By Mark Fitzpatrick, Executive Director, IISS–Americas
When the United States Congress voted in early December to extend the Iran Sanctions Act of 1996 (ISA), the reaction in Tehran was furious. Iranian officials from Supreme Leader Ayatollah Ali Khamenei on down said the action was in contravention of the sanctions-relief provisions of the Joint Comprehensive Plan of Action (JCPOA). They are wrong.
The White House had called for the ISA to be allowed to expire at the end of the year under sunset provisions of the law. The administration argued that extending the law would add nothing to the existing authority of the executive branch to sanction Iran. Allowing the ISA to expire instead would be consistent with the JCPOA, which called for the US ‘to seek such legislative action as may be appropriate to terminate … all nuclear-related sanctions’.
Note the verb ‘to seek’. Under the US system of separation of powers, the executive branch cannot guarantee or compel action by the Congress. Obama indeed sought an end to the ISA, but a lame duck president has diminished persuasive power, particularly when his party has just suffered election defeat. The best that Democrats could manage was a ‘clean extension’ that did not impose any new penalties and was thus mostly symbolic. Given the near unanimity of the vote for extension – 419 to 1 in the House of Representatives and 99 to 0 in the Senate (where Bernie Sanders did not vote) – it would be futile and humiliating for Obama to issue a veto that would immediately be overridden. A State Department spokesperson said Obama would sign the bill and that ‘the Secretary of State will retain the authority to continue to waive all of the relevant nuclear-related sanctions authorized by the legislation.’
The bipartisan vote for the ISA extension reflected deep-seated animosity that has been fanned by Iran’s troublesome behaviour. Transgressions include the jailing of US–Iranian dual citizens on trumped-up charges, a doubling of incidents of harassment of US ships in the Gulf over the past year, and support for a Syrian government that is slaughtering its citizens, including with chemical weapons. Missile tests and arms shipments to Houthi rebels in Yemen, arguably in contravention of United Nations Security Council Resolution 2231, have intensified American public opinion against Iran.
Iran’s misbehaviour has contributed to misleading claims that Iran itself is in violation of the JCPOA, e.g. because of the missile tests. It is not. As attested to by quarterly reports of the International Atomic Energy Agency (IAEA), Iran has met all of the required nuclear-related reductions and limits, save for a minor and temporary excess.
The exception was Iran’s slight over-production on two occasions of heavy water before the overages were exported to Oman for subsequent international sale, as allowed for in the JCPOA. Most recently, the heavy water stockpile exceeded the 130-tonne limit by 100kg, or less than 0.1%. The overage, which has now happened twice, was unnecessary and provocative, but it was not a material breach.
The often-exaggerated commentary in the US about this overage typically neglects to explain why heavy water, which has many civilian uses, is considered to be sensitive. Saying only that it is ‘used in the production of weapons-grade plutonium’, for example, gives the impression that through some kind of alchemy, heavy water is a source material for nuclear weapons. Heavy water, so-called because its hydrogen atoms are weighted by an extra proton, is used, rather, to moderate the chain reaction in a certain kind of nuclear reactor. Since the JCPOA puts limits on such reactors, heavy water is also limited as a supplementary precaution.
Some accounts also claim that Iran exceeded the 300kg limit on low-enriched uranium (LEU) because the Joint Commission that was established by the JCPOA to adjudicate issues not settled at the time of the July 2015 accord later determined that LEU in waste products need not be counted. As I explained in September, there was no trickery in this decision and no benefit to Iran. The waste LEU, mostly located within a large pond of sludge at Natanz, would be too difficult to recover for it to contribute meaningfully to a weapons programme. Over many years, the IAEA never counted the waste in its determination of Iran’s enriched uranium stockpile. Before the JCPOA, for example, Iran had about 10,000kg of LEU plus some (to all intents and purposes) unrecoverable waste. It now has less than 300kg of LEU plus some unrecoverable waste. To suggest that the waste must now be included as part of the stockpile count makes no logical or technical sense.
Given the criticism that US President-elect Donald Trump and his initial national security appointments have heaped on the JCPOA over the past year, there is good reason to doubt its viability in the coming months and years. Either the US or Iran, or both, may decide on actions that would lead to an unravelling of the accord, if not its swift death. Claims of violation by the other side might be part of such an execution strategy and there could well be real violations in the coming years. But let us in the meantime guard against false claims. To date, no party has violated the JCPOA.
This is part of a series of posts for the 2016 Manama Voices blog, which provides analysis and commentary from IISS experts throughout the IISS Manama Dialogue, to be held in Bahrain on 9–11 December 2016.
For full coverage of the proceedings visit the IISS Manama Dialogue 2016 website. All participants will be encouraged to use #IISSMD2016 to share their insights on social media.