By Samuel M. Hickey
After failing to bend Tehran to its will, the Trump administration tried to undermine any efforts by the next administration to reverse course and revive the Iran nuclear deal. President Joe Biden has shown a willingness to restore the nuclear deal, if Iran returns to compliance, as a first step to try to negotiate a possible follow-on or broader deal. To pre-empt this outcome, the Trump administration attempted to construct a “sanctions wall” which, in theory, would thwart plans to de-escalate tensions by easing sanctions and opening up lines of dialogue with Iran. Fortunately, the Biden administration has the legal tools to tear down this wall.
Breaking the wall: Legally swift, politically messy
Under the Iran nuclear deal, known formally as the Joint Comprehensive Plan of Action (JCPOA), the United States only lifted nuclear-related sanctions on Iran. These nuclear-related sanctions also included measures targeting Iran’s financial, energy, petrochemical, shipping, shipbuilding, port and automotive sectors. However, U.S. sanctions remained on Iran’s missile technologies and conventional weapons, human rights abuses and censorship, support of terrorist groups and destabilizing regional activities. Iran also remained a state sponsor of terror.
When former President Trump withdrew from the JCPOA in May 2018, his administration re-imposed all executive sanctions lifted under the deal through Executive Order (EO) 13846 – on nuclear grounds – and then expanded the regime on other grounds. For instance, the Trump administration designated several of Iran’s economic entities, including its Central Bank, as terrorism-supporting entities. Critically, the designation of Iran’s Central Bank impeded the delivery of food, medicine, medical devices and even COVID vaccines to Iran. President Biden has even acknowledged that while humanitarian exceptions are in place, “in practice, most governments and organizations are too concerned about running afoul of U.S. sanctions to offer assistance.”
Politically, it may be challenging to de-list such entities because Iran’s murky financial system makes delineating boundaries difficult. To return to the JCPOA, Iran will likely require the de-listing of all the entities de-listed for sanctions in 2016, as well as the hundreds of entities listed since May 2018. Here, too, there may be some sticking points because some of these sanctions were imposed against legitimate Iranian targets and would not have been lifted under the JCPOA. Lifting these sanctions to return to a pre-Trump era, if that is the goal, will likely face significant opposition in Washington. However, while the Trump administration made things more difficult for the Biden administration, they were not able to create any permanent barriers.
Legally, the process to lift new or re-designated sanctions is straight forward. Upon taking office, President Biden has the unilateral authority under the International Emergency Economic Powers Act to reverse the vast majority of Trump’s actions, full stop. Of course, having power and having political capital are two different things. Restoring the economic benefits to Iran in return for compliance with the JCPOA will be a challenge.
Are there congressional obstacles?
U.S. legislative sanctions laws largely stop short of requiring the Executive to take a certain action without an outlet for the President or possibly the Secretary of Treasury to waive or lift sanctions, if doing so is “vital to the national security interests” of the United States. Since Iran’s nuclear program poses more of a threat today than the day Trump took office, this should be straightforward.
Still, Congress could pass legislation that blocks the administration from lifting sanctions, or they could pass legislation that makes it legally obligatory to impose them. However, 150 House members signed a letter endorsing President Biden’s strategy to re-enter the JCPOA, thus breaking the veto-proof majority needed to block any Congressional bid to block the move.
There is a scenario in which Congress could get to review the deal again if the JCPOA is significantly altered in the process of being revived. The Iran Nuclear Agreement Review Act of 2015 (INARA) provided for a Congressional review period and allowed Congress to pass legislation to disapprove of the JCPOA. It is unclear exactly what circumstances would trigger congressional review under INARA today, but the odds of erecting lasting Congressional roadblocks are low.
Mechanisms for returning to the JCPOA
In light of Iran rejecting the U.S. offer for direct talks, an alternative to direct talks remains on the table. In early February 2021, Iran suggested that the leader of the Joint Commission, the EU’s foreign policy chief Josep Borell, could “choreograph the actions.” Under the terms of the JCPOA, the Joint Commission (currently comprising China, France, Germany, the Russian Federation, the United Kingdom, the European Union and Iran) serves as the agreement’s dispute resolution mechanism. Annex IV of the JCPOA specifically charges the Joint Commission to “Review and consult to address issue arising from the implementation of sanctions lifting as specified in the JCPOA and its Annex II.”
Without speaking to the specifics of how Tehran and Washington would sequence a compliance-for-compliance return to the JCPOA, the Joint Commission has the tools to manage the talks. The Joint Commission can establish “Working Groups” as appropriate and theoretically, invite the United States as an “observer” to attend its meetings. The Joint Commission could also revive the Working Group on Implementation of Sanctions Lifting, which helped initiate the deal in 2016. The proceedings of these meetings are confidential, which can ease the path to talks.
It may be that the Biden administration and Tehran will select a different forum for signaling or communicating their plan to sequence a compliance-for-compliance return to the nuclear deal. Yet, it is clear that the Biden administration has the means and the tools to re-enter the agreement and to de-escalate tensions. While it will be challenging, it is the best way to get control over the Iranian nuclear program and re-establish a framework to manage the other threats posed by Iran.
