Part II: Possible Negotiating Options re Iran

After months of stalled negotiations aimed at reviving the Iran Nuclear Deal (JCPOA), the Raisi administration has finally agreed to resume nuclear talks with six world powers in Vienna from 29 November 2021. The U.S. will have observer status. The Islamic Republic, emboldened by the defeat of Trump’s “maximum pressure campaign” and its own responses in the form of major nuclear advances, is now expected to use its hard-earned leverage to bargain on sanctions relief, release of frozen assets, and guarantees for Washington’s full compliance with the pact. Biden is both unwilling and unable to provide such full guarantees.

My last blog painted a rather grim prospect of any success arising from the negotiations that are about to resume with Iran. To review, the reasons are many. First and foremost, Iran has adopted an approach to the talks that go beyond the even maximalist openings of traditional Middle East negotiations. (See the 14th November editorial of President Ebrahim Raisi entitled “Operation Sanctions Defeat.”) Iran wants:

  1. All sanctions lifted, including those imposed for terrorism and human rights abuses as well as for nuclear non-compliance;
  2. Negotiations must only deal with lifting sanctions;
  3. Not only are missile technology and nuclear weaponization off the table as well as support for terrorism, but so are further concessions on nuclear enrichment;
  4. Iran is not only demanding complete sanctions relief but compensation for the effects of America withdrawing from the JCPOA;
  5. Verification must be in place – not of Iran’s reduction in its nuclear program, but of America’s actual removal of all sanctions; the process must be supervised;
  6. Washington must provide satisfactory guarantees that it will not renege on the deal as Donald Trump did in 2018;
  7. There must be penalties for failures by America to observe the terms.

The U.S. position remains unclear on the guarantees it could provide for the nuclear agreement. However, Biden is unwilling to remove the extensive sanctions imposed by Trump, though, by administrative fiat, he has made some of them moot as a gesture to build some confidence, though Iran has a past history of treating gestures of flexibility as signs of weakness.

The U.S. did release a joint statement with Germany, France and the UK on the sidelines of the G20 in Rome indicating that Washington was ready to return and stay in full compliance with the deal as long as Tehran does the same. However, the Iranian approach turns the talks topsy turvy to focus on America as the non-compliant agent. Further, some of the demands are virtually impossible to satisfy. For example, even if the agreement were to be raised to a treaty status requiring a two-thirds support by the American Senate, that is no guarantee that the U.S. could not abrogate the treaty or the President undermine its application by administratively failing to follow the requirements. There is no way to provide complete guarantees and highly unlikely that even a treaty could be forthcoming. Nevertheless, in order to advance the negotiations and offer confidence building measures, President Biden in a reverse direction is not enforcing the application of many of the sanctions.

The irony, of course, is that when the United States through administrative practices offers gestures to reverse the Trump policy of maximal economic pressure and Iran counteracts by demands that are more maximal than ever, such a dovish American approach is undermined. Support for the Biden initiative for renewal, amendment or substitution for the Joint Comprehensive Plan of Action (JCPOA) is also weakened.

If one listens to or reads commentators steeped in security analyses, hopes for a renewed agreement diminish starkly. However, if you listen to scholars or commentators from the peace negotiating, arms reduction or peace camps, prospects may also seem dim, but they focus on opportunities to advance the negotiations rather than cloud their vision with pessimism. This is true even though the International Agency for Atomic Energy (IAEA) reported last week that their negotiations with the Iranians failed. In diplomatese, the talks were “inconclusive.” They did agree to continue talking. With Iran-US posturing in preparation for the 7th round of the Vienna talks, the Institute for Peace & Diplomacy (IPD) co-hosted a panel discussion titled on “Prospect of Iran Nuclear Talks” in collaboration with the Geneva Centre for Security Policy (GCSP) to examine the potential scenarios facing the negotiators to salvage the nuclear deal.

In the 2015 JCPOA agreement, Iran agreed to limit enrichment, permit effective inspections in exchange for sanctions relief. Since Trump cancelled America’s participation in the agreement and since his defeat, America by administrative fiat has provided limited sanctions relief. But Iran has openly enriched uranium well past the 3.67 limit to 20% and even 60% purity, the latter well within the range of providing nuclear material for a bomb. Further, Iran repeatedly interferes with the inspectors, subjecting them to humiliating bodily searches, refusing to provide access to previously unreported sites where uranium particles have been identified, replacing damaged cameras and denying access to automatic monitoring devices.

The IAEA is not the U.S. It is an independent international body to which Iran has obligations. Undermining the IAEA reinforces the impression that Iran after five months of delay is just stalling for time. Iran may simply be entering the sixth round of talks to buy more time.

What options do the negotiators have to deal with Iran? Iran wants the snap-back privileges granted to the US in 2015 JCPOA eliminated. Iran seems highly unlikely simply to endorse a renewal of JCPOA. As indicated above, under JCPOA, there is no legal way that America can provide guarantees to bind the next administration. However, changes could be made. The West could concede that only by a majority vote of the negotiating states could the snap-back provisions be initiated. There could be an agreement that snapback could not be implemented by the decision of one country. Costs could be imposed on failures of states other than Iran to live up to the agreement instead of making Iran carry the burden of ensuring no deviance from the terms of the agreement.

Even if no changes were agreed upon and the JCPOA merely reinstated, the agreement will never work if Iran continues to undermine inspections. In fact, if the right to inspect is not fully restored by the next meeting of the IAEC board in February, the IAEC can be expected to reprimand Iran – not that this would likely influence Iran’s behaviour, but it would undermine the global effort of Iran to improve its public image.

The reality is that there is unlikely to be a JCPOA2. More likely, but still improbable, there could be a series of interim agreements. After all, through American actions, the pressure of sanctions is receding. Further, the U.S. has never punished China for buying Iranian oil. In October, tankers delivered 170,000 tons of crude oil unaffected by the sanctions regime. The price of that oil over the last half-year has soared from $26 to $76 a barrel. Last month, Iran earned $90 million from oil sales and an estimated $1 billion for all of 2021. Yet Iran still needs and demands access to its frozen assets, and, even worse, compensation. Perhaps a series of interim agreements might suffice in place of JCPOA2.

An interim deal is colloquially known as “less-for-less”. In it, Iran would stop enriching its uranium further in return for formalizing sanctions now not being imposed and perhaps including other sanctions relief. Critics lambaste such a proposal as worse than returning to the JCPOA, especially since the money freed up for Iran from currently frozen funds could, and probably would be used to improve the weaponization program and Iran’s missile capabilities.

In contrast, the US-based United Against Nuclear Iran (UANI) advocates tightening the economic and diplomatic pressures on Iran to prevent Iran from becoming a nuclear threshold state. This entails increasing sanctions against both individuals and corporate entities trading with Iran or buying its oil. This would be a return to the maximal pressure under Trump which has already proven to be a failure. Yet Nikki Haley, who is on the UANI board, is a prominent advocate for such a policy direction.

Interim steps pose great risks for the West as Iran has enriched enough uranium to be within reach of becoming a nuclear power. It is already a transitional nuclear power. Further, unless the situation is stabilized and possibly reversed, one can expect increasing demands by Iran and increased momentum thrusting Iran into an all-out quest for nuclear weapons and militarization while Israel is compelled to retaliate through covert actions and possibly a direct attack. The risk is a tit-for-tat confrontation. The timeline for reaching even an interim deal becomes more difficult as the days progress and almost impossible the day Iran succeeds in becoming a full transitional nuclear power.

The problems on Iran’s part include the increased improvement and application of its centrifuges to refine more uranium even more quickly, the blockages to IAEA inspectors, the disarming of automatic methods of observation and the open production of more and purer forms of uranium in total breach of the JCPOA limits. Iran is, according to many estimates, already a threshold nuclear power capable of producing one bomb in 1-3 weeks, a second bomb within two months and a third before four months. The only core limitation is that its weaponization capacity is still severely limited – that is, the ability actually to build the bomb, install the optical equipment needed, trigger the chain reaction and place it on a missile warhead. These bombs could not be delivered to targets during the next two years but perhaps only a year-and-a-half. That timeline too is rapidly decreasing according to some experts.

Can the situation be stabilized instead of escalating? Is it helped by fruitless negotiations? Tehran has made it very clear that it has no intention of simply returning to the JCPOA. Iran will not accept any deal – neither a return to the original agreement nor even a limited agreement with fewer conditions – unless the United States first lifts all sanctions. Is Iran just posturing? The huge gap in positions makes the chance of a compromise remote. There are many mechanisms available that, in normal times, could assuage Iran, foster reciprocity and reinforce mutuality. However, it is a very uphill battle. Hope is no substitute for reality, especially when American economic incentives lack any balancing threat for non-progress in talks and Israel lacks a persuasive military strategy. Israel does have Jericho missiles that can hit Iran. But can their warheads penetrate Iran’s reinforced nuclear facilities? The failure of IAEA chief, Rafael Grossi, to make any progress in his recent talks with Iran, even with respect to replacing damaged cameras, is an indicator that pressure points on Iran are shrinking every day.

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