A year ago, the annual General Assembly of the United Nations in New York was the setting for what looked like an Irano-American love-fest as the two erstwhile foes multiplied gestures of sweetness towards each other.
The key symbol of their affection was what they called Comprehensive Joint Plan of Action (CJPOA), a 176-page list of desiderata linked to the Islamic Republic’s controversial nuclear program.
This year, however, the old demons were back as the United States’ new President Donald Trump described the Islamic Republic in Tehran as “a criminal regime” bent on exporting terrorism. His Iranian counterpart Hassan Rouhani returned the compliment by labeling Trump a “rogue politician.” Once again, the CJPOA, or Plan, in short, was the point of reference for both. Trump vowed to scrap it while Rouhani almost upgraded it to the status of a sacred untouchable text.
“We shall not accept any change in the text of the Plan,” Rouhani told whoever cared to listen in New York.
Despite the Mch-2 rhetoric on both sides, one thing is certain: as far as the Plan is concerned the status quo is so destabilized that trying to maintain it might prove futile if not dangerous.
Trump cannot swallow his incendiary words and tell his people that he has decided to stick to the Plan after all. For their part, Tehran’s mullahs cannot denounce the Plan, the fig leaf that covers the nakedness of their foreign policy or to force the US to continue the charade started by former President Barack Obama.
For both sides, the key problem is that the Plan is not a legally binding document. Neither a treaty nor an agreement, the Plan was negotiated by an ad-hoc group called 5+1 with no legal existence and a team of Islamic Republic diplomats with no clear legal mandate.
It has not been ratified by any national parliament or international authority. A resolution passed by the Islamic Majlis in Tehran refers to it obliquely only to reject its key features. The UN Security Council Resolution 2231 “endorses” the Plan and stipulates a suspension of sanctions decided in six previous resolutions.
However, the resolution does not make it clear which of the many versions of the Plan it endorses. The Islamic Foreign Ministry has provided at least three versions in Persian and the US State Department two in English.
Because the Plan isn’t a treaty or a classical international agreement it has no mechanism for amendment let alone abrogation. This means that no one, including President Trump, can abrogate a non-existent treaty.
So, what can Trump do?
Under a deal made between Obama and the US Congress, the US President is authorized to suspend some sanctions against the Islamic Republic for periods of 90 to 180 days, each time certifying to the Congress that Iran has fulfilled its obligations under the Plan.
So far, Trump has issued the certifications on a regular basis. He could, of course, decide not to issue further certifications. In that case, he would have to provide justification for his decision within 10 days, providing evidence that Iran has reneged on its obligations under the Plan.
If the Congress accepts the evidence provided the whole issue will revert to Congressional authority. That may seem attractive from Trump’s point of view because he would wash his hands off a thorny issue, but entails the risk of fudging the whole matter in a quagmire of Congressional partisan politics.
With relations between the White House and the Republican Party strained, to say the least, there is no guarantee that the Trump administration would master enough support in the Congress to promote an entirely new approach to the “Iran problem.”
The best option for Trump, therefore, would be to continue signing regular certifications while keeping the suspense about the future of the Plan. Such suspense has already prevented major international banks and corporations from normalizing relations with Iran let alone providing it with the massive injection of capital and technology it needs to avoid economic meltdown.
Uncertainty about what the US might do about Iran has been the most effective weapon Washington has in its efforts to curb the mullah’s ambitions.
At some point, that uncertainty may prove too hard to bear for mullahs, now under fire inside Iran for the failure of the Plan to provide any of its promised fruits. In such circumstances, the mullahs may be forced to denounce the Plan, if only to save face. And that would save Washington the trouble of picking a quarrel with European allies and Russia over a Plan rejected by Iran itself.
Another option that Trump has is to ratchet up measures taken against the Islamic Republic in relation to other problems, including violations of human rights, exporting terrorism, seizure of foreign hostages, notably US citizens, Tehran development of ballistic missiles, and direct or indirect military intervention in Syria, Iraq, Lebanon, and Yemen.
Measures based on such concerns may well even attract support not only from the European allies but on a broader international scale. Almost all the sanctions suspended under the Plan could be refigured and re-launched through new legislation related to other areas of conflict with the mullahs.
Such action could be complemented with a more energetic application of measures already envisaged under seven UN resolutions, including stop and search operations aimed to prevent the import by Iran of dual-use material and technology.
A brochette of measures known in diplomatic parlance as “proximity pressure” could further complement such actions, making life more difficult for the Islamic Republic.
Finally, there is the option suggested by French Foreign Minister Jean-Yves Le Drian: launching a new process of negotiations to amend and extend the Plan and, maybe, even morph it into a proper legal agreement.
Such a process could have three aims.
First, it would remove the so-called “sunset” clauses under which some of the measures against the Islamic Republic will automatically expire in 2025. Under the existing Plan, the mullahs have ceded large chunks of Iranian sovereignty, especially with reference to the nation’s industrial and trade policies, to the 5+1 group until 2025.
Secondly, the French idea is to extend that ceding of sovereignty beyond that limit, in fact making it permanent by putting Iran under 5+1 tutelage.
The French scheme also envisages the extension of the existing Plan to other areas of interest by committing Tehran to specific measures regarding its regional policies and, in time, even its domestic politics.
In other words, why not a CJPOA number 2 on human rights and another CJPA number 3 on the Islamic Republic’s economic system?
Finally, at some point one could envisage a CJPOA on military matters, bringing Iran into the international fold through semi-official dialogue with the North Atlantic Treaty Organization (NATO). The first such contact, established earlier this month by Iran at the highest level of its military with Turkey is seen as a promising development.
There is, however, a fundamental difference between the American analysis under Trump and the European one promoted by the new French President Emmanuel Macron.
Key members of the Trump administration believe that the Islamic Republic, lacking mechanism for reform, change within the regime is not possible.
That leaves the choice between accepting the Islamic Republic warts and all and trying to bring about regime change.
According to the European analysis, however, the “Supreme Guide” Ali Khamenei’s rule has entered its final “natural phase” providing a potential for “evolution” led by “moderate elements” anxious to adopt the “Chinese model” or repression at home and accommodation with the Western powers.
A coalition of moderate mullahs and modernizing military figures could discard the North Korean model, favored by Khamenei, and nudge Iran toward reconciliation with the outside world.
President Trump has promised to let us know soon what he has decided. His unorthodox UN speech, however, has already ignited a new phase in the debate inside Iran between “Islamic North Koreans” and “Islamic Chinese” ideologues. Not a bad picking for a single speech.