By Joseph E. Fallon
Numerous legal precedents, spanning several decades, exist for President Trump’s action. In its report, “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement”, May 4, 2018, the Congressional Research Service noted: “At the turn of the 20th century, however, historical practices began to change, and the fifth form of treaty termination emerged: unilateral termination by the President without approval by the legislative branch. During the Franklin Roosevelt Administration and World War II, unilateral presidential termination increased markedly. Although Congress occasionally enacted legislation authorizing or instructing the President to terminate treaties during the 20th century, unilateral presidential termination eventually became the norm.”iii
In 2014, American jurist, Curtis Bradley, William Van Alstyne Professor of Law and Professor of Public Policy Studies at Duke University, and co-director for the Center for International and Comparative Law, wrote: “In 2002, the State Department Legal Adviser’s Office listed twenty-three bilateral treaties and seven multilateral treaties that had been terminated by presidential action since termination of the [1954 Mutual Defense] Taiwan treaty [by President Carter in 1978].iv,v Since then, the Bush Administration terminated two treaties: a protocol to a consular convention in 2005, and a tax treaty with Sweden in 2007.”vi
Recent legal precedents for President Trump’s decision to withdraw the United States from the Iran nuclear deal are two executive decisions by President George W. Bush. The latter unilaterally withdrew the United States from the 1972 Anti-Ballistic Missile (ABM) Treaty on December 13, 2001. vii And six months later, on June 6, 2002, President Bush “unsigned” the United States from the international treaty establishing the International Criminal Court, (the Rome Statute of the International Criminal Court).viii
The Iran nuclear deal is officially known as the Joint Comprehensive Plan of Action (JCPOA).ix It “…was signed in July 2015 and went into effect the following January, imposes restrictions on Iran’s civilian nuclear enrichment program. The so-called P5+1—that is, the five permanent members of the UN Security Council (China, France, Russia, the United Kingdom, and United States) and Germany—negotiated the agreement with Iran over nearly two years. During this period, the Obama administration said its intent was to set back Iran’s nuclear program so that if Iran were to sprint toward producing enough fissile material for a weapon—an indicator known as “breakout time”—it would take at least a year, up from just a few weeks.
In exchange for these limitations on Iran’s nuclear program and opening up access to international inspectors, the European Union, United Nations, and United States all committed to lifting sanctions. While the United States has only suspended extant nuclear sanctions, it pledged in the JCPOA to remove specified entities from sanctions lists and seek legislation to repeal the suspended sanctions within eight years, as long as the IAEA concludes that Iran’s nuclear activities remain peaceful in nature.”x
Map 1 shows the principal nuclear sites in Iran as of 2015.
Chart 1 shows what supporters maintain will happen under the terms of the agreement. Chart 1 (Nuclear Threat Initiative, “Joint Comprehensive Plan of Action: A New Standard for Safeguards Agreements”, November 15, 2017, http://www.nti.org/analysis/articles/joint-comprehensive-plan-action-new-standard-safeguards-agreements/)
President Trump challenged those assumptions. In withdrawing the United States from that agreement, President Trump declared: “The deal lifted crippling economic sanctions on Iran in exchange for very weak limits on the regime’s nuclear activity, and no limits at all on its other malign behavior, including its sinister activities in Syria, Yemen, and other places all around the world.”xi
He listed four specific objections to the Iran nuclear agreement.
The agreement’s “inspection provisions lack adequate mechanisms to prevent, detect, and punish cheating and don’t even have the unqualified right to inspect many important locations, including military facilities.”xii
The provisions of the agreement allowing Iran to resume its nuclear enrichment program after 2030 are “totally unacceptable”. Trump stated such terms would spark a nuclear arms race in the region, adding “Everyone would want their weapons ready by the time Iran had theirs”. xiii
(In a March 15, 2018 interview with CBS News, Saudi Arabia’s Crown Prince Mohammed bin Salman said: “But without a doubt, if Iran developed a nuclear bomb, we would follow suit as soon as possible.”)xiv
The agreement “fails to address the regime’s development of ballistic missiles that could deliver nuclear warheads”xv (Map 2)
The agreement “does nothing to constrain Iran’s destabilizing activities, including its support for terrorism”. xvi (Map 3)
President Trump concluded, however, with an offer to renegotiate the deal with Tehran, which is what he said he would do when campaigning for the U.S. Presidency in 2016.xvii
“Iran’s leaders will naturally say that they refuse to negotiate a new deal. They refuse and that is fine. I probably would say the same thing if I was in their position. But the fact is they are going to want to make a new and lasting deal, one that benefits all of Iran and the Iranian people. When they do, I am ready, willing, and able.”xviii
Two weeks later, May 21, 2018, in a speech before The Heritage Foundation in Washington, DC,xix Secretary of State Pompeo listed the issues a renegotiated deal with Iran must address.
“First, Iran must declare to the IAEA a full account of the prior military dimensions of its nuclear program, and permanently and verifiably abandon such work in perpetuity.
Second, Iran must stop enrichment and never pursue plutonium reprocessing. This includes closing its heavy water reactor.
Third, Iran must also provide the IAEA with unqualified access to all sites throughout the entire country.
Iran must end its proliferation of ballistic missiles and halt further launching or development of nuclear-capable missile systems.
Iran must release all U.S. citizens, as well as citizens of our partners and allies, each of them detained on spurious charges.
Iran must end support to Middle East terrorist groups, including Lebanese Hizballah, Hamas, and the Palestinian Islamic Jihad.
Iran must respect the sovereignty of the Iraqi Government and permit the disarming, demobilization, and reintegration of Shia militias.
Iran must also end its military support for the Houthi militia and work towards a peaceful political settlement in Yemen.
Iran must withdraw all forces under Iranian command throughout the entirety of Syria.
Iran, too, must end support for the Taliban and other terrorists in Afghanistan and the region, and cease harboring senior al-Qaida leaders.
Iran, too, must end the IRG Qods Force’s support for terrorists and militant partners around the world.
And too, Iran must end its threatening behavior against its neighbors – many of whom are U.S. allies. This certainly includes its threats to destroy Israel, and its firing of missiles into Saudi Arabia and the United Arab Emirates. It also includes threats to international shipping and destructive – and destructive cyberattacks.”xx
Secretary Pompeo’s list reflects the Trump Administration’s National Security Strategy: “The United States must marshal the will and capabilities to compete and prevent unfavorable shifts in the Indo-Pacific, Europe, and the Middle East.”xxi
This strategy is a continuation of the official national security strategies proclaimed and pursued by the two previous administrations, George W. Bush and Barack Obama.
The George W. Bush Administration asserted in 2006: the foreign policy objective of the United States government would be to “dissuade any hostile military competitor from challenging the United States, its allies, and partners.”xxii
Four years later, the Barack Obama Administration released its National Security Strategy, 2010, which affirmed “[t]his Administration has no greater responsibility than the safety and security of the American people. And there is no greater threat to the American people than weapons of mass destruction, particularly the danger posed by the pursuit of nuclear weapons by violent extremists and their proliferation to additional states.”xxiii
i “It makes no difference for Iran who the next U.S. president is,” the supreme leader, Ayatollah Ali Khamenei, said in a speech last week. Yet he could hardly miss Mr. Trump’s promises on the campaign trail to “tear up” the landmark nuclear agreement reached last year, which he frequently described as the worst deal ever.” Thomas Erdbrink , “Trump, Though Critical of Nuclear Deal, Could Offer Opportunities for Iran”, Memo from Tehran, The New York Times, November 20, 2016, https://www.nytimes.com/2016/11/21/world/middleeast/donald-trump-iran-nuclear-deal.html
ii Remarks by President Trump on the Joint Comprehensive Plan of Action, May 8, 2018
iii Stephen P. Mulligan, Legislative Attorney, “Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement”, Congressional Research Service, May 4, 2018, p. 11. https://fas.org/sgp/crs/row/R44761.pdf
iv List of twenty-three bilateral treaties and seven multilateral treaties terminated by presidential action, 1980-2000, Office of the Legal Adviser, United States Department of State , DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 2002, (Sally J. Cummins and David P. Stewart , editors), pp.202-206 https://www.state.gov/documents/organization/139638.pdf
v Jimmy Carter: “Diplomatic Relations Between the United States and the People’s Republic of China United States Statement.” December 15, 1978. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=30309.
vi Curtis A. Bradley , William Van Alstyne Professor, Duke Law School , “Treaty Termination and Historical Gloss”, Texas Law Review, Vol. 92:773 , p. 815,
vii Terrance Neilan, “Bush Pulls Out of ABM Treaty, Putin Calls Move a Mistake”, The New York Times, December 13, 2001, https://www.nytimes.com/2001/12/13/international/bush-pulls-out-of-abm-treaty-putin-calls-move-a-mistake.html
ix “Joint Comprehensive Plan of Action”, Vienna, 14 July 2015, http://eeas.europa.eu/archives/docs/statements-eeas/docs/iran_agreement/iran_joint-comprehensive-plan-of-action_en.pdf
x Zachary Laub, “The Impact of the Iran Nuclear Agreement”, Council on Foreign Relations, updated, May 8, 2018, https://www.cfr.org/backgrounder/impact-iran-nuclear-agreement
xi “Remarks by President Trump on the Joint Comprehensive Plan of Action”, May 8, 2018,https://www.whitehouse.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/
xiv “Saudi Arabia pledges to create a nuclear bomb if Iran does”, BBC News, March 15, 2018http://www.bbc.com/news/world-middle-east-43419673
xvii “When I am elected president, I will renegotiate with Iran — right after I enable the immediate release of our American prisoners and ask Congress to impose new sanctions that stop Iran from having the ability to sponsor terrorism around the world,” the GOP frontrunner continued.” Reena Flores, “Donald Trump: I will renegotiate with Iran”, CBS News, September 9, 2015.
xviii “Remarks by President Trump on the Joint Comprehensive Plan of Action”, May 8, 2018,https://www.whitehouse.gov/briefings-statements/remarks-president-trump-joint-comprehensive-plan-action/
xix Secretary of State, Mike Pompeo, “After the Deal: A New Iran Strategy”, The Heritage Foundation, May 21, 2018,, https://www.state.gov/secretary/remarks/2018/05/282301.htm
xxi National Security Strategy of the United States of America, December 2017, p.45 https://www.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905-2.pdf
Ibid. p. 4.