As a candidate, Donald Trump made clear that, if elected, he would “dismantle the disastrous deal with Iran.” Nonetheless, the Joint Comprehensive Plan of Action (JCPOA) remained in place throughout 2017, and all four International Atomic Energy Agency (IAEA) reports that year verified Iran's compliance with its nuclear commitments under it. On January 12, 2018, President Trump warned that he would withdraw from the JCPOA by mid-May unless he “secure[d] our European allies’ agreement to fix [its] terrible flaws.” No such agreement materialized and, on May 8, Trump announced his decision to withdraw. He also ordered the reimposition of robust primary and secondary sanctions that had been previously waived pursuant to the JCPOA.
1 Sarah Begley, Read Donald Trump's Speech to AIPAC, Time (Mar. 21, 2016), at http://time.com/4267058/donald-trump-aipac-speech-transcript (providing the transcript of a Trump campaign speech in which he called this his “number-one priority”).
2 IAEA Director General Press Release, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015) (Nov. 13, 2017), available at https://www.iaea.org/sites/default/files/17/11/gov2017-48.pdf; IAEA Director General Press Release, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015) (Aug. 31, 2017), available at https://www.iaea.org/sites/default/files/gov2017-35.pdf; IAEA Director General Press Release, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015) (June 2, 2017), available at https://www.iaea.org/sites/default/files/gov2017-24.pdf; IAEA Director General Press Release, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015) (Feb. 24, 2017), available at https://www.iaea.org/sites/default/files/gov2017-10.pdf.
3 Donald J. Trump, Statement on the Joint Comprehensive Plan of Action to Prevent Iran From Obtaining a Nuclear Weapon, 2018 Daily Comp. Pres. Doc. 25 (Jan. 12, 2018) [hereinafter Trump Statement].
4 Joint Comprehensive Plan of Action, July 14, 2015, 55 ILM 98, 108 (2016) [hereinafter JCPOA]. For further context, see Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 110 AJIL 789 (2016); Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 109 AJIL 649 (2015).
5 SC Res. 2231, para. 1 (July 20, 2015).
6 Id., para. 2.
7 Id., para. 7(b); Annex B, para. 3.
8 Id., para. 7(a); see also Jean Galbraith, Ending Security Council Resolutions, 109 AJIL 806, 808–09 (2015) (detailing how Resolution 2231 contains a snapback provision that effectively allows any single permanent member of the Security Council to reimpose the prior Security Council sanctions under certain conditions).
9 See JCPOA, supra note 4, at para. 15.
10 Idrees Ali, Iran Tested Medium-Range Ballistic Missile: U.S. Official, Reuters (Jan. 30, 2017), at https://www.reuters.com/article/us-usa-iran-missiles-idUSKBN15E2EZ; see also Kristina Daugirdas & Julian Davis Mortenson, Contemporary Practice of the United States, 111 AJIL 776, 777 (2017) (providing further details). In response, the Trump administration imposed non-nuclear sanctions on certain Iranian individuals and entities. Id.
11 Donald J. Trump, Remarks on United States Strategy Towards Iran, 2017 Daily Comp. Pres. Doc. 749 (Oct. 13, 2017).
12 Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 120, 125 (2017) (discussing the certification process and Trump's decision to withhold certification). In January and April of 2018, Trump again refused to make a certification to Congress. Kenneth Katzman, Paul K. Kerr & Valerie Heitshusen, Cong. Research Serv., U.S. Decision to Cease Implementing the Iran Nuclear Agreement 7 (2018), available at https://fas.org/sgp/crs/nuke/R44942.pdf. Congress did not make use of the expedited procedures set forth in the Iran Nuclear Review Act, thus leaving it to the president to decide whether or not to continue to waive sanctions.
13 Trump Statement, supra note 3. Trump also outlined his support for possible congressional legislation relating to Iran's nuclear program if this legislation contained four specified components. Id.
14 Karen DeYoung, Europeans Look for a Way to Preserve Nuclear Deal While Punishing Iran and Satisfying Trump, Wash. Post (Feb. 23, 2018), at https://www.washingtonpost.com/world/national-security/europeans-look-for-a-way-to-preserve-nuclear-deal-while-punishing-iran-and-satisfying-trump/2018/02/22/2bc89b8e-129f-11e8-9065-e55346f6de81_story.html?utm_term=.803f70b0c8a0.
15 See U.S. Dep't of State Press Release, Briefing on the Joint Comprehensive Plan of Action Joint Commission and E3 Meetings in Vienna and Berlin (Mar. 21, 2018), at https://www.state.gov/r/pa/prs/ps/2018/03/279441.htm [https://perma.cc/2SKU-YPU4].
17 White House Press Release, Remarks by President Trump and President Macron of France in Joint Press Conference (Apr. 24, 2018), at https://www.whitehouse.gov/briefings-statements/remarks-president-trump-president-macron-france-joint-press-conference [https://perma.cc/QR3H-FHEU].
18 Donald J. Trump, Remarks on the Joint Comprehensive Plan of Action to Prevent Iran from Obtaining a Nuclear Weapon and an Exchange with Reporters, 2018 Daily Comp. Pres. Doc. 310 (May 8, 2018) [hereinafter Trump Remarks].
19 Presidential Memorandum, Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran's Malign Influence and Deny Iran All Paths to a Nuclear Weapon (May 8, 2018), at https://www.whitehouse.gov/presidential-actions/ceasing-u-s-participation-jcpoa-taking-additional-action-counter-irans-malign-influence-deny-iran-paths-nuclear-weapon [https://perma.cc/5MTH-GG9F] [hereinafter Trump Memorandum]. While the memorandum also noted that “[i]n 2016, Iran also twice violated the JCPOA’s heavy water stockpile limits,” neither it nor Trump's remarks identified any Iranian non-compliance with the JCPOA since the beginning of the Trump administration. See id.; Trump Remarks, supra note 18.
20 Trump Memorandum, supra note 19.
22 Exec. Order No. 13,716, 81 Fed. Reg. 3693, 3693–94 (Jan. 16, 2016).
23 For an overview, see U.S. Dep't of Treasury, Frequently Asked Questions Regarding the Re-imposition of Sanctions Pursuant to May 8, 2018 National Security Presidential Memorandum Relating to the Joint Comprehensive Plan of Action (JCPOA) (May 8, 2018), available at https://www.treasury.gov/resource-center/sanctions/Programs/Documents/jcpoa_winddown_faqs.pdf.
24 U.S. Dep't of State Press Release, Background Briefing on President Trump's Decision To Withdraw From the JCPOA (May 8, 2018), at https://www.state.gov/r/pa/prs/ps/2018/05/281959.htm [https://perma.cc/B2CE-4P63].
25 Id. (expressing the expectation that few if any penalties would end up being imposed because foreign entities would choose not to violate these sanctions).
27 Council of the European Union Press Release, Declaration by the High Representative on behalf of the EU Following US President Trump's Announcement on the Iran Nuclear Deal (JCPOA) (May 9, 2018), at http://www.consilium.europa.eu/en/press/press-releases/2018/05/09/declaration-by-the-high-representative-on-behalf-of-the-eu-following-us-president-trump-s-announcement-on-the-iran-nuclear-deal-jcpoa.
29 Emmanuel Macron (@EmmanuelMacron), Twitter (May 8, 2018, 11:29 AM), at https://twitter.com/EmmanuelMacron/status/993920765060878336.
30 Emmanuel Macron (@EmmanuelMacron), Twitter (May 8, 2018, 11:25 AM), at https://twitter.com/EmmanuelMacron/status/993919803835539463.
31 United Nations Press Release, Secretary-General ‘Deeply Concerned’ by United States Announcement on Withdrawing from Iran Nuclear Agreement, Calls on Other Parties to Fulfil Commitments (May 8, 2018), at https://www.un.org/press/en/2018/sgsmn19022.doc.htm.
32 Thomas Erdbrink & Rick Gladstone, Iran Rallies Against U.S. and Warns Europe Over Endangered Nuclear Deal, N.Y. Times (May 11, 2018), at https://www.nytimes.com/2018/05/11/world/middleeast/iran-nuclear-deal.html?rref=collection%2Fsectioncollection%2Fmiddleeast&action=click&contentCollection=middleeast®ion=stream&module=stream_unit&version=latest&contentPlacement=20&pgtype=sectio.
33 Letter from M. Javad Zarif, Iranian Foreign Minister, to António Guterres, UN Secretary General (May 10, 2018), at http://en.mfa.ir/index.aspx?fkeyid=&siteid=3&pageid=36409&newsview=514551.
34 Russian FM: Moscow Regrets US Decision to Withdraw from Iran Nuclear Deal, Sputnik (May 9, 2018), at https://sputniknews.com/russia/201805091064271245-russia-iran-nuclear-deal-usa.
35 Trump Withdrew from the Iran Deal. Here's How Republicans, Democrats and the World Reacted, N.Y. Times (May 8, 2018), at https://www.nytimes.com/2018/05/08/world/middleeast/trump-iran-deal-republicans-democrats-world-reactions.html?rref=collection%2Fsectioncollection%2Fmiddleeast&action=click&contentCollection=middleeast®ion=stream&module=stream_unit&version=late. Some initial reactions from leading members of Congress were mixed, splitting largely on partisan lines. See id.
36 United Kingdom Press Release, Joint Statement from Prime Minister May, Chancellor Merkel and President Macron Following President Trump's Statement on Iran (May 8, 2018), at https://www.gov.uk/government/news/joint-statement-from-prime-minister-may-chancellor-merkel-and-president-macron-following-president-trumps-statement-on-iran.
37 Compare Katayoun Hosseinnejad & Pouria Askary, The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal, Opinio Juris (May 21, 2018), at http://opiniojuris.org/2018/05/21/the-international-community-and-the-challenge-to-the-rule-of-law-the-future-of-iran-nuclear-deal (arguing that it is a binding obligation) with John Bellinger, The New UNSCR on Iran: Does It Bind the United States (and Future Presidents)?, Lawfare (July 18, 2015), at https://www.lawfareblog.com/new-unscr-iran-does-it-bind-united-states-and-future-presidents (arguing that it is not a binding obligation).
38 Matthew Weybrecht, State Department Affirms That Iran Deal Is Only a Political Commitment, Lawfare (Nov. 28, 2015), at https://www.lawfareblog.com/state-department-affirms-iran-deal-only-political-commitment.
39 See UN Charter Art. 25 (“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”).
40 SC Res. 2231, supra note 5, at para. 2.
41 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ Rep. 16, 51–53 (June 21) (finding paragraph 5 of Resolution 276—which “calls upon all states” to refrain from certain dealings with South Africa—to bindingly give rise to an “obligation to accept and carry [it] out”).
42 See SC Res. 2231, supra note 5, para. 7(b); Annex B, para. 3.
43 Secretary of State Mike Pompeo, Remarks, After the Deal: A New Iran Strategy (May 21, 2018), at https://www.state.gov/secretary/remarks/2018/05/282301.htm [https://perma.cc/3C7G-RE5J].
47 European Commission Press Release, European Commission Acts to Protect the Interests of EU Companies Investing in Iran as Part of the EU's Continued Commitment to the Joint Comprehensive Plan of Action (May 18, 2018), at http://europa.eu/rapid/press-release_IP-18-3861_en.htm.
49 Iran Seeks Assurances on Nuclear Deal After US Pullout, N.Y. Daily News (May 25, 2018), at http://www.nydailynews.com/newswires/news/world/iran-seeks-assurances-nuclear-deal-pullout-article-1.4009017.
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