February 9, 2021 | The National Interest

Shining a Light on the Iran Deal’s Sunset Problem

If the new administration is serious about reinvigorated diplomacy, it must resist Iran’s nuclear extortion and forgo the temptation of re-joining the JCPOA. Breathing life into an expiring accord will not help dampen the Islamic Republic’s nuclear, missile, and military threats.
February 9, 2021 | The National Interest

Shining a Light on the Iran Deal’s Sunset Problem

If the new administration is serious about reinvigorated diplomacy, it must resist Iran’s nuclear extortion and forgo the temptation of re-joining the JCPOA. Breathing life into an expiring accord will not help dampen the Islamic Republic’s nuclear, missile, and military threats.

Believe it or not, Tehran and Washington are already negotiating. Not in the shadows of a stuffy European hotel, but via a rhetorical exchange happening in plain sight.

Despite President Joe Biden’s condemnation of his predecessor’s Iran policy and the president’s stated desire to return to the 2015 nuclear accord that Donald Trump left, his cabinet appointees say that America is in no rush. Iranian officials have responded with great variety. On the one hand, they claim that Tehran no longer needs the Joint Comprehensive Plan of Action (JCPOA), the nuclear agreement’s official moniker. On the other, they call on Washington to re-join the deal immediately because the “window of opportunity will not be open forever.” They are also adamant that the accord’s parameters cannot change and that America must take the first step through the lifting of sanctions.

Should the United States re-enter the JCPOA, it will matter comparatively little if it does so in six days or six months. That is because the major limitations on the Islamic Republic’s nuclear and missile programs are expiring, meaning Washington would be re-joining an accord that is a ghost of its already toothless self. Such a move would be a disservice to America’s nonproliferation objectives, as well as to President Biden’s nascent Iran policy.

A closer look at the text of the JCPOA and its accompanying United Nations Security Council (UNSC) resolution (2231) explains why.

Lapsing Limitations

At the heart of the JCPOA is a “Faustian bargain” between temporary constraints on Iran’s atomic program and long-term Western sanctions relief. The JCPOA essentially required Iran to ship out uranium and put select nuclear equipment in storage so as to lock-in, for about a decade, the technical conditions needed for a seven-to-twelve month “breakout time”—the amount of time needed to make enough fissile material for a nuclear weapon. That the JCPOA did not actually resolve the Iranian nuclear dispute is seen in Tehran’s ability to quickly ramp-up its uranium enrichment capacity over the past few months and in revelations that it likely maintains a secret weaponization program.

Moreover, the agreement’s original members—the United States, UK, France, Germany, Russia, and China—agreed to a series of lapsing limitations on Iran, most of which occur after five, eight, ten, and fifteen years, colloquially termed “sunsets.” The sunsets, codified in various annexes of the 150-plus page document and in Annex B of the accord’s associated UNSC resolution, gradually permit Iran to ramp up its nuclear program and let other missile and military restrictions expire.

In 2024, or eight and half years from the deal’s commencement, the JCPOA’s restrictions relating to Iran’s advanced centrifuge research and development will start to lapse. This will permit Tehran to gradually begin testing, manufacturing, and conducting research on select sturdier machines that can spin uranium at greater speeds. The ultimate goal of this phased approach, for Tehran, is to capitalize on sunsets related to enrichment that lapse between years ten to fifteen of the deal. Advanced centrifuges are essential to any prospective Iranian dash to a nuclear weapon, since they produce enriched uranium more quickly using fewer numbers. Under the JCPOA, Iran can continue researching and advancing these improved centrifuges, and likely kept buying equipment to position the program for mass deployment at a time of its choosing.

Should Biden re-enter the Iran deal, the JCPOA will loosen centrifuge restrictions so that Iran’s breakout time will drop to mere weeks in the coming years. This means that foreign countries would not—absent the use of military force—be able to stop a determined Islamic Republic during a potential breakout scenario.

Similarly timed missile and military sunsets can be found in Annex B of UNSC resolution 2231.

The UN resolution’s next sunset occurs in October 2023, terminating an UN-sponsored asset freeze on persons and entities supportive of Iran’s nuclear program, as well as ending an already watered-down injunction against Tehran’s ballistic missile launches. Iran uses missile tests to signal resolve to domestic and foreign audiences while collecting data from launches to make its projectiles more battlefield ready, survivable, and reliable. While 2231’s prohibitions against missile activity are more narrowly scoped than older resolutions, Tehran has consistently violated its injunctions. From the JCPOA’s finalization in 2015 until U.S. withdrawal in May 2018, Iran launched at least twenty-five ballistic missiles. If Iran sought to genuinely reduce tensions with the international community during this period, that number would have been zero.

In year eight, the resolution also removes the UN prohibition on Iranian imports and exports of missile-related equipment and materiel, as defined by the Missile Technology Control Regime (MTCR). This means Tehran could procure and proliferate controlled, sensitive equipment like accelerometers, flight-control systems, sensors, motor casings, turbojet or turbofan engines, and propellant production equipment more easily. These materials can improve both Iran’s ballistic missile arsenal—which according to U.S. intelligence is largest in the Middle East—as well as the long-range strike capabilities of its proxies and partners like Lebanese Hezbollah or the Houthi rebels in Yemen.

Impending Enforcement Challenges

But there is no reason to look so far ahead. In fact, the resolution’s first major sunset already occurred in October 2020. In addition to eliminating a global visa ban against Iranian officials and others working on proliferation-sensitive programs (which was regularly violated), the UN arms embargo against Iran expired. Established in 2007 through UNSC resolution 1747, and tightened under UNSC resolution 1929 in 2010, the embargo on Tehran’s ability to import and export military equipment was tied to its long-standing regional interventions and not subject to lifting by a political timetable. UNSC resolution 2231 changed that, terminating the embargo after only five years, regardless of Iran’s behavior.

To date, Iran has violated both the embargo’s import restrictions, through attempted illicit missile procurement, as well as the export prohibitions via weapons proliferation to militias in Iraq and to the Houthis in Yemen. The embargo’s presence, however, along with countries’ ability to interdict transfers, made life harder for Iran. Now with it gone, Tehran can more easily arm its proxies and pursue a policy of selective military modernization, the consequence of which will be a more lethal and aggressive Islamic Republic. Coupled with a robust terror network, resolute and ideological leadership, and a “patient pathway” to a nuclear bomb, an unencumbered Iran will pose a potent hybrid warfare challenge to U.S. interests and allied security in the region.

Even though the Trump administration used its legal status as a “JCPOA participant” at the UN to argue that it had re-instituted the arms embargo, none of the other UNSC members recognized the U.S. right to do. Washington followed up with an executive order (13949) threatening sanctions on those who would enable Iranian military-related procurement or proliferation. It is unclear how long the Biden administration will retain or enforce this unilateral prohibition.

All the lapsing restrictions on Iran’s nuclear program, ballistic missile testing, and arms-transfers amount to major strategic concessions. Yet Tehran’s real win was locking up U.S. and European oil and financial sanctions, which originally helped bring about negotiations in 2013. The JCPOA obliges Washington to legislatively nix all sanctions statutes related to Iran’s nuclear program by October 2023.

October 2023 is also when, pursuant to the JCPOA’s implementation timeline, the United States is required to purge select persons and entities tied to Iran’s nuclear program from its sanctions lists. This includes the likes of Mohsen Fakhrizadeh, Iran’s now-deceased chief military nuclear scientist, as well as SPND, the entity he oversaw that researches nuclear weaponization. The icing on the cake for Tehran is that Washington’s chief partner in economic pressure, the European Union, will also be removing a plethora of proliferation and terrorism-supporting entities from its sanctions lists by October 2023. The European list contains a veritable “who’s who” of malign actors that even includes Iran’s now-deceased terrorist chief, Qassem Soleimani.

The European list also includes Iran’s Ministry of Defense and Armed Forces Logistics (MODAFL), sanctioned on proliferation grounds by the EU, and under both counterterrorism and counter-proliferation authorities by the U.S. Treasury. MODAFL subordinates and contractors constituting Iran’s military-industrial complex, like Iran Electronics Institute (IEI), Defense Industries Organization (DIO), Aerospace Industries Organization (AIO), as well as AIO’s subordinates like Shahid Hemmat Industries Group (SHIG) and Shahid Bagheri Industries Group (SBIG) are also on the list for EU sanctions removal in 2023. AIO, SHIG, and SBIG all support Iran’s evolving missile capabilities, be they through the development of liquid or solid propellant platforms.

Not only will Europe be un-handcuffing the literal engines of Iran’s missile arsenal in October 2023, they will also de-list portions of the Iranian military establishment that oversee Iran’s missile program. These include the Islamic Revolutionary Guard Corps (IRGC), the IRGC Aerospace Force (IRGC-AF), the IRGC-AF Al-Ghadir missile command, and even IRGC-AF Commander Amir-Ali Hajizadeh. The EU’s prospective delisting of Iran’s military brain trust will make it virtually impossible for Washington to build a united trans-Atlantic pressure policy toward Tehran that seriously addresses the Iranian missile challenge.

By the year 2025—or year ten since the JCPOA’s adoption day—the UNSC will “no longer be seized of the Iran nuclear issue,” meaning countries can drop all proliferation-related restrictions. Effectively, the UNSC will be passing back the Iranian nuclear dossier to the UN nuclear watchdog, the International Atomic Energy Agency (IAEA), signaling that Iran’s nuclear program is no longer subject to international sanctions. While this will increase the importance of the IAEA’s verification role, Iran is sure to herald the occasion as a landslide political victory. In fact, the transference of Tehran’s nuclear file back to the IAEA was something sought by Iranian President Hassan Rouhani as early as 2011, and was an issue he campaigned on for the presidency in 2013. After the transfer of the file, it would be difficult to get the IAEA’s thirty-five-member board to refer the Iran case back to the UNSC.

Also that year, the UN resolution’s “procurement channel,” which approves and regulates Tehran’s imports of nuclear-related equipment, will cease to exist. This will happen regardless of whether Iran has satisfactorily addressed a separate investigation by the IAEA into whether it hides undeclared nuclear material and activities relevant to nuclear weapons.

At the same time, the ability for a participant state to trigger a restoration, also known as “snapback” of UN sanctions, will terminate, leaving the international community with little to no leverage against Iran as its nuclear program is legally permitted to expand. After year ten, Iran can more freely deploy its oldest centrifuge, the IR-1, but more concerning is that it will start to operate mass numbers of advanced models, such as the IR-2m and IR-4. Restrictions also lift progressively on the faster IR-6 and IR-8 starting from year eight and a half on, with all advanced centrifuge restrictions terminating at year thirteen, or in 2028.

By year fifteen, prohibitions that Iran has already violated will lapse. These include limitations on Iran’s enrichment of uranium above 3.67 percent purity, a 300-kilogram cap for domestically enriched and stored uranium, and uranium enrichment only taking place at Iran’s Natanz enrichment plant. Iran would also legally be able to enrich at its underground Fordow facility.

Sun-setting limitations in year fifteen also govern Iran’s second pathway to the bomb, through plutonium. While the JCPOA required a modification to Iran’s IR-40 reactor—a modification which Tehran long-ago bragged about undercutting through illicit procurement—after year fifteen, Iran is not prohibited from reprocessing spent fuel, building heavy water reactors, or storing excess heavy water on its own territory, the latter of which Tehran violated early on.

A Good Deal for Iran

Despite claims by some more “hardline” regime members, Tehran both wants and needs the JCPOA and UNSC resolution 2231. It is too good a deal for the Islamic Republic to give up: the potential for an industrial-size enrichment program that can be within striking distance of weapon-grade uranium, suspended and later terminated U.S. and EU sanctions, and no restrictions on a quantitative, and increasingly qualitatively, robust and unrestricted missile arsenal.

Before it gets there, Tehran desperately needs the sort of financial relief that only America’s re-entry to the JCPOA can provide. For over a year, the regime waged a calibrated campaign of nuclear escalation designed to coerce Washington into removing sanctions and force it back to the deal. Since President Biden’s election, Tehran has pressed its case, enriching uranium to 20 percent purity at the underground Fordow facility, installing advanced centrifuges, threatening to leave an IAEA inspection agreement, and testing yet another space-launch vehicle (SLV) that can improve its long-range strike capabilities.

Worryingly, there are signs that such blackmail will bear fruit. At a think tank event in late January, U.S. National Security Advisor Jake Sullivan stated JCPOA re-entry is a “critical early priority,” reversing earlier attestations by Secretary of State Antony Blinken and Director of National Intelligence Avril Haines that the Biden team need not make haste to re-enter the deal.

It is perhaps no greater twist of fate that many members of the Biden team who are dealing with Iran today were also at the helm during the presidency of Barack Obama, and either directly or indirectly negotiated the JCPOA.

A Better Deal for America

If the new administration is serious about reinvigorated diplomacy, it must resist Iran’s nuclear extortion and forgo the temptation of re-joining the JCPOA. Breathing life into an expiring accord will not help dampen the Islamic Republic’s nuclear, missile, and military threats. Rather, the administration should take time to capitalize on existing sanctions leverage and force Iran to negotiate genuinely on a broad swath of issues.

To prepare the ground, the Biden administration should first restore a unified position on Iran with its trans-Atlantic partners. While no small diplomatic feat, a cohesive Western front is a necessary diplomatic component of getting Iran to agree to a better deal. Washington and the E3 should also back the IAEA’s investigation in Iran and a full IAEA inquiry into evidence that Tehran continues to maintain and advance nuclear weapons capabilities.

Elsewhere, by working with Congress, the administration can codify the executive order it inherited governing the status of the Iran arms embargo. This can help enforce the embargo abroad through interdictions and sanctions, reminding the international community that Washington is serious about thwarting Iranian weapons proliferation and military modernization.

Lastly, the Biden team should continuously consult with Middle East allies on the parameters of an accord that they feel can address the breadth and depth of the Iran challenge. These countries live on the literal frontlines of any potential confrontation with Iran, and should have a say in the shape or direction of an agreement that aims to stem further conflict and proliferation.

As the sun continues to set on the JCPOA and UNSC resolution 2231, it will be up to the Biden administration to prove that it can usher in a new dawn. The clock is ticking.

Behnam Ben Taleblu is a senior fellow at the Foundation for Defense of Democracies (FDD) think-tank in Washington, DC, where Andrea Stricker is a research fellow. They both support FDD’s Iran program and non-proliferation policy research. Follow FDD on Twitter @FDD and follow Andrea @StrickerNonpro.


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