US Diplomat Leading Negotiations With Europe on Future of Iran Deal: JCPOA Is Not a Treaty, and Has No Legal Status

Benjamin Kerstein

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A display featuring missiles and a portrait of Iranian Ayatollah Ali Khamenei is seen at Baharestan Square in Tehran, Sept. 27, 2017. Photo: Nazanin Tabatabaee Yazdi / TIMA via Reuters.

If the Tehran regime rushes to the bomb, the Iranians will “create a much bigger set of problems than they face now,” the State Department diplomat leading negotiations with European officials on the future of the July 2015 nuclear deal with Iran said on Wednesday.

President Donald Trump faces a deadline of May 12 to recertify the Joint Comprehensive Plan of Action (JCPOA). There are strong indications that he will not do so without major changes to the deal.

In an interview with NPR, negotiator Brian Hook stated, “What we are trying to do is to address the deficiencies of the Iran nuclear deal.” The administration, he added, is working “on achieving a supplemental agreement that the president has requested that would address a lot of the problems that we have with the existing deal.”

Such agreements, says Hook, are not unusual. “If you look at the history of arms control it’s very common for one deal to then be improved upon or supplanted by another deal,” he stated, “and so what we’re asking for has a lot of precedent historically.”

One major issue, Hook told NPR, is the current agreement’s so-called “sunset clause.”

“Right now this JCPOA imposes limits on Iran’s nuclear program,” he said. “Those limits expire around 2025. So we want to extend those limits.”

In addition, Hook added, “we also want to address Iran’s intercontinental ballistic missile program. And we need to deter Iran from its adventurism in the Middle East, which has destabilized the region.”

Hook went on to clarify the actual legal status of the Iran deal. When played an excerpt of a statement by Iranian Foreign Minister Mohammad Javad Zarif describing the JCPOA as an “agreement,” Hook responded, “Foreign Minister Zarif is incorrect when he says this is an agreement. I was in a meeting with him in September on the margins of the UN General Assembly where he said the JCPOA is not an agreement. The parties could not agree on an agreement. That’s why it’s called a ‘plan of action.’”

“So this JCPOA is not a treaty,” he asserted. “It’s not an executive agreement. It has no signatures. It has no legal status. It is a political commitment by an administration that’s no longer in office.”

The Obama State Department confirmed this in a 2015 letter to then-Congressman Mike Pompeo (currently Trump’s nominee for secretary of state). The State Department wrote:

The Joint Comprehensive Plan of Action (JCPOA) is not a treaty or an executive agreement, and is not a signed document. The JCPOA reflects political commitments between Iran, the P5+1 (the United States, the United Kingdom, France, Germany, Russia, China) and the European Union. As you know, the United States has a long-standing practice of addressing sensitive problems in negotiations that culminate in political commitments.

Then-Secretary of State John Kerry agreed, telling Congress, “We’ve been clear from the beginning. We’re not negotiating a ‘legally binding plan.’ We’re negotiating a plan that will have in it a capacity for enforcement.”

Hook pointed directly to the deal’s flaws as the reason for this “weak status,” which forced former President Barack Obama to bypass Congress in order to impose the agreement.

“It did not have the votes in the Senate to make it something permanent and enduring,” Hook explained. “So what we are doing is try to work with the Congress and work with our European allies to address the deficiencies.”

When asked what would happen if Trump dumped the agreement and Iran then “races to the bomb,” Hook said only, “If Iran were to restart its nuclear program it would create a much bigger set of problems than they face now.”

This statement echoed one made on Tuesday by Trump at a White House meeting with French President Emmanuel Macron.

“You can mark it down,” Trump said. “If they restart their nuclear program, they will have bigger problems than they have ever had before.”

Trump was cryptic as to whether he would decertify the deal by the May 12 deadline, though he did call the deal “insane” and “ridiculous.”

“Nobody knows what I’m going to do on the 12th,” he said. “But we’ll see. But we’ll see also if I do what some people expect, whether or not it will be possible to do a new deal with solid foundations. Because this is a deal with decayed foundations. It’s a bad deal. It’s a bad structure. It’s falling down. It should have never, ever been made.”

For his part, Macron appeared open to Trump’s proposed reforms. However, the French leader stated, “I’ve never been as critical of the JCPOA as President Trump has, because I believe we can add to it. But not knowing the decision President Trump will take, I would like us to work on a deal to build on what has already been accomplished on the JCPOA, which is beyond the current activities, the ballistic activities, and the regional influence.”

Iran has been escalating a war of words with the US for several days over the issue of the JCPOA. President Hassan Rouhani openly threatened Trump on Wednesday, saying, “I am telling those in the White House that if they do not live up to their commitments, the Iranian government will react firmly. If anyone betrays the deal, they should know that they would face severe consequences.”

Rouhani also insulted Trump personally, saying to him, “You don’t have any background in politics. You don’t have any background in law. You don’t have any background on international treaties.”

He added, “How can a tradesman, a merchant, a building constructor, a tower constructor make judgments about international affairs?”

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