WITH THE March 31 “deadline” looming, Iran and the P5+1 (the United States, Britain, France, Germany, Russia, and China) have been holding marathon negotiations in the Swiss city of Lausanne to break an impasse in nuclear negotiations. The aim of these talks is to reach a “political understanding” on major parameters of a joint comprehensive plan of action. Negotiators have until June 30 to reach a complete agreement resolving the technical details, but US officials insist that “[a]ny political understanding needs to address in some way all of the elements of a final agreement.”
Russian Foreign Minister Sergei Lavrov said he believed there was a good chance of success “if none of the parties raise the stakes at the last minute.” However, four significant issues appear to remain unresolved.
First, the ability to forge a comprehensive agreement appears to hinge on the issue of what Iran’s centrifuge capacity will be and how long limits should stay in place. Iran’s position has been to oppose any limitation on its centrifuge numbers because it claims to need a large-scale enrichment capacity for nuclear fuel production for its future reactor fleet. The United States and its partners, however, want to limit enrichment capacity and tie the amount to Iran’s practical nuclear fuel needs, which will be minimal in the near term. According to press reports, among the options being discussed are time limits on enrichment caps, reduced uranium stocks held in Iran, or provision of reactor fuel from an outside source. A related – and significant – issue is how to address Iran’s research and development activities for an advanced generation of more efficient centrifuges, currently allowed but limited under the Joint Plan of Action (JPA).
Second, while P5+1 negotiators have long acknowledged that a comprehensive nuclear deal would include a broad easing of international sanctions against Iran, the parties are at odds over the timeline for lifting sanctions. Iran is reportedly demanding that a comprehensive agreement provides immediate relief from sanctions as soon as a final accord takes effect; the US and its P5+1 partners, however, continue to insist that sanctions relief be implemented stepwise as Iran complies with the terms of the final agreement.
Third, the P5+1 are demanding that any comprehensive agreement resolve the outstanding questions by the International Atomic Energy Agency (IAEA) about “possible military dimensions.” U.N. Security Resolutions require Iran to resolve these questions by providing full information to the IAEA. And while a November 2014 IAEA report said that the Agency could verify that there was no diversion of nuclear material from the facilities it was monitoring, it could not conclude that there was no nuclear weapons-related activities taking place in the country, due to the lack of access to documentation, material, and personnel.
Fourth, the issue of the duration of a comprehensive accord remains at issue. The P5+1 has reportedly sought an accord that lasts 20 years, and congressional and other critics of the purported deal insist that the accord last for a minimum of 15 years. But President Obama has stated that an accord must last for “double digit” number of years, holding out the potential that it might expire after 10 years. Critics of the purported deal assert that Iran’s society will not likely have evolved sufficiently in 10 years to give the international community confidence that Iran’s post-expiration nuclear intentions are purely peaceful.
Any of these four issues could derail the current negotiations. While progress has clearly been made, it has become increasingly clear that both sides are growing frustrated as the deadline nears. Iranian negotiator Hamid Baidinejad has returned to insisting that any “final deal should guarantee the Iranian nation’s nuclear rights.” And while the U.S. State Department gave the go-ahead for talks to go past a self-imposed midnight deadline, White House spokesman Josh Earnest threatened that U.S. negotiators would not wait until June 30 to walk away from the talks if they could not reach a preliminary political agreement.
The drama will continue in Lausanne. Secretary of State John F. Kerry, who had been planning to return to Washington if there was no agreement by midnight on March 31, announced shortly before 9 p.m. that he would be staying at least one more day. But even if a preliminary political understanding is reached, one issue is sure to remain a sticking point in the months ahead: sanctions relief. And here’s the catch: For the US government, the toughest negotiators with regard to such relief may not be the Iranians; it may be Congress.
Some in Congress have sought congressional approval of any comprehensive agreement with Iran – a proposal the Administration opposes. It is not likely, however, that the Administration can exclude congressional oversight altogether. The extent of legislative involvement will depend upon whether the agreement is intended to operate as controlling domestic law and supersede existing statutory requirements.
If the Obama Administration enters into a nuclear agreement that does not modify U.S. law, congressional oversight is limited. If Congress disagrees with such a commitment, it would likely need to pass legislation (potentially with sufficient support to override a presidential veto) to limit U.S. adherence to the agreement. The Obama Administration, for example, did not seek legislative approval of the JPA. While the commitments made by JPA participants may carry significant moral and political weight, they were understood to be voluntarily. And, importantly, they did not modify the participants’ existing domestic legal obligations.
On the other hand, it is widely expected that a final agreement reached with Iran will contemplate a modification of U.S. sanctions laws. If such an agreement were concluded, congressional action would likely be required, as Congress would need to play a role in such an agreements implementation.
As a matter of historical practice, there are two traditional methods by which a legally binding agreement may be entered by the United States. Some types of international agreements have traditionally been entered as treaties. If a legal agreement with Iran were entered as a treaty, it would need to be approved by a two-thirds majority of the Senate and thereafter ratified by the President before it would have the force of law. Because treaties are subject to the advice and consent of the Senate, the Senate could potentially condition its consent on certain reservations, understandings, and declarations concerning its meaning and application, thereby limiting and/or clarifying U.S. obligations under the agreement.
More commonly, however, the United States has undertaken international legal obligations by means of an executive agreement. The Executive is recognized as being able to enter legally binding agreements concerning matters falling under his independent constitutional authority (a category referred to as sole executive agreements) without congressional approval. But the President may not, by way of an executive agreement based solely upon his constitutional authority, supersede or modify a federal statute. In order to do this, the President must execute an agreement that is authorized by legislation passed by both houses of Congress and enacted into law (a category referred to as congressional-executive agreements).
The U.S. sanctions regime against Iran is primarily a creature of federal statute. In some cases, federal statutes directly require the imposition of sanctions against Iranian entities, but may provide the Executive with authority to waive certain sanction requirements in specified circumstances. In other instances, Congress has delegated broad authority to the Executive to impose sanctions against foreign entities in order to protect U.S. interests, and the Executive has exercised this authority to impose sanctions against Iranian entities.
The Administration has said that, at least initially to implement a nuclear deal, it would use the waiver and other authority to suspend application of sanctions on Iran. However, the Administration’s waiver authority is subject to significant limitations. Congress has specifically granted the President the authority to terminate most of the sanctions imposed on Iran, but not before the Executive has determined that Iran has ceased its engagement in two critical areas. Pursuant to federal statute, the Administration must determine: (1) that Iran has ceased providing support for acts of international terrorism; and (2) that Iran has ceased the “pursuit, acquisition, and development of, and verifiably dismantled its, nuclear, biological, and chemical weapons and ballistic missiles and ballistic missile launch technology.”
Meeting first requirement is relatively straightforward – while such a move would certainly be controversial, the Executive Branch holds the exclusive authority to remove countries from the list of state sponsors of international terrorism. The second requirement, however, is nearly impossible to overcome, given that it goes far beyond the nuclear dilemma that is ostensible at issue.
Faced with this reality, the Administration has explicitly recognized that Congress will be required to repeal or terminate those sanctions that cannot be lifted through Administration action alone. However, to say that getting such action from Congress will be difficult is an understatement. Despite the sensitivity of the ongoing negotiations, forty-seven Republican senators recently sought fit to send an “open letter” to the leaders of Iran in an attempt to sabotage the negotiations. Other members of Congress have introduced legislation to impose additional sanctions on Iran while the negotiations are ongoing. The “Nuclear Weapon Free Iran Act of 2015” (S. 269), for example, would levy sanctions on Iran if no agreement is reached. Another bill, S. 615 (S. 625) would require a 60-day congressional review period before the President could use waiver authority to provide any sanctions relief beyond that provided in the JPA.
By a nearly 2-1 margin, the American public backs the general concept behind an agreement – that the U.S. and other countries “would lift major economic sanctions against Iran in exchange for Iran restricting its nuclear program in a way that makes it harder for it to produce nuclear weapons.” But a sharp partisan divide exists. While Democrats and independents overwhelmingly favor such a deal, Republicans are divided almost equally, with 47% saying they would support it and 43% saying they would not.
A comprehensive nuclear agreement with Iran is likely to have profound implications for the Middle East, and particularly the states of the Gulf Cooperation Council (GCC: Saudi Arabia, Kuwait, Bahrain, UAE, Qatar, and Oman), which have been aligned with the US to contain Tehran’s regional influence. Such an agreement has the potential to lower regional tensions that have, at times, threatened to boil over into military conflict.
But in the end, any agreement with Iran may find itself at the mercy of partisan politics. This is as much a test for the United States as it is for Iran.
Photo Credit: The White House on Flickr (United States government work)