Iran Should Accept US Presidential Waiver – Analysis

According to some Western commentators, one of the reasons for the absence of a deal by the November 24th deadline was the inability of US negotiators to convince the Iranian negotiators that President Obama could make a deal with Iran that would withstand the congressional opposition.

Case in point, Peter Jenkins on lobelog.com has written that based on information “from a source close to the Iranian negotiation team,” the Iranians were concerned that the next US president might reverse or nullify any sanctions waivers ordered by president Obama and were also concerned that Obama would not be able to get congressional approval for the final deal.

Assuming this is correct and was indeed one of the stumbling blocks that precluded a breakthrough by the deadline, which has now been extended for another seven months, then it lends itself to critical scrutiny. The purpose of such a scrutiny is not to engage in academic exercise but rather to shed lights on the road ahead and to determine if any adjustment on Iran’s part is called for. In this author’s opinion, Iran should not hesitate to enter a multilateral agreement based on such hesitations, for several reasons:

First, the agreement would be signed by all the parties as sovereign parties by their representatives and therefore it is immaterial, legally speaking, how the deal is received in each country so long as the government keeps to the terms of its obligations. As a political entity, the US would enter into this agreement and, therefore, it would not be Iran’s business to worry about how the Congress reacts. Obviously, if the Congress, hypothetically speaking, passes a new sanctions bill and overrides any presidential veto and thus makes it into a law of the land, then that becomes the official government policy that, in case it violates the terms of a deal with Iran, would be tantamount to treaty violation under international law.

Second, Jenkins’s point that the European and other companies would not engage with Iran because of the threat of sanctions by US Congress is questionable. This overlooks that the moment a final deal is signed thousands of foreign companies eager to do business with Iran will flood the scene and most if not all of them will rightly conclude that the green light by the international community to do business in Iran has been given. Any change of circumstances in the future, such as a renewal of sanctions, would not affect the existing investments and trade agreements with Iran and would bar only future trade and investment.

Third, Jenkins’s other mistake is that he ignores the fact that the president’s opponents in the US Senate do not have the necessary votes for a veto override, highlighted by the recent letter to Obama on Iran that was signed by only 44 Republican senators. In other words, not all Republicans are on the same page with the Iran hawks and most likely any attempt by the latter to defeat Obama’s deal with Iran will end up in failure.

Fourth, US’s withdrawal from an international agreement honored and implemented by the other “5 +1″ parties would certainly backfire against the US and this, in turn, can inhibit such a reaction, simply because by then the international sanctions on Iran will be in a rapid process of evaporation and the reversal of that momentum would be exceedingly difficult if not impossible.

Fifth, Jenkins does not bother mention that Iran is not totally defenseless in the face of a scenario whereby Obama’s executive orders are overturned by Congress. With the right to withdraw from the agreement in response to a violation by other parties preserved in the text of the document, Iran can protect itself by using the threat of reciprocation and even withdrawal, as a result of which Iran should have little worry about the nature of the US government and its layers of decision-making, better to confine itself to the formality of signing a formal agreement with the US government, period.

Finally, in terms of the implementation of a final deal, it is likely to be supervised by a joint commission similar to the one set up by the interim agreement, in which case the US would be legally tied to a multilateral forum that ties its hands in terms of determining unilaterally if Iran has been in compliance with its obligations or not. Contrary to the statements by the US negotiators and US Secretary of State John Kerry, the matter of stopping the suspension of sanctions and re-imposing them for one reason or another is not that simple and, in fact, is legally problematic, solely as a result of the new limits on unilateralism imposed by the multilateral deal.

In conclusion, taking all the delicate, legally-sensitive, issues above-mentioned into consideration, the logical decision by Iran is to set aside its hesitations with respect to the US executive branch’s delicacies and simply push for a formal multilateral agreement that would be recognized as a treaty under the Vienna law of treaties, instead of a murky ‘plan of action’ lacking a firm legal status, and limit its request that the US like the other state parties to the agreement formally signs it.

*Kaveh Afrasiabi, PhD, is the author of several books on Iran’s foreign policy. His writings have appeared on several online and print publications, including UN Chronicle, New York Times, Der Tagesspiegel, Middle East Journal, Harvard International Review, and Brown’s Journal of World Affairs, Guardian, Russia Today, Washington Post, San Francisco Chronicle, Boston Globe, Mediterranean Affairs, Nation, Telos, Der Tageszeit, Hamdard Islamicus, Iranian Journal of International Affairs, Global Dialogue.