Australia / Israel Review

Why hasn’t anyone noticed?

Yigal Carmon

What is mistakenly perceived as an agreement under the title of “Joint Comprehensive Plan of Action” (JCPOA), which was concluded on July 14 in Vienna, and celebrated by the White House as an “historic agreement,” is neither a contract nor even a real agreement between Iran and the P5+1. It is a set of understandings and disputes compiled into a single document.

For example, the JCPOA states that in the event of Iranian violations, sanctions will be re-imposed (“snapback”). However, the Iranian position, which rejects all sanctions, is incorporated in the same document. In outlining the snapback of the sanctions, Article 37 also stipulates: “Iran has stated that 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 is not merely an Iranian reservation expressed outside of the negotiating room. It is incorporated into the text of this selfsame document – and one that completely contradicts preceding provisions that stipulate otherwise. Since the parties were unable to arrive at an understanding on this issue in two entire years of negotiations, they decided to resolve this major issue by incorporating this disagreement into the document itself.

The JCPOA is best characterised by bangs and whimpers – by bold prohibitions on Iran that peter out in qualifying terms such as “unless,” “except if,” and the like.

Why isn’t the JCPOA a contract? Because Iran would never have signed any contract with the US – “the Great Satan” – whose demise it seeks. Likewise, it would not have signed any contract with any other party to the negotiations, since it views the sanctions imposed on it by United Nations Security Council (UNSC) resolutions and by EU and International Atomic Energy Agency (IAEA) reports as grievous injustice. By signing such an agreement, it would retroactively legitimise these wrongs done to it.

As Iranian Supreme Leader Ali Khamenei frequently reiterates, Iran agreed to negotiations mainly to get the sanctions lifted. Therefore, as far as Iran is concerned, the only acceptable name for this enterprise is “Joint Comprehensive Plan of Action” – under which each party commits to particular action. It is a joint plan, not a contract.

Has Iran Fulfilled Its Initial Obligation To Approve the JCPOA?

The JCPOA includes a timetable and obligations applying to both sides. Within this time frame, both parties had 90 days from July 14 to secure approval for the agreement from their respective national institutions. By “Adoption Day,” set for October 19, which has come and gone, the agreement was meant to have been approved by both sides. The EU was to have announced the lifting of its sanctions, while President Obama, on behalf of the US, was to have announced the lifting of the US executive branch’s sanctions, along with waivers on sanctions imposed by the US legislative branch – that is, suspension, because the President is not authorised to lift them.

Adoption Day was preceded by a farcical UNSC endorsement of the agreement/disagreement, as demanded by Iran. The US volunteered to play errand boy for this undertaking. For its part, the UNSC eschewed discussion on the matter, and passed this historic resolution, No. 2231, in record time for such a weighty historic document – under 30 minutes.

The Western side showed its consent long before October 19; the self-effacing EU member countries did not even bother to discuss the agreement in their national parliaments. And while the US Congress did discuss it seriously, the agreement was allowed to proceed, via a convoluted process that was nonetheless legal and binding.

In Iran, however, following discussion in both its Majlis (parliament) and its Guardian Council, the JCPOA as concluded and announced on July 14 was not approved. The Majlis ratified something else – a set of recommendations to the government of Iran regarding how it should execute the JCPOA. This hardly constitutes approval of the original document. The Guardian Council, for its part, approved what the Majlis had done; Guardian Council Secretary-General Ayatollah Jannati said, on Iranian TV, that his council had approved not the JCPOA but a plan for the government to secure Iran’s interests in executing it. Majlis Speaker Ali Larijani said the same thing.

Was this a fulfilment of what Iran was obligated to do under the JCPOA? No! Did the US Administration insist that Iran approve the JCPOA, as concluded and announced in Vienna on July 14? No! Does the US realise that Iran’s ultimate authority to approve laws rests with Supreme Leader Khamenei, and that he has not yet approved the JCPOA? No! Nevertheless, the US and Europe have chosen to regard what Iran has done as approval – so that the peace process will not be halted.

The US and Europe then proceeded to the first post-Adoption Day phase in the JCPOA timetable: The EU announced that its sanctions would be terminated. President Obama announced that the US’s executive sanctions would be lifted and its legislative sanctions waived; this announcement was not for immediate execution, but in fact advance notice that these measures would come into effect by December 15 – provided that the IAEA had reported that Iran had fulfilled its obligations under the JCPOA.

What are these obligations that Iran has to fulfil between Adoption Day and December 15 in order to merit this sanctions relief? The Arms Control Association, which supports Iran and the JCPOA, listed them on its website:

• reducing the centrifuges at Natanz from over 16,000 to 5,060 IR-1 machines, which will enrich uranium to 3.67%, and removing the associated infrastructure; 
• reducing the number of IR-1 centrifuges at Fordow to 1,000 (328 will operate) and converting the facility for radioisotope production;
• wrapping up testing on advanced centrifuge machines and removing all advanced centrifuges except one IR-4, IR-5, IR-6, and IR-8 machine for testing with uranium; 
• storing all dismantled centrifuges under IAEA seal;
• reducing the stockpile of enriched uranium to less than 300 kilograms; 
• removing the core of the Arak reactor and disabling it; and
• instituting the necessary transparency and monitoring mechanisms to implement Iran’s additional protocol and the continuous surveillance of key facilities.

Did Iran hasten to meet these obligations? No! The explanation follows below.

Why Isn’t Iran Rushing to Fulfil Its Obligations and Get Sanctions Relief?

At this stage, events have taken an absurd turn. Iran has started dragging its feet. Instead of rushing to carry out all the steps to meet its obligations under the JCPOA, it is idling in neutral. It has little time and much to do by December 15. It must dismantle thousands of centrifuges and transfer them to storage monitored by IAEA cameras. It must ship out 9,000 kg of its enriched uranium to a third country, retaining only 300 kg. It must dismantle and pour cement into the core of the Arak plutonium reactor, and transform the facility into a heavy water reactor. It must notify the IAEA of its voluntary acceptance of the NPT Additional Protocol. And more.

But senior Iranian officials are shifting responsibility for initiating fulfilment of these obligations to one another, sometimes with comical effect. For example, President Hassan Rouhani sent a letter to Iranian Atomic Energy Organisation head Ali Akbar Salehi instructing him to begin to take the appropriate steps. Salehi confirmed that he had received Rouhani’s message, but said that it had not stated when he should start doing so. No one wanted to budge without explicit permission from Supreme Leader Khamenei.

Khamenei Issues Nine New Conditions, Blocks Execution of JCPOA

Now the big secret is out. Khamenei has not approved the JCPOA. And those who pretend that it has been approved – President Rouhani, Foreign Minister and negotiator Javad Zarif, and their associates – have been on borrowed time. While they could lie to the West, they always knew that Khamenei opposed the JCPOA. Now, at the moment of truth, they feared to proceed.

Indeed, it was logical for Khamenei to allow the Iranian negotiators to play along with the P5+1, to see what they could get at no cost to Iran – since it was well known that President Obama was dying for an agreement. But once Khamenei knew that President Obama was standing firm on the last fragment of the original US position, either unwilling or unable to capitulate any further, Khamenei broke his silence. Stepping in in the final act, Khamenei dictated, in a letter to President Rouhani, nine new conditions for the JCPOA, and declared that if these were not met Iran would stop the agreement.

Actually, Khamenei had issued an early warning in a September 3 speech, in which he said that all the sanctions must be lifted, not suspended, and that if not, there would either be no agreement or Iran would also only “suspend” its obligations. But President Obama did not yield. He cannot override congressional sanctions; he can only issue a suspension via a waiver. Politically too, it might be too far for him to go to break his promise of the JCPOA’s built-in security mechanism – “snapback” of the sanctions in the event of Iranian cheating. Obviously, snapback is possible only if the sanctions remain in place under suspension. Therefore, Khamenei, realising that the sanctions would remain, also kept his promise and blocked the agreement with new conditions, one of which – the lifting of sanctions rather than suspension – he knows cannot be met.

The Media and Khamenei’s Nine New Conditions

Khamenei’s letter to Rouhani with his conditions for the execution of the JCPOA – the publication of which coincided with the days of the Ashura that are of vital religious and national significance in Iran and symbolise steadfastness against the forces of evil – was explicitly termed “conditional approval.” It was labelled thus in red letters, as posted on Khamenei’s website in Persian, tweeted from his Twitter account and posted on his Facebook page in English, and also published in English by the official Islamic Republic of Iran Broadcasting authority IRIB.

But instead of reporting that at this stage, and at present, Khamenei’s approval is not given unless Khamenei’s conditions are met, the media said that Khamenei had approved the JCPOA. Would these members of the media also consider a purchase concluded if they had not paid for it?

Khamenei had spoken, banning outright any implementation of the JCPOA by Iran until his new conditions are met. The entire Iranian political system is hewing to this line – including President Rouhani, Foreign Minister Zarif, Majlis Speaker Larijani, a majority of Majlis members (166), and more.

Everyone, that is, except for Ali Akbar Hashemi Rafsanjani, Khamenei’s political rival and head of Iran’s pragmatic camp, who in an interview published in late October by MEMRI openly challenged Khamenei and said that Iran should abide by what it undertook in the JCPOA.

But this cannot happen. Khamenei holds the reins.

So What Now?

And what is President Obama to do, as everything he has stood for in the Iran deal collapses so ignominiously? On the right, they say he will continue to capitulate. They fail to realise that he can simply surrender no farther. OK, they say, so the IAEA will provide Obama with the necessary confirmation by December 15 that the Iranians have done their part. But that is impossible as well. What is demanded of Iran is gargantuan in scale, and it would be difficult for the IAEA to fake confirmation when the Iranians themselves are declaring loudly that they are not going to do it.

With every passing day, Iran is more and more in violation of the JCPOA. But neither the Republicans nor the Democrats, nor the media, nor anyone else will acknowledge this, for the implications are too devastating. The agreement is no longer in effect. Its clock has stopped.

But the weeks will pass, and the media and politicians will be forced to admit that this is the case. And the last thing they will be willing to do is to force Iran to meet its obligations. Thus, it appears that President Obama’s only option, shameful as it is, is to restart the negotiations with the Iranians and talk with them about their leaders’ new conditions. As is well-known, this Administration advocates diplomacy – guaranteeing that there will be no breakthrough any time soon.

This is precisely what will serve President Obama best. All he needs to do is play for time and reach the end of his term with an agreement in hand – albeit virtual – and negotiations in progress – albeit unending. He will pass this situation on to the next US Administration. The success will be all his, and the failure will be all theirs.

Yigal Carmon is President and founder of the Middle East Media Research Institute (MEMRI). © MEMRI, reprinted by permission, all rights reserved.

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