decision to withdraw from the JCPOA and providing directions to administration officials for reimposing sanctions:
Section 1. Policy. It is the policy of the United States that Iran be denied a nuclear weapon and intercontinental ballistic missiles; that Iran's network and campaign of regional aggression be neutralized; to disrupt, degrade, or deny the Islamic Revolutionary Guards Corps and its surrogates access to the resources that sustain their destabilizing activities; and to counter Iran's aggressive development of missiles and other asymmetric and conventional weapons capabilities. …
Sec. 2. Ending United States Participation in the JCPOA. The Secretary of State shall, in consultation with the Secretary of the Treasury and the Secretary of Energy, take all appropriate steps to cease the participation of the United States in the JCPOA.
Sec. 3. Restoring United States Sanctions. The Secretary of State and the Secretary of the Treasury shall immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA … .
Sec. 4. Preparing for Regional Contingencies. The Secretary of Defense and heads of any other relevant agencies shall prepare to meet, swiftly and decisively, all possible modes of Iranian aggression against the United States, our allies, and our partners. …
Sec. 5. Monitoring Iran's Nuclear Conduct and Consultation with Allies and Partners. Agencies shall take appropriate steps to enable the United States to continue to monitor Iran's nuclear conduct. I am open to consultations with allies and partners on future international agreements to counter the full range of Iran's threats … .Footnote 19
Trump's memorandum provided the Secretary of State and Secretary of the Treasury with specific guidance for the reimposition of sanctions within 180 days from the date of his memorandum.Footnote 20 Trump directed the reimposition of sanctions under the National Defense Authorization Act for Fiscal Year 2012 and the Iran Threat Reduction and Syria Human Rights Act of 2012.Footnote 21 Trump also instructed the departments to reimpose sanctions lifted by Executive Order 13716, which had been issued by President Obama in implementing the JCPOA.Footnote 22 The sanctions resulting from Trump's memorandum are a robust combination of primary and secondary sanctions on domestic and foreign entities, including companies that do business with various Iranian industries, including energy, and on banks that do business with the Central Bank of Iran.Footnote 23
In a press briefing, an official from the State Department explained how the United States would begin to implement Trump's order:
[T]he sanctions reimposition that the President talked about is going to come in two phases. There's going to be one period for wind down that lasts about—that lasts 90 days, and one period of wind down that lasts six months. The six-month wind down—wind downs are, by the way, pretty standard across sanctions programs. …
In this case, we're providing a six-month wind down for energy-related sanctions. So that's oil, petroleum, petrochemicals, and then all of the ancillary sanctions that are associated with that. So, for example, banking; sanctions on the CBI in particular, because the Central Bank of Iran is involved in Iran's export of oil and the receipt of revenues. Shipping, shipbuilding, ports—all of those sanctions that are related to both the energy sector and then the banking and the shipping or transportation of that energy will all have a six-month wind down. Everything else is going to have a 90-day wind down. So that's—the architecture of the Iranian sanctions program was quite complex, but everything else includes things like dealing in the rial, providing metal—precious metals and gold to the Iranian regime, providing U.S. banknotes.Footnote 24
When questioned about secondary sanctions, the official confirmed that the administration wants to reimpose sanctions on foreign entities that do business with Iran in a way that was similar to the United States’ pre-JCPOA structure.Footnote 25 The official acknowledged uncertainty as to how European countries would respond to the secondary sanctions, explaining that prior to Trump's withdrawal they had been “focused on negotiating a supplemental agreement, so we did not—we did not talk about a Plan B.”Footnote 26
The European Union issued a press release “deeply regretting” the announced U.S. withdrawal.Footnote 27 It emphasized that “[a]s long as Iran continues to implement its nuclear related commitments, as it has been doing so far … the EU will remain committed to the continued full and effective implementation of the nuclear deal.”Footnote 28 Similarly, Macron tweeted that “France, Germany, and the UK regret the U.S. decision to leave the JCPOA. The nuclear non-proliferation regime is at stake.”Footnote 29 He also noted that France will continue to “work collectively on a broader framework, covering nuclear activity, the post-2025 period, ballistic activity, and stability in the Middle-East, notably Syria, Yemen, and Iraq.”Footnote 30 UN Secretary-General António Guterres was “deeply concerned” by Trump's announcement and called on other JCPOA participants “to abide fully by their respective commitments under the JCPOA,” which he described as “a major achievement in nuclear non-proliferation and diplomacy.”Footnote 31
In Tehran, rallies were held against Trump's decision, and the Iranian government issued a statement denouncing the “new extremist administration.”Footnote 32 The Iranian foreign minister stated that Trump's decision and memorandum were “in clear non-compliance with Security Council Resolution 2231” and “constitute a complete disregard for international law and the United Nations Charter, undermine the principle of peaceful settlement of disputes, endanger multilateralism and its institutions, … and encourage intransigence and illegality.”Footnote 33 The Russian Foreign Ministry was “deeply disappointed” by the decision to withdraw and indicated it may be a possible violation of international law.Footnote 34
Although most reactions to Trump's decision were made in regret or in stark opposition, some foreign officials offered their support. Prime Minister Benjamin Netanyahu of Israel and Khalid bin Salman, Saudi Arabia's ambassador to the United States, both made statements backing Trump's decision to withdraw from the JCPOA and reimpose sanctions.Footnote 35
Leaders of E3 issued a joint statement pointing to Resolution 2231 as a binding framework for addressing the Iranian nuclear program:
Together, we emphasise our continuing commitment to the JCPOA. This agreement remains important for our shared security. We recall that the JCPOA was unanimously endorsed by the UN Security Council in resolution 2231. This resolution remains the binding international legal framework for the resolution of the dispute about the Iranian nuclear programme. …Footnote 36
Among scholars and practitioners, there is some debate over whether the language in Resolution 2231 endorsing the JCPOA and calling upon member states to support the JCPOA’s implementation creates a legally binding obligation.Footnote 37 The unsigned JCPOA is not itself a legally binding agreement, or at least this was the strong assumption of its U.S. negotiators.Footnote 38 The Security Council Resolution is binding to the extent that it gives a legally binding directive and triggers the obligations of member states under the UN Charter.Footnote 39 Resolution 2231 simply “calls upon” states to implement the JCPOAFootnote 40—it does not, for example, “decide” that they shall do so. But in its Namibia Advisory Opinion, the International Court of Justice found, through a case-specific analysis, that a provision of a resolution that “calls upon” states to take various actions was binding.Footnote 41 Notably, a similar analysis could be undertaken with respect to the provision of Resolution 2231 in which Iran is “called upon” to refrain from “any activity related to ballistic missiles designed to be capable of delivering nuclear weapons.”Footnote 42
In the wake of Trump's decision to withdraw, Secretary of State Mike Pompeo announced that the administration will apply “unprecedented financial pressure on the Iranian regime.”Footnote 43 Pompeo also outlined twelve demands that the United States has for Iran in any negotiations for a new agreement.Footnote 44 These include that Iran must
permanently and verifiably abandon [military dimensions of its nuclear program,] … stop enrichment[,] … provide the IAEA with unqualified access to all sites throughout the entire country[,] … end proliferation of ballistic missiles[,] … end support to Middle East terrorist groups[,] … [and] withdraw all forces under Iranian command throughout the entirety of Syria.Footnote 45
When asked how he would work with allies with respect to these objectives, he stated that “[t]he United States intends to work hard at the diplomatic piece of working alongside all of our partners. We focus on the Europeans, but there are scores of countries around the world who share our concerns and are equally threatened by the Iranian regime.”Footnote 46
The European Commission recently initiated the activation of its 1996 blocking statute, which “forbids EU persons from complying with US extraterritorial sanctions, allows companies to recover damages arising from such sanctions from the person causing them, and nullifies the effect in the EU of any foreign court judgements based on them.”Footnote 47 The commission seeks to have the statute activated by August 6, 2018 and thus before the U.S. sanctions take effect.Footnote 48 On May 24, the IAEA reported that Iran had again complied with limits on uranium enrichment, and, the next day, Iranian officials met in Vienna with officials from Britain, France, Germany, China, and Russia.Footnote 49 These countries reaffirmed to Iran their commitment to the deal, but an Iranian official told reporters that “[w]e are still complying but we have not decided whether … to stay in the deal or not.”Footnote 50
